Opinion
1:20-cv-9228 (GHW) (VF)
09-20-2017
CYNTHIA DURAN, Plaintiff, v. M.S.T.A.S. LTD. /aka/ STAT MEDICAL ANSWERING SERVICE, and DAVID KUBE in his individual and official capacity, Defendants. Overtime Hourly Rate Dates Regular Hourly Pay Overtime Hourly Pay Overtime Pay Owed to Plaintiff Dates Regular Hourly Pay Overtime Hourly Pay (1.5 x) Number of Weeks Hours of Overtime Worked Per Week Overtime Wages Owed
TO THE HONORABLE GREGORY H. WOODS, United States District Judge.
REPORT & RECOMMENDATION
VALERIE FIGUEREDO, United States Magistrate Judge.
Plaintiff Cynthia Duran brought this action on behalf of herself and others similarly situated against Defendants M.S.T.A.S. LTD (“M.S.T.A.S.”) and David Kube (collectively, “Defendants”) to recover overtime wages and other damages arising from Defendants' violation of the Fair Labor Standards Act (“FLSA”), the New York Labor Law (“NYLL”), and New York City labor regulations. After entry of a default judgment against Defendants, the Honorable Gregory H. Woods referred this action to the undersigned for an inquest. To date, Defendants have not appeared in this action. After review of Plaintiff's submissions, I respectfully recommend that Plaintiff be awarded damages as set forth below.
FACTUAL AND PROCEDURAL BACKGROUND
The facts recounted herein are established by the evidence submitted in support of this inquest and the allegations in the complaint, which are deemed admitted except as to damages, because of Defendants' default. See Finkel v. Romanowicz, 577 F.3d 79, 83-84 (2d Cir. 2009).
In March 2017, Plaintiff began working for M.S.T.A.S. as a Spanish-speaking, customerservice representative. See ECF No. 1 (“Compl”), ¶¶ 1, 3, 19. Defendant M.S.T.A.S., a medical answering service with call centers throughout New York City, is a New York State corporation located in Manhattan. Compl. ¶¶ 4, 6. M.S.T.A.S. provides “after-hours office and emergency dispatching support” to clients in the medical and healthcare industry. Id. ¶ 7. The company has gross sales exceeding $500,000 and is “engaged in interstate commerce.” Id. ¶¶ 11, 54.
Defendant David Kube is the President and Chief Executive Officer of M.S.T.A.S. Id. ¶ 5. Throughout the relevant period, Kube had the power to hire and fire employees of M.S.T.A.S., controlled and oversaw “employment practices” at the business, and controlled and oversaw payroll for the company. Id. ¶¶ 8-10.
During her employment, Plaintiff's “schedule varied,” with her then-most recent shift starting at 12 p.m. and ending at 8 p.m. Id. ¶ 22. In March 2017, when she first began working for Defendants, Plaintiff's hourly rate was $11.00 per hour. Id. ¶ 20. Around October 2017, her hourly rate increased to $12.25 per hour. Id. In January 2018, her rate increased again to $13.50 per hour. Id. Finally, starting in January 2019, Plaintiff's hourly rate increased to $15.00 per hour. Id.. Plaintiff also earned $0.50 more per hour “above her regular rate,” because she was a Spanish-speaking, customer-service representative. Id. ¶ 19.
In connection with her default judgment submissions, Plaintiff submitted a sworn declaration in which she attests that she worked eight hours of overtime each week during her three-and-a-half-year tenure with Defendants. Decl. of Cynthia Duran ¶ 4, ECF No. 36 (“Duran Decl.”). Plaintiff further attests that during “almost” all of her shifts, she worked through her one-hour lunch break. Duran Decl. ¶ 5; see also Compl. ¶ 24. Additionally, Plaintiff attests that she worked “eleven federal holidays each year” without being compensated at the overtime rate. Duran Decl. ¶ 6.
Duran filed two declarations on the docket (see ECF Nos. 34-1 and 36), but they are identical.
