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holding that under the FLSA a reduction in the number of shifts an employee is permitted to work and the concomitant loss of wages is an adverse employment action.
Summary of this case from Sutton v. CHSPSC, LLCOpinion
10 Civ. 4132 (RJS)(KNF)
02-07-2012
HICHAM AZKOUR, Plaintiff, v. LITTLE REST TWELVE, INC., NINA ZAJIC, DAVID KAY, and ABDERRAHMANE a/k/a PETER ELJASTIMI, Defendants.
REPORT & RECOMMENDATION
TO THE HONORABLE RICHARD J. SULLIVAN, UNITED STATES DISTRICT JUDGE
INTRODUCTION
The plaintiff, Hicham Azkour ("Azkour"), brings this action under the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law ("NYLL") § 190 et seq., alleging that defendants Little Rest Twelve, Inc. ("LRT"), Nina Zajic ("Zajic"), David Kay ("Kay"), and Abderrahamane a/k/a Peter Eljastimi ("Eljastimi") failed to pay him: (1) all wages and tips he earned; 2) the statutory minimum wage; 3) overtime compensation for each hour he worked in excess of 40 hours per workweek; and 4) an additional one hour of pay for each day he worked more than 10 hours ("spread-of-hours claim"). Azkour also maintains that the defendants retaliated against him for complaining to the United States Department of Labor ("DOL") about the defendants' failure to compensate him appropriately. In addition, Azkour contends the defendants were unjustly enriched, at his expense, by failing to compensate him fully for the work he performed for them.
Before the Court is Azkour's motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for partial summary judgment. Specifically, he seeks summary judgment on his: (a) FLSA and NYLL minimum wage and overtime compensation claims; (b) NYLL spread-of-hours claim; (c) FLSA and NYLL retaliation claims; and (d) liquidated damages claims. LRT opposes the motion.
BACKGROUND
LRT operated a restaurant and bar in Manhattan; it hired Azkour in October 2009 and, until his employment with the defendants ceased in February 2010, Azkour performed the work of a "busser" and "runner." Azkour maintains that, during his tenure with LRT, he worked in excess of 40 hours per week regularly, and worked routinely at least ten hours per day, six days a week. Azkour asserts that LRT used a time clock to track the hours he worked but did not record all the hours he worked, as the defendants "routinely forced . . . Azkour to work 'off the clock,'" and, further, they did not compensate him in accordance with applicable provisions of FLSA and NYLL.
According to Azkour, the defendants paid him the "legal minimum wage" during the first week he was employed. Thereafter, they paid him the lower "tip minimum wage" without either reaching an agreement with him about tips or explaining their tip-compensation policy to him. In addition, Azkour contends that, although he earned tips while working for the defendants, they retained a portion of those tips and remitted them to managerial employees. Azkour recalls that, after approximately one month had elapsed, he complained to his manager, Eljastimi, that he was not receiving his tips. Azkour maintains that, after lodging his complaint with Eljastimi, the defendants began paying him a portion of his tips in cash; thus, according to Azkour, he received routinely no more than $60 a week, via check, and, $200, in cash, for tips. Furthermore, Azkour alleges that, on some occasions when he was required to work more than ten hours on a given day, the defendants did not pay him one additional hour of pay, at the minimum wage, as required under New York law.
Aggrieved by the defendants' pay practices, Azkour made a complaint to DOL on or about January 11, 2010, and informed Eljastimi of that complaint. Azkour maintains that, after he told Eljastimi of the DOL complaint, the defendants "began retaliating against him" by reducing the number of shifts on which he was scheduled to work, forcing him to "call in" prior to the commencement of his shift, which Azkour contends was not required of similarly situated employees, and ultimately, by terminating his employment when he "insisted on being allowed to work one of his scheduled shifts."
