Rosenbaum v. Meir

658 F.Supp.3d 140

Lisa ROSENBAUM, Plaintiff, v. Bais Yaakov Drav MEIR, et al., Defendants.

20-CV-4520 (WFK) (RER)

United States District Court, E.D. New York

Signed March 1, 2023

Jeffrey Robert Maguire, Stevenson Marino LLP, White Plains, NY, for Plaintiff.

Mark Schwartz, Law Office of Mark Schwartz, Brooklyn, NY, for Defendants.

ORDER

WILLIAM F. KUNTZ, II, United States District Judge:

Plaintiff brings claims against her former employer alleging violations of (1) the prompt payment requirement of the Fair Labor Standards Act ("FLSA" or "Act"), 29 U.S.C. § 206(a); (2) the anti-retaliation provisions of the FLSA, 29 U.S.C. § 215(a)(3); (3) one of the anti-retaliation provisions of the New York Labor Law ("NYLL"), NYLL § 215(1)(a); (4) the NYLL's requirement that employers make timely payments according to the terms and conditions of employment, § 191(d) and § 198(1-a); and (5) the NYLL's requirement that employers furnish employees with wage statements containing specific categories of accurate information on each payday, NYLL § 195(3). Defendants moved to dismiss the Amended Complaint in its entirety pursuant to Fed. R. Civ. P. 12(b)(6) alleging plaintiff failed to state a claim upon which relief may be granted. ECF No. 23. For the reasons set forth below, Defendants' motion is DENIED.

BACKGROUND

In February 2005, Bais Yaakov Drav Meir ("Defendant" or "Beth Jacob"), a private elementary school, hired Lisa Rosenbaum ("Plaintiff") to work as a secretary. Amended Complaint ("Compl."), ECF No. 12 ¶ 10. Plaintiff performed various administrative tasks during her tenure, such as handling phone calls, taking messages, editing the weekly newsletter, and assisting students and teachers. Id. ¶ 11. Plaintiff served as the school secretary until Defendant Levi terminated her employment on June 8, 2020. Id. Defendants paid Plaintiff an annual salary of $63,610.96, which, according to the terms of Plaintiff's employment, was broken down as follows: (1) one weekly payment of $699.34 for ten months; (2) one weekly payment of $325.00 for ten months allocated for "groceries" to a supermarket affiliated with the school; (3) and one monthly rent payment of $1,545.00, which, according to the agreed-upon terms of employment between the parties, was earned over the ten-month school period and prorated over a twelve-month period to be paid on the first day of every month. Id. ¶ 12.

On March 18, 2020, Beth Jacob temporarily closed due to the public health emergency caused by the COVID-19 pandemic. Id. ¶ 13. Prior to its closure, Defendants paid Plaintiff her weekly wages for the work weeks ending on March 20 and March 27, 2020. Id. ¶14. On April 5, 2020, after Defendants failed to pay her wages for the week ending on April 3, 2020, Plaintiff contacted Defendants. Id. ¶ 16. Defendants then paid Plaintiff some but not all of her wages for that week. Id. ¶ 17. On or about April 21, 2020, Plaintiff filed for unemployment for the weeks of April 10 and April 17, 2020. Id. ¶ 18. On April 26, 2020, Plaintiff worked at Beth Jacob from 9:00 A.M. until 4:00 P.M., handing out books to students and taking phone calls from students' parents to coordinate the school's future remote learning plan. Id. ¶ 19.

On May 4, 2020, Defendants' bookkeeper, Ms. Wercberger, informed Plaintiff she was working with Beth Jacob's administrator, Rabbi Yonah Gewirtz, to correct Beth Jacob's payroll issues in order to provide Plaintiff with her the outstanding wages. Id. ¶ 20. On May 6, 2020, Rabbi Gewirtz told Plaintiff he spoke with the Department of Labor ("DOL") and "straightened out the situation with the agency and provided her instructions about the changes she needs to make on her end of the DOL's online portal." Id. ¶ 21. On May 8, 2020, Defendants provided Plaintiff with an envelope containing her past-due wages, but the payment did not include a check for Plaintiff's wages due for the workweek ending on May 8, 2020. Id. ¶ 22. Defendants also failed to remit the pay checks due on May 15 and May 22, 2020. Id. ¶ 23.

On or around May 22, 2020, Plaintiff called both Rabbi Gewirtz and Defendant Levi to complain about her unpaid wages. Id. ¶ 23. Defendants responded by suggesting there must have been a problem with the mail. Id. ¶ 24. On June 1, 2020, Ms. Wercberger informed Plaintiff the school would deliver Plaintiff's outstanding wages immediately. Id. ¶ 25. Ms. Wercberger additionally confirmed the outstanding wages would be paid to Plaintiff less the amount she received through unemployment benefits, per Defendant Levi and Rabbi Gewirtz's direction. Id. ¶ 25.

