United States District Court, S.D. New York
Yu Hopewell Junction, NY Pro Se Plaintiff
A. Skidmore, Jr., Esq. Jennifer A. Rulon, Esq. Frost Brown
Todd LLC Cincinnati, OH Counsel for Defendant
S. Cohen, Esq. Shira Franco, Esq. Davis & Gilbert LLP New
York, NY Counsel for Defendant
OPINION & ORDER
KENNETH M. KARAS UNITED STATES DISTRICT JUDGE
Plaintiff Siji Yu (“Plaintiff”) filed this Action
pursuant to Title VII of the Civil Rights Act (“Title
VII”), 42 U.S.C. § 2000e et seq., the Age
Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621 et seq., the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq., 42 U.S.C.
§§ 1981 and 1983, and the New York State Human
Rights Law (“NYSHRL”) against Knighted LLC
(“Defendant”), alleging that it discriminated and
retaliated against him and failed to pay him for the overtime
hours he worked. (See generally Compl. (Dkt. No.
1).) Before the Court is Defendant's Motion To Dismiss
the Complaint (the “Motion”) pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No.
22.) For the reasons explained herein, Defendant's Motion
is granted in part and denied in part.
following facts are drawn from Plaintiff's Complaint and
are taken as true for the purpose of resolving the Motion.
an Asian-American male “of Chinese national origin,
” was hired by Defendant in July 2013 to work as a
“full[-]time, permanent employee” in
Defendant's Ossining, New York office as a Senior
Database Administrator. (Compl. ¶¶ 8-9, 17-18,
128.) He was paid $115, 000 a year.
(Id. ¶ 95.) Plaintiff was the sole employee
with responsibility for certain of Defendant's databases.
(Id. ¶ 18.) In October 2013, Defendant moved
its office to Elmsford, New York. (Id. ¶ 19.)
Plaintiff worked in that office until his termination in
August 2014. (Id. ¶¶ 19, 85.) During his
tenure, he was appreciated by his colleagues and customers,
and, in 2014, was rated at the top score in numerous
categories during an annual review by his two immediate
supervisors. (Id. ¶¶ 20-22.)
middle of February 2014, a senior vice president held a
meeting with all of the employees at Defendant's Elmsford
office. (Id. ¶ 23.) The senior vice president
announced that all associates had to work an extra 10 hours
per week regardless of employee status, such as whether the
employee was “exempt, ” and promised the
employees overtime pay. (Id. ¶ 24.) Plaintiff
alleges that he was an exempt employee.
(Id.) A few weeks later, Plaintiff's
immediate supervisor, a vice president, confirmed the
overtime requirement and promised overtime pay regardless of
an employee's status. (Id. ¶ 25.)
early April 2014, Plaintiff was introduced to Darryl Lister
(“Lister”). (Id. ¶ 26.) Lister then
became Plaintiff's third immediate supervisor by
approving Plaintiff's weekly timesheet. (Id.
¶ 29.) Plaintiff only met Lister in person once because
Lister's office was in Baton Rouge, Louisiana, and then,
Atlanta, Georgia. (Id. ¶¶ 28, 32.) In May
2014, Plaintiff and Lister spoke about the extra
10-hour-per-week requirement and the fact that Plaintiff had
not yet received any overtime compensation. (Id.
¶ 33.) Lister instructed Plaintiff to continue working
the extra 10 hours per week but without the promised overtime
payments or further explanation. (Id. ¶ 34.)
Plaintiff told Lister that this arrangement was
discriminatory because other younger associates in the
Elmsford office had been paid for the overtime hours they
worked. (Id. ¶ 35.)
before July 1, 2014, Plaintiff asked Lister about his annual
salary raise. (Id. ¶ 37.) Lister did not
respond to Plaintiff's inquiry. (Id. ¶ 38.)
At this time, Lister had four immediate
subordinates-Plaintiff and three other white employees.
(Id. ¶¶ 40-41.) Plaintiff alleges that the
three white employees received salary raises, but he did not.
(Id. ¶ 41.) Plaintiff complained to Lister
about not receiving a raise and asked him to
“reconsider and correct his illegal discriminatory
conduct.” (Id. ¶ 43.)
after Plaintiff made these complaints, Lister hired a new
employee who was “non Asian-American” and
“much younger” than Plaintiff. (Id.
¶ 44.) The employee was hired to run Defendant's
“performance [e]ngineering [department], ”
(id. ¶ 45 (internal quotation marks and italics
omitted)), and took over some of Plaintiff's
responsibilities, (id. ¶ 47). Plaintiff alleges
that he was overlooked for this position and was effectively
demoted as a result of the new employee's
responsibilities. (Id. ¶¶ 46, 48.)
Plaintiff complained that Lister's actions were
discriminatory and retaliatory. (Id. ¶ 49.)
August 11, 2014, Plaintiff attended a meeting to discuss a
research project. (Id. ¶ 50.) As soon as he sat
down, Alice Kijak (“Kijak”), a manager in
Defendant's Elmsford office, showed him an
“EMPLOYEE REPRIMAND RECORD” from Lister.
(Id. ¶ 51.) Kijak explained that Lister told
her to present the reprimand to Plaintiff. (Id.
¶ 52.) After reviewing the document, Plaintiff
immediately contacted Defendant's Human Resources
Department (“HR”). (Id. ¶ 54.) He
spoke to Katie Becker (“Becker”) and allegedly
told her that Lister “discriminated and retaliated
against [him] on many occasions, such as unpaid promised
overtime pay, overlooked annual salary raise, overlooked
promotion, effective demotion, [and] manufactur[ing] [a]
written warning” in violation of his legally protected
rights. (Id. ¶ 55.) Becker promised to
investigate Plaintiff's complaints. (Id. ¶
56.) Plaintiff “explicitly stated” that the
investigation should be kept confidential. (Id.