Plaintiff commenced this action on November 3, 2020. See ECF No. 1. Defendants were served with the complaint on November 30, 2020. See Aff. of Service, ECF Nos. 8-9. Defendants failed to answer the complaint or otherwise appear in the action. See Cert. of Default, ECF No. 13 (“Cert. of Default”). On May 10, 2021, the Clerk of Court issued a Certificate of Default as to both Defendants. See id.
On October 18, 2021, Plaintiff filed a motion for default judgment. See Mot. for Default J., ECF Nos. 22-24. The motion was served on Defendants on October 27, 2021. See Aff. of Service, ECF No. 28. On December 9, 2021, Judge Woods granted Plaintiff's motion for default judgment as to the first, second, and third claims in the complaint but denied the motion as to the fourth and fifth claims, concluding that Plaintiff had failed to establish Defendants' liability with respect to those causes of action. See Order, ECF No. 30. Plaintiff seeks unpaid overtime wages under the FLSA in her first cause of action, see Compl. ¶¶ 53-63, and unpaid overtime wages under the NYLL in her second claim, id. ¶¶ 64-70. Lastly, in her third cause of action, Plaintiff seeks statutory damages for Defendants' failure to furnish wage notices and wage statements, as required under NYLL § 195. Id. ¶¶ 71-77.
The case was referred to the Honorable Debra C. Freeman for an inquest on damages following entry of default judgment.Plaintiff filed her Proposed Findings of Fact and Conclusions of Law, along with her Declaration, on March 28, 2022. See ECF Nos. 34, 36. Plaintiff served these submissions on Defendants on April 4, 2022. See Aff. of Service, ECF Nos. 38-39. To date, Defendants have not responded to Plaintiff's inquest submissions or otherwise appeared in this action.
The matter was reassigned to the undersigned on April 26, 2022. See Dkt. Entry, Apr. 26, 2022.
DISCUSSION
In light of Defendants' default, the Court accepts as true the well-pleaded allegations in the complaint, with the exception of those allegations relating to damages. See, e.g., Union of Orthodox Jewish Congregations of Am. v. Royal Food Distribs. LLC, 665 F.Supp.2d 434, 436 (S.D.N.Y. 2009) (“When the Court enters a default judgment, as regards liability it must accept as true all of the factual allegations of the complaint, but the amount of damages are not deemed true.”) (internal citations, alterations, and quotation marks omitted). As to damages, a district court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). This inquiry requires the district court to: (1) “determin[e] the proper rule for calculating damages on . . . a claim” and (2) “assess[ ] plaintiff's evidence supporting the damages to be determined under this rule.” Id.
Federal Rule of Civil Procedure 55(b)(2) “allows but does not require” the district court to conduct a hearing on the damages amount. Bricklayers and Allied Craftworkers Loc. 2, Albany, N.Y. Pension Fund v. Moulton Masonry & Const., LLC, 779 F.3d 182, 189 (2d Cir. 2015) (“[T]he court may conduct such hearings or order such references as it deems necessary and proper.”) (internal quotation marks and citation omitted); see also Cement & Concrete Workers Dist. Council Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 234 (2d Cir. 2012). Plaintiff's submissions have not been contested by Defendants. As such, a hearing on the damages inquest is not necessary.
A. Defendants' Liability under the Fair Labor Standards Act and New York Labor Law
1. Statute of Limitations under the FLSA and NYLL
Claims brought under the FLSA must be raised within two years of a non-willful violation, or within three years of a willful violation. See Pineda v. Masonry Const., Inc., 831 F.Supp.2d 666, 674 (S.D.N.Y. 2011) (citing 29 U.S.C. § 255(a)). Willfulness under the FLSA is found where an employer “knew or showed reckless disregard for the matter of whether [the employer's] conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). “[A] defendant's default, in itself, may suffice to support a finding of willfulness.” Santillan v. Henao, 822 F.Supp.2d 284, 297 (E.D.N.Y. 2011) (citations omitted).
