*1 KATHERINE POLK FAILLA, District Judge:
Plaintiffs Edwin Figueroa-Torres, Nicolas Peterson, Ruben Figueroa Torres, Alex Candelario, German Pena, and Luis Macias perform maintenance
and other services at several apartment buildings in the Bronx. At the outset
of this case, Plaintiffs brought claims against David Kleiner, Ignatie Fried,
Moshe Lieb, and Yisrael Feldman (the “Individual Defendants”), as well as
certain business entities owned or managed by the Individual Defendants (the
“Business Defendants,” and together with the Individual Defendants,
“Defendants”), for unpaid minimum wage and overtime and related violations of
the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. §§ 201-219; the New York
Labor Law (the “NYLL”), N.Y. Lab. Law §§ 195, 198, 650-665; the New York City
Human Rights Law (the “NYCHRL”), N.Y.C. Admin. Code §§ 8-107 to 8-134;
and 42 U.S.C. § 1981. Plaintiffs later amended their pleadings to add an
additional unlawful wage deduction claim under the NYLL and retaliation *2 claims under the FLSA and the NYLL, alleging that Defendants retaliated
against them for initiating this lawsuit, in part, by tricking and coercing them
into joining a labor union, deducting union dues from their paychecks,
negotiating collective bargaining agreements with the union that included
mandatory arbitration provisions, and then moving to compel arbitration of
Plaintiffs’ wage-and-hour claims against Defendants.
Defendants now move to dismiss Plaintiffs’ unlawful wage deduction and retaliation claims for lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1) and for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). For the reasons that follow, the Court grants
Defendants’ motion in part and denies the motion in part.
BACKGROUND [1] A. Factual Background
1. The Parties
Defendants are the owners, managers, and management companies of various residential buildings in the Bronx, New York. (SAC ¶ 1). Plaintiffs are
manual workers who collectively perform building maintenance, electrical
*3 work, carpentry, small-scale construction, and administrative work for
Defendants. ( Id. at ¶ 2). Plaintiffs allege that, although nominally distinct entities, the Business Defendants are in fact a single integrated entity
controlled and managed by Defendant David Kleiner. ( Id. at ¶ 353). [2] Of the
Individual Defendants, Kleiner is alleged to exercise the most significant degree
of control over the Business Defendants and, by extension, Plaintiffs. ( Id. at
¶ 20). In particular, Kleiner is responsible for determining the Business
Defendants’ wage policies, employee work schedules, pay rates, record-keeping
practices, and day-to-day labor operations. ( Id. at ¶ 26). The remaining
Individual Defendants serve under Kleiner and exercise control over Plaintiffs’
working conditions on his behalf. ( at ¶ 27).
2. Defendants’ Alleged Wage-and-Hour Violations Plaintiffs allege that Defendants systematically refused to pay Plaintiffs minimum wage, overtime, or timely wages, and falsified their employment and
timekeeping records. (SAC ¶ 1). As Defendants do not seek to dismiss the
claims based on these allegations, the Court will not discuss them further here.
3. Defendants’ Alleged Retaliation
Of greater relevance to the present motion, Plaintiffs allege that soon after filing this action, Defendants “separately approached Plaintiffs (only one
of whom is fluent in English) ex parte and instructed them to place their
signatures on pieces of paper written in English allegedly committing them to
*4 be in Defendants’ preferred union, Amalgamated Local 298 Eastern States
Joint Board, International Union of Allied Novelty and Production Workers,
AFIL-CIO (“Local 298” or the “Union”)[.]” (SAC ¶ 576).
As an example of Defendants’ efforts to induct them into Local 298, Plaintiffs allege that Defendants attempted to convince Plaintiff German Pena
to sign a union membership card on two occasions. The first alleged instance
occurred on July 29, 2020, when Defendant Yisrael Feldman asked Pena to
sign a union card that “would have made him a member of Defendants’ hand-
picked union.” (SAC ¶ 577). Plaintiffs allege Feldman did so “to be able to
claim that German Pena can no longer maintain this lawsuit in federal court
due to the mandatory arbitration provisions in whatever collective bargaining
agreement that union had or would have with Defendants[.]” ( Id. at ¶ 578).
Despite Feldman’s efforts, Pena did not sign the card. ( Id. at ¶ 579).
Defendants’ second alleged attempt to induce Pena into joining Local 298 occurred on November 30, 2020. (SAC ¶ 580). On that date, Defendant Ignatie
Fried called Pena asked to meet in the Bronx. ( Id. ). When Pena arrived, Fried
asked him to get into his car and showed him two checks. ( Id. at ¶¶ 581-582).
The first check was for $500 and represented the amount of vacation pay that
Defendants had not given Pena in 2020; the second check was for $1,000. ( Id. at ¶ 582). Although Fried did not explain what the second check was for, he
told Pena that he could have both checks if Pena signed certain papers
indicating his support for Local 298. ( ; see also id. at ¶ 578). Fried refused,
however, to provide Pena with a copy of the papers, to allow him to take a *5 picture of the documents, or even to read them before signing them. ( Id. at
¶¶ 583-586). Fried then made several comments to Pena that implicated this
wage-and-hour suit, including that it can take years for a case to be resolved
and years more to get anything even if Pena were to win; that he would not get
anything from the lawyer or the case; that Defendants had been very good to
Pena; that lawyers only care about money; that by the time Pena would get
anything he would no longer be employed by Defendants; and that if Pena did
not sign the papers, Fried would take the checks back. ( Id. at ¶¶ 586-589).
Pena interpreted Fried’s statements as a threat to fire him, but nevertheless
declined to sign the papers and never received the checks. ( Id. at ¶¶ 588-589).
Defendants made similar efforts to induce the other Plaintiffs into selecting Local 298 as their bargaining representative. (SAC ¶ 596). While
Plaintiff Edwin Figueroa-Torres was able to resist Defendants’ efforts ( id. at
¶ 598), Plaintiffs Nicolas Peterson, Ruben Figueroa Torres, Alex Candelario,
and Luis Macias allegedly ceded to Defendants’ demands after being coerced
and tricked into signing documents indicating their support for Local 298 ( id.
at ¶ 596). According to Plaintiffs, “none of them wanted to be in the union or
had any idea they were signing something relating to a union.” ( at ¶ 576).
Following these alleged interactions between Defendants and Plaintiffs, on September 24, 2020, “without Plaintiffs’ knowledge that they were allegedly
members of any union, much less Defendants’ union,” Local 298 entered into
collective bargaining agreements with Defendants Tiebout II Associates, LLC
(Weinberger Decl., Ex. E); 2335 Valentine LLC ( id. , Ex. F); and 1665 Monroe *6 Associates LLC ( id. , Ex. G) (together, the “Collective Bargaining Agreements”).
(SAC ¶ 599). The Collective Bargaining Agreements provided that Local 298
would serve as the “exclusive bargaining agent for all full-time and regular
part-time building service employees” working at each of the buildings
associated with the Business Defendants. (Weinberger Decl., Ex. E). [3] The
agreements further mandated that “all claims brought … under the [FLSA], the
[NYLL] … or any similar laws … shall be subject to” the arbitration procedures
set forth in the Collective Bargaining Agreements. ( Id. , § 4.D.1). The Collective
Bargaining Agreements’ arbitration provisions applied to all “claims that the
employee has or ever had .” ( Id. (emphasis added)). Finally, the agreements
stated that “[t]he parties agree not to contest court confirmation of an
arbitration award rendered under” the arbitration provisions. ( Id. , § 4.D.6).
Plaintiffs allege that Defendants engaged in the foregoing actions so as to divest this Court of jurisdiction over the case and place the resolution of their
claims in the hands of “Defendants’ preferred arbitrator,” thereby depriving
Plaintiffs of “valuable rights,” including the “right not to be conscripted into
Defendants’ union”; the right to litigate, not arbitrate, their claims; the right to
a jury trial; and the right to appeal any decision made on their claims. (SAC
¶ 600). Defendants would not have undertaken these actions, on Plaintiffs’
view, but for Plaintiffs’ decision to file this wage-and-hour lawsuit. ( at
*7 ¶ 613). In Plaintiffs’ words, Defendants’ actions have caused them “stress,
uncertainty, suspicion, and feelings of loss of control[.]” ( Id. at ¶ 615).
