United Staffing Registry and West Side GI LLC
A federal lawsuit has been filed by a foreign nurse against her New York City employers for violations of the Trafficking Victims Protection Act, sex discrimination, sexual harassment, a hostile work environment, and unlawful retaliation.
The defendants are United Staffing Registry, Inc. d/b/a United Home Care, Benjamin H. Santos, and West Side GI, LLC. The docket number of the case is 19 Civ. 6455 (FB) (SJB) (E.D.N.Y.)
The nurse alleges that she was sexually harassed while working at West Side GI, LLC, and that her employer retaliated against her when she complained about the sexual harassment. The nurse also alleges that the staffing agency that placed her at West Side GI, LLC threatened that she would suffer serious harm if she tried to stop working. The threats included: (a) legal action to collect the balance of a $90,000.00 indenture that the nurse must either pay or work off before she would be permitted to stop working; (b) enforcement of a non-compete penalty that purports to prohibit the nurse from working in the healthcare field anywhere in the United States for a period of three years if she fails to pay or work off the $90,000.00 indenture; and (c) an express, written threat to report nurse to Immigration and Customs Enforcement (ICE) and have her deported if she stops working before she pays or works off the $90,000.00 indenture.
The defendants are United Staffing Registry, Inc. d/b/a United Home Care, Benjamin H. Santos, and West Side GI, LLC. The docket number of the case is 19 Civ. 6455 (FB) (SJB) (E.D.N.Y.)
The nurse alleges that she was sexually harassed while working at West Side GI, LLC, and that her employer retaliated against her when she complained about the sexual harassment. The nurse also alleges that the staffing agency that placed her at West Side GI, LLC threatened that she would suffer serious harm if she tried to stop working. The threats included: (a) legal action to collect the balance of a $90,000.00 indenture that the nurse must either pay or work off before she would be permitted to stop working; (b) enforcement of a non-compete penalty that purports to prohibit the nurse from working in the healthcare field anywhere in the United States for a period of three years if she fails to pay or work off the $90,000.00 indenture; and (c) an express, written threat to report nurse to Immigration and Customs Enforcement (ICE) and have her deported if she stops working before she pays or works off the $90,000.00 indenture.
The Sexual Harassment and Human Trafficking Complaint
Here is the text of the Complaint that was filed in federal court against West Side GI, LLC, United Staffing Registry, Inc. d/b/a United Home Care, and Benjamin H. Santos.
Plaintiff, by her undersigned attorneys, as and for her complaint against defendants United Staffing Registry, Inc., Benjamin Santos, and West Side GI, LLC, alleges as follows:
This is an action for damages, injunctive relief, declaratory relief, and other remedies for: (a) violations of the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1589 et seq.; (b) sex discrimination, sexual harassment, a hostile work environment, and unlawful retaliation in violation of the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq.; and (c) breach of contract under New York law.
Defendant United Staffing entered into a contract to employ plaintiff, a Polish citizen, as a Registered Nurse and to sponsor her for permanent resident status in the United States. United Staffing assigned plaintiff to work at defendant West Side GI. While she was working at West Side GI, plaintiff was not paid the prevailing wage required by her contract and was subjected to sex discrimination, sexual harassment, and a hostile work environment.
After plaintiff took maternity leave and complained about sexual harassment and a hostile work environment, she was fired from her position at West Side GI and told that she would be placed by defendant United Staffing in a less desirable position in a nursing home.
Defendants United Staffing and Santos threatened that plaintiff would suffer serious harm if she tried to stop working for them. The threats included: (a) legal action to collect the $45,000.00 balance on an illegal $90,000.00 indenture that plaintiff must either pay or work off before she will be permitted to stop working; (b) enforcement of a non-compete penalty that purports to prohibit plaintiff from working in the healthcare field anywhere in the United States for a period of three years if she fails to pay or work off the indenture; and (c) an express, written threat to report plaintiff to Immigration and Customs Enforcement (ICE) and have her deported if she stops working before she pays or works off the indenture.
While the defendants characterize the indenture as “liquidated damages,” there is in fact no basis for this claim. Defendants United Staffing and Santos paid nothing towards plaintiff’s recruitment, visa applications, or training. All such costs were paid by plaintiff.
Plaintiff seeks: (a) compensatory and punitive damages for violations of the Trafficking Victims Protection Act, the NYS Human Rights Law, and the NYC Human Rights Law; (b) a declaratory judgment and injunctive relief prohibiting enforcement of the indenture and non-compete provisions of the employment contract; (c) compensatory damages for breach of contract; (d) an award of reasonable attorneys’ fees and costs pursuant to 18 U.S.C. § 1595(a), New York Executive Law § 297.10, New York City Administrative Code § 8-502, and the parties’ contract; and (e) such other relief as the Court deems just and proper.
Jurisdiction and Venue
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 18 U.S.C. § 1595(a) (civil trafficking). This Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 because the state law claims form part of the same case or controversy as the federal law claims.
Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to plaintiffs’ claims occurred in this District.
The Parties
Plaintiff is a Registered Nurse licensed to practice in the State of New York. She is a citizen of Poland and resides in Queens County, New York.
Defendant UNITED STAFFING REGISTRY, INC. d/b/a United Home Care (“United Staffing”) is a corporation organized under the laws of the State of New York with a principal place of business 77-04 Broadway, Elmhurst (Queens County), New York. At all times relevant to this complaint, United Staffing was plaintiff’s employer.
Defendant BENJAMIN H. SANTOS (“Santos”) is the owner, President, and Chief Executive Officer of defendant United Staffing. Upon information and belief he is a resident of Queens County New York. At all times relevant to this complaint, Santos was plaintiff’s employer.