Claims brought pursuant to the NYLL must be raised within six years. See Pineda, 831 F.Supp.2d at 674 (citing N.Y. Lab. Law § 663(1), (3)). Although a defendant may be simultaneously liable under both the FLSA and NYLL, a plaintiff may not recover damages under both the FLSA and NYLL for the same injury. See Hernandez v. Jrpac Inc., No. 14-CV-4176 (PAE), 2016 WL 3248493, at *31 (S.D.N.Y. June 9, 2016). Where both the FLSA and NYLL apply to a plaintiff's claims, courts apply the statute that provides the greatest measure of damages. See Elisama v. Ghzali Gourmet Deli Inc., No. 14-CV-8333 (PGG) (DF), 2016 WL 11523365, at *11 (S.D.N.Y. Nov. 7, 2016) (applying NYLL's six-year statute of limitations because it provided the greatest measure of relief), adopted by 2018 WL 4908106 (S.D.N.Y. Oct. 10, 2018); Gamero v. Koodo Sushi Corp., 272 F.Supp.3d 481, 498, 505, 515-16 (S.D.N.Y. 2017) (same), aff'd, 752 Fed.Appx. 33 (2d Cir. 2018).
The limitations period under the NYLL is six years, regardless of a finding of willfulness. See N.Y. Lab. Law § 663(3). Plaintiff began her employment “on or about March of 2017,” Compl. ¶ 19, more than three years before she filed her complaint on November 3, 2020. ECF No. 1. Given the length of Plaintiff's employment, which ended on March 31, 2020 (see Compl. ¶¶ 34-35), the limitations period under the NYLL will provide her the greatest recovery, as it will encompass recovery for Plaintiff's entire three-year period of employment.
2. Employment Relationship under NYLL
To establish a claim under the FLSA, a plaintiff must show that: “(1) the defendant is an enterprise participating in commerce or the production of goods for the purpose of commerce; (2) the plaintiff is an ‘employee' within the meaning of the FLSA; and (3) the employment relationship is not exempted from the FLSA.” Pelgrift v. 335 W. 41st Tavern Inc., No. 14-CV-08934 (AJN), 2017 WL 4712482, at *7 (S.D.N.Y. Sept. 28, 2017) (citation omitted). Under the FLSA, an “employer” is “any person acting directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The term “employer” is afforded “an expansive definition with ‘striking breadth.'” Mondragon v. Keff, 15-CV-2529 (JPO) (BCM), 2019 WL 2551536, at *7 (S.D.N.Y. May 31, 2019) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 US. 318, 326 (1992)).
To determine whether Defendants were Plaintiff's “employer” for FLSA purposes, the Court examines the “economic reality” of the working relationship. Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013). Courts in the Second Circuit consider four non-exclusive factors to assess the “economic reality” of an alleged employment relationship, including “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Id. at 104-05 (quoting Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 142 (2d Cir. 2008)). This “inquiry is a totality-of-the- circumstances approach, so no one factor is dispositive[.]” Tackie v. Keff Enter., Inc., No. 14-CV-2074 (JPO), 2014 WL 4626229, at *2 (S.D.N.Y. Sept. 16, 2014).
A wage-and-hour claim under the NYLL involves a similar analysis to that under the FLSA, “except that the NYLL does not require plaintiffs to show a nexus with interstate commerce or a minimum amount of annual sales.” Tackie, 2014 WL 4626229, at *2; see also Santillan, 822 F.Supp.2d at 292 (“Although the Labor Law does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales, it otherwise mirrors the FLSA in compensation provisions regarding minimum hourly wages and overtime.”) (internal quotation marks and citations omitted); 12 N.Y. Comp. Codes R. & Regs. Tit. 12, § 142-2.2 (same methods as employed in the FLSA for calculating overtime wages).
