Opinion
Index No.: 514403/2019
08-12-2020
DMYTRO LAPKO, Plaintiff, v. GRAND MARKET INTERNATIONAL CORP. d/b/a "NETCOST MARKET" and "GOURMANOFF," NET COST 18TH AVE LLC, NC 3100 OCEAN AVE LLC, and NC 700 TENNENT ROAD LLC d/b/a "NETCOST MARKET," Defendants.
NYSCEF DOC. NO. 22 Motion Date: 2-24-20
Mot. Cal. No.:
DECISION/ORDER
MS # 01
MDAI
The following papers numbered 1 to 3 were read on this motion:
| Papers: | Numbered: |
|---|---|
| Notice of Motion/Order to Show CauseAffirmations/Affidavits/Exhibits/Memo of Law | 1 |
| Answering Affirmations/Affidavits/Exhibits/Memo of Law | 2 |
| Reply Affirmations/Affidavits/Exhibits/Memo of Law | 3 |
Upon the foregoing papers, the motion is decided as follows:
Defendants, Grand Market International Corp. d/b/a "Netcost Market" and Gourmanoff," Net Cost 18th Ave LLC, NC 3100 Ocean Ave LLC and NC 700 Tennent Road LLC d/b/a "Netcost Market" move for an order pursuant to CPLR 3211(a)(1) and (7): (a) dismissing the First, Second, Third and Fifth Causes of Action in their entirety; (b) dismissing the Fourth and Sixth Causes of Action for plaintiff's period of employment in New Jersey; and (c) for such other remedies as the Court deems just and proper.
Background:
Plaintiff commenced this action alleging claims of national origin based discrimination and wrongful termination under the New York State Human Rights Law ("NYSHRL") and the New York City Human Rights Law ("NYCHRL") and claims for unpaid wages in violation of the New York Labor Law ("NYLL"). The gist of plaintiff's national based discrimination claim is that defendants' principals and management team, who were from Western Ukraine, treated him disparately from employees who were from Eastern Ukraine. Plaintiff's NYLL claims are premised on defendants' failure to pay him overtime premiums and for all hours worked, failure to pay him spread-of-hours pay, and failure to provide him with a wage notice when he was hired. Some of these claims are based on plaintiff's contention that defendants misclassified him as a Manager who was exempt from overtime requirements. The Complaint:
In his complaint, plaintiff alleges that the defendants operate a chain of Eastern European supermarkets in New York, New Jersey and Philadelphia, with approximately 10 locations. (Plaintiff's Complaint at ¶ 11). He alleges that defendants operate, inter alia, the following stores at the following locations: 608 Sheepshead Bay Road, Brooklyn, NY ("6th Street Location"), 8671 18th Avenue, Brooklyn, NY ("18th Ave. Location"), 1029 Brighton Beach Avenue, Brooklyn, NY ("Gourmanoff Location"), 2257 East 16th Street, Brooklyn, NY ("East 16th Location"), and 700 Tennent Road, Manalapan Township, NJ ("NJ Location") (Id.).
Plaintiff alleges that he is "Eastern Ukrainian," from a region of Ukraine that it known for being "pro-Russian," and that he was defendants' only employee from Eastern Ukraine (Id. at ¶¶ 29-30, 34). He claims that several members of defendants' management team are from Western Ukraine, including defendants' General Director, Angelina Khristenchenko ("Angelina") and that several employees of the defendant openly expressed pro-Western Ukraine support and hostility towards Eastern Ukraine (Id. at ¶¶ 33, 43). In one such incident which occurred on November 22, 2018, he alleges that while he was working as the Produce Manager at the NJ Location, he verbally disciplined his Assistant Manager, Dilshot Maksudov ("Maksudov") for arriving five (5) hours late for his shift, to which Maksudov responded by aggressively raising his voice and publicly calling plaintiff a "separatist from Luhansk" (Id. at ¶¶ 35-39). Luhansk is allegedly the capital city of the Donbass region of Ukraine, an ultra pro-Russia region of Ukraine. Plaintiff alleges that despite his requests to the Store Manager to issue a written warning to Maksudov for lateness, Maksudov continued working without consequence (Id. at ¶ 41).
Plaintiff further alleges that on November 27, 2018, he met with Angelina at her office in Brooklyn (Id. at ¶ 42). He admits that Angelina already knew his national origin, but claims that she asked him, "is it true that you really come from Luhansk?" which he answered in the affirmative (Id. at ¶ 43). Allegedly, Angelina then advised plaintiff that she decided to transfer him from the NJ Location to a location in Brooklyn, to reduce his pay from $1,400 to $1,153.85 per week, to shorten his work week to (5) days per week instead of six (6) days, to demote him from Produce Manager to a lower ranking position in the Grocery Department while promising him that such was temporary, and that after two (2) months of training, he would be promoted to Grocery Manager (Id. at ¶ 44).