Defendant WEST SIDE GI, LLC (“West Side GI”) is a limited liability company organized under the laws of the State of New York with a principal place of business at 619 West 54th Street, 8th Floor, New York, New York. At all times relevant to this complaint, West Side GI was plaintiff’s employer.
Defendant Santos exercised complete domination of defendant United Staffing in respect to the conduct alleged in this complaint, including violations of the Trafficking Victims Protection Act designed to coerce the continued performance of plaintiff under their employment contract notwithstanding the defendants’ failure to pay the prevailing wages required under their employment contract.
Defendant Santos used his complete domination of defendant United Staffing to commit wrongs against plaintiff, including violations of the Trafficking Victims Protection Act designed to coerce the continued performance of plaintiff under the contract notwithstanding the defendants’ failure to pay the prevailing wages required under their employment contract.
Defendants United Staffing and Santos are associated in fact and comprise a venture as that term is used in the Trafficking Victims Protection Act, 18 U.S.C. §§ 1589 and 1595.
Facts Common to All Claims
In or about January 2017, plaintiff signed an employment contract to work for defendants United Staffing and Santos in New York. The contract was signed by defendant Santos as President and CEO of defendant United Staffing.
Defendants United Staffing and Santos have been in the business of recruiting foreign nurses for more than 20 years.
Defendant Santos is a sophisticated and experienced businessman.
Defendant Santos is a sophisticated and experienced and foreign labor recruiter.
Upon information and belief, the contract signed by plaintiff and defendant Santos is a standard form contract that defendants United Staffing and Santos require all foreign nurses to sign.
A. Defendants’ Failure to Pay the Prevailing Wages Required by the Employment Contract
The employment contract provides that plaintiff will be paid “prevailing wages” for a Registered Nurse based on the location of the hospital or health care facility where she was assigned.
United Staffing assigned plaintiff to work at an endoscopy center run by defendant West Side GI in Manhattan.
Plaintiff began working for the defendants at West Side GI on March 13, 2017.
Plaintiff was paid less than the prevailing wage.
B. Plaintiff Was Subjected to Sexual Harassment and a Hostile Work Environment
In or about May 2019, an employee of West Side GI sent a series of group text messages to other West Side GI employees claiming that plaintiff was sleeping with one of the doctors at the facility.
The employee first sent a group text message to five current and former employees commenting on an event that was held at the employer’s facility. In his group text message, the employee referred to one of the facility’s doctors and asked, “Do you guys think Ana is sleeping with him?”
The employee then sent another group text to the same people in which he said, “Something tells me.”
The employee followed up this group text with another one to the same people in which he said, “I think she is.”
The employee followed up with yet another group text to the same people in which he said, “She is.”
The employee then sent another group text message to the same people stating that Polish girls will do anything for money.
The attacks on plaintiff’s character were not true.
Plaintiff reported the group text message to Donna White, the manager at West Side GI, and asked Ms. White to take appropriate action. Plaintiff also reported the sexually harassing group text messages to two of the physicians who work at West Side GI.
Ms. White responded that there was nothing she could do and refused to take any action.
Shortly after plaintiff complained of sexual harassment, the employee who sent the group text messages was promoted to the position of clinical coordinator.
Plaintiff had only recently given birth to her third child at the time of these incidents. West Side GI’s refusal to address the sexual harassment by her co-worker left plaintiff feeling extremely upset, anxious, distraught, and humiliated.
C. Defendant West Side GI Retaliated Against Plaintiff
Upon information and belief, in or about August 2019, Ms. White, the manager, removed plaintiff’s belongings from her locker while she was on maternity leave.
On or about September 4, 2019, United Staffing informed plaintiff that she had been terminated by West Side GI because Ms. White, the manager, no longer wanted plaintiff working there.
West Side GI terminated plaintiff’s employment shortly after plaintiff was scheduled to return from maternity leave.
West Side GI terminated plaintiff’s employment shortly after plaintiff complained about sexual harassment and a hostile work environment.
Upon information and belief, West Side GI terminated plaintiff’s employment because of her maternity leave and complaints about sexual harassment and a hostile work environment.
D. Plaintiff Faces Threats of Serious Harm If She Tries to Stop Working for United Staffing
Defendants United Staffing and Santos have engaged in a deliberate scheme, pattern, and plan intended to cause plaintiff to believe that she would suffer serious harm if she tried to leave their employ or find other employment.
1. Defendants’ Illegal $90,000.00 Indenture
The employment contract provides that plaintiff cannot stop working until she either pays or works off a $90,000.00 indenture disguised as “liquidated damages.”
The indenture is designed to coerce plaintiff into continuing her employment with the defendants.
The amount of the indenture is disproportionate to the actual costs incurred by the defendants.
The indenture is disproportionate to the compensation paid to plaintiff.
The purpose of the indenture is not to compensate defendants for actual or potential damages.
The purpose of the indenture is to obtain and provide plaintiff’s labor and services to defendants and their clients.
The purpose of the indenture is to deter plaintiff from leaving her employment with defendants.
Defendants United Staffing and Santos are and were able to calculate the amount of actual damages they would suffer in the event plaintiff breached the employment contract.
Plaintiff reasonably feared that defendants would sue her for the $45,000 balance of the $90,000 indenture and other provisions in the employment contract.
2. The Nationwide, Three-Year Non-Compete Penalty
The employment contract includes a non-compete penalty that applies only if plaintiff leaves before paying off the $90,000.00 indenture. In that event, the employment contract purports to prohibit plaintiff from working as a nurse or physician assistant or otherwise practicing the art of/science of nursing anywhere in the United States for a period of three years.
