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Vodopivec v. Anthony's LLC

United States District Court, D. New Jersey

August 1, 2018




         Plaintiff Iztok Vodopivec sues his former employers, Anthony's LLC, Zvi Guitman, Marc Guitman, and Robert Geller. He claims the defendants harassed him on the basis of his Slovenian ethnicity and also engaged in a stamp-forgery scheme. Now before the court is defendants' motion to dismiss. Defendants argue that plaintiffs 42 U.S.C. § 1981 action fails to state a claim and therefore this court lacks subject matter jurisdiction over plaintiffs two state-law claims. For the reasons stated below, defendants' motion to dismiss is denied.

         I. BACKGROUND[1]

         Plaintiff Iztok Vodopivec is a resident of New Jersey and a former employee of defendant Anthony's LLC, a coin and stamp collecting business based in Englewood Cliffs, New Jersey. (Compl. ¶¶ 3-4, 8, 20). Defendants Zvi Guitman (a/k/a Howard), Marc Guitman, and Robert Geller are all members of Anthony's LLC and residents of New Jersey. (Compl. ¶¶ 4-7). Iztok Vodopivec, who was born in Slovenia, alleges defendants forced him to "act Jewish" and change his name, harassed him because of his Slovenian background, and terminated him when he disagreed with fraudulent business practices and insisted on using his actual name of Iztok. (Compl. 8).

         A. Ethnic Stereotyping Allegations

         Anthony's LLC hired Iztok Vodopivec around September 2009 to perform clerical work. (Compl. ¶¶ 10, 20, 24). Zvi Guitman immediately demanded Iztok Vodopivec "act Jewish" and use the name "Isaac" when interacting with customers. (Compl. ¶¶ 20-25, 29). Zvi Guitman told Iztok Vodopivec that he must "act Jewish" or he would be discharged. (Compl. ¶ 26). Zvi allegedly stated that individuals respected Jewish people as knowledgeable collectors, that Slovenians were "low life," and that Slovenians were not respected in this business. (Compl. ¶¶ 26, 28). He also allegedly stated that Jewish people were "discriminated [against] for so long [so] we now rip everyone off." (Compl. ¶ 26). Robert Geller and Marc Guitman would laugh and reaffirm that Iztok Vodopivec needed to present himself as "more Jewish." (Compl. ¶ 28). Defendants told Iztok Vodopivec he was employed by Anthony's LLC only because he was married to Zvi Guitman's daughter-in-law. (Compl. ¶ 28).

         B. Immigration and Tax Fraud Allegations

         Iztok Vodopivec claims that Anthony's LLC did not comply with immigration and tax laws. Anthony's LLC did not initially request Iztok Vodopivec's 1-9 application. (Vodopivec states that he is a permanent resident and is entitled to employment authorization.) (Compl. ¶¶ 25, 32, 34). Anthony's LLC allegedly had several employees who did not submit 1-9 applications. (Compl. ¶ 32). Robert Geller threatened Iztok Vodopivec, saying that Anthony's LLC paid his immigration bond and could take it away. (Compl. ¶ 19). Additionally, Zvi Guitman would give Iztok Vodopivec cash raises to avoid paying additional taxes. (Compl. ¶ 25).

         C. Fraudulent Business Allegations

         The defendants allegedly forged and altered stamps to make them appear unique and then sell diem for thousands of dollars. (Compl. ¶ 12). Defendants routinely sold "worthless" stamps for hundreds or thousands of dollars. (Compl. ¶ 13). For example, Iztok Vodopivec alleges that in August 2017, Robert Geller trimmed the perforation of a stamp, sanded the stamp with a nail file, and put glue on the side to make the stamp appear to be a vintage item. (Compl. ¶ 13).

         Around August 2017, Iztok Vodopivec told Zvi Guitman and Robert Geller that they should not engage in stamp forgery. (Compl. ¶ 15). They told Iztok Vodopivec to "keep his mouth shut" because this was how they ran their business. (Compl. ¶ 15). In September 2017, Iztok Vodopivec saw Robert Geller deplete a stamp of its color by applying gum, taking the gum off one stamp, and transferring it onto an old stamp. (Compl. ¶ 14).

         At this time, a web-based discussion of collectors was created to discuss alleged forgeries by Anthony's LLC. (Compl. ¶ 16). Iztok Vodopivec was concerned and advised Zvi Guitman and Robert Geller that there were serious allegations against the business. (Compl. ¶ 16). One allegation was that defendants would purchase coins from unsophisticated customers for less than their value, exchange the coins for cash, and then split the sums between the individual defendants rather than deposit it in Anthony's LLC. (Compl. ¶ 36).

         Iztok Vodopivec warned Zvi Guitman that Marc Guitman, Zvi Guitman's son, was presenting items on eBay as one-of-a-kind items even though these items were duplicates. (Compl. ¶ 17). Iztok Vodopivec claims that defendants defrauded customers of millions of dollars. (Compl. ¶ 18). In November 2017, Iztok Vodopivec told Robert Geller again that the stamp forgery must end and that they could be subject to criminal prosecution. (Compl. ¶ 18). Robert Geller, apparently speaking for Zvi Guitman and Marc Guitman as well, told Iztok Vodopivec to keep the stamp forgery a secret if he wanted to keep his job. (Compl. ¶¶ 19-20). Robert Geller told Iztok Vodopivec that Anthony's LLC paid for his immigration bond and could revoke it. (Compl. * 19).

         Iztok Vodopivec feared losing his job because he needed medical insurance for his wife, who has a disability, and his two young daughters. (Compl. ¶ 30). Iztok Vodopivec alleges that defendants harassed him and discriminated against him so he would not report their forgery business. (Compl. ¶ 31).

         D. Termination

         In October 2017, Iztok Vodopivec told Zvi Guitman that he would no longer go by the name "Isaac." (Compl. ¶ 37). Zvi Guitman told Iztok Vodopivec that this was unacceptable and that Iztok Vodopivec had to "fix Mr. Guitman's marriage." (Compl. ¶ 39).

         In November 2017, Iztok Vodopivec told defendants he would not be intimidated by their threats and discriminatory statements. (Compl. ¶ 32). At this time, defendants asked Iztok Vodopivec to produce an 1-9 form, which they had never previously required. (Compl. ¶ 32). Defendants ...

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