In support of his motion for partial summary judgment, Azkour submitted, inter alia, the declarations of Zajic and Uzi Ben David ("Ben David"). Zajic was LRT's chief executive officer, before the current management assumed control of the restaurant. According to Zajic, LRT kept a portion of the gratuities intended for Azkour, and shared them with managers it employed, although LRT knew that doing so contravened FLSA and NYLL dictates. Ben David was employed by LRT as a waiter, from March 2007 to February 2010. Ben David, whose experiences as a LRT employee, in some respects, mirror Azkour's, corroborates some of Azkour's allegations regarding the defendants' pay practices and their conduct. For example, Ben David maintains that half the tips he earned, while employed at LRT's restaurant, were retained by LRT managers, and he was never informed that his compensation would be offset by LRT's employment of a "tip credit." According to Ben David, when he complained to LRT managers because they were retaining 50% of his tips, they reduced the hours he was allowed to work and assigned him to wait on customers in areas of the restaurant "where [he] was unable to make barely any money." Furthermore, Ben David recounts that after Azkour "complained about his pay to management [Ben David] directly witnessed them retaliating against [Azkour] by cutting his hours and harassing him while he was at work."
LRT contends that the hours Azkour worked, while in its employ, were recorded by a time clock and reflected in its "Clock Labor Report." According to LRT, no evidence is in the record before the Court establishing that Azkour worked in excess of ten hours per day as he alleges. Furthermore, LRT maintains that its policies respecting tips earned by its employees, which were "formulated in accordance with applicable law," were made known to Azkour and its other employees, as demonstrated through an LRT document denominated "Little Rest Twelve, Inc. Employee Acknowledgment Waiver." LRT denies: 1) harassing Azkour; 2) retaliating against him for lodging complaints about his compensation; or 3) terminating his employment. It contends that Azkour was suspended from work, with pay, so that his complaint could be investigated by LRT. According to LRT, while Azkour was under suspension, he tendered a letter of resignation and, thereby, ended his employ relationship with the defendants.
Sergei Bezrukov ("Bezrukov"), who was employed as a manager by LRT, from September 2008 to February 2010, submitted a declaration, on LRT's behalf, and in opposition to Azkour's motion for partial summary judgment. Bezrukov contends that he worked with Azkour but "was never responsible for scheduling the staff." Furthermore, "[t]o the best of [his] knowledge [he] never participated in subtracting hours that where [sic] truly worked by the staff, and [does] not recall anyone else participating in that matter [.]" In addition, Bezrukov maintains that he never "participated in, witnessed, or encountered any retaliation against, or mistreatment of Azkour or any other employee."
UNDISPUTED FACTS
Rule 56.1 of the Local Civil Rules of this court ("Local Rule 56.1") requires a party moving for summary judgment to submit a statement of the material facts it contends are undisputed, with citations to admissible evidence of record supporting each fact. If an opposing party fails to controvert a fact so set forth, the court will deem that fact admitted. However, Local Rule 56.1 does not discharge the party seeking summary judgment of the burden of proving that it is entitled to judgment as a matter of law. See Local Civil Rule 56.1(c).
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support a fact.Fed. R. Civ. P. 56(c)(1). Attached to LRT's Response to Plaintiff's Motion for Summary Judgment ("LRT's Response") are documents designated Exhibit A through P. The Court determined that many of these documents could not be considered by the Court as it analyzed the instant motion, because of evidentiary, procedural or statutory impediments. The documents excluded from consideration, and the reason(s) therefor, are noted below.
The following exhibits to LRT's Response constitute hearsay, and LRT offered no evidence establishing that the documents are within any of the Hearsay Rule exceptions found in the Federal Rules of Evidence: Exhibit A, Docket Entry No. 81-1, a February 9, 2010 letter to Azkour regarding his suspension with pay; Exhibit C, Docket Entry No. 81-3, LRT clock payroll records; Exhibit F, Docket Entry No. 81-5, a January 15, 2010 letter to Azkour from a LRT Human Resources representative; Exhibit G, Docket Entry No. 81-6, a January 25, 2010 letter to Azkour regarding a January 20, 2010 meeting with LRT's Human Resources director; Exhibit K, Docket Entry No. 81-10, a LRT employee acknowledgment waiver; and Exhibit J, Docket Entry No. 81-9, a LRT accident/incident report form.