B. Procedural Background
1. The Underlying and First Amended Complaints Plaintiffs filed the underlying Complaint in this case on June 24, 2020, asserting wage-and-hour and discrimination claims. (Dkt. #1). Defendants
filed an initial Answer to the Complaint on September 9, 2020 (Dkt. #48), and
an amended Answer on September 30, 2020 (Dkt. #49). The Amended Answer
raised as a new affirmative defense that “Plaintiffs are barred and precluded
from maintaining this court action because the asserted claims are subject to
arbitration under a collective bargaining agreement.” ( at 59).
On November 25, 2020, Defendants filed a pre-motion letter requesting leave to file a motion to compel arbitration under the Collective Bargaining
Agreements. (Dkt. #52). [4] The Court ordered the parties to be prepared to
address Defendants’ contemplated motion at the initial pretrial conference
scheduled for December 9, 2020. (Dkt. #53). At that conference, the Court
granted Plaintiff leave to file an amended complaint and set a briefing schedule
for Defendants’ motion to compel arbitration. ( See Minute Entry for
December 9, 2020). Thereafter, on December 30, 2020, Plaintiffs filed an
Amended Complaint, which asserted additional claims under 42 U.S.C. § 1981 *8 and the NYLL. (Dkt. #58). Defendants then filed an Answer to the Amended
Complaint on January 13, 2021. (Dkt. #59).
2. The National Labor Relations Board Proceedings On January 19, 2021, Plaintiffs filed an unfair labor practice charge with the National Labor Relations Board (the “NLRB”). (SAC ¶ 603; see also
Weinberger Decl., Ex. A (the “NLRB Complaint”)). The NLRB Complaint
asserted unfair labor practice claims against Kleiner, Tiebout II Associates LLC,
2335 Valentine LLC, and 1665 Monroe Associates LLC (the “Charged Parties”).
(NLRB Complaint at 1). In particular, the NLRB Complaint alleged:
Employer has unlawfully supported and dominated a labor organization, interfered with and coerced employees in the exercise of their [National Labor Relations Act (“NLRA”] rights. Employer instructed Petitioners (all but one of whom are not fluent in English) to sign a piece of paper which, unbeknownst to them, would make them part of Employer’s hand-picked union. Petitioners never wanted to be in Employer’s hand-picked union.
( ). On May 24, 2021, the NLRB entered into settlement agreements with the
Charged Parties. (SAC ¶ 608; Weinberger Decl., Ex. B (the “NLRB
Settlements”)). Pursuant to the NLRB Settlement Agreements, the Charged
Parties agreed, among other things, (i) not to recognize Local 298 as Plaintiffs’
union; (ii) not to instruct their employees to sign authorization cards for Local
298 or any other union; and (iii) not to recognize Local 298 or any other union
at a time when that union did not represent an uncoerced majority of
employees. (NLRB Settlement Agreements).
3. Defendants’ Motion to Compel Arbitration Certain developments in this litigation occurred concurrently with the NLRB proceedings. On January 29, 2021, Defendants filed a motion to compel
arbitration and dismiss the Amended Complaint. (Dkt. #60-63). Plaintiffs filed
a brief and supporting documents in opposition to Defendants’ motion on
March 11, 2021. (Dkt. #67-68). On April 5, 2021, however, Local 298
disclaimed interest in serving as Plaintiffs’ bargaining representative. (Dkt.
#73-1). Following Local 298’s announcement, Defendants notified the Court on
April 8, 2021, that they would likely withdraw their motion to compel
arbitration. (Weinberger Decl., Ex. C (Email from Defense Counsel)).
Defendants’ anticipated withdrawal of their motion to compel arbitration did not end the matter. On April 10, 2021, Plaintiffs filed a letter requesting a
conference to address “Defendants’ scheme to divest this Court of its
jurisdiction[.]” (Dkt. #73 at 1). Plaintiffs asserted in the letter that Defendants
had engaged in “trickery and coercion” that had “disrupted the progress of this
case, required the filing of two separate unfair labor practice proceedings before
the NLRB, needlessly increased the complexity of this dispute, and necessitated
the expenditure of a substantial amount of time and resources.” ( ). In
addition, Plaintiffs indicated their intent to amend their pleading to bring
retaliation claims stemming from this scheme. ( Id. at 2). Defendants then filed
a responsive letter on April 14, 2021, confirming their withdrawal of their
pending motion to compel arbitration, but disputing the remainder of Plaintiffs’
arguments made in their April 10, 2021 letter. (Dkt. #74).
In response to the parties’ competing letters, the Court ordered the parties to appear for a telephonic conference on May 28, 2021. (Dkt. #75). At
the conference, the Court authorized Plaintiffs to file a second amended
complaint and directed Defendants to file a letter stating whether they intended
to answer the second amended complaint or proceed directly to motion
practice. ( See Minute Entry for May 28, 2021).
4. The Second Amended Complaint
Plaintiffs filed the Second Amended Complaint (the “SAC”), which is the operative pleading in this matter, on June 3, 2021. (Dkt. #78). [5] In it, Plaintiffs
added additional allegations to their ninth, tenth, and eleventh causes of
action. With particular respect to their ninth cause of action for unlawful
deduction of wages under the NYLL, Plaintiffs added a new allegation that
Defendants had impermissibly deducted unauthorized union dues from
Plaintiffs’ paychecks. (SAC ¶¶ 572-573). Plaintiffs also supplemented their
tenth and eleventh causes of action with new allegations that Defendants had
engaged in impermissible retaliation under the FLSA and the NYLL by coercing
and tricking Plaintiffs into signing union cards, negotiating the Collective
Bargaining Agreements containing mandatory arbitration provisions, and then
filing a motion to compel arbitration pursuant to these duplicitous Collective
Bargaining Agreements. ( at ¶¶ 575-619 (FLSA); id. at ¶¶ 620-624 (NYLL)).
On July 16, 2021, Defendants filed a motion to dismiss certain of the claims asserted in the SAC (Dkt. #85-87) and an Answer as to the claims not
subject to their motion (Dkt. #88). Plaintiffs filed a brief and supporting papers
in opposition to Defendants’ motion on August 31, 2021. (Dkt. #91-92).
Defendants submitted their reply brief on September 30, 2021 (Dkt. #94).
Accordingly, the motion is fully briefed and ripe for the Court’s decision.
DISCUSSION A. The Court Grants Defendants’ Motion to Dismiss Certain of
Plaintiffs’ Claims of Unlawful Wage Deduction and Retaliation Under Federal Rule of Civil Procedure 12(b)(1)
Defendants move to dismiss portions of three of the eleven counts alleged in the SAC for lack of subject matter jurisdiction under Rule 12(b)(1). (Def.
Br. 7). In particular, Defendants contend that the Court lacks jurisdiction over
certain of Plaintiffs’ claims for (i) unlawful wage deduction in violation of the
NYLL; (ii) unlawful retaliation in violation of the FLSA; and (iii) unlawful
retaliation in violation of the NYLL. [6] Defendants argue that the claims are
*12 either preempted or precluded by the NLRA, 29 U.S.C. §§ 157, 158. (Def. Br. 6-
15). The Court agrees. As explained below, the Court lacks jurisdiction over
Plaintiffs’ claims that implicate violations of the NLRA that could be (and in
some cases were) presented to the NLRB.
1. Applicable Law
A “plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Makarova v. United
States
,
of subject matter jurisdiction ... when the district court lacks the statutory or
constitutional power to adjudicate it.” Huntress United States , 810 F. App’x
74, 75 (2d Cir. 2020) (summary order) (quoting
Makarova
,
resolving a Rule 12(b)(1) motion to dismiss, “[t]he court must take all facts
alleged in the complaint as true and draw all reasonable inferences in favor of
[the] plaintiff, ... but jurisdiction must be shown affirmatively, and that
showing is not made by drawing from the pleadings inferences favorable to the
party asserting it.”
Morrison
v.
Nat’l Austl. Bank Ltd.
,
Cir. 2008) (internal citation and quotation marks omitted).
When jurisdiction is contested, a court is permitted to consider evidence outside the pleadings, such as affidavits and exhibits. See Zappia Middle E.
Constr. Co.
v.
Emirate of Abu Dhabi
,
Tandon
v.
Captain’s Cove Marina of Bridgeport, Inc.