Under the NYLL, the definition of “employer” is also very broad, see N.Y. Lab. Law § 190(3), “and the crucial inquiry, in determining whether an employer-employee relationship exists, is the ‘degree of control exercised by the purported employer over the results produced or the means used to achieve the results.'” Mondragon, 2019 WL 2551536, at *7 (quoting Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 923 (S.D.N.Y. 2013)). In the absence of a decision from the New York Court of Appeals answering “the question of whether the test for ‘employer' status is the same under the FLSA and the NYLL,” Camara v. Kenner, No. 16-CV-7078 (JGK), 2018 WL 1596195, at *7 (S.D.N.Y. Mar. 29, 2018), “[t]here is general support for giving FLSA and the [NYLL] consistent interpretations . . . [a]nd there appears to have never been a case in which a worker was held to be an employee for purposes of the FLSA but not the NYLL (or vice versa).” Hart, 967 F.Supp.2d at 924 (internal citation omitted). “Accordingly, courts in this District regularly apply the same tests to determine whether entities were joint employers under NYLL and the FLSA.” Martin v. Sprint United Mgmt. Co., 273 F.Supp.3d 404, 422 (S.D.N.Y. 2017).
Plaintiff's allegations are sufficient to state a plausible claim that her employment relationship with Defendants was covered by the FLSA and NYLL. Plaintiff was employed by M.S.T.A.S., a medical answering service, as a customer-service representative, answering customer calls in Spanish. See Compl. ¶¶ 18-19; ECF No. 34 at ¶¶ 6, 11. Given the nature of M.S.T.A.S.'s business-a corporation that provided call-answering services-Plaintiff's work was integral to the operation of the company. Moreover, Defendants exercised a fair degree of control over Plaintiff: Defendants had the ability to hire and fire employees, like Plaintiff, and Defendants determined Plaintiff's hourly rate and the hours she worked. Compl. ¶¶ 9-10, 35. Additionally, there is no indication that Plaintiff had any investment in the Defendants' business or opportunity for profit outside of her hourly rate of pay. See Tackie, 2014 WL 4626229, at *3. Plaintiff has thus adequately alleged an employer-employee relationship with Defendants within the meaning of the FLSA and NYLL.
3. Unpaid Overtime
To recover overtime compensation, a plaintiff “must allege sufficient factual matter to state a plausible claim that [she] worked compensable overtime in a workweek longer than 40 hours.” Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 114 (2d Cir. 2013); Tackie, 2014 WL 4626229, at *3. Although both the FLSA and NYLL provide for overtime damages in the amount of one and one-half times the employee's regular rate of pay for each hour worked in excess of 40 hours per week, 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2, Plaintiff may not recover such damages under both statutes. Jin M. Cao v. Wu Liang Ye Lexington Rest., Inc., No. 08-CV-3725 (DC), 2010 WL 4159391, at *3 (S.D.N.Y. Sept. 30, 2010). Here, recovery under the NYLL, with the six-year limitations period, affords Plaintiff the greatest recovery.
Plaintiff attests that she worked eight hours of overtime without an overtime premium each week she worked for Defendants during her entire period of employment. Duran Decl. ¶ 4. Plaintiff's allegations adequately state a claim for unpaid overtime wages under the NYLL. See Mondragon, 2019 WL 2551536, at *9.
4. Statutory Damages
In her third claim, Plaintiff seeks statutory damages for Defendants' failure to provide wage notices and wage statements, as required by New York's Wage Theft Prevention Act (“WTPA”), and N.Y. Lab. Law §§ 195(1), (3). See Compl. ¶¶ 71-77. The WTPA requires employers to provide, with every payment of wages, a statement that lists the following:
the dates of work covered by that payment of wages; name of employee; name of employer; address and phone number of employer; rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross wages; deductions; allowances, if any, claimed as part of the minimum wage; . . . and net wages ....[T]he statement shall include the regular hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular hours worked, and the number of overtime hours worked.N.Y. Lab. Law § 195(3). For overtime-eligible employees, the statements must include, among other things, regular and overtime pay rates and regular and overtime hours worked in the pay period. N.Y. Lab. Law § 195(3).
The WTPA also requires that employers furnish each employee with a wage notice at the time of hiring that contains the following information:
the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; . . . the regular pay day designated by the employer in accordance with section one hundred ninety one of this article; the name of the employer; any “doing business as” names used by the employer; the physical address of the employer's main office or principal
place of business, and a mailing address if different; the telephone number of the employer; plus such other information as the commissioner deems material and necessary.N.Y. Lab. Law § 195(1)(a). The law also requires employers to notify employees in writing of any changes to the information provided at the time of hiring at least seven calendar days prior to the time of such changes, unless the changes are reflected in the employees' wage statement. See N.Y. Lab. Law § 195(2).