The following facts are undisputed. LRT is a New York Corporation, with its principal place of business in New York City. At all times relevant to this action, LRT operated a restaurant and bar in New York City. New owners and managers took control of that establishment, in or about May 2010, several months after Azkour's employment with LRT ceased. LRT is an "employer" covered under FLSA and NYLL, and Azkour is an "employee" covered by the respective statutes. See 29 U.S.C. § 203(d)-(e)(1); see also NYLL §§ 190 and 651(5)-(6). Azkour was hired to work at LRT's restaurant on or about October 10, 2009; he worked as a runner and busser. Azkour worked in excess of 40 hours per week regularly, oftentimes working as many as 50 or 60 hours per week.
Some of the hours Azkour worked were recorded by LRT using a time clock; however, others were not because the defendants required Azkour to work "off the clock," resulting in their failure, to record many of the hours he worked. LRT did not pay Azkour one-and-one-half times his regular rate of pay, for all of the work he performed in excess of 40 hours in a workweek.
LRT paid Azkour $4.65 per hour, and he was to receive tips for the remainder of his pay to satisfy the minimum wage compensation requirements. LRT did not inform Azkour that it intended to credit a portion of the tips received by him against the required hourly minimum wage, as required by FLSA. Zajic, LRT's former chief executive officer, avers, through her declaration, that LRT kept a portion of the gratuities intended for Azkour, and shared them with managers. According to Zajic, LRT knew that managers were prohibited from sharing employee gratuities and were doing so improperly. Azkour was not paid an extra hour of pay, at the minimum wage rate, on days when he worked in excess of ten hours. Azkour complained to LRT and DOL about the defendants' failure to pay him wages in accordance with applicable statutes. After Azkour informed LRT of his DOL complaint, Azkour's LRT supervisor reduced the number of hours Azkour was scheduled to work and, as a consequence, his wages were also reduced. Azkour resigned from his position with LRT on February 14, 2010. He commenced this action on May 19, 2010.
DISCUSSION
Summary judgment is appropriate where the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law[.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A "dispute about a material fact is 'genuine' . . . if the evidence is such that a reasonable jury could return a verdict for the non[-]moving party." Id. A motion for summary judgment requests that a district court perform "the threshold inquiry of determining whether there is the need for a trial - whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250, 106 S. Ct. at 2511.
The moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of" the record, including, inter alia, depositions, documents, and affidavits or declarations, that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986); see also Fed. R. Civ. P. 56(c)(1). Once the moving party has met its burden, the non-moving party must "go beyond the pleadings," and provide its own evidence, or make citation to portions of the existing record that show a genuine triable issue exists. Celotex, 477 U.S. at 324, 106 S. Ct. at 2553.
To defeat a motion for summary judgment, the non-moving party must come forward with more than "a scintilla of evidence." Anderson, 477 U.S. at 252, 106 S. Ct. at 2512. When evaluating a summary judgment motion, a district court's "function is not . . . to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S. Ct. at 2511. A district court should not make credibility determinations in ruling on a motion for summary judgment. See id. at 255, 106 S. Ct. at 2513. "[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. I. Overtime Compensation
The provisions of FLSA and NYLL governing overtime compensation are virtually identical; therefore, liability for overtime compensation under NYLL may be analyzed using FLSA case law. See Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61, 78 (2d Cir. 2003); see also Debejian v. Atl. Testing Labs., Ltd., 64 F. Supp. 2d 85, 87 n.1 (N.D.N.Y. 1999). Accordingly, the analysis in this section will refer only to federal law.
To establish an employer's liability for unpaid overtime compensation under the FLSA and NYLL, a plaintiff must prove that he performed work, in excess of 40 hours in a workweek, for which he was not properly compensated, and that his employer had actual or constructive knowledge of that work. See Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011); see also 29 U.S.C. § 207(a)(1); and N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.2. The employer is responsible for maintaining accurate records of the hours its employees work. See 29 U.S.C. § 211(c); see also N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.6. If an employer fails to keep such records, a plaintiff may satisfy his or her burden of establishing inadequate compensation for work performed by submitting sufficient evidence from which the court may reasonably infer the amount and extent of the uncompensated work. See Reich v. S. New England Telecomms. Corp., 121 F.3d 58, 66-67 (2d Cir. 1997). "Consistent with Anderson, an employee's burden in this regard is not high," Kuebel, 643 F.3d at 362, and it may be fulfilled relying on his or her recollection of the hours worked alone. See Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005).