The temporal, geographic, and substantive scope of the non-compete penalty create an unreasonable restraint on plaintiff’s ability to practice her profession.
The temporal, geographic, and substantive scope of the non-compete penalty are broader than necessary to protect any legitimate business interest of defendants.
The purpose of the non-compete penalty is not to protect any legitimate business interest of defendants.
The purpose of the non-compete penalty is to obtain and provide plaintiff’s labor and services to defendants and their clients.
The purpose of the non-compete provisions is to deter plaintiff from leaving her employment with defendants.
Plaintiff reasonably fears that potential employers will not hire her as long as defendants may sue her for violation of the three-year, nationwide non-compete penalty.
Plaintiff reasonably fears that defendants will sue her for breach of the non-compete penalty in the employment contract if she tried to practice her profession with any other employer in the United States
Plaintiff reasonably fears that the cost of defending herself against defendants’ threatened legal actions will cause her to suffer serious harm.
3. Defendants’ Threats to Have Plaintiff Deported
The employment contract threatens plaintiff with deportation if she stops working for the defendants before paying or working off the $90,000.00 indenture. Specifically, defendants United Staffing and Santos threaten that, if plaintiff leaves before paying or working off the indenture, they will report her “to the United States Citizenship and Immigration Services (USCIS) and the Immigration and Customs enforcement [sic] (ICE),” and that “such report may lead to the termination of the Permanent Resident Card (Green Card) and deportation of the EMPLOYEE from the United States.”
There was and is no legitimate basis in law for defendants’ threat to have plaintiff deported if she stops working for them.
The purpose of the threat of deportation is not to protect any legitimate business interest of defendants.
The purpose of the threat of deportation is to obtain and provide plaintiff’s labor and services to defendants and their clients.
The purpose of the threat of deportation is to deter plaintiff from leaving her employment with defendants.
The threat of deportation is a threatened abuse of law and legal process.
4. Defendants’ Additional Abuses of Law and Legal Process
Upon information and belief, defendants United Staffing and Santos have brought and threatened to bring lawsuits against other nurses to keep them from exercising their right to stop working for the defendants and seek other employment.
The defendants’ lawsuits against other nurses are part of a longstanding pattern and practice designed to induce fear and prevent sponsored nurses from seeking other employment.
Upon information and belief, the defendants’ actual and threatened legal actions were pursued for the purpose of coercing sponsored nurses to continue working for the defendants and their clients.
Upon information and belief, the defendants’ actual and threatened legal actions were pursued with the intent to cause all sponsored nurses to believe that they would suffer serious psychological, financial or reputational harm if they did not continue working for defendants and their clients.
As a direct and proximate result of the defendants’ wrongful conduct, plaintiff continued working for the defendants at a rate of pay less than the prevailing wage required by her employment contract.
FIRST CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR VIOLATIONS OF THE TRAFFICKING VICTIMS PROTECTION ACT (TVPA), 18 U.S.C. § 1595
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 70 above as if fully restated herein.
Defendants United Staffing and Santos knowingly provided and obtained the labor and services of plaintiff by means of the abuse or threatened abuse of law or legal process, including without limitation the use or threatened use of a law or legal process in order to exert pressure on plaintiff to continue working for the defendants and to refrain from seeking employment elsewhere.
Defendants United Staffing and Santos knowingly provided and obtained the labor and services of plaintiff by means of serious harm and threats of serious harm, including without limitation psychological, financial, or reputational harm that was sufficiently serious to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Defendants United Staffing and Santos knowingly provided and obtained the labor and services of plaintiff by means of a scheme, plan, or pattern intended to cause plaintiff to believe that, if she did not perform such labor or services, she would suffer serious harm, including without limitation psychological, financial, or reputational harm that was sufficiently serious to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Defendants United Staffing and Santos knowingly benefitted, financially or by receiving other value, from participation in a venture which has engaged in the providing or obtaining of labor or services by the means described above, knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by such means.
Defendants United Staffing and Santos knowingly recruited, provided, and obtained plaintiff for labor or services in violation of 18 U.S.C. §§ 1589, 1590, 1594(a), and 1594(b).
By reason of the conduct described above, defendants United Staffing and Santos were perpetrators of violations of 18 U.S.C. §§ 1589, 1590, 1594(a), and 1594(b).
Plaintiff suffered damages as a direct and proximate result of the defendants’ conduct.
Plaintiff is entitled to compensatory and punitive damages in amounts to be determined at trial, together with reasonable attorneys’ fees and the costs of this action.
SECOND CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR CONSPIRING TO VIOLATE THE TRAFFICKING VICTIMS PROTECTION ACT (TVPA), 18 U.S.C. § 1594(b)
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 79 above as if fully restated herein.
Defendants United Staffing and Santos conspired with one another to violate 18 U.S.C. §§ 1589 and 1590.
Defendants United Staffing and Santos agreed to provide and obtain the labor and services of plaintiff by means of the abuse or threatened abuse of law or legal process, including without limitation the use or threatened use of a law or legal process in order to exert pressure on plaintiff to continue working for the defendants or to refrain from seeking employment elsewhere.
Defendants United Staffing and Santos agreed to provide and obtain the labor and services of plaintiff by means of serious harm and threats of serious harm, including without limitation psychological, financial, or reputational harm that was sufficiently serious to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Defendants United Staffing and Santos agreed to provide and obtain the labor and services of plaintiff by means of a scheme, plan, or pattern intended to cause plaintiff to believe that, if she did not perform such labor or services, she would suffer serious harm, including without limitation psychological, financial, or reputational harm that was sufficiently serious to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Defendants United Staffing and Santos agreed to benefit, financially or by receiving other value, from participation in a venture which has engaged in the providing or obtaining of labor or services by the means described above, knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by such means.