,
2014). In this case, the Court considers the affidavits and exhibits attached
thereto submitted by both parties in connection with Defendants’ motion to *13 dismiss, including (i) the declaration of Stuart Weinberger in support of
Defendants’ motion to dismiss (“Weinberger Decl.” (Dkt. #86)) and (ii) the
declaration of Scott A. Lucas in opposition to Defendants’ motion (“Lucas Decl.”
(Dkt. #92, 100)). [7] The Court also considers the parties’ briefing on Defendants’
motion to dismiss or stay this lawsuit and compel arbitration (Dkt. #62
(Defendants’ memorandum of law in support of their motion to compel
arbitration and dismiss or stay claims pending arbitration)); Dkt. #68
(Plaintiffs’ memorandum of law in opposition to Defendants’ motion to compel
arbitration)), which is referred to throughout the SAC ( see, e.g. , SAC ¶ 604).
2. Analysis
Defendants’ preemption arguments rely on what is known as “ Garmon preemption.” (Def. Br. 6-7). The Garmon preemption doctrine takes its name
from
San Diego Building Trades Council Garmon,
which the Supreme Court held that “[w]hen an activity is arguably subject to
[Section] 7 or [Section] 8 of the [National Labor Relations] Act, the States as
well as the federal courts must defer to the exclusive competence of the
National Labor Relations Board if the danger of state interference with national
policy is to be averted.” at 245. [8] Garmon preemption “is intended to preclude state interference with the National Labor Relations Board’s
*14 interpretation and active enforcement of the ‘integrated scheme of regulation’
established by the NLRA.”
Chamber of Com. of U.S.
v.
Brown
,
(2008) (quoting
Golden State Transit Corp.
v.
Los Angeles,
(1986)).
Although Garmon speaks in broad and categorical terms, the Supreme Court has since clarified that “inflexible application of the doctrine is to be
avoided, especially where the State has a substantial interest in regulation of
the conduct at issue and the State’s interest is one that does not threaten
undue interference with the federal regulatory scheme.” Farmer v. Carpenters ,
literal, mechanical fashion,” Sears, Roebuck & Co. San Diego Cnty. Dist.
Council of Carpenters
,
has instructed that courts must resolve issues of Garmon preemption with
reference to “‘the nature of the particular interests being asserted and the effect
upon the administration of national labor policies’ of permitting the … court to
proceed,”
id.
at 189 (quoting
Vaca Sipes
,
This more flexible approach to Garmon preemption is illustrated by the Supreme Court’s decision in Sears , which addressed the question of whether
an action brought to enforce state trespass laws against picketing was
preempted by the NLRA.
the considerations that bear on whether a state law claim is preempted by the
“arguably prohibited” (as opposed to the “arguably protected”) prong of the
Garmon doctrine. at 196. “The critical inquiry” in such a case, the
Supreme Court explained, “is not whether the State is enforcing a law relating
specifically to labor relations or one of general application[.]” Id. at 197.
Rather, whether a claim is preempted because it pertains to conduct that is
arguably prohibited by the NLRA is resolved by determining “whether the
controversy presented to the state court is identical to … or different from …
that which could have been, but was not, presented to the Labor Board.” Id.
The Supreme Court reasoned that “it is only in the former situation that a …
court’s exercise of jurisdiction necessarily involves a risk of interference with
the unfair labor practice jurisdiction of the Board[,] which the arguably
prohibited branch of the
Garmon
doctrine was designed to avoid.” ;
see also Belknap, Inc. Hale
,
rules, where the conduct at issue in the state litigation is said to be arguably
prohibited by the Act and hence within the exclusive jurisdiction of the NLRB,
is whether the controversy presented to the state court is identical with that
which could be presented to the Board”).
Following the Supreme Court’s decisions in Garmon and Sears , “the Second Circuit has outlined a three-step inquiry for courts to determine if any
particular claim is subject to Garmon preemption.” Andrewsikas Supreme
Indus., Inc.
, No. 19 Civ. 574 (JAM),
2021). The Court “begin[s] by identifying whether any specific provision of
[S]ections 7 or 8 of the NLRA actually or arguably prohibits or protects the
conduct that is the subject of state regulation.” Healthcare Ass’n of N.Y. State,
Inc.
v.
Pataki
,
(or induce its adversary to bring) before the NLRB.” Id. “If not, the State’s
action could still be preempted, but only if there is a strong showing that the
State has interfered with the protections offered by [S]ection 7 or 8 of the
NLRA.” Id. Lastly, the Court “consider[s] whether the regulated conduct
touches interests ‘deeply rooted in local feeling and responsibility,’ so that the
State’s action should not be preempted despite affecting conduct ‘arguably’
[prohibited] by the NLRA.” (quoting
Garmon
,
Although preemption is generally a “defense that goes to the merits of a claim, not to subject matter jurisdiction,” Lanier v. Bats Exch., Inc. , 838 F.3d
139, 146 n.5 (2d Cir. 2016), the Second Circuit has found subject matter to be
lacking over claims that are subject to Garmon preemption. See, e.g., Am.
Fed’n of Musicians & Employers’ Pension Fund v. Neshoma Orchestra & Singers,
Inc.
,
it lacked subject matter jurisdiction over claim subject to Garmon preemption);
see also Estevez Consol. Bus Transit, Inc. , No. 15 Civ. 7634 (RA), 2016 WL
3448627, at *10 (S.D.N.Y. June 20, 2016) (dismissing claim for lack of subject
matter jurisdiction after finding it to be precluded under Garmon ); see generally
Trollinger Tyson Foods, Inc.
,
that “ Garmon is more than a traditional preemption doctrine … because when
properly invoked it tells us not just what law applies (federal law, not state law)
but who applies it (the [NLRB], not the state courts or federal district courts)”).
a. Unlawful Wage Deductions The Court begins by addressing its jurisdiction over Plaintiffs’ claim for unlawful wage deductions under the NYLL. Although Plaintiffs allege several
distinct unlawful deductions, Defendants’ preemption argument is limited to
Plaintiffs’ claim that Defendants made “unauthorized deductions from various
Plaintiffs’ pay in early 2021 for purported union dues[.]” (Def. Br. 7-9; see also
SAC ¶ 572). Plaintiffs allege as part of this claim that “[e]ven if some of those
deductions had been authorized (which Plaintiffs deny), they would have still
been impermissible because … they were for Defendants’ benefit rather than
Plaintiffs’.” (SAC ¶ 573). For these alleged violations, Plaintiffs seek the
amount of the unauthorized deductions and liquidated damages. ( at ¶ 574).
Plaintiffs’ unlawful deduction claim, insofar as it challenges Defendants’ alleged deductions of union dues, is preempted by Section 8 of the NLRA. See
29 U.S.C. § 158. Plaintiffs’ allegations made in support of their claim, if
proven, would establish a plausible violation of Section 8, because the NLRB
“has long held that employers and unions engage in unfair labor practices
under Sections 8(a)(1)-(3) and 8(b)(1)(A) of the [NLRA] if they check off union
dues without an employee’s valid authorization.” Stewart Nat’l Lab. Rels.
Bd.
,
United Food & Com. Workers Dist. Union Loc. One, AFL-CIO N.L.R.B. , 975 F.2d
40, 44 (2d Cir. 1992) (stating that “[c]heck off authorizations must be
voluntary”). As such, Plaintiffs’ claim is identical to one that could be brought
before the NLRB. Indeed, the NLRB explained as much in a May 24, 2021
letter to Plaintiffs’ counsel, when it advised Plaintiffs that they were “not
foreclosed from pursuing” their unlawful wage deduction allegations before the
NLRB. (Lucas Decl., Ex. 3). Further, it is also clear that this aspect of
Plaintiffs’ unlawful wage deduction claim does not touch on interests so deeply
rooted in local concerns that would make preemption inappropriate. See
Garmon
,
conduct that is squarely within the ambit of the NLRA. See Stewart , 851 F.3d
at 23; see also Sarauer Int’l Ass’n of Machinists & Aerospace Workers, Dist.
No. 10
,
“employer’s failure to keep records of plaintiffs’ check-off authorizations while
continuing to make deductions” would allege “an arguable unfair labor practice
within the [NLRB’s] exclusive jurisdiction” under Garmon ).