Plaintiff alleges that Defendants did not provide her with a legally sufficient wage statement upon the payment of wages or notice of the terms of her compensation at the start of her employment. Compl. ¶¶ 74, 76. These allegations, even if accepted as true given Defendants' default, are bare bones and insufficient to adequately plead that Plaintiff suffered an injury in fact sufficient to establish standing.
Article III of the United States Constitution confines the judicial power of the federal courts to cases where the plaintiff shows that she suffered a concrete injury in fact. TransUnion LLC v. Ramirez, 141 S.Ct. 2190, 2203 (2021). A statutory violation does not amount to an “injury in fact” for purposes of establishing Article III standing. Id. at 2204-05 (“[T]his Court has rejected the proposition that ‘a plaintiff automatically satisfies the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right.'”) (citation omitted). Rather, a “concrete” harm has at least a “‘close relationship' to a harm traditionally recognized as providing a basis for a lawsuit in American courts-such as physical harm, monetary harm, or various intangible harms. . . .” Id. at 2200 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 340-41 (2016)). In other words, a technical statutory violation that does not lead to “either a tangible injury or something akin to a traditional cause of action” does not constitute an injury in fact sufficient to establish Article III standing. See Francisco v. NY Tex Care, Inc., No. 19-CV-1649 (PKC) (ST), 2022 WL 900603, at *7 (E.D.N.Y. Mar. 28, 2022); Sevilla v. House of Salads One LLC, No. 20-CV-6072 (PKC) (CLP), 2022 WL 954740, at *7 (E.D.N.Y. Mar. 30, 2022).
Here, Plaintiff's bare bones allegations do not go beyond asserting a mere statutory violation of the WTPA. Although Plaintiff's complaint alleges that she was not provided wage statements or wage notices, her allegations do not explain what harm she suffered as a result of not being given those notices and statements. For instance, Plaintiff could have alleged that the failure to provide the WTPA notices resulted in the underpayment of wages-a monetary injury which would suffice to allege that Plaintiff suffered an injury in fact. See Mateer v. Peloton Interactive, Inc., No. 22-CV-740 (LGS), 2022 WL 2751871, at *2 (S.D.N.Y. July 14, 2022); see also Metcalf v. TransPerfect Translations Int'l, Inc., No. 19-CV-10105 (ER) (KHP), 2022 WL 19300779, at *4 (S.D.N.Y. Nov. 15, 2022) (noting that plaintiffs had “specific allegations that the inaccurate wage notices and wage statements resulted” in underpayment of wages). Or, Plaintiff could have alleged that the failure to provide the wage statements meant that there was no way for her to know that her pay did not accurately reflect the amount of overtime hours she had worked. Metcalf, 2022 WL 19300779, at *4. Plaintiff, however, has not alleged any facts to plausibly suggest that Defendants' failure to provide the requisite notices resulted in her having suffered a concrete harm.
In sum, I do not recommend an award of statutory damages to Plaintiff, because she has not adequately pled a concrete injury to support Article III standing to pursue this claim.
B. Plaintiff's Damages
An employee seeking to recover unpaid wages “has the burden of proving that [she] performed work for which [she] was not properly compensated.” Jiao v. Chen, No. 03-CV-165 (DF), 2007 WL 4944767, at *2 (S.D.N.Y. Mar. 30, 2007) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). Under both the FLSA and the NYLL, an employer is required to maintain “records of the wages, hours, and persons employed by him.” Calle v. Yoneles Enterprises, Inc., No. 16-CV-1008 (NGG), 2017 WL 6942652, at *11 (E.D.N.Y. Oct. 14, 2017) (citation omitted). A defaulting defendant, however, “deprive[s] the plaintiff of the necessary employee records required by the FLSA, thus hampering [the] plaintiff's ability to prove [her] damages.” Santillan, 822 F.Supp.2d at 294. Consequently, where a defendant defaults, a plaintiff may meet her burden of proof “‘by relying on recollection alone' to establish that [she] ‘performed work for which [she] was improperly compensated.'” Elisama, 2016 WL 11523365, at *4 (citation omitted).