Defendants United Staffing and Santos agreed to recruit, provide, and obtain plaintiff for labor or services in violation of 18 U.S.C. §§ 1589 and 1590.
Each of the defendants engaged in at least one overt act in furtherance of the conspiracy, including:
a. Defendant United Staffing required plaintiff to execute a contract with unenforceable indenture and non-compete provisions, and threatened to commence legal action to enforce these provisions, for the purpose of coercing plaintiff to continue working;
b. Defendant Santos warned, cautioned, and threatened plaintiff that she would be sued for the balance of the indenture if she tried to stop working for the defendants.
Each of the defendants intentionally engaged in these acts and additional acts in furtherance of their agreed plan to deny plaintiff the compensation she was entitled to under her employment agreement and to coerce plaintiff to continue working for the defendants and not to seek work elsewhere.
Plaintiff suffered damages as a direct and proximate result of the defendants’ conspiracy.
Plaintiff is entitled to compensatory and punitive damages in amounts to be determined at trial, together with reasonable attorneys’ fees and the costs of this action.
THIRD CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR ATTEMPTING TO VIOLATE THE TRAFFICKING VICTIMS PROTECTION ACT (TVPA), 18 U.S.C. § 1594(a)
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 90 above as if fully restated herein.
Defendants United Staffing and Santos attempted to violate 18 U.S.C. §§ 1589 and 1590.
Plaintiff suffered damages as a direct and proximate result of the defendants’ attempts to violate 18 U.S.C. §§ 1589 and 1590.
Plaintiff is entitled to compensatory and punitive damages in amounts to be determined at trial, together with reasonable attorneys’ fees and the costs of this action.
FOURTH CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR BREACH OF CONTRACT
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 94 above as if fully restated herein.
Plaintiff entered into a valid and binding employment contract with defendants United Staffing and Santos.
Plaintiff substantially performed under the contract.
Defendants United Staffing and Santos breached the contract by failing to pay plaintiff the prevailing wages.
Plaintiff suffered damages as a direct and proximate result of the breach.
Plaintiff is entitled to compensatory damages for breach of contract in amounts to be determined at trial, together with reasonable attorneys’ fees and the costs of this action.
FIFTH CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR A DECLARATORY JUDGMENT
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 100 above as if fully restated herein.
The indenture and non-compete clause are unenforceable under the TVPA.
The indenture and non-compete clause are unenforceable under the 13th Amendment to the United States Constitution.
The indenture and non-compete clause are unenforceable under the Anti-Peonage Law, 42 U.S.C. § 1994.
The indenture and non-compete clause are unenforceable under New York law.
Plaintiff has a definite and concrete dispute with defendants United Staffing and Santos concerning the enforceability of the indenture and non-compete clause.
The dispute touches the legal relations of parties having adverse legal interests.
The dispute is real and substantial.
The dispute admits of specific relief through a decree of a conclusive character.
The dispute involves a substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
SIXTH CLAIM FOR RELIEF AGAINST ALL DEFENDANTS FOR SEX DISCRIMINATION AND SEXUAL HARASSMENT IN VIOLATION OF THE NEW YORK STATE HUMAN RIGHTS LAW
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 110 above as if fully restated herein.
West Side GI’s employees harassed and discriminated against plaintiff based on her gender.
The harassment was sufficiently severe and pervasive to alter the conditions of plaintiff's employment and create an abusive working environment.
Defendants United Staffing and West Side GI knew of the harassment and did nothing to stop it.
The defendants’ conduct constitutes sexual harassment and sex discrimination against plaintiff in violation of the New York State Human Rights Law.
The stated reasons for defendants’ conduct were not the true reasons, but instead were pretext to hide the defendants’ discriminatory animus.
Plaintiff suffered damages as a direct and proximate result of defendants’ conduct.
SEVENTH CLAIM FOR RELIEF AGAINST DEFENDANT WEST SIDE GI FOR RETALIATION IN VIOLATION OF THE NEW YORK STATE HUMAN RIGHTS LAW
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 117 above as if fully restated herein.
The conduct of defendant West Side GI constitutes retaliation against plaintiff because she engaged in activities protected by the New York State Human Rights Law.
The stated reasons for defendant West Side GI’s conduct were not the true reasons, but instead were pretext to hide the defendants’ retaliatory animus.
Plaintiff suffered damages as a direct and proximate result of defendant’s conduct.
EIGHTH CLAIM FOR RELIEF AGAINST ALL DEFENDANTS FOR SEX DISCRIMINATION AND SEXUAL HARASSMENT IN VIOLATION OF THE NEW YORK CITY HUMAN RIGHTS LAW
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 121 above as if fully restated herein.
The defendants’ conduct constitutes sexual harassment and sex discrimination against plaintiff in violation of the New York City Human Rights Law.
The stated reasons for the defendants’ conduct were not the true reasons, but instead were pretext to hide the defendants’ discriminatory animus.
Plaintiff suffered damages as a direct and proximate result of defendants’ conduct.
NINTH CLAIM FOR RELIEF AGAINST DEFENDANT WEST SIDE GI FOR RETALIATION IN VIOLATION OF THE NEW YORK CITY HUMAN RIGHTS LAW
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 125 above as if fully restated herein.
The conduct of defendant West Side GI constitutes retaliation against the plaintiff because she engaged in activities protected by the New York City Human Rights Law.
The stated reasons for defendant West Side GI’s conduct were not the true reasons, but instead were pretext to hide the defendant’s retaliatory animus.