¶ 57.) Becker told Plaintiff not to contact Lister
regarding the reprimand and to file a written complaint as
soon as possible. (Id. ¶¶ 58, 63.)
same day, Lister sent Plaintiff a communication regarding a
conference call scheduled for 4 p.m. (Id. ¶
Plaintiff replied to the communication by stating that he had
been in contact with HR regarding the reprimand.
(Id. ¶¶ 65-67.)
after 4 p.m., Plaintiff was forced into a room with two
managers. (Id. ¶¶ 69-70.) Lister and
Becker were listening in over the phone. (Id. ¶
70.) During the meeting, which Plaintiff recorded, Becker
announced that Plaintiff was suspended indefinitely so that
he could file a formal complaint against Lister and so
Defendant could investigate the circumstances giving rise to
the reprimand. (Id. ¶¶ 72-75.) Plaintiff
immediately protested and requested that Becker reconsider.
(Id. ¶¶ 76-77.)
leaving the meeting, Plaintiff called Becker's manager,
Bernie Hess (“Hess”). (Id. ¶ 81.)
Plaintiff allegedly told Hess about his complaints and the
substance of the 4 p.m. conference call. (Id.
¶¶ 81-83.) Hess told Plaintiff to file a written
discrimination complaint and that HR would investigate
Plaintiff's claim and get back to him the following day.
(Id. ¶ 84.)
the next day, August 12, 2014, Hess called Plaintiff and told
him that his employment was terminated effective immediately,
even though Plaintiff had not yet filed his written complaint
nor had Defendant conducted an investigation into his claims.
(Id. ¶ 85.) Plaintiff subsequently sent a
written discrimination complaint to Hess, Becker, and a third
employee, and asked that Defendant investigate his claims.
(Id. ¶¶ 90-91.) Plaintiff never heard back
from anyone. (Id. ¶ 94.)
being terminated, Plaintiff filed for unemployment benefits.
(Id. ¶ 95.) Defendant opposed Plaintiff's
application because it claimed that Plaintiff was
“terminated for his misconduct at the 4 [p.m.]
conference call.” (Id. ¶ 96.) The
Department of Labor found that Plaintiff could not receive
unemployment benefits because Plaintiff was fired for
misconduct. (Id. ¶ 97.) Plaintiff appealed that
determination and was ultimately successful in obtaining
unemployment benefits. (Id. ¶¶ 117, 122.)
February 2015, Plaintiff filed a complaint with the New York
State Division of Human Rights (“NYSDHR”) against
Defendant, alleging that it discriminated against him on the
basis of “national origin, race/color, ” and age,
and retaliated against him for making complaints about that
discrimination. (Decl. of Shira Franco, Esq., in Supp. of
Def.'s Mot. To Dismiss (“Franco Decl.”) Ex.
2, at 1 (“NYSDHR Determination & Order”)
(Dkt. No. 23).) The NYSDHR determined “that there [was]
NO PROBABLE CAUSE to believe that [Defendant] ha[d] engaged
in or is engaging in the unlawful discriminatory practice
complained of.” (NYSDHR Determination & Order 1;
see also Id. at 2 (“There is a lack of
evidence to establish Complainant was discriminated against
because he is Chinese, Asian, 59 years old . . . and opposed
discrimination/retaliation.”).) In August 2015, the
Equal Employment Opportunity Commission adopted the findings
of the NYSDHR and sent to Plaintiff a notice of his right to
sue. (Franco Decl. Ex. 3.) Plaintiff filed an Article 78
petition in the New York State Supreme Court (“NYS
Supreme Court”) challenging the NYSDHR's
determination. (Franco Decl. Ex. 4.) In March 2016, after
Plaintiff filed his Complaint in this case, the NYS Supreme
Court denied the petition, concluding that “the
determination of no probable cause made by the . . . New York
State Department of Human Rights was not arbitrary and
capricious or lacking a rational basis in the record.”
(Reply Decl. of Shira Franco, Esq., in Supp. of Mot. To
Dismiss (“Franco Reply Decl.”) Ex. 1, at 3
(“NYS Supreme Court Judgment, Decision &
Order”) (Dkt. No. 29).) The court further determined
that Plaintiff had a full opportunity to present his case to
the NYSDHR. (NYS Supreme Court Judgment, Decision & Order
filed his Complaint on November 30, 2015. (See Dkt.
No. 1.) Pursuant to a memo endorsement, (Dkt. No. 21),
Defendant filed its Motion and supporting papers on March 15,
2016, (Dkt. Nos. 22-26). Plaintiff filed opposition papers on
April 15, 2016. (Dkt. No. 27.) On April 29, 2016, Defendant
filed a reply brief and a declaration informing the Court
that the NYS Supreme Court upheld the NYDHRS's finding of
no probable cause. (Dkt. Nos. 28-29.) In light of the NYS
Supreme Court's decision, Defendant argued, for the first
time, that Plaintiff was collaterally estopped from bringing
his discrimination and retaliation claims in federal court.
(Def.'s Reply Mem. of Law in Supp. of Mot. To Dismiss
(“Def.'s Reply”) 2-3 (Dkt. No. 28).) Because
this argument was not raised in Defendant's opening
brief, the Court solicited a sur-reply from Plaintiff.
(See Dkt. No. 31.) Plaintiff filed his sur-reply on
December 7, 2016. (Dkt. No. 32.)