The records submitted by LRT in connection with this motion, to establish the hours Azkour worked, were not properly authenticated as business records, see Fed. R. Evid. 803(6) and, accordingly, may not be considered by the Court when analyzing the instant motion for summary judgment. See Spiegel, 604 F.3d at 81 (noting that only admissible evidence may be considered by a court analyzing a summary judgment motion). In the absence of records from LRT establishing the hours Azkour worked, the Court may rely on Azkour's recollection of the hours he worked to support his claim for overtime compensation. See Doo Nam Yang, 427 F. Supp. 2d at 335. Azkour states, in the affidavit he submitted in support of his motion, that he recalls working in excess of 40 hours per workweek regularly, and often working as many as 50 or 60 hours per week. Furthermore, the declaration Zajic submitted in support of Azkour's motion states that LRT knew that, on many occasions, Azkour worked more than 40 hours in a workweek but it credited him erroneously with working fewer than 40 hours. Accordingly, summary judgment is warranted on Azkour's claim that the defendants are liable to him, under FLSA and NYLL, for failing to pay him the requisite overtime compensation.
II. Minimum Wage
Pursuant to FLSA and NYLL, employers are required to pay their employees a minimum wage. See 29 U.S.C. § 206(a)(1); see also NYLL § 652(1). Both statutes permit an employer to pay tipped employees less than the statutorily prescribed minimum wage. See 29 U.S.C. § 203(m); see also NYLL § 652(4). Employers are permitted to credit a portion of the tips received by an employee against the required hourly minimum wage, this allowance is referred to as a "tip credit." See 29 U.S.C. § 203(m).
During the relevant period, the federal minimum wage was $7.25 per hour. See 29 U.S.C. § 206(a)(1). During the relevant period the New York minimum wage was $7.15; however, when the federal minimum wage is higher than New York's minimum wage, New York adopts the higher minimum wage. See NYLL § 652(1).
A. Tip Credit Under FLSA
Under FLSA, two conditions must be satisfied for an employer to take advantage of the tip credit: (1) the tipped employee must be informed by the employer of the provisions of § 203(m); and (2) the employee must retain all tips he or she receives. See 29 U.S.C. § 203(m). "FLSA permits employers to take a tip credit up to 50% of the minimum wage except that the credit may not exceed the value of the tips actually received by the employee." Shahriar v. Smith & Wollensky Restaurant Group, Inc., 659 F.3d 234, 240 (2d Cir. 2011) (citing 29 U.S.C. § 203(m)). An employer may not take advantage of the tip credit if: (a) "it requires tipped employees to share tips with (1) employees who do not provide direct customer service or (2) managers"; or (b) it has not informed its employees of the provisions of § 203(m). Shahriar, 659 F.3d at 240. Pursuant to FLSA, a "tipped employee" is one who is "engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips." 29 U.S.C. § 203(t). Employees who customarily receive tips may pool their tips. See 29 U.S.C. § 203(m).
B. Tip Credit Under New York Law
Under New York law, employers are also permitted to take a tip credit. However, they are prohibited from requiring their tipped employees to share tips with those employees who do not perform direct customer service, or who are managers of the employer. See NYLL § 652(4); see also N.Y. Comp. Codes R. Regs. Tit. 12, § 137-1.5. In New York, tips may be shared by "a waiter with a busboy or similar employee." NYLL § 196-d. "[P]laintiffs may establish a violation of § 196-d by showing that they were required to share tips with individuals who were either 'employers, owners, or managers' or simply 'not waiters, busboys, or similar employees.'" Shahriar, 659 F.3d at 240 (quoting Chan v. Triple 8 Palace, Inc., No. 03 Civ. 6048, 2006 WL 851749, at *16 (S.D.N.Y. Mar. 30, 2006)). New York law prohibits an employer from retaining a gratuity intended for an employee. Neither an employer nor his agent may "demand or accept, directly or indirectly, any part of the gratuities, received by an employee." NYLL § 196-d.