Plaintiff suffered damages as a direct and proximate result of defendant’s conduct.
Jury Demand
Plaintiff is entitled to and demands a jury trial.
Prayer for Relief
WHEREFORE plaintiff requests judgment awarding her: (a) compensatory and punitive damages for violations of the Trafficking Victims Protection Act, the NYS Human Rights Law, and the NYC Human Rights Law; (b) a declaratory judgment and injunctive relief prohibiting enforcement of the indenture and non-compete provisions of her employment contract; (c) compensatory damages for breach of contract; (d) an award of reasonable attorneys’ fees and costs pursuant to 18 U.S.C. § 1595(a), New York Executive Law § 297.10, New York City Administrative Code § 8-502, and the parties’ contract; and (e) such other relief as the Court deems just and proper.
Dated: New York, New York
November 15, 2019
THE HOWLEY LAW FIRM P.C.
By: John J.P. Howley
Leandro B. Lachica
Attorneys for Plaintiff
225 West 34th Street, 9th Floor
New York, New York 10122
(212) 601-2728
This is an action for damages, injunctive relief, declaratory relief, and other remedies for: (a) violations of the Trafficking Victims Protection Act (“TVPA”), 18 U.S.C. § 1589 et seq.; (b) sex discrimination, sexual harassment, a hostile work environment, and unlawful retaliation in violation of the New York State Human Rights Law, N.Y. Exec. Law §§ 290, et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq.; and (c) breach of contract under New York law.
Defendant United Staffing entered into a contract to employ plaintiff, a Polish citizen, as a Registered Nurse and to sponsor her for permanent resident status in the United States. United Staffing assigned plaintiff to work at defendant West Side GI. While she was working at West Side GI, plaintiff was not paid the prevailing wage required by her contract and was subjected to sex discrimination, sexual harassment, and a hostile work environment.
After plaintiff took maternity leave and complained about sexual harassment and a hostile work environment, she was fired from her position at West Side GI and told that she would be placed by defendant United Staffing in a less desirable position in a nursing home.
Defendants United Staffing and Santos threatened that plaintiff would suffer serious harm if she tried to stop working for them. The threats included: (a) legal action to collect the $45,000.00 balance on an illegal $90,000.00 indenture that plaintiff must either pay or work off before she will be permitted to stop working; (b) enforcement of a non-compete penalty that purports to prohibit plaintiff from working in the healthcare field anywhere in the United States for a period of three years if she fails to pay or work off the indenture; and (c) an express, written threat to report plaintiff to Immigration and Customs Enforcement (ICE) and have her deported if she stops working before she pays or works off the indenture.
While the defendants characterize the indenture as “liquidated damages,” there is in fact no basis for this claim. Defendants United Staffing and Santos paid nothing towards plaintiff’s recruitment, visa applications, or training. All such costs were paid by plaintiff.
Plaintiff seeks: (a) compensatory and punitive damages for violations of the Trafficking Victims Protection Act, the NYS Human Rights Law, and the NYC Human Rights Law; (b) a declaratory judgment and injunctive relief prohibiting enforcement of the indenture and non-compete provisions of the employment contract; (c) compensatory damages for breach of contract; (d) an award of reasonable attorneys’ fees and costs pursuant to 18 U.S.C. § 1595(a), New York Executive Law § 297.10, New York City Administrative Code § 8-502, and the parties’ contract; and (e) such other relief as the Court deems just and proper.
Jurisdiction and Venue
This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question) and 18 U.S.C. § 1595(a) (civil trafficking). This Court has supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 because the state law claims form part of the same case or controversy as the federal law claims.
Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) because a substantial part of the events and omissions giving rise to plaintiffs’ claims occurred in this District.
The Parties
Plaintiff is a Registered Nurse licensed to practice in the State of New York. She is a citizen of Poland and resides in Queens County, New York.
Defendant UNITED STAFFING REGISTRY, INC. d/b/a United Home Care (“United Staffing”) is a corporation organized under the laws of the State of New York with a principal place of business 77-04 Broadway, Elmhurst (Queens County), New York. At all times relevant to this complaint, United Staffing was plaintiff’s employer.
Defendant BENJAMIN H. SANTOS (“Santos”) is the owner, President, and Chief Executive Officer of defendant United Staffing. Upon information and belief he is a resident of Queens County New York. At all times relevant to this complaint, Santos was plaintiff’s employer.
Defendant WEST SIDE GI, LLC (“West Side GI”) is a limited liability company organized under the laws of the State of New York with a principal place of business at 619 West 54th Street, 8th Floor, New York, New York. At all times relevant to this complaint, West Side GI was plaintiff’s employer.
Defendant Santos exercised complete domination of defendant United Staffing in respect to the conduct alleged in this complaint, including violations of the Trafficking Victims Protection Act designed to coerce the continued performance of plaintiff under their employment contract notwithstanding the defendants’ failure to pay the prevailing wages required under their employment contract.
Defendant Santos used his complete domination of defendant United Staffing to commit wrongs against plaintiff, including violations of the Trafficking Victims Protection Act designed to coerce the continued performance of plaintiff under the contract notwithstanding the defendants’ failure to pay the prevailing wages required under their employment contract.
Defendants United Staffing and Santos are associated in fact and comprise a venture as that term is used in the Trafficking Victims Protection Act, 18 U.S.C. §§ 1589 and 1595.
Facts Common to All Claims
In or about January 2017, plaintiff signed an employment contract to work for defendants United Staffing and Santos in New York. The contract was signed by defendant Santos as President and CEO of defendant United Staffing.
Defendants United Staffing and Santos have been in the business of recruiting foreign nurses for more than 20 years.