Plaintiff further alleged that he started working at the 18th Ave. Location on November 28, 2018 in the lowest laborer position with no managerial duties (Id. at ¶ 47), and that he began working longer shifts totaling similar hours per week as before but received significantly less pay than what he was paid at the NJ Location (Id. at ¶ 48). On January 4, 2019, he was allegedly promoted to Assistant Grocery Manager, although he mostly performed manual labor and his schedule and pay remained unchanged. (Id. at ¶¶ 52-53).
Plaintiff alleges that on February 11, 2019, he was transferred to the Gourmanoff Location and that on his first day, the Store Manager advised him that he was demoted to laborer (Id. at ¶¶ 54, 56). He also claims that he was replaced as Assistant Grocery Manager at the 18th Ave. Location by an employee from "Western Ukraine" (Id. at ¶ 55), that he was temporarily transferred to the East 16th Location from March 4, 2019 to March 7, 2019 with six (6) other employees to work the night shift (Id. at ¶ 57), and that on March 4, 2019, he was singled out by the "Western Ukrainian" Grocery Buyer, Michael Suprun ("Suprun"), to remain working for an additional 3 hours after the shift ended (Id. at ¶¶ 58-59).
Plaintiff alleges that on March 14, 2019, Angelina transferred him back to the 18th Ave. Location to work as a laborer (Id. at ¶ 60), and that on March 27, 2019, he met with Angelina who stated that his position "does not suit him," that he did not pass the training test, and that she needed a few days to find a "better fit" (Id. at ¶ 61). He claims that she suggested that he take two (2) paid sick days off and that she would call him with a new position (Id. at ¶ 62). On March 31, 2019, plaintiff allegedly called Angelina at which time she informed him that she was unable to find him another position and that he was being terminated (Id. at ¶¶ 63, 66). Plaintiff alleges that Angelina's statement that she could not find him another position was a misrepresentation because defendants were hiring for a variety of open positions (Id. at ¶¶ 64-65). He also alleges that he never took a training test and did not know what Angelina was referring to (Id. at ¶ 66).
With respect to plaintiff's claims of wage and hour violations, he alleges that he worked as a laborer at the 6th Street Location from approximately June 1, 2018 to June 16, 2018 (Id. at ¶ 15) when he was paid $13 per hour, and that he worked 5 or 6 days per week (Id. at ¶ 16). In total, plaintiff claims that he worked fifty-two (52) hours total from June 1, 2018 to June 16, 2018 (Id.), but he did not allege that he worked shifts with a spread-of-hours exceeding ten (10) hours during this time period.
Plaintiff alleges that from June 16, 2018 to November 27, 2018 ("NJ Time Period") he worked as Assistant Manager and then Manager of the NJ Location's Produce Department (Id. at ¶ 17). Specifically, he alleges that he worked as an Assistant Manager at this location and was paid $1,000 from June 16, 2018 to August 23, 2018. (Id. at ¶¶ 18, 19, 22). He also alleges that he was promoted and started working at the NJ Location as Produce Manager on August 24, 2018, at which time his salary was increased to $1,400 per week (although he was still paid $1,000 per week "for a couple of days thereafter") (Id. at ¶ 22).
Plaintiff claims that he generally worked six (6) days per week for about nine (9) to ten (10) hours per day (i.e. 54 to 60 hours per week) throughout the NJ Time Period (Id. at ¶¶ 18, 23). He also claims that he performed additional work. (Id. ¶ at 24). For instance, he alleges that defendants failed to pay him for "approximately 2 to 4 worked hours each day" during which time he alleges he loaded, unloaded and transferred products between locations in Brooklyn and the NJ Location (Id. at ¶¶ 24-28).
From November 27, 2018 until March 27, 2019, plaintiff alleges he worked at various locations in Brooklyn, was paid $1,153.85 per week, and worked five (5) days per week for eleven (11) hours per day (i.e. 55 hours per week) as either a laborer or Assistant Manager (Id. at ¶¶ 44, 47-63). Plaintiff also asserts that his schedule changed on limited occasions. For example, for several weeks in December 2018, plaintiff claims that he worked a sixth day each week (i.e. 66 hours per week) and was paid an additional $230.77 for the extra day of work (Id. at ¶ 49).
Furthermore, plaintiff alleges that from March 4, 2019 to March 7, 2019, he only worked night shifts from 8:30 p.m. to 3 a.m. and sometimes later (i.e., until 6 a.m. on March 4, 2019) (Id. at ¶¶ 57-58).
Finally, plaintiff alleges he was not provided with a required wage notice upon hire in violation of NYLL § 195(1) (Id. at ¶ 80).