Zajic asserts, through her declaration, that a portion of the tips collected at the restaurant, during Azkour's shifts, were retained by LRT for the purpose of sharing them with LRT's floor and lounge supervisors, who: (a) did not receive tips directly; and (b) were not eligible to receive tips under FLSA. If an employee does not retain all his or her tips, because, for example, the employer shares those tips with ineligible employees or managers, the employer may not take advantage of the FLSA tip credit. See Shahriar, 659 F.3d at 240 (citation omitted). LRT has not submitted any competent evidence that contradicts Zajic's assertion respecting LRT's handling of the tips intended for Azkour, nor has LRT offered any competent evidence to dispute Azkour's claim that he was never informed of the provisions of § 203(m); therefore, Azkour is entitled to summary judgment on his FLSA minimum wage claim. Moreover, LRT's retention of any gratuity intended for Azkour violates New York law, which prohibits an employer or its agents from retaining a gratuity intended for an employee. See NYLL §196-d. Accordingly, summary judgment on Azkour's NYLL minimum wage claim is also appropriate.
III. New York Spread-of-Hours Claim
In New York, when the interval between the commencement and the conclusion of an employee's workday exceeds 10 hours, an employer must pay the employee one additional hour of pay at the basic minimum hourly wage rate. See 12 N.Y.C.R.R. § 142-2.4. This is typically referred to as "spread-of-hours" pay. According to his affidavit, Azkour was not compensated with the spread-of-hours premium when he worked in excess of 10 hours per day. No competent evidence has been presented by LRT to contradict this assertion. As a result, Azkour is entitled to summary judgment on his spread-of-hours claim.
IV. Retaliation
Pursuant to FLSA, 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 proceedings under [FLSA]." Mullins v. City of New York, 626 F.3d 47, 53 (2d Cir. 2010) (citing 29 U.S.C. § 215(a)(3)). The burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), is applicable to FLSA retaliation claims. See Mullins, 626 F.3d at 53. Therefore, a plaintiff asserting such a claim must first establish a prima facie case of retaliation by demonstrating: "(1) participation in protected activity known to the defendant, like [filing a FLSA complaint with an administrative agency]; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action." Id. (citations omitted).
FLSA and NYLL are very similar in construction, and it is acceptable to rely on cases analyzing a plaintiff's FLSA retaliation claim when adjudicating similar NYLL claims. See Torres v. Gristede's Operating Corp, 628 F. Supp. 2d 447, 471 n.18 (S.D.N.Y. 2008); see also 29 U.S.C. § 215(a)(3); NYLL § 215(a).
An employment action disadvantages an employee if, as a result of it, a reasonable worker might well be dissuaded from making or supporting a similar complaint. See Mullins, 626 F.3d at 53 (citation omitted). The existence of an adverse or disadvantageous employment action may be established by showing that an employee endured a materially adverse change in the terms and conditions of his or her employment. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). A change in working conditions is considered materially adverse if it is "more disruptive than a mere inconvenience or an alteration of job responsibilities." Galabya, 202 F.3d at 640 (citing Crady v. Liberty Nat'l Bank and Trust Co., 993 F.2d 132, 136 (7th Cir. 1993)). Such a material change may be demonstrated by "a demotion . . . [,] decrease in wage or salary, . . . material loss of benefits, significantly diminished material responsibilities, or other indices." Id.
A causal connection between protected activity and an adverse or a disadvantageous employment action may be inferred from the temporal proximity between the protected activity, and the adverse or disadvantageous action taken against the plaintiff, if the adverse or disadvantageous action begins close in time to the point at which the employer is notified of the employee's participation in protected activity. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001). In addition, a causal connection may also be established through evidence of retaliatory animus directed against a plaintiff by a defendant. See Mullins, 626 F.3d at 53 (citation omitted).