Defendant Santos is a sophisticated and experienced businessman.
Defendant Santos is a sophisticated and experienced and foreign labor recruiter.
Upon information and belief, the contract signed by plaintiff and defendant Santos is a standard form contract that defendants United Staffing and Santos require all foreign nurses to sign.
A. Defendants’ Failure to Pay the Prevailing Wages Required by the Employment Contract
The employment contract provides that plaintiff will be paid “prevailing wages” for a Registered Nurse based on the location of the hospital or health care facility where she was assigned.
United Staffing assigned plaintiff to work at an endoscopy center run by defendant West Side GI in Manhattan.
Plaintiff began working for the defendants at West Side GI on March 13, 2017.
Plaintiff was paid less than the prevailing wage.
B. Plaintiff Was Subjected to Sexual Harassment and a Hostile Work Environment
In or about May 2019, an employee of West Side GI sent a series of group text messages to other West Side GI employees claiming that plaintiff was sleeping with one of the doctors at the facility.
The employee first sent a group text message to five current and former employees commenting on an event that was held at the employer’s facility. In his group text message, the employee referred to one of the facility’s doctors and asked, “Do you guys think Ana is sleeping with him?”
The employee then sent another group text to the same people in which he said, “Something tells me.”
The employee followed up this group text with another one to the same people in which he said, “I think she is.”
The employee followed up with yet another group text to the same people in which he said, “She is.”
The employee then sent another group text message to the same people stating that Polish girls will do anything for money.
The attacks on plaintiff’s character were not true.
Plaintiff reported the group text message to Donna White, the manager at West Side GI, and asked Ms. White to take appropriate action. Plaintiff also reported the sexually harassing group text messages to two of the physicians who work at West Side GI.
Ms. White responded that there was nothing she could do and refused to take any action.
Shortly after plaintiff complained of sexual harassment, the employee who sent the group text messages was promoted to the position of clinical coordinator.
Plaintiff had only recently given birth to her third child at the time of these incidents. West Side GI’s refusal to address the sexual harassment by her co-worker left plaintiff feeling extremely upset, anxious, distraught, and humiliated.
C. Defendant West Side GI Retaliated Against Plaintiff
Upon information and belief, in or about August 2019, Ms. White, the manager, removed plaintiff’s belongings from her locker while she was on maternity leave.
On or about September 4, 2019, United Staffing informed plaintiff that she had been terminated by West Side GI because Ms. White, the manager, no longer wanted plaintiff working there.
West Side GI terminated plaintiff’s employment shortly after plaintiff was scheduled to return from maternity leave.
West Side GI terminated plaintiff’s employment shortly after plaintiff complained about sexual harassment and a hostile work environment.
Upon information and belief, West Side GI terminated plaintiff’s employment because of her maternity leave and complaints about sexual harassment and a hostile work environment.
D. Plaintiff Faces Threats of Serious Harm If She Tries to Stop Working for United Staffing
Defendants United Staffing and Santos have engaged in a deliberate scheme, pattern, and plan intended to cause plaintiff to believe that she would suffer serious harm if she tried to leave their employ or find other employment.
1. Defendants’ Illegal $90,000.00 Indenture
The employment contract provides that plaintiff cannot stop working until she either pays or works off a $90,000.00 indenture disguised as “liquidated damages.”
The indenture is designed to coerce plaintiff into continuing her employment with the defendants.
The amount of the indenture is disproportionate to the actual costs incurred by the defendants.
The indenture is disproportionate to the compensation paid to plaintiff.
The purpose of the indenture is not to compensate defendants for actual or potential damages.
The purpose of the indenture is to obtain and provide plaintiff’s labor and services to defendants and their clients.
The purpose of the indenture is to deter plaintiff from leaving her employment with defendants.
Defendants United Staffing and Santos are and were able to calculate the amount of actual damages they would suffer in the event plaintiff breached the employment contract.
Plaintiff reasonably feared that defendants would sue her for the $45,000 balance of the $90,000 indenture and other provisions in the employment contract.
2. The Nationwide, Three-Year Non-Compete Penalty
The employment contract includes a non-compete penalty that applies only if plaintiff leaves before paying off the $90,000.00 indenture. In that event, the employment contract purports to prohibit plaintiff from working as a nurse or physician assistant or otherwise practicing the art of/science of nursing anywhere in the United States for a period of three years.
The temporal, geographic, and substantive scope of the non-compete penalty create an unreasonable restraint on plaintiff’s ability to practice her profession.
The temporal, geographic, and substantive scope of the non-compete penalty are broader than necessary to protect any legitimate business interest of defendants.
The purpose of the non-compete penalty is not to protect any legitimate business interest of defendants.
The purpose of the non-compete penalty is to obtain and provide plaintiff’s labor and services to defendants and their clients.
The purpose of the non-compete provisions is to deter plaintiff from leaving her employment with defendants.
Plaintiff reasonably fears that potential employers will not hire her as long as defendants may sue her for violation of the three-year, nationwide non-compete penalty.
Plaintiff reasonably fears that defendants will sue her for breach of the non-compete penalty in the employment contract if she tried to practice her profession with any other employer in the United States
Plaintiff reasonably fears that the cost of defending herself against defendants’ threatened legal actions will cause her to suffer serious harm.
3. Defendants’ Threats to Have Plaintiff Deported
The employment contract threatens plaintiff with deportation if she stops working for the defendants before paying or working off the $90,000.00 indenture. Specifically, defendants United Staffing and Santos threaten that, if plaintiff leaves before paying or working off the indenture, they will report her “to the United States Citizenship and Immigration Services (USCIS) and the Immigration and Customs enforcement [sic] (ICE),” and that “such report may lead to the termination of the Permanent Resident Card (Green Card) and deportation of the EMPLOYEE from the United States.”