Accordingly, the Court finds that Plaintiff’s unlawful wage deduction claim predicated on the allegation that Defendants deducted union dues from
Plaintiffs’ paychecks without their permission is preempted by the NLRA. The
Court therefore grants Defendants’ motion to dismiss this claim. [9]
b. Retaliation Under the NYLL The Court next addresses its jurisdiction over Plaintiffs’ retaliation claim alleged under the NYLL. In support of this claim, Plaintiffs allege that
Defendants retaliated against them for filing the present lawsuit by tricking
and coercing them into signing union membership cards; entering into the
*19 Collective Bargaining Agreements with Local 298 that contained provisions
mandating the arbitration of all past, present, and future wage-and-hour
claims; and then filing a motion to compel the arbitration of their federal and
state wage-and-hour claims. (SAC ¶¶ 576, 596, 600, 612-613). Defendants
argue that this claim is also preempted by the NLRA because “the allegations
which form the very basis of the potential retaliation claim — coercion — are
squarely and indisputably covered by the NLRA.” (Def. Br. 12). Although the
Court does not adopt Defendants’ preemption analysis, it ultimately agrees that
Plaintiffs’ retaliation claim under the NYLL is preempted by the NLRA.
Beginning with the first step of the Garmon analysis, the alleged conduct at the core of Plaintiffs’ claim, if proven, would likely establish at least an
arguable violation of the NLRA.
See Pataki
,
that Defendants responded to the filing of the present case by coercing and
tricking Plaintiffs into selecting Local 298 as their bargaining representative
and then working with Local 298 to develop collective bargaining agreements
that would force Plaintiffs to arbitrate their wage-and-hour claims. ( See, e.g. ,
SAC ¶¶ 576, 596, 599). These allegations raise a plausible violation of Section
8 of the NLRA, which makes it an unlawful labor practice for an employer “to
dominate or interfere with the formation or administration of any labor
organization or contribute financial or other support to it.” 29 U.S.C.
§ 158(a)(2);
see also Corbel Installations, Inc.
,
they signed union membership cards was “coercive and constitutes unlawful
assistance in violation of Section 8(a)(2) and (1) of the [NLRA]”); Dairyland USA
Corp.
,
by “directing employees to meet with a union representative to sign an
authorization card and having a supervisor or company official present when
cards are signed”), enforced , NLRB v. Local 348-S, United Food & Commercial
Workers Int’l Union
,
both parties agree that Plaintiffs’ retaliation claim alleges behavior that is
arguably prohibited by the NLRA. ( See Def. Br. 8 (arguing that, if the Court
were to accept Plaintiffs’ allegations as true, the alleged conduct would amount
to a violation of the NLRA); NLRB Complaint at 2 (arguing that Defendants’
alleged actions violated Section 8 of the NLRA)).
The second step of the Garmon preemption inquiry, which asks whether the controversy presented by Plaintiffs’ retaliation is identical to a labor claim
that could be heard by the NLRB, presents a closer call. See Pataki , 471 F.3d
at 96. It is undisputed that several of Plaintiffs’ allegations advanced in this
case are identical to ones that Plaintiffs brought before the NLRB. For
instance, in the NLRB Complaint, Plaintiffs alleged that the Charged Parties
had “unlawfully supported and dominated a labor organization” and “interfered
with and coerced employees in the exercise of their NLRA rights.” (NLRB
Complaint at 1). To that end, Plaintiffs alleged that the Charged Parties had
“instructed Petitioners (all but one of whom are not fluent in English) to sign a
piece of paper which, unbeknownst to them, would make them part of
Employer’s hand-picked union.” ( ). Similarly, in support of their retaliation
claim in this case, Plaintiffs again allege that Defendants “approached Plaintiffs
(only one of whom is fluent in English) ex parte and instructed them to place
their signatures on pieces of paper written in English allegedly committing
them to be in Defendants’ hand-picked union[.]” (SAC ¶ 576). These
allegations repeat, nearly word-for-word, those that were presented to, and
reviewed by, the NLRB. ( Compare id., with NLRB Settlements).
Yet the fact that Plaintiffs’ unfair labor practice and retaliation claims arise out of the same basic factual circumstances does not, on its own,
mandate the application of Garmon preemption. This is clear from the
Supreme Court’s decisions in Farmer and Sears , where the Court found
Garmon preemption inapplicable despite the fact that both controversies “arose
in the same factual setting” as arguable labor law violations. Sears , 436 U.S.
at 196-98 (finding a state claim not to be preempted despite arising out of
picketing activity that arguably violated the NLRA);
Farmer
,
(same);
see also Domnister Exclusive Ambulette, Inc.
,
2010) (explaining in the removal jurisdiction context that Garmon preemption
was inappropriate where plaintiffs alleged violations of their labor rights in a
separate federal complaint, but did not in their state complaint).
Rather, as the Supreme Court’s decisions in this area demonstrate, the NLRA will preempt Plaintiffs’ retaliation claim only if the claim would present
the same controversy that was or could be presented to the NLRB. See Sears ,
the controversies would be identical across the two proceedings, the Court
considers the elements of Plaintiffs’ retaliation claim and unfair labor practice
charges. If Plaintiffs would be required to put forward the same proof in
support of both their state claim and the unfair labor practice charge, then the
claim is identical to one that could and must be presented to the NLRB in the
first instance. See Loc. 926, Int’l Union of Operating Engineers, AFL-CIO v.
Jones
,
preemption applicable where “the same crucial element must be proved to
make out” both the state claim and an unfair labor practice charge under
Section 8 of the NLRA); see also Pennsylvania Nurses Ass’n v . Pennsylvania
State Educ. Ass’n
,
preemption where “much of the conduct forming the basis of the state tort
claims also underlies the potential unfair labor practice charges, and the same
facts would need to be determined in each proceeding”).
To prevail on their NYLL retaliation claim, Plaintiffs will be required to demonstrate “[i] participation in protected activity known to the defendant, like
the filing of a FLSA lawsuit; [ii] an employment action disadvantaging the
plaintiff; and [iii] a causal connection between the protected activity and the
adverse employment action.”
Mullins City of New York
,
Cir. 2010); see also Daniels Am. Airlines, Inc. , No. 19 Civ. 3110 (MKB), 2022
WL 493573, at *5 (E.D.N.Y. Feb. 17, 2022) (noting that the same standard
applies to retaliation claims alleged under the FSLA and the NYLL). The
allegations in the SAC relevant to these elements include that Defendants
(i) coerced and tricked Plaintiffs into signing documents indicating their *23 support for Local 298 (SAC ¶¶ 596); (ii) entered into Collective Bargaining
Agreements that contained mandatory arbitration provisions ( id. at ¶¶ 599-
600); and (iii) filed a motion to compel arbitration of Plaintiffs’ wage-and-hour
claims ( id. at ¶ 601).
As reflected in both parties’ briefs, whether Plaintiffs’ allegations are sufficient to state a retaliation claim under the NYLL is appropriately analyzed
under a line of cases addressing whether litigation filings, such as a complaint
or counterclaim, can constitute an adverse employment action sufficient to
satisfy the second element of a retaliation claim. ( See Def. Br. 18-19; Pl.
Opp. 5). “The courts in this Circuit have held that the filing of ‘baseless claims
or lawsuits designed to deter claimants from seeking legal redress constitute
impermissibly adverse retaliatory actions.’” Kim v. Lee, No. 21 Civ. 3552 (LJL),
Operating Corp.
,
a claim of retaliation based on the filing of a lawsuit or a counterclaim, the
plaintiff must allege both that [i] the lawsuit or counterclaim was filed both
‘with a retaliatory motive’ and that [ii] it was filed ‘without a reasonable basis in
fact or law.’” (collecting cases). [10] The Court assumes, for the purposes of
*24 this jurisdictional analysis, that Plaintiffs could sustain their retaliation claim
under the NYLL based on a plausible showing that Defendants’ motion to
compel arbitration was both made in bad faith and baseless.
