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Thomas v. Eony LLC

United States District Court, S.D. New York

April 21, 2015

SHERINA THOMAS and DIANDRA MENDEZ, Plaintiffs,
v.
EONY LLC and DAVID SHAVOLIAN, Defendants.

OPINION AND ORDER

J. PAUL OETKEN, District Judge.

Plaintiffs Sherina Thomas and Diandra Mendez (together, "Plaintiffs") bring this action asserting violations of overtime requirements and other wage-related provisions of the federal Fair Labor Standards Act ("FLSA"), the New York Labor Law ("NYLL"), and the New York City Administrative Code. Plaintiffs also bring claims for sexual harassment, disability discrimination, and intentional infliction of emotional dismiss under the New York City Administrative Code and New York tort law. The suit names Plaintiffs' former employer, EONY LLC ("EONY"), and David Shavolian, the principal of EONY (together with EONY, "Defendants"). Presently before the Court is Plaintiffs' motion, styled as a "motion to exercise supplemental jurisdiction, " concerning whether the exercise of supplemental jurisdiction is proper over Plaintiffs' claims under New York state law and the New York City Administrative Code. For the reasons that follow, the Court concludes that the exercise of supplemental jurisdiction is improper with regard to the nonfederal sexual harassment, disability discrimination, and tort claims. In the alternative, the Court declines to exercise supplemental jurisdiction over those claims. Accordingly, those claims are dismissed without prejudice.

I. Background

A. Facts[1]

1. Wage and Hour Allegations[2]

Thomas began working at EONY on June 11, 2012, for 40 hours per week. (Dkt. No. 34 ("FAC") ¶ 130.) Beginning October 1, 2012, Thomas was forced to work through most or all of her lunch break, such that she worked at least one hour-and sometimes more-over 40 per week. (Id. ¶¶ 131-33.) Then, in late December or early January 2013, Thomas began working "even more overtime hours" because of further shortened lunch breaks to "between five and 10 minutes, " and during at least one week in April of that year Thomas was "not permitted to take a lunch break." (Id. ¶¶ 135-36.) According to Thomas, she was "misclassified" as an independent contractor and was not paid overtime as a result. (Id. ¶ 134.) Instead, she was paid only her biweekly salary of $1, 035. (Id. ¶ 137.)

Mendez began working full-time at EONY on January 8, 2013. (Id. ¶ 140.) She worked from 9:00 a.m. until 5:30 p.m., Monday through Friday, without a break for lunch. (Id. ) Mendez provides examples of weeks in which this arrangement resulted in her working 42.5 hours per week, for which she was not fully compensated. (Id. ¶¶ 145-46.) Like Thomas, Mendez asserts that she was "misclassified" as an independent contractor and was not paid overtime as a result. (Id. ¶ 142.) Mendez says she was also paid only a biweekly salary of $1, 035. (Id. )

According to the complaint, Thomas and Mendez were "directly and closely supervised" by Shavolian and "did not exercise any discretion or independent judgment while engaged in their princip[al] duties." (Id. ¶ 150.) Plaintiffs collected rent payments from tenants, did clerical work, answered telephones, and relayed tenant complaints to Shavolian. (Id. ¶¶ 151-53.) Defendants "had no method by which Plaintiffs could accurately record... their hours worked." (Id. ¶ 156.)

2. Sexual Harassment, Disability Discrimination, and Tort Allegations

Thomas alleges that she first met Shavolian at an unspecified date when she was answering an advertisement for child models on behalf of her children. (Id. ¶ 21.) At this meeting, Shavolian asked Thomas to "remove her blazer so he could see the shape of her body, " despite Thomas's statement of disinterest in modeling herself. (Id. ¶¶ 23-24.) He then forced Thomas to show him her breasts and "then assessed [her] breasts by... squeezing, fondling and jiggling [them], " ultimately telling Thomas that her breasts were not fit for modeling but that he could help her get breast surgery. (Id. ¶¶ 26-27.) Shavolian then told Thomas that he would call her "if anything comes up in terms of available work." (Id. ¶ 28.)