There was and is no legitimate basis in law for defendants’ threat to have plaintiff deported if she stops working for them.
The purpose of the threat of deportation is not to protect any legitimate business interest of defendants.
The purpose of the threat of deportation is to obtain and provide plaintiff’s labor and services to defendants and their clients.
The purpose of the threat of deportation is to deter plaintiff from leaving her employment with defendants.
The threat of deportation is a threatened abuse of law and legal process.
4. Defendants’ Additional Abuses of Law and Legal Process
Upon information and belief, defendants United Staffing and Santos have brought and threatened to bring lawsuits against other nurses to keep them from exercising their right to stop working for the defendants and seek other employment.
The defendants’ lawsuits against other nurses are part of a longstanding pattern and practice designed to induce fear and prevent sponsored nurses from seeking other employment.
Upon information and belief, the defendants’ actual and threatened legal actions were pursued for the purpose of coercing sponsored nurses to continue working for the defendants and their clients.
Upon information and belief, the defendants’ actual and threatened legal actions were pursued with the intent to cause all sponsored nurses to believe that they would suffer serious psychological, financial or reputational harm if they did not continue working for defendants and their clients.
As a direct and proximate result of the defendants’ wrongful conduct, plaintiff continued working for the defendants at a rate of pay less than the prevailing wage required by her employment contract.
FIRST CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR VIOLATIONS OF THE TRAFFICKING VICTIMS PROTECTION ACT (TVPA), 18 U.S.C. § 1595
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 70 above as if fully restated herein.
Defendants United Staffing and Santos knowingly provided and obtained the labor and services of plaintiff by means of the abuse or threatened abuse of law or legal process, including without limitation the use or threatened use of a law or legal process in order to exert pressure on plaintiff to continue working for the defendants and to refrain from seeking employment elsewhere.
Defendants United Staffing and Santos knowingly provided and obtained the labor and services of plaintiff by means of serious harm and threats of serious harm, including without limitation psychological, financial, or reputational harm that was sufficiently serious to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Defendants United Staffing and Santos knowingly provided and obtained the labor and services of plaintiff by means of a scheme, plan, or pattern intended to cause plaintiff to believe that, if she did not perform such labor or services, she would suffer serious harm, including without limitation psychological, financial, or reputational harm that was sufficiently serious to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Defendants United Staffing and Santos knowingly benefitted, financially or by receiving other value, from participation in a venture which has engaged in the providing or obtaining of labor or services by the means described above, knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by such means.
Defendants United Staffing and Santos knowingly recruited, provided, and obtained plaintiff for labor or services in violation of 18 U.S.C. §§ 1589, 1590, 1594(a), and 1594(b).
By reason of the conduct described above, defendants United Staffing and Santos were perpetrators of violations of 18 U.S.C. §§ 1589, 1590, 1594(a), and 1594(b).
Plaintiff suffered damages as a direct and proximate result of the defendants’ conduct.
Plaintiff is entitled to compensatory and punitive damages in amounts to be determined at trial, together with reasonable attorneys’ fees and the costs of this action.
SECOND CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR CONSPIRING TO VIOLATE THE TRAFFICKING VICTIMS PROTECTION ACT (TVPA), 18 U.S.C. § 1594(b)
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 79 above as if fully restated herein.
Defendants United Staffing and Santos conspired with one another to violate 18 U.S.C. §§ 1589 and 1590.
Defendants United Staffing and Santos agreed to provide and obtain the labor and services of plaintiff by means of the abuse or threatened abuse of law or legal process, including without limitation the use or threatened use of a law or legal process in order to exert pressure on plaintiff to continue working for the defendants or to refrain from seeking employment elsewhere.
Defendants United Staffing and Santos agreed to provide and obtain the labor and services of plaintiff by means of serious harm and threats of serious harm, including without limitation psychological, financial, or reputational harm that was sufficiently serious to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Defendants United Staffing and Santos agreed to provide and obtain the labor and services of plaintiff by means of a scheme, plan, or pattern intended to cause plaintiff to believe that, if she did not perform such labor or services, she would suffer serious harm, including without limitation psychological, financial, or reputational harm that was sufficiently serious to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing labor or services in order to avoid incurring that harm.
Defendants United Staffing and Santos agreed to benefit, financially or by receiving other value, from participation in a venture which has engaged in the providing or obtaining of labor or services by the means described above, knowing or in reckless disregard of the fact that the venture has engaged in the providing or obtaining of labor or services by such means.
Defendants United Staffing and Santos agreed to recruit, provide, and obtain plaintiff for labor or services in violation of 18 U.S.C. §§ 1589 and 1590.
Each of the defendants engaged in at least one overt act in furtherance of the conspiracy, including:
a. Defendant United Staffing required plaintiff to execute a contract with unenforceable indenture and non-compete provisions, and threatened to commence legal action to enforce these provisions, for the purpose of coercing plaintiff to continue working;
b. Defendant Santos warned, cautioned, and threatened plaintiff that she would be sued for the balance of the indenture if she tried to stop working for the defendants.
Each of the defendants intentionally engaged in these acts and additional acts in furtherance of their agreed plan to deny plaintiff the compensation she was entitled to under her employment agreement and to coerce plaintiff to continue working for the defendants and not to seek work elsewhere.
Plaintiff suffered damages as a direct and proximate result of the defendants’ conspiracy.
Plaintiff is entitled to compensatory and punitive damages in amounts to be determined at trial, together with reasonable attorneys’ fees and the costs of this action.