Here, the resolution of whether Defendants’ motion to compel arbitration was baseless, and thus could constitute an adverse action, would necessarily
require the Court to inquire into labor matters that are entrusted to the NLRB’s
exclusive jurisdiction. Plaintiffs suggest in the SAC that Defendants’ motion
was baseless because the Collective Bargaining Agreements containing the
mandatory arbitration provisions were “void ab initio ” as a consequence of the
(recommending allowing a plaintiff to proceed with his claim for retaliation based on a
counterclaim that was “baseless or would not have been pursued absent a retaliatory motive” (emphasis added)), report and recommendation adopted , No. 15 Civ. 7397 (JS) (GRB),2018 WL 1701948 (E.D.N.Y. Mar. 31, 2018). A greater number of courts, however, have required that a filing made in the course of an ongoing litigation be both baseless and made in bad faith in order to constitute an adverse employment action for purposes of a retaliation claim. See Kim Lee , No. 21 Civ. 3552 (LJL), 2021 WL 6052122, at *11 (S.D.N.Y. Dec. 20, 2021) (collecting cases). “Absent both elements,” these latter courts have reasoned, “such a claim would raise First Amendment issues.” Id.
Several factual distinctions between this case and Rodriguez , the primary case finding that potentially meritorious claims made in bad faith may constitute an adverse action, lead the Court to adhere to the majority position among district courts in this Circuit. See Rodriguez ,2020 WL 3051559 . In particular, the alleged adverse action in Rodriguez was an entirely separate state court action. Id. at *5. Here, by contrast, the litigation filing at issue is a motion to compel arbitration. Plaintiffs in this case were thus never at risk of being held liable or ordered to pay damages. Moreover, in Rodriguez , the Court based its decision in part on the fact that a third party, not the defendant, was responsible for filing the alleged retaliatory action. In this case, Defendants authored the allegedly retaliatory motion to compel arbitration. ( See SAC ¶ 604). This case therefore more strongly implicates Defendants’ First Amendment “right of access to the courts[.]” Bill Johnson’s Restaurants, Inc. N.L.R.B. , 461 U.S. 731, 741 (1983); see also id. at 743 (holding that “[t]he filing and prosecution of a well- founded lawsuit may not be enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the [NLRA]”). For all these reasons, the Court declines on the facts of this case to depart from the majority position of courts in the Second Circuit that a litigation filing must be both made in bad faith and baseless to constitute a plausible adverse action for the purposes of a retaliation claim.
circumstances preceding their execution. (SAC ¶¶ 605-606). But whether
Defendants’ alleged actions, or other circumstances related to Defendants’
negotiation and execution of the Collective Bargaining Agreements with Local
298, rendered the Collective Bargaining Agreements void is not a matter that
can be resolved by reference to “the technical rules of contract law[.]” Cnty.
Concrete Corp. Nat’l Lab. Rels. Bd.
,
(unpublished decision) (stating that, in the labor context, “[w]hether or not an
agreement has been reached between two parties is a question of fact for the
[NLRB] to determine”). Rather, resolving the controversy presented by
Plaintiffs’ claim would require the Court to wade into such matters as whether
Plaintiffs were validly represented by Local 298 at the time Defendants filed
their motion and whether Local 298 and Defendants’ negotiations over the
Collective Bargaining Agreements constituted an unfair labor practice. These
determinations, in turn, would depend on the Court’s interpretation and
application of the substantive provisions of the NLRA.
Plaintiffs’ briefing in response to both the present motion and Defendants’ prior motion to compel arbitration confirms the centrality of these
labor law issues to their retaliation claim. In opposition to Defendants’ motion
to compel arbitration, Plaintiffs argued that the Court “should not place its
judicial imprimatur on the fruits of Defendants’ trickery and coercion, or the
union allowing itself to be used as Defendants’ instrumentality to deprive
Plaintiffs of valuable rights[.]” (Dkt. #68 at 2). Similarly, in opposition to the
instant motion to dismiss, Plaintiffs argue that their retaliation claim is not
preempted because, among other things, “[i] there is no employee-union or
employer-union relationship; [ii] the Purported CBAs are void; [and] [iii] there
would be no inconsistency between the NLRB’s unilateral settlements and a
subsequent finding that Defendants’ union never became Plaintiffs’
representative and that the Purported CBAs were void ab initio [.]” (Pl. Opp. 19).
These arguments confirm that the resolution of Plaintiffs’ retaliation claim will
require the Court to wade into labor law matters.
Thus, far from not “hav[ing] anything in common” with Plaintiffs’ state
law claim,
Belknap
,
dispositive of one of the elements of Plaintiffs’ retaliation claim. Because the
Court’s resolution of these issues would risk interfering with the “exclusive
competence of the” NLRB, Garmon dictates that the Court yield to the NLRB’s
primary jurisdiction.
Garmon
,
preempted by the NLRA, the States as well as the federal courts must defer” to
the NLRB);
see also Jones
,
In opposition, Plaintiffs point to “at least six fatal flaws” in Defendants’ position that, they contend, render Garmon preemption inapplicable here. (Pl.
Opp. 12). Of these six purported flaws, three are relevant to the Court’s
preceding preemption analysis. [11] First , pointing to cases in which courts have
*27 sanctioned parties under their inherent authority and Federal Rule of Civil
Procedure 11, Plaintiffs argue that their claim is not preempted because this
Court has inherent power to sanction the conduct alleged in the SAC. ( Id. at
12-13). “If this Court has the power to impose sanctions against Defendants,”
Plaintiffs ask, “then how could it be powerless to allow that recompense to be
determined in the context of a retaliation claim?” ( at 13). This is a non
sequitur . Plaintiffs have not moved for sanctions under Rule 11, the Court’s
inherent powers, or any other authority. Instead, Plaintiffs have filed a state-
law retaliation claim that, for the reasons just provided, “must yield to the
subordinating federal authority[.]”
Garmon
,
Second , Plaintiffs assert several arguments related to the NLRB’s participation in the present dispute, none of which is availing. (Pl. Opp. 14-
19). In the main, Plaintiffs’ argument is that the NLRB’s resolution of Plaintiffs’
unfair labor practice charges leaves this Court free to resolve all outstanding
issues remaining in the case. ( See, e.g. , id. at 15 (arguing that “the NLRB no
longer has any interest at stake in this dispute”); id. (stating that “[o]nce the
NLRB completes its work, the parties return to court for the resolution of any
remaining issues”); id. at 16 (suggesting that “[h]ad it viewed Plaintiffs’
FLSA/NYLL retaliation and unlawful deduction claims are interfering with its
jurisdiction, the NLRB would have presumably stated as much”)).
The flaw in Plaintiffs’ argument is that the NLRB has not resolved the labor law issues implicated by Plaintiffs’ retaliation claim. To be sure, Plaintiffs
pursued unfair labor practice charges before the NLRB ( see NLRB Complaint), *28 and the NLRB entered into settlement agreements with the Charged Parties
( see NLRB Settlement Agreements). But the NLRB did not determine whether
Defendants’ alleged conduct amounted to an unfair labor practice under the
NLRA. ( See NLRB Settlement Agreements at 1 (providing that by entering into
the settlement agreement, the “Charged Party does not admit that it has
violated the [NLRA]”)). Given that the NLRB has not resolved the legal
significance of Defendants’ actions under the NLRA, Plaintiffs’ claim, if it were
permitted to move forward, would require the Court to address in the first
instance a labor law issue that it lacks the power to address.
Third , Plaintiffs contend that their retaliation claim under the NYLL is not preempted because their retaliation claim under the FLSA is not precluded
and the two statutes proscribe the same conduct. (Pl. Opp. 19-21). Plaintiff’s
reasoning on this point begs the question: As the Court will explain, Plaintiffs’
retaliation claim under the FLSA is precluded. Plaintiffs’ argument is therefore
premised on an inaccurate conclusion of law.
Accordingly, on the record before it, the Court finds that Plaintiffs’ retaliation claim under the NYLL is preempted by the NLRA because it
implicates a controversy that could and must be addressed by the NLRB in the
first instance. See K.D. Hercules, Inc. Laborers Loc. 78 of Laborers’ Int’l Union
of N. Am.
, No. 20 Civ. 4829 (LGS),
2021) (holding that a claim was preempted under Garmon “because the SAC
alleges that Defendants’ actions giving rise to the … claim also constituted an
unfair labor practice”); Am. Fed’n of Musicians & Employers’ Pension Fund
Neshoma Orchestra & Singers, Inc.