In May 2012, Shavolian called Thomas about a receptionist position at EONY. At an interview the same month, Shavolian asked Thomas questions about her pubic hair maintenance. (Id. ¶¶ 29-30.) Thomas got the job and began working at EONY as a receptionist on May 21, 2012. (Id. ¶¶ 31-32.)

Once on the job, Thomas was subjected to repeated instances of sexual harassment by Shavolian, which she claims created a hostile work environment. (Id. ¶ 34.) Among these were instances where Thomas was forced to "stand right next to [Shavolian] while he urinated" and to "watch [Shavolian] undress." (Id. ¶¶ 35-36.) Shavolian also telephoned Thomas to "inform her that his underwear was too tight and that they [sic] were squeezing his balls.'" (Id. ¶ 37 (internal brackets and emphasis omitted).) The complaint is rife with other allegations of sexual misconduct by Shavolian, including his requests that Thomas look at his anal rash, that she put lotion on his penis, and that she provide him with "pictures of female genitalia." (Id. ¶¶ 38-39, 41.) The complaint further alleges that Shavolian offered to pay one of Thomas's bills in exchange for oral sex, and that Shavolian offered her an extra week of vacation and an extra week of pay if she "succumbed to [Shavolian's] sexual advances." (Id. ¶¶ 42, 45-46.) Thomas asserts that she quit on May 1, 2013, because she "could no longer endure the harassment." (Id. ¶¶ 49-50.)

As for Mendez, she interviewed with Shavolian for a receptionist position on September 19, 2012, after initially responding to an interview with a different company. (Id. ¶¶ 51-53.) During the interview, Shavolian asked Mendez if she was interested in modeling, but Mendez demurred. (Id. ¶¶ 54-60.) Shavolian pursued this line of questioning. Ultimately, at Shavolian's request, Mendez lifted her shirt to show Shavolian her stomach as part of an effort to see if Shavolian could "help her find work as a model." (Id. ¶¶ 61-62.) Shavolian then fondled Mendez's breasts. (Id. ¶ 63.) Shavolian did so again toward the end of the interview, and then asked Mendez to remove her bra, which she did. (Id. ¶¶ 64-66.) Shavolian offered Mendez the receptionist job, and she accepted. (Id. ¶ 67.) The two proceeded to another floor, where Shavolian once again persuaded Mendez to remove her shirt and bra, and Shavolian showed Mendez certain exercises that he said would be beneficial for her. (Id. ¶¶ 68-74.) Shavolian made comments about Mendez's breasts and also asked about her pubic hair maintenance. (Id. ¶¶ 75-76.) He asked Mendez to take her pants off; she refused. (Id. ¶¶ 77-82.) Shavolian exposed his "pubic area" to Mendez, and then ended the interview. (Id. ¶¶ 83-84.)

Mendez began working at EONY, and for the first three months, Shavolian left Mendez "mostly... unmolested." (Id. ¶¶ 87.) After that period, however, Shavolian began to mock Mendez's figure. (Id. ¶¶ 88-91.) He also asked to see Mendez's "ass" on several occasions between February and May 2013. (Id. ¶¶ 92-93.) In an incident in July 2013, Shavolian lowered his pants in Mendez's presence such that his "penis was sticking out from under the bottom of his underwear." (Id. ¶¶ 94-95 (emphasis omitted).) Shavolian asked Mendez if his underwear was too small, complained of genital irritation, and asked Mendez to help him apply lotion to his penis. (Id. ¶¶ 97-103.) Mendez refused, but ultimately agreed to hold Shavolian's underwear while he applied lotion in order to "avoid jeopardizing her job." (Id. ¶¶ 103-04.) Shavolian proceeded to "slap[] one of [Mendez's] hands with his penis." (Id. ¶ 105 (emphasis omitted).) Shavolian also subjected Mendez to other instances of sexual ...


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