MEMORANDUM DECISION AND ORDER I. INTRODUCTION On August 25, 2022, Plaintiff Martin J. Walsh, Secretary of Labor, United States Department of Labor (“Plaintiff”), commenced this action against Defendant David Ip (“Defendant”) pursuant to 29 U.S.C. §201, et seq., seeking to redress alleged violations of the Federal Labor Standards Act (“FLSA”). See Dkt. No. 1. Plaintiff alleges one cause of action against Defendant under the FLSA’s anti-retaliation provisions, which bar “retaliation against employees and former employees because they assert their rights under the FLSA.” Id. at 32 (citation omitted). On November 15, 2022, Defendant filed the instant motion to dismiss pursuant to Rules 12(b)(1), 12(b)(6), and Rule 12(b)(7) of the Federal Rules of Civil Procedure. See Dkt. No. 11. Plaintiff opposed the motion and cross-moved to amend the complaint. See Dkt. No. 19. Defendant filed a reply and opposition to the cross-motion. See Dkt. No. 20. Plaintiff filed a reply relative to the cross-motion. See Dkt. No. 23. For the reasons discussed below, Defendant’s motion to dismiss is denied and Plaintiff’s cross-motion to amend is denied as moot. II. BACKGROUND According to the complaint, Plaintiff brought this action “to redress [Defendant's] retaliation against former employees in violation of Section 15(a)(3) of the FLSA, 29 U.S.C. §215(a)(3) and to restrain him from any further retaliation.” Dkt. No. 1 at 1. Defendant “is the former operator of a restaurant called Ichiban Restaurant (‘Ichiban’),” which operated previously in Albany, New York. Id. at 7. “On February 9, 2017, Xue Hui Zhang, a former employee of Defendant [], filed suit in the Northern District of New York under the FLSA claiming he was owed back wages for violations of the [FLSA] and seeking to represent a collective and class of workers[.]” Id. at 14; see Zhang, et al., v. Ichiban Group, LLC, et al., No. 1:17-CV-00148 (MAD/TWD) (N.D.N.Y.). The complaint in that action was later amended to include “two more former employees as class representatives, Yue Hua Chen and Gui Yong Zhang[.]” Id. at 15. In addition to Ichiban, Defendant “operated a private security guard business, which hired off-duty law enforcement officers to serve as private security for large events and venues.” Dkt. No. 1 at 12. Defendant “repeatedly complained” about the FLSA class action to one of his private security employees, Adrian Morin, Sr (“Mr. Morin”). Id. at
16-17. Mr. Morin also serves as a Rensselaer County deputy sheriff. Id. at 17. On July 15, 2019, this Court ordered depositions to be held from August 12 to August 15, 2019 in the FLSA class action. See Dkt. No. 1 at 18. Defendant allegedly discussed the depositions with Mr. Morin in advance. Id. 19. Specifically, “Defendant [] told Mr. Morin the specific dates that the class representatives would be in Albany for their depositions, and the specific locations of their depositions.” Id. at 20. Moreover, Defendant provided Mr. Morin “personal identifying and other sensitive information…, including information about their identities and perceived immigration status.” Id. at 21. Defendant allegedly did so “with the intent that the information would be used adversely[.]” Id. at 22. Thereafter, on or about August 8, 2019, Mr. Morin “reported the location, date, and time that the class representatives would be in Albany” to the United States Immigration and Customs and Enforcement (“ICE”) agency. Dkt. No. 1 at 23. Additionally, Mr. Morin provided “the personal identifying and other sensitive information that [Defendant] had provided about them.” Id. The information “led ICE agents to believe that all three class representatives purportedly had ‘final orders of removal’ and had ‘absconded.’” Id. at 25. On August 12, 2019, the three class representatives traveled to Defendant’s attorney’s office in Albany for the depositions. Dkt. No. 1 at 26. In light of the information Mr. Morin reported, ICE agents also arrived at the attorney’s office. Id. at 27. “During the lunch break of the deposition, the ICE agents followed the class representatives to a restaurant, approached them, and took Xue Hui Zhang into custody, which Yue Hua Chen and Gui Yong Zhang witnessed.” Id. at 28. Xue Hui Zhang remained in custody for several weeks thereafter. Id. at 29. As the Secretary of the United States Department of Labor, Plaintiff “is authorized to seek injunctive relief to restrain violations of the FLSA.” Dkt. No. 1 at 3; see also 29 U.S.C. §217. Through this action, Plaintiff “seeks an order from this Court enjoining Defendant and those acting on his behalf from violating Section 15(a)(3) of the FLSA through any further adverse action against current and former employees as a result of their protected activity[.]” Id. Plaintiff “ also seeks compensatory and punitive damages for Defendant’s willful and flagrant violations to date, and other appropriate relief.” Id. III. DISCUSSION A. Standard of Review1 A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal sufficiency of the party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007) (citation omitted). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader’s favor. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (citation omitted). Although a court’s review of a motion to dismiss is generally limited to the facts presented in the pleading, the court may consider documents that are “integral” to that pleading, even if they are neither physically attached to, nor incorporated by reference into, the pleading. Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002)). To survive a motion to dismiss, a party need only plead “a short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to ‘sho[w] that the pleader is entitled to relief.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (citation omitted). Under this standard, the pleading’s “[f]actual allegations must be enough to raise a right of relief above the speculative level,” see id. at 555 (citation omitted), and present claims that are “plausible on [their] face,” id. at 570. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of the ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). Ultimately, “when the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” Twombly, 550 U.S. at 558, or where a plaintiff has “not nudged [its] claims across the line from conceivable to plausible, the [] complaint must be dismissed[,]” id. at 570. B. FLSA Retaliation Pursuant to the FLSA’s anti-retaliation provision, it is “unlawful for any person…to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].” 29 U.S.C. §215(a)(3). To state a prima facie retaliation claim under the FLSA, the plaintiff must allege: “(1) participation in protected activity known to the defendant; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action.” Mullins v. City of N.Y., 626 F.3d 47, 53 (2d Cir. 2010). An employment action disadvantages an employee if it dissuades a reasonable worker from making or supporting an FLSA violation charge. See id. (citations omitted). “[A] causal connection between an adverse action and a plaintiff’s protected activity may be established ‘through evidence of retaliatory animus directed against a plaintiff by the defendant[.]‘” Id. (quoting Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991)). Alternatively, a causal connection may be established “by showing that the protected activity was closely followed in time by the adverse action[.]” Manoharan v. Columbia Univ. Coll. Of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) (citation omitted). “FLSA retaliation claims are subject to the three-step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Mullins, 626 F.3d at 53. Once the plaintiff presents a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, non-retaliatory reason for its employment decision. See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Upon the defendant’s articulation of a legitimate, non-retaliatory reason, “‘the presumption of retaliation dissipates,’ and the burden shifts back to the plaintiff to prove ‘that the desire to retaliate was the but-for cause of the challenged employment action.’” Smith v. N.Y. & Presbyterian Hosp., 440 F. Supp. 3d 303, 340 (S.D.N.Y. 2020) (citing Chen Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015)). The “but-for” causation standard “does not require proof that retaliation was the only cause of the employer’s action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013). “Retaliation claims made by former employees for post-employment conduct are…allowed under ‘relatively narrow’ circumstances.” Porter v. MooreGroup Corp., No. 17-CV-7405, 2020 WL 34434, *11 (E.D.N.Y. Jan. 2, 2020) (collecting cases). “One such circumstance ‘includ[es] threatening immigration related consequences.’” Stih v. Rockaway Farmers Market, Inc., No. 22-CV-3228, 2023 WL 2760492, *5 (E.D.N.Y. Apr. 3, 2023) (quoting Porter, 2020 WL 32434, *11 (collecting cases)). Herein, the Court finds that Plaintiff has alleged a plausible cause of action. Plaintiff alleges that (1) the three FLSA plaintiffs engaged in protected activity vis-a-vis scheduled deposition testimony in the proceedings against their alleged former employer and that Defendant was aware of same; (2) the August 12, 2019 showing of immigration-related consequences constitute a recognized post-employment adverse action in retaliation cases; and (3) Defendant instigated the report to ICE officials in response to the FLSA plaintiff’s protected activities. Dkt. No. 1 at
