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Yu v. Knighted, LLC

United States District Court, S.D. New York

February 16, 2017

SIJI YU, Plaintiff,
v.
KNIGHTED LLC, an Intelligrated Company, Defendant.

          Siji Yu Hopewell Junction, NY Pro Se Plaintiff

          David A. Skidmore, Jr., Esq. Jennifer A. Rulon, Esq. Frost Brown Todd LLC Cincinnati, OH Counsel for Defendant

          Sharon S. Cohen, Esq. Shira Franco, Esq. Davis & Gilbert LLP New York, NY Counsel for Defendant

          OPINION & ORDER

          KENNETH M. KARAS UNITED STATES DISTRICT JUDGE

         Pro se 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.

         I. Background

         A. Factual Background

         The following facts are drawn from Plaintiff's Complaint and are taken as true for the purpose of resolving the Motion.

         Plaintiff, 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.)[1] 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.)

         In the 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.)[2] 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.)

         In 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.)

         Sometime 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.)

         Shortly 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.)

         On 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.)

         On that same day, Lister sent Plaintiff a communication regarding a conference call scheduled for 4 p.m. (Id. ¶ 64.)[3] Plaintiff replied to the communication by stating that he had been in contact with HR regarding the reprimand. (Id. ¶¶ 65-67.)

         Minutes 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.)

         After 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.)

         Early 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.)

         After 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.)

         In 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 3.)

         B. Procedural History

         Plaintiff 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.)

         II. Discussion

         A. ...


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