, No. 17 Civ. 2640 (JGK),
at *4 (S.D.N.Y. May 23, 2018) (finding that because the “claim is identical to
one that could have been presented to the NLRB,” the claim was “within the
exclusive jurisdiction of the NLRB”),
aff’d
,
Fitzgerald v. Signature Flight Support Corp. , No. 13 Civ. 4026 (VB), 2014 WL
3887217, at *6 (S.D.N.Y. Aug. 5, 2014) (concluding that a claim that fell “within
the ambit of Section 8 of the NLRA” was preempted by the NLRA under
Garmon ). The Court therefore grants Defendants’ motion to dismiss the claim.
c. Retaliation Under the FLSA Lastly, the Court addresses its jurisdiction over Plaintiffs’ retaliation claim under the FLSA. At the outset, the Court notes that Defendants’
challenge to this federal claim raises an issue of preclusion, not preemption.
“The doctrine of preemption, which derives from the Supremacy Clause of the
U.S. Constitution, operates to render only state or local laws ‘without effect’ if
in conflict with federal law.”
Roache
v.
Long Island R.R.
,
166 (E.D.N.Y. 2020) (quoting
Altria Grp., Inc.
v.
Good
,
Preemption is therefore “inapplicable to a potential conflict between two federal
statutes.”
Tufariello Long Island R.R. Co.
,
Thus, the “appropriate way of framing Defendants’ argument is whether FLSA
reaches the alleged conduct and whether the claim is ‘precluded’ by the NLRA.”
Cortese Skanska Koch, Inc.
, No. 20 Civ. 1632 (LJL),
(S.D.N.Y. Feb. 8, 2021);
see also Roache
,
Defendants’ argument that Plaintiffs’ FLSA claim is precluded by the NLRA “cuts against well-established law that strongly disfavors preclusion of
one federal statute by another absent express manifestations of preclusive
intent.”
United States
v.
Sforza
,
not at liberty to pick and choose among congressional enactments, and when
two statutes are capable of co-existence, it is the duty of the courts, absent a
clearly expressed congressional intention to the contrary, to regard each as
effective.’” Id. (quoting Local 1814, Int’l Longshoremen’s Ass’n, AFL-CIO N.Y.
Shipping Ass’n,
presumption against preclusion, defendants must demonstrate a clear
congressional intent to preclude, or a positive repugnancy between the two
federal statutes.” (citing
Traynor Turnage
,
Here, despite the presumption against preclusion, the Court finds that Plaintiffs’ retaliation claim under the FLSA is precluded by the NLRA for the
reasons just discussed in the context of Plaintiffs’ NYLL retaliation claim. Like
Plaintiffs’ state law retaliation claim, the merits of their FLSA retaliation claim
would turn on whether Defendants’ motion to compel arbitration was baseless,
which is, in essence, a question of labor law. To put a finer point on it, the
baselessness of Defendants’ motion to compel arbitration depends on whether
Local 298 was validly selected as Plaintiffs’ collective bargaining representative
and whether Local 298 and Defendants permissibly negotiated and executed
the Collective Bargaining Agreements. Because the power to resolve these
issues is confined to the NLRB, Plaintiffs’ FLSA retaliation claim is precluded
by the NLRA.
See Cortese
,
under the FLSA to be precluded where it could not “be litigated in this case at
this stage under FLSA without doing violence to, and ultimately undermining,
the exclusive jurisdiction of the NLRB and the authority it was given under the
NLRA”);
see also Trollinger
,
Racketeer Influenced and Corrupt Organizations Act (“RICO”) that when an
“action depends upon a federal-law predicate offense and a violation of that
predicate law may be found only if the defendant’s conduct violates the NLRA,
the federal district courts lack jurisdiction under Garmon because the NLRA
issues in the case would be anything but collateral”); Adkins Mireles , 526
F.3d 531, 542 (9th Cir. 2008) (affirming district court’s finding that federal
RICO claims were preempted by the NLRA where the claims rested on alleged
conduct that was prohibited by Sections 7 and 8 of the NLRA). [12]
B. The Court Grants in Part and Denies in Part Defendants’ Motion to
Dismiss Under Federal Rule of Civil Procedure 12(b)(6) Defendants also move to dismiss Plaintiffs’ retaliation claims that are not subject to Garmon preemption on the ground that they fail to state a claim
upon which relief can be granted under Rule 12(b)(6). In particular,
Defendants move to dismiss Plaintiffs’ retaliation claims premised on
(i) Defendants’ alleged refusal to provide Plaintiffs with certain discretionary
*32 payments (Def. Br. 20-21); and (ii) Fried’s statements to Pena on November 30,
2020 ( id. at 21-24). [13] The Court finds that Plaintiffs have failed to state a claim based on Defendants’ alleged denial of discretionary payments. By contrast,
the Court finds that Plaintiffs have plausibly alleged retaliation claims under
the NYLL and the FLSA based on Fried’s statements to Pena.
1. Applicable Law
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead sufficient factual allegations “to state a claim to
relief that is plausible on its face.”
Bell Atl. Corp.
v.
Twombly
,
570 (2007). A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft
v.
Iqbal
,
“draw all reasonable inferences in Plaintiffs’ favor, assume all well-pleaded
factual allegations to be true, and determine whether they plausibly give rise to
an entitlement to relief.”
Faber Metro. Life Ins. Co.
,
2011) (internal quotation marks omitted). That said, the Court is “not required
*33 to credit conclusory allegations or legal conclusions couched as factual
allegations.”
Rothstein
v.
UBS AG
,
2. Analysis
Plaintiffs’ retaliation claims under the NYLL and the FLSA are subject to the three-step burden-shifting framework established in McDonnell Douglas
Corp. Green,
Daniels
,
alleging retaliation under FLSA [or the NYLL] must first establish a prima facie
case of retaliation by showing [i] participation in protected activity known to the
defendant, like the filing of a FLSA lawsuit; [ii] an employment action
disadvantaging the plaintiff; and [iii] a causal connection between the protected
activity and the adverse employment action.”
Mullins
,
pleading stage, a plaintiff is not required to allege specific evidence as to
each prima facie element, but rather must plead facts sufficient to render his
claim plausible.” Cabrera CBS Corp. , No. 17 Civ. 6011 (CM), 2018 WL
1225260, at *3 (S.D.N.Y. Feb. 26, 2018).
a. Defendants’ Refusal to Provide Discretionary Payments The Court begins with Plaintiffs’ claim that Defendants retaliated against them for filing the present suit by refusing to provide them with certain
discretionary payments. (SAC ¶ 610). Plaintiffs allege in support of this claim
that Defendants, “in or about December 2020, … handed out discretionary
payments to Defendants’ building service employees characterized as Covid
relief payments” of between $700 and $1,000,” but that Plaintiffs “were passed
over and conspicuously excluded from these payments.” ( ). Defendants argue that this claim must be dismissed because Plaintiffs have not alleged a
causal connection between their protected activity and the alleged adverse
employment action that they experienced. (Def. Br. 20).
“Proof of causation can be either ‘[i] indirect, by showing that the protected activity was followed closely by discriminatory treatment, or through
other circumstantial evidence such as disparate treatment of fellow employees
who engaged in similar conduct; or [ii] direct, through evidence of retaliatory
animus directed against the plaintiff by the defendant.’” Zuckerman v. GW
Acquisition LLC
, No. 20 Civ. 8742 (VEC),
Sept. 20, 2021) (internal alterations omitted) (quoting Hicks v. Baines , 593 F.3d
159, 170 (2d Cir. 2010));
accord Mullins
,
Here, the timing of Plaintiffs’ filing of the present litigation and Defendants’ alleged actions does not, on its own, establish a causal
relationship between the two. Although 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 Cornell Co-
op. Extension of Schenectady Cnty.
,
Supreme Court has suggested that the temporal proximity “must be very
close,”
Clark Cnty. Sch. Dist. Breeden
,
generally find two or three months to be the outer limit for alleging the
existence of causation based on temporal proximity.” Zuckerman , 2021 WL
4267815, at *17 (collecting cases). Plaintiffs allege that Defendants engaged in
their retaliatory actions approximately five months after Plaintiffs filed the
Complaint. ( See SAC ¶ 610; Dkt. #1). This temporal connection, absent
additional allegations suggesting that Defendants engaged in unlawful
retaliation, does not nudge Plaintiffs’ claim across the plausibility threshold.
See Perry
v.
NYSARC, Inc.