On June 8, 2020, after still not receiving her outstanding wages, Plaintiff called Defendant Levi directly. Id. ¶ 26. Plaintiff alleges during the June 8, 2020 call, Defendant Levi berated Plaintiff about her persistent complaints regarding her unpaid wages. Id. ¶ 27. Additionally, she claims Defendant Levi emphasized he considered Plaintiff's initial call to him on April 5, 2020 to be the equivalent of Plaintiff telling him to "drop dead." Id. ¶ 27. Plaintiff also alleges Defendant Levi repeatedly told Plaintiff she had "unemployed herself" as a result of her complaints to him about her unpaid wages, and as of that date (June 8, 2020), Defendants were terminating her employment. Id. ¶ 27. Defendant Levi concluded by informing Plaintiff she would be paid up until the end of June 2020. Id. ¶ 27.

On September 24, 2020, Plaintiff filed the instant action asserting retaliation claims under the Fair Labor Standards Act of 1938 ("FLSA" or "Act"), 29 U.S.C. § 203, and New York Labor Law ("NYLL"). See ECF No. 1. On October 20, 2020, Plaintiff served Defendants with copies of the summons and complaint. Id. ¶ 31. The next day, Ms. Wercberger called Plaintiff on Defendant Levi's behalf. Id. ¶ 32. Ms. Wercberger encouraged Plaintiff to settle the matter in Rabbinical Court, also known as a "beth din." Id. ¶ 32. Once Plaintiff stated she was represented by counsel and was relying upon counsel's advice, Ms. Wercberger allegedly proceeded to threaten Plaintiff by reminding her she had "children to marry off," a social warning suggesting Plaintiff's pursuit of her claims in secular court would result in other people in the community refusing to marry her children. Id. ¶ 32. Indeed, Plaintiff perceived this as a threat intended to dissuade her from continuing the instant action. Id. ¶ 32. On October 22, 2020, Defendant Levi emailed Plaintiff to schedule a time for the parties to appear before the Rabbinical Court. Id. ¶ 33. That same day, Plaintiff's counsel notified Defendants she declined to consent to appear in Rabbinical Court. Id. ¶ 34. Plaintiff's counsel also sent correspondence to Defendants' counsel to cease and desist all forms of harassment and threats as to Plaintiff's standing in her community and informed the Defense Plaintiff had chosen to have the matter adjudicated in federal court. Id. ¶ 34.

On or around November 12, 2020, Defendants instituted a new action in Rabbinical Court. Id. ¶ 35. On November 12, 2020, Plaintiff received a summons from the Rabbinical Court requiring Plaintiff to appear on November 19, 2020. Id. ¶ 36. The summons stated in part:

NOTE: In regard to the charges brought against the plaintiff in the secular courts. The plaintiff is willing and ready to discuss all claims and arguments between you at any Beit Din accepted by both parties. Therefore, here in the name of Beit Din with WARNING OF BEIT DIN according to Jewish law "Jewish individuals are forbidden to litigate in secular courts without consent of Beit Din" as the severity of this explained in (Source provided), and the remnants of Israel will not do an unjust act.

Id. ¶ 37. Plaintiff alleges this language was intended to intimidate Plaintiff from pursuing her FLSA and NYLL claims in federal court, and she further alleges it constitutes "per se retaliation for Plaintiff engaging in protected activity under the FLSA and the NYLL by filing the Complaint in federal court." Id. ¶ 38.

In her Amended Complaint, Plaintiff brings five claims against Defendants, alleging violations of: (1) the prompt payment requirement of the FLSA, 29 U.S.C. § 206(a); (2) the anti-retaliation provisions of the FLSA, 29 U.S.C. § 215(a)(3); (3) one of the anti-retaliation provisions of the NYLL, NYLL § 215(1)(a); (4) the NYLL's requirement that employers make timely payments according to the terms and conditions of employment, NYLL §§ 191(d) and 198(1-a); and (5) the NYLL's requirement that employers furnish employees with wage statements containing specific categories of accurate information on each payday, NYLL § 195(3). Id. ¶ 1.

In their motion to dismiss, Defendants argue (1) Plaintiff's FLSA claims fail because FLSA claims are restricted to allegations of unpaid minimum wages or overtime; (2) Plaintiff's NYLL wage and anti-retaliation claims fail because Plaintiff did not "perform any work" during the relevant period; (3) Plaintiff's retaliation claims under both the FLSA and NYLL fail because Plaintiff was not involved in protected activity; and (4) in the event the Court dismisses Plaintiff's FLSA claims, Plaintiff's NYLL claims should be dismissed for lack of subject matter jurisdiction.

For the reasons set forth below, Defendants' motion to dismiss is denied.

LEGAL STANDARD

To survive a motion to dismiss "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Vengalattore v. Cornell Univ., 36 F.4th 87, 102 (2d Cir. 2022) (quoting Lynch v. City of New York, 952 F.3d 67, 74 (2d Cir. 2020)) (referencing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (establishing this proposition). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the...