"Once the plaintiff establishes a prima facie case of FLSA retaliation, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employment action." Id. (internal quotation marks and citation omitted). If this burden is satisfied by the defendant(s), the plaintiff must produce evidence sufficient to support a finding that the legitimate, non-discriminatory reason(s) proffered by the defendant(s) was false, and that discrimination was more likely than not the real reason for the adverse or disadvantageous employment action. See id. at 53-54 (citations omitted).
It is undisputed that, on or about January 11, 2010, Azkour filed a DOL complaint alleging violations of FLSA, by LRT, and informed his LRT manager, Eljastimi, he had done so. The record evidence, including, inter alia, the unrebutted statement in Ben David's declaration concerning observations he made of the treatment Azkour received from LRT management, establishes that, upon LRT's learning of the DOL complaint, the number of shifts Azkour was assigned to work was reduced, resulting in a concomitant reduction in his wages. These are materially adverse changes in an employee's working conditions. See Galabya, 202 F.3d at 640. According to Azkour, the reduction in the number of shifts he was permitted to work and the concomitant loss of wages prompted him to resign from his position with the defendants on February 14, 2010. The closeness in time between the revelation by Azkour to his LRT manager that he filed a DOL complaint, on or about January 11, 2010, and the adverse employment action he suffered thereafter, resulting in his resignation on February 14, 2010, militate in favor of finding that a causal connection exists between his protected activity, filing the DOL complaint, and the adverse or disadvantageous employment action he experienced. See Breeden, 532 U.S. at 273, 121 S. Ct. at 1511. Therefore, a prima facie case of retaliation has been established by Azkour.
Having established a prima facie case of retaliation, the burden shifts to LRT to articulate a legitimate non-discriminatory reason(s) for the employment action it took. See Mullins, 626 F.3d at 53. LRT failed to meet its burden, as it did not proffer, via competent evidence, any legitimate non-discriminatory reason for the adverse employment action Azkour attributes to it. LRT's reliance on Bezrukov's declaration to undermine Azkour's prima facie case of retaliation is unavailing. Bezrukov has no personal knowledge of whether Azkour's work schedule was reduced after he reported his DOL complaint to Eljastimi, since admits that he was not responsible for establishing Azkour's work schedule and, he: (1) has no knowledge of "participating in subtracting hours" from LRT's staff members; and (2) does "not recall anyone else participating in that matter." Furthermore, according to Bezrukov, he "never participated in, witnessed, or encountered, any retaliation against or mistreatment of Azkour." Neither Bezrukov's inability to recall events nor his lack of participation in alleged misconduct, means that other LRT managers, like Eljastimi, did not engage in harassment or other misconduct directed at Azkour. Moreover, nothing in Bezrukov's declaration contradicts or negates the observations of harassment and retaliatory conduct directed to Azkour by LRT managerial personnel to which Ben David attested. As a consequence, summary judgment on Azkour's FLSA and NYLL retaliation claims is appropriate.
V. Liquidated Damages
"Any employer who violates . . . [FLSA] section 206 or section 207 shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, in an additional equal amount as liquidated damages." 29 U.S.C. § 216(b).
FLSA liquidated damages may be remitted if the employer demonstrates to the court, by plain and substantial evidence, that the act or omission giving rise to such action was made, subjectively in good faith, and that it had objectively reasonable grounds for believing that its act or omission was not in violation of the Act. See Reich, 121 F.3d at 70-71. "The burden, [on the employer,] . . . 'is a difficult one to meet, however, and [d]ouble damages are the norm, single damages the exception . . . .'" Id. (citations omitted).