,
(noting that the Second Circuit has “concluded that even a four-month interval
between protected activity and alleged retaliation is insufficient in itself to
establish the causal connection necessary to support a retaliation claim”);
Beachum AWISCO N.Y.,
passage of more than four months to be too long to give rise to an inference of
retaliatory motivation); cf. Salazar Bowne Realty Associates, L.L.C. , 796 F.
Supp. 2d 378, 384-85 (E.D.N.Y. 2011) (finding that an adverse action as much
as eight months after an employee’s protected activity, paired with other
evidence, could raise an inference of retaliatory motive).
Beyond the alleged temporal connection, the SAC is devoid of any evidence — direct or indirect — of Defendants’ retaliatory animus toward
Plaintiffs. Plaintiffs allege only that some employees received discretionary
payments from Defendants, but Plaintiffs “conspicuously” did not. (SAC
¶ 610). This bare allegation does not plausibly allege direct evidence of
Defendants’ retaliatory animus toward them. Plaintiffs do not allege, for
instance, that Defendants made any comments to Plaintiffs suggesting that
Defendants were refusing to provide payments to employees who had joined
Plaintiffs’ wage-and-hour suit. Nor do Plaintiffs allege that the employees who
received the payments were similarly situated to Plaintiffs in material respects
such that Defendants’ decision could be attributed to Plaintiffs’ filing of this
wage-and-hour lawsuit. Absent such additional allegations, the Court cannot
find that Defendants denied Plaintiffs the payments because of their decision to
engage in protected activity. See Jeanty Newburgh Beacon Bus Corp. , No. 17
Civ. 9175 (CS),
that plaintiff failed to allege causal connection where plaintiff claimed “that
because he was suspended after he engaged in protected activity, the protected
activity must have been the cause of his suspension”).
Plaintiffs argue in opposition that “[e]ven if Defendants weren’t legally obligated to provide [the discretionary] payments to anyone, the Second Circuit
has squarely rejected that argument that discretionary benefits can be doled
out in a discriminatory manner.” (Pl. Opp. 10 (citing Davis N.Y.C. Dep’t of
Educ.
,
draw support for their claim from Davis , that decision only underscores the
flaw in their claim. In Davis , the Second Circuit held that the denial of a
discretionary bonus, in some circumstances, may constitute an adverse
employment action.
Davis
,
however, that the retaliation claim before it had been properly dismissed,
because the plaintiff failed to show that her employer’s decision not to provide
her with a discretionary bonus was due to a discriminatory motivation rather
than the fact that the plaintiff was absent from her job for four months and
had failed to contribute toward her employer’s earning of the bonuses that were
then distributed to certain of its employees. Id. The same issue is present here. As discussed, Plaintiffs have failed to allege that they were passed over
for the payments due to their involvement in protected activity rather than, for
example, their performance, the nature of their positions, the length of time
they had been in their position, or some other permissible consideration.
On the record before it, the Court cannot find that Defendants’ decision not to provide Plaintiffs with discretionary payments plausibly constituted
unlawful retaliation. Accordingly, the Court grants Defendants’ motion to
dismiss Plaintiffs’ retaliation claims under the NYLL and the FLSA insofar as
they are based on Defendants’ denial of discretionary COVID-relief payments.
b. Pena’s Conversation with Fried The Court concludes by addressing Pena’s retaliation claim premised on his conversation with Fried on November 30, 2020. (SAC ¶¶ 577-590). To
review, Pena alleges that Fried told him that he would have to sign union-
related documents to receive checks in the amounts of $1,000 and $500. ( Id.
at ¶ 582). Pena further alleges that Fried told him that “it can take years for a
case to resolve and years to get anything even if he wins; that [he] won’t get
anything from the lawyer or the case; that the Company has been very good to
[him]; and that lawyers only care about the money.” ( Id. at ¶ 586). Finally,
Pena alleges that Fried told him that “by the time he gets anything, he will no
longer be in the Company.” ( Id. at ¶ 587). According to Pena, he understood
Fried’s statement “to be a threat to fire him due to this lawsuit.” ( at ¶ 588).
Defendants argue that Pena’s claim must also be dismissed for failure to state
a claim because neither Fried’s statements nor his refusal to provide Pena with
the $1,000 or $500 checks constitutes an adverse action nor suggests a
retaliatory motive. (Def. Br. 21-24). The Court address each argument in turn.
The Court finds first that Pena has plausibly alleged that he experienced an adverse employment action. An adverse employment action is one that “well
might have dissuaded a reasonable worker from making or supporting [similar]
charge[s.]”
Mullins
,
Burlington N. & Santa Fe Ry. Co.
v.
White,
alleges that Fried (i) threatened to fire him and (ii) refused to provide him with
benefits to which he was entitled. (SAC ¶¶ 588-589). These allegations, taken
together and considered in the light most favorable to Plaintiffs, could plausibly
dissuade a reasonable worker from pursuing claims against Defendants.
Indeed, a reasonable worker in Pena’s position could conclude that pursuing
their wage-and-hour claim would not be worth forgoing vacation pay or other
benefits.
See Gaughan Rubenstein
,
2017) (noting that withholding of wages is an adverse act for the purpose of
stating a retaliation claim);
cf. Sethi Narod
,
(E.D.N.Y. 2014) (stating in the discrimination context that “[i]f Plaintiff was
deprived of five paid days of vacation each year to which he was entitled, then
Plaintiff suffered a materially adverse impact in the terms and conditions of
employment sufficient to establish an adverse employment action”).
The Court also finds that Pena has alleged sufficient evidence of Fried’s retaliatory animus to establish a causal connection between Pena’s
participation in this case and Fried’s alleged retaliation. Although Fried’s
alleged threat of termination and withholding of Pena’s vacation pay occurred
on November 30, 2020 (SAC ¶¶ 580, 582, 587), this was not the first
conversation alleged to have occurred between Pena and Fried where Fried
attempted to have Pena sign union-related documents. As alleged in the SAC,
Pena first broached the topic of Pena’s willingness to join Local 298 with Pena
on July 29, 2020, when he asked Pena “to sign a paper which … would have
made him a member of Defendants’ hand-picked union.” ( Id. at ¶ 577). This
first conversation, which took place approximately five weeks after Pena and
the other Plaintiffs filed the Complaint in this case ( see Dkt. #1), falls within
the two-to-three-month period that courts in this District have found sufficient
to demonstrate the existence of causation.
See Zuckerman
,
at *17. And while the second conversation between Pena and Fried, which
occurred on November 30, 2020, falls outside that temporal limit, its close
relationship to the first conversation provides indirect evidence that Fried’s
comments were inspired by Pena’s participation in this litigation.
Further, Pena alleges more than indirect temporal evidence of Fried’s retaliatory intent. As set forth in the SAC, Fried explicitly tied Pena’s ability to
receive “the vacation pay [Defendants] hadn’t paid him for 2020” to his
willingness to sign a union membership card (SAC ¶ 582; see also id. at ¶ 594
(alleging that Pena was entitled to the vacation pay)). Moreover, during this *40 same conversation, Fried made several statements to Pena suggesting that
continuing to pursue his claims against Defendants would not be worth his
time. ( at ¶¶ 586-587). These allegations tie Defendants’ alleged adverse
action directly to Pena’s protected activity and satisfy Plaintiffs’ minimal
burden to plead retaliatory intent at this stage of the proceedings.
Defendants’ arguments to the contrary miss the mark. First , Defendants argue that a threat of termination is not, on its own, sufficient to constitute an
adverse employment action. (Def. Br. 23). While it is true that courts in the
Second Circuit have consistently held that “the threat of disciplinary action,
without more, does not constitute an adverse employment action,” Norman
NYU Langone Health Sys.
,
Henry NYC Health & Hosp. Corp.
,
aff’d
, No. 20-3624,
does not rest solely on Fried’s alleged threat of termination. As discussed,
Pena alleges that Fried’s threat of termination occurred during a longer
conversation during which Fried refused to provide Pena with vacation pay to
which he was allegedly entitled. (SAC ¶¶ 582, 594). These allegations are
sufficient to state a claim at this early juncture.
Second , Defendants argue that Pena’s allegations related to Fried’s refusal to provide him with the two checks fail to state an adverse action
because Pena has not alleged that he was entitled to the checks. (Def. Br. 23).