THIRD CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR ATTEMPTING TO VIOLATE THE TRAFFICKING VICTIMS PROTECTION ACT (TVPA), 18 U.S.C. § 1594(a)
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 90 above as if fully restated herein.
Defendants United Staffing and Santos attempted to violate 18 U.S.C. §§ 1589 and 1590.
Plaintiff suffered damages as a direct and proximate result of the defendants’ attempts to violate 18 U.S.C. §§ 1589 and 1590.
Plaintiff is entitled to compensatory and punitive damages in amounts to be determined at trial, together with reasonable attorneys’ fees and the costs of this action.
FOURTH CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR BREACH OF CONTRACT
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 94 above as if fully restated herein.
Plaintiff entered into a valid and binding employment contract with defendants United Staffing and Santos.
Plaintiff substantially performed under the contract.
Defendants United Staffing and Santos breached the contract by failing to pay plaintiff the prevailing wages.
Plaintiff suffered damages as a direct and proximate result of the breach.
Plaintiff is entitled to compensatory damages for breach of contract in amounts to be determined at trial, together with reasonable attorneys’ fees and the costs of this action.
FIFTH CLAIM FOR RELIEF AGAINST DEFENDANTS UNITED STAFFING AND SANTOS FOR A DECLARATORY JUDGMENT
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 100 above as if fully restated herein.
The indenture and non-compete clause are unenforceable under the TVPA.
The indenture and non-compete clause are unenforceable under the 13th Amendment to the United States Constitution.
The indenture and non-compete clause are unenforceable under the Anti-Peonage Law, 42 U.S.C. § 1994.
The indenture and non-compete clause are unenforceable under New York law.
Plaintiff has a definite and concrete dispute with defendants United Staffing and Santos concerning the enforceability of the indenture and non-compete clause.
The dispute touches the legal relations of parties having adverse legal interests.
The dispute is real and substantial.
The dispute admits of specific relief through a decree of a conclusive character.
The dispute involves a substantial controversy of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.
SIXTH CLAIM FOR RELIEF AGAINST ALL DEFENDANTS FOR SEX DISCRIMINATION AND SEXUAL HARASSMENT IN VIOLATION OF THE NEW YORK STATE HUMAN RIGHTS LAW
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 110 above as if fully restated herein.
West Side GI’s employees harassed and discriminated against plaintiff based on her gender.
The harassment was sufficiently severe and pervasive to alter the conditions of plaintiff's employment and create an abusive working environment.
Defendants United Staffing and West Side GI knew of the harassment and did nothing to stop it.
The defendants’ conduct constitutes sexual harassment and sex discrimination against plaintiff in violation of the New York State Human Rights Law.
The stated reasons for defendants’ conduct were not the true reasons, but instead were pretext to hide the defendants’ discriminatory animus.
Plaintiff suffered damages as a direct and proximate result of defendants’ conduct.
SEVENTH CLAIM FOR RELIEF AGAINST DEFENDANT WEST SIDE GI FOR RETALIATION IN VIOLATION OF THE NEW YORK STATE HUMAN RIGHTS LAW
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 117 above as if fully restated herein.
The conduct of defendant West Side GI constitutes retaliation against plaintiff because she engaged in activities protected by the New York State Human Rights Law.
The stated reasons for defendant West Side GI’s conduct were not the true reasons, but instead were pretext to hide the defendants’ retaliatory animus.
Plaintiff suffered damages as a direct and proximate result of defendant’s conduct.
EIGHTH CLAIM FOR RELIEF AGAINST ALL DEFENDANTS FOR SEX DISCRIMINATION AND SEXUAL HARASSMENT IN VIOLATION OF THE NEW YORK CITY HUMAN RIGHTS LAW
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 121 above as if fully restated herein.
The defendants’ conduct constitutes sexual harassment and sex discrimination against plaintiff in violation of the New York City Human Rights Law.
The stated reasons for the defendants’ conduct were not the true reasons, but instead were pretext to hide the defendants’ discriminatory animus.
Plaintiff suffered damages as a direct and proximate result of defendants’ conduct.
NINTH CLAIM FOR RELIEF AGAINST DEFENDANT WEST SIDE GI FOR RETALIATION IN VIOLATION OF THE NEW YORK CITY HUMAN RIGHTS LAW
Plaintiff repeats and realleges each and every allegation in paragraphs 1 through 125 above as if fully restated herein.
The conduct of defendant West Side GI constitutes retaliation against the plaintiff because she engaged in activities protected by the New York City Human Rights Law.
The stated reasons for defendant West Side GI’s conduct were not the true reasons, but instead were pretext to hide the defendant’s retaliatory animus.
Plaintiff suffered damages as a direct and proximate result of defendant’s conduct.
Jury Demand
Plaintiff is entitled to and demands a jury trial.
Prayer for Relief
WHEREFORE plaintiff requests judgment awarding her: (a) compensatory and punitive damages for violations of the Trafficking Victims Protection Act, the NYS Human Rights Law, and the NYC Human Rights Law; (b) a declaratory judgment and injunctive relief prohibiting enforcement of the indenture and non-compete provisions of her employment contract; (c) compensatory damages for breach of contract; (d) an award of reasonable attorneys’ fees and costs pursuant to 18 U.S.C. § 1595(a), New York Executive Law § 297.10, New York City Administrative Code § 8-502, and the parties’ contract; and (e) such other relief as the Court deems just and proper.
Dated: New York, New York
November 15, 2019
THE HOWLEY LAW FIRM P.C.
By: John J.P. Howley
Leandro B. Lachica
Attorneys for Plaintiff
225 West 34th Street, 9th Floor
New York, New York 10122
(212) 601-2728