Discussion:
(a) The National Origin Claim
With respect to defendants' motion pursuant to CPLR 3211(a)(7) to dismiss plaintiff's claims of national origin discrimination for failure to state a cause of action, it is well settled that "[i]n considering a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Lubonty v. U.S. Bank N.A., 159 A.D.3d 962, 963, 74 N.Y.S.3d 279 [internal quotation marks omitted], affd 34 N.Y.3d 250, 116 N.Y.S.3d 642, 139 N.E.3d 1222; see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720; Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Applying these principles, the Court holds that plaintiff's complaint states a cause of action for employment discrimination under the NYCHRL (Administrative Code of City of N.Y. § 8-101 et seq.) but not under the NYSHRL (Executive Law § 296[1][a]) or Title VII of The Civil Rights Act of 1964 § 703(a)(1) ("Title VII").
The NYCHRL prohibits discrimination in employment based upon "actual or perceived differences, including those based on ...national origin, alienage ... " (Administrative Code of City of N.Y. § 8-101; see Administrative Code § 8-107[1][a][3]; [7]).
The NYSHRL states, in part, "[i]t shall be an unlawful discriminatory practice for an employer because of the...national origin... of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions, or privileges of employment" (Executive Law § 296[1][a]).
Title VII of The Civil Rights Act of 1964 § 703(a)(1) (42 USC 2000e-2 [a][1]) states, in part, "[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's ... national origin".
The NYCHRL, Title VII and the NYSHRL all prohibit employment discrimination based on an individual's national origin. While discrimination claims under the NYSHRL are governed by the same principles as those which apply in Federal "Title VII" cases (see Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629, 665 N.Y.S.2d 25, 687 N.E.2d 1308; see also Mauro v. Orville, 259 A.D.2d 89, 697 N.Y.S.2d 704; Pace v. Ogden Serv. Corp., 257 A.D.2d 101, 692 N.Y.S.2d 220; Michaelis v. State of New York, 258 A.D.2d 693, 685 N.Y.S.2d 325), discrimination claims under the NYCHRL are treated differently. In this regard, the NYCHRL must be construed more "broadly [than the NYSHRL and Title VII] in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v. City of New York, 16 N.Y.3d 472, 477-478, 922 N.Y.S.2d 244, 947 N.E.2d 135; see Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 34, 936 N.Y.S.2d 112). Indeed, the City Council in 2016 amended the NYCHRL in order to provide "additional guidance for the development of an independent body of jurisprudence for the New York City Human Rights Law that is maximally protective of civil rights in all circumstances" (Local Law No. 35 [2016] of City of N.Y. § 1). The City Council noted that "some judicial decisions have correctly understood and analyzed the requirement of section 8-130 ... that all provisions of the New York City Human Rights Law be liberally and independently construed" (Local Law No. 35 §1) (Golston-Green v. City of New York, No. 2016-02462, 2020 WL 2462411 at 4 (N.Y. App Div. May 13, 2020). Moreover, and as particularly relevant here, unlike the NYSHRL and Title VII, the NYCHRL specifically prohibits employment discrimination against individuals by virtue of their association with actual or perceived members of a protected class. Administrative Code § 8-107(20) specifically provides: "The provisions of this section set forth as unlawful discriminatory practices shall be construed to prohibit such discrimination against a person because of the actual or perceived race, creed, color, national origin, disability, age, sexual orientation or alienage or citizenship status of a person with whom such person has a known relationship or association " (emphasis supplied).
Citing Albunio v. City of New York, 16 N.Y.3d 472, 922 N.Y.S.2d 244, 947 N.E.2d 135; Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 936 N.Y.S.2d 112; and Williams v. New York City Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27.
Local Law No. 35 § 1 provides, as follows: "(a) The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York [State] state civil and human rights laws, including those laws with provisions [comparably-worded] worded comparably to provisions of this title, have been so construed. (b) Exceptions to and exemptions from the provisions of this title shall be construed narrowly in order to maximize deterrence of discriminatory conduct."
Thus, the NYCHRL prohibits discrimination against an individual because of his known relationship or association with a person who is actually or perceived to be a person of a specific national origin. The definition of "person" for purposes of NYCHRL is broad and encompasses "one or more natural persons, proprietorships, partnerships, associations, group associations, organizations, governmental bodies or agencies, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers" (Admin. Code § 8-102).
Affording plaintiff's complaint a liberal construction, as the Court must, the allegations therein sufficiently allege that the plaintiff was discriminated against because of his "known" relationship and association with those of Russian origin, who are a protected class. Accordingly, his complaint, under the NYCHRL, sufficiently states a cause of action.