But the fact is that Pena does allege that he was entitled to the vacation pay.
Pena does so explicitly, alleging that “[t]he vacation pay Fried withheld (and
was never paid) was earned by German Pena because he was promised
vacation pay and fulfilled the condition of receiving it, and Defendants have
never claimed otherwise.” (SAC ¶ 594). And he does so implicitly, alleging that
Fried told Pena that the $500 check was “for the vacation pay [Defendants]
hadn’t paid him for 2020[.]” ( at ¶ 582). On Pena’s account, therefore, Fried
explicitly acknowledged Pena’s entitlement to the vacation pay but refused to
provide it to him. Defendants’ cited cases, finding that plaintiffs who did not
allege they were entitled to benefits could not allege an adverse action based on
the withholding of those benefits, are therefore inapposite. (Def. Br. 23-24).
Accordingly, the Court denies Defendants’ motion to dismiss Plaintiffs’ retaliation claims under the FLSA and NYLL based on Pena’s alleged
November 30, 2020 conversation with Fried.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Defendants’ partial motion to dismiss under Rules 12(b)(1) and 12(b)(6).
The Court GRANTS Defendants’ motion to dismiss under Rule 12(b)(1) with respect to Plaintiffs’ claims for (i) unlawful wage deduction insofar as it is
predicated on Defendants’ alleged deductions of union dues and (ii) retaliation
under the FLSA and NYLL based on Defendants’ filing of the motion to compel
arbitration. Additionally, the Court GRANTS Defendants’ motion under Rule
12(b)(6) as to Plaintiffs’ retaliation claims under the FLSA and the NYLL based
on Defendants’ alleged refusal to provide them with discretionary payments.
By contrast, the Court DENIES Defendants’ motion to dismiss Plaintiffs’ FLSA and NYLL retaliation claims pursuant to Rule 12(b)(6) based on Pena’s
conversation with Fried.
Defendants are directed to file an amended Answer on or before April 4, 2022 .
The Court expects that the parties will continue to adhere to the discovery deadlines set forth in the Civil Case Management Plan and
Scheduling Order. (Dkt. #102).
The Clerk of Court is directed to terminate the motion at docket entry 85. SO ORDERED.
Dated: March 14, 2022
New York, New York __________________________________ KATHERINE POLK FAILLA United States District Judge
Notes
[1] This Opinion draws its facts from the Second Amended Complaint (the “SAC” (Dkt. #80)), the well-pleaded allegations of which are taken as true for the purposes of this Opinion. The Court sources additional facts from the declarations submitted by the parties in connection with Defendants’ motion to dismiss and the exhibits attached thereto. These declarations include: (i) the declaration of Stuart Weinberger in support of Defendants’ motion to dismiss (“Weinberger Decl.” (Dkt. #86)); and (ii) the declaration of Scott A. Lucas in opposition to Defendants’ motion (“Lucas Decl.” (Dkt. #92, 100)). For ease of reference, the Court refers to Defendants’ memorandum of law in support of their motion to dismiss as “Def. Br.” (Dkt. #87); Plaintiffs’ memorandum of law in opposition to Defendants’ motion to dismiss as “Pl. Opp.” (Dkt. #91); and Defendants’ reply memorandum as “Def. Reply” (Dkt. #94).
[2] Plaintiffs allege that Kleiner uses several aliases. (SAC ¶ 13). For ease of reference, the Court refers to him using the first name listed in the case caption.
[3] The quoted provisions of each of the Collective Bargaining Agreements are identical in substance. As such, the Court cites only to the agreement between Local 298 and Tiebout II Associates, LLC. ( See Weinberger Decl., Ex. E).
[4] The motion to compel arbitration described in this November 25, 2020 letter is the motion that Plaintiffs claim was part of Defendants’ retaliatory scheme to punish them for filing the instant suit. ( See SAC ¶ 604).
[5] Due to a docketing error, the SAC was refiled on June 7, 2021. (Dkt. #80). The Court views the SAC as being filed on June 3, 2021.
[6] Plaintiffs base all three of these claims on discrete sets of allegations, only some of which implicate the labor law issues that are at the heart of Defendants’ Rule 12(b)(1) challenge. For example, Plaintiffs proffer three theories for their claim of unlawful wage deduction in violation of the NYLL: (i) Defendants advanced money to Plaintiffs and later deducted that money from Plaintiffs’ paychecks without following the process set forth in Section 193(1)(d) of the NYLL (SAC ¶¶ 565-569); (ii) Defendants deducted money from Plaintiff German Pena’s paycheck in satisfaction of rent for an illegal basement apartment ( id. at ¶¶ 570-571); and (iii) Defendants “ma[de] unauthorized deductions from various Plaintiffs’ pay in early 2021 for purported union dues” ( id. at ¶ 572; see also id. at ¶ 573). Defendants’ jurisdictional argument challenges only the third allegation. Thus, irrespective of the Court’s resolution of Defendants’ jurisdictional challenge, Plaintiffs will be permitted to pursue an unlawful wage deduction claim premised on the two other alleged instances of unlawful deductions. Similarly, Plaintiff will be able to assert NYLL and FLSA retaliation claims regardless of the Court’s disposition of this motion, as only some of Plaintiffs’ theories raise issues the Court lacks the power to adjudicate.
[7] Mr. Lucas’s July 16, 2021 declaration inadvertently omitted the NLRB’s May 24, 2021 letter that was intended to be included as Exhibit 3. ( See Dkt. #86, Ex. 3). A copy of the exhibit was subsequently filed on the docket on February 22, 2022. (Dkt. #100).
[8] “Sections 7 and 8 of the Act regulate ‘concerted activities’ and ‘unfair labor practices,’
respectively, seeking to protect the former and stamp out the latter.”
Bldg. Trades
Employers’ Educ. Ass’n McGowan
,
[9] For avoidance of doubt, the Court’s preemption analysis does not apply to Plaintiffs’ unlawful wage deduction claims premised on deductions other than those that were applied to Plaintiff’s union dues. See supra n.6.
[10] The Court is aware of the cases suggesting that “[w]hether or not an employee can claim
retaliation because he or she has been sued in a well-founded lawsuit is an open
question.”
Lawrence
v.
NYC Med. Prac., P.C.
, No. 18 Civ. 8649 (GHW), 2019 WL
4194576, at *9 (S.D.N.Y. Sept. 3, 2019). At least some courts in the Second Circuit
have found that even a well-founded complaint, if made in bad faith, can constitute an
adverse employment action.
See, e.g.
,
Rodriguez Nat’l Golf Links of Am.
, No. 19 Civ.
7052 (PKC) (RML),
[11] Plaintiffs’ remaining three arguments are irrelevant to the Court’s finding that their state retaliation claim is preempted. These arguments include: (i) federal laws do not preempt other federal laws; (ii) Defendants’ preemption argument uses the wrong legal standard; and (iii) Plaintiffs’ retaliation claim under the FLSA falls within an exception to the Garmon preemption doctrine. ( See Pl. Opp. 12).
[12] The Court’s finding of preclusion is predicated on the unique facts of this case. As reflected in other decisions in this District, the NLRA does not ordinarily preclude actions under the FLSA. See generally OConner v. Agilant Sols., Inc. , 444 F. Supp. 3d 593, 604 (S.D.N.Y. 2020) (observing that “the NLRB does not have exclusive jurisdiction over FLSA actions”).
[13] Defendants also argue that Plaintiff Peterson cannot establish a viable retaliation claim. (Def. Br. 24-25). Defendants base this challenge on Plaintiffs’ allegation that “Defendants’ retaliatory intent was also exacerbated by Peterson’s claims of unlawful discrimination in the Complaint.” ( at 24 (quoting SAC ¶ 614)). Although Defendants speculate that Plaintiffs may be attempting to use this allegation to state a retaliation claim on behalf of Peterson under the NYCHRL ( id. ), the Court does not understand this allegation to state a separate claim. Instead, given that it is alleged as part of Plaintiffs’ claim for retaliation based on Defendants’ alleged union-related activities and motion to compel arbitration, the Court views this allegation as bearing on whether Plaintiffs engaged in protected activity and whether Defendants engaged in impermissible retaliation under the NYLL. Because the Court has found that it lacks jurisdiction over that claim, it declines to address it further here.