New York also allows an employee to recover liquidated damages on a claim for unpaid wages. "In any action instituted in the courts upon a wage claim by an employee . . . in which the employee prevails, the court shall allow such employee . . ., unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to twenty-five percent of the total amount of the wages found to be due." NYLL § 198(1-a) (McKinney's Labor Law 2009). To recover liquidated damages under NYLL, an employer's conduct must be willful. See Gottlieb v. Kenneth D. Laub & Co., 82 N.Y.2d 457, 462, 605 N.Y.S.2d 213, 216 (1993); see also NYLL § 198(1-a), (3). To establish willfulness the court must find that the employer "knowingly, deliberately, or voluntarily disregards its obligations to pay wages." Doo Nam Yang, 427 F. Supp. 2d at 340 (quoting P&L Group, Inc. v. Garfinkel, 150 A.D.2d 663, 664, 541 N.Y.S.2d 535, 537 (App. Div. 2d Dep't 1989)).
Effective April 9, 2011, an employee who prevails on a wage claim under New York law may recover liquidated damages equal to one hundred percent of the total amount of the wages found to be due, unless the employer establishes it had a good faith basis to believe its underpayment of wages was in compliance with the governing law. See 2010 New York Session Law Ch. 564, § 7.
The liquidated damages provisions in FLSA and NYLL serve different purposes; this allows a plaintiff to recover under both provisions. See Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 262 (S.D.N.Y. 2008) (citing Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 265 (2d. Cir. 1999). FLSA's liquidated damages provision is intended to be compensatory rather than punitive. See Reich, 121 F.3d at 71. NYLL's liquidated damages provision is intended to be punitive. See Reilly, 181 F.3d at 265.
LRT has failed to provide any admissible evidence showing that it: (a) acted in good faith; (b) believed, that objectively reasonable grounds existed upon which it could conclude that its conduct was lawful; and (c) did not act willfully. Zajic's declaration establishes that the defendants were aware of their obligation to pay Azkour in accordance with applicable federal and state minimum wage laws. Her declaration also establishes that the defendants knowingly disregarded their obligation. Therefore, granting summary judgment for Azkour on his liquidated damages claims is reasonable and appropriate.
RECOMMENDATION
For the reasons set forth above, I recommend that the plaintiff's motion for partial summary judgment, Docket Entry No. 73, be granted on his: 1) FLSA and NYLL minimum wage and overtime compensation claims; 2) NYLL spread-of-hours claim; 3) retaliation claims; and (4) liquidated damages claims.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard J. Sullivan, 500 Pearl Street, Room 640, New York, New York 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Sullivan. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Am, 474 U.S. 140, 470 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York
February 7, 2012
Respectfully submitted,
/s/_________
KEVIN NATHANIEL FOX
UNITED STATES MAGISTRATE JUDGE
When analyzing a motion for summary judgment, a court cannot consider inadmissible hearsay; it can only rely on admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72, 81 (2d Cir. 2010). Exhibit E, Docket Entry No. 81-4, an unsigned statement, not made under oath, attributed to Eljastimi is neither an affidavit nor an unsworn declaration. An affidavit is "[a] voluntary declaration of facts, written down and sworn to by the declarant before an officer authorized to administer oaths." Blacks Law Dictionary, 66 (9th ed. 2009). An unsworn declaration is a written statement subscribed by the declarant, as true under penalty of perjury. See 28 U.S.C. § 1746. The deficiencies the Court observed in Exhibit E made its authenticity suspect and rendered it of no utility to the Court in its consideration of the instant motion. See Fed. R. Civ. P. 56(c)(1). Exhibit P, Docket Entry No. 81-15, an unsigned "declaration" by Victor Chavez fails to meet the requirements of an unsworn declaration, since such a declaration must be subscribed by its maker. See 28 U.S.C. § 1746. The absence of the declarant's signature from this document rendered it useless for the Court's analysis of the plaintiff's motion. Exhibit H, Docket Entry No. 81-7, a declaration by Mathew LaFontaine; and Exhibit O, Docket Entry No. 81-14, a declaration by Elina Golovko (which also appears as Docket Entry No. 84) may not be considered in connection with the instant motion on procedural grounds. Each was prepared by a person Azkour maintains was not identified to him, by LRT, as a potential witness in this action. LRT did not provide a basis for its failure to disclose these witnesses to Azkour. As a consequence, neither witness may "supply evidence on a motion" for summary judgment. See Fed. R. Civ. P. 37(c)(1).