With respect to plaintiff's claims under NYSHRL and Tile VII, there is ample Federal Court precedent which supports defendants' contention that a claim of intra-country, regional employment discrimination, the type of employment discrimination plaintiff is alleging in this case, is not actionable under Title VII (see Dollman v. Mast. Indus., 731 F. Supp. 2d 328 (S.D.N.Y. Aug. 17, 2010); Bronson v. Bd. of Educ. of the City Sch. Dist. of Cincinnati, 550 F.Supp. 941, 959 (W.D.Ohio 1982); Fowler v. Visiting Nurse Serv. of N.Y., 2007 U.S. Dist. LEXIS 81139, 13-14 (S.D.N.Y. Oct. 30, 2007). Since discrimination claims under the NYSHRL are governed by the same principles as those which apply in Title VII cases, it necessarily follows that plaintiff's employment discrimination claims under the NYSHRL are also not actionable.
In Dollman, in dismissing plaintiff's claim that she was discriminated against by an employee from West Central England because she was from Northeast London, the Court stated: "[d]espite this inclusiveness [of Title VII], discrimination on the basis of a person's regional heritage has typically been excluded from the coverage of "national origin" (731 F. Supp. 2d at 335).
In Bronson, in dismissing plaintiff's employment claim, the Court stated: "[t]here is no indication that 'national origin' was intended to include Appalachians or to include groups such as Appalachians who do not possess a national origin distinguishable from that of other citizens of the United States."
In Fowler, the plaintiff claimed she was discriminated against because she is from the "Southern" United States (2007 U.S. Dist. LEXIS 81139 at 13). In granting defendants summary judgment, the court stated: "the regional differences among the people of this country do not create protected classes," ..."the state or region of the United States where plaintiff was raised is irrelevant to her national origin claim and in order to defeat summary judgment, plaintiff 'must show that she was mistreated as compared to a non-American'" (Id. at 13-14).
(b) The Hostile Work Environment Claim
Inasmuch as plaintiff states in his opposition that he is not asserting a separate hostile work environment claim under either NYSHRL or NYCHRL, defendants' motion insofar as it seeks dismissal of any such claim is granted. (c) Plaintiff's Claim for Period June 16, 2018 to November 27, 2018
Since it is unclear if the plaintiff was exclusively working in New Jersey from June 16, 2018 to November 27, 2018, it cannot be decided as a matter of law since New Jersey Law applies to this time period. Accordingly, defendants' motion insofar as it seeks to dismiss plaintiff's claims under the NYLL is denied.
(d) The Unpaid Over-Time Claim
Since plaintiff clarified in his opposition that he is not seeking unpaid overtime or wages for August 24, 2018 to November 27, 2018 when he worked in New Jersey and New York as an exempt Produce Manager, to the extent the plaintiff's complaint can be construed as making a claim for unpaid over-time and wages for this period, those claims are dismissed. To the extent the complaint alleges a claim for unpaid wages from June 16, 2018 to August 23, 2018 when plaintiff claims he was working as an Assistant Manager, the complaint states a cause of action.
(e) Hospitality Wage Order
The motion insofar as it seeks to dismiss plaintiff's claims premised on violations of the Hospitality Wage Order, the motion is denied. Defendants contend that the Hospitality Wage Order does not apply because defendants were not operating restaurants. However, for purposes of the Hospitality Wage Order, the term "restaurant" includes "any eating or drinking place that prepares and offers food or beverage for human consumption either on any of its premises or by such service as catering, banquet, box lunch, curb service or counter service to the public" (12 N.Y.C.R.R. § 146-3.1(b)). The allegations in plaintiff's complaint did not conclusively demonstrate that defendant's supermarkets do not fall within this definition.
(e) Spread-of Hours Claim
Pursuant to 12 N.Y.C.R.R. § 142-2.4, an employee is entitled to one hour of pay at the minimum wage when they work more than 10 hours in a day. Since plaintiff alleged that he regularly worked more than 10 hours in a day, he stated a cause of action for spread-of hours compensation.
(f) Plaintiff's Wage Notice Claim Under Labor Law §195(1)
Defendants' motion to dismiss plaintiff's wage notice claim under Labor Law § 195(1) based on documentary evidence is denied. The evidence defendants submitted in support of this aspect of their motion is not documentary evidence within the meaning of CPLR 3211(a)(1) (see Suchmacher v. Manana Grocery, 73 A.D.3d 1017, 900 N.Y.S.2d 686; Fontanetta v. John Doe 1, 73 A.D.3d at 85-87, 898 N.Y.S.2d 569; Granada Condo. III Ass'n v. Palomino, 78 A.D.3d 996, 996-97, 913 N.Y.S.2d 668, 669).
Accordingly,
It is hereby
ORDRED that defendants' motion is decided as set forth above.
This constitutes the decision and order of the Court. Dated: August 12, 2020
/s/_________
PETER P. SWEENEY, J.S.C.
Note: This signature was generated
electronically pursuant to Administrative
Order 86/20 dated April 20, 2020