Before addressing Plaintiff's claim for overtime wages, I note that Plaintiff's Declaration states that she was promised, but not paid, an additional $0.50 per hour in wages, because she was bilingual. Duran Decl. ¶ 3; see also Compl. ¶ 19. Plaintiff's complaint, however, does not contain a cause of action for unpaid straight-time wages. I therefore do not recommend any award for unpaid straight-time wages.
1. Unpaid Overtime Wages
Both the FLSA and the NYLL require an employer to pay an overtime rate of one and one-half times the employee's “regular rate” of pay. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2. Given the six-year statute of limitations under the NYLL, Plaintiff is entitled to overtime damages for the entirety of her employment with Defendants, which began “on or around March of 2017.” Compl. ¶ 19. Nowhere, however, does Plaintiff indicate the specific date that her employment commenced in March 2017. Further, in the complaint, Plaintiff alleges that her employment was terminated on March 31, 2020. Compl. ¶¶ 34-35. In her Declaration, however, Plaintiff states that she worked for Defendants for a longer period of time-three-and-a-half years (or 182 weeks). Duran Decl. ¶ 4. It is Plaintiff's burden to substantiate her claim for damages. See Xochimitl v. Pita Grill of Hell's Kitchen, Inc., No. 14-CV-10234 (JGK) (JLC), 2016 WL 4704917, at *4-5 (S.D.N.Y. Sept. 8, 2016). Because Plaintiff has not provided a specific date for the start of her employment and has provided two conflicting dates for the end of her employment, I use the dates most favorable to Defendants in the calculations below. See Martinez v. Dannys Athens Diner, Inc., No. 16-CV-7468 (RJS), 2017 WL 6335908, at *4 n.2 (S.D.N.Y. Dec. 5, 2017) (concluding that where Plaintiff “did not specify” the specific dates when “his salary changed,” the Court “will assume that the changes occurred on the dates most favorable to Defendants”). As such, I assume for purposes of determining Plaintiff's unpaid overtime wages that her employment began on March 31, 2017, and ended after three years, on March 31, 2020.
In her complaint, Plaintiff alleges that she was initially paid $11.00 per hour in March 2017. Compl. ¶ 20. Her pay increased in October 2017 to $12.25, and it increased again in January 2018 to $13.50. Id. In January 2019, her hourly rate increased to $15.00. Id. Plaintiff's overtime hourly rate should have been as indicated in the following chart:
Overtime Hourly Rate
Dates
Regular Hourly Pay
March 31, 2017 -September 30, 2017
$11.00
$16.50
October 1, 2017 -December 31, 2017
$12.25
$18.375
January 1, 2018 -December 31, 2018
$13.50
$20.25
January 1, 2019 -March 1, 2020
$15.00
$22.50
Overtime hourly pay is calculated by multiplying 1.5 by Plaintiff's hourly rate of pay. See 12 N.Y.C.R.R. § 142-2.2.
There are various discrepancies in Plaintiff's calculation of overtime damages. First, Plaintiff attests that during her tenure working for Defendants she worked eight hours of overtime each week, for 182 weeks, and was owed “$22.50 of pay for those additional hours.” See Duran Decl. ¶ 4. Plaintiff claims that she is entitled to $10,920 of overtime wages. Id. That figure for overtime wages does not appear to accurately reflect that Plaintiff's hourly pay varied (and gradually increased) during her period of employment (see Compl. ¶ 20), and nor is it consistent with the amount of overtime wages owed, if she worked eight hours of overtime each week during a three-year period.
Second, Plaintiff alleges in her complaint that she sometimes worked during her lunch break in the busy seasons, especially when the office was short-staffed. See Compl. ¶ 24. However, in her declaration, Plaintiff avers that she worked through lunch “almost” every single day during her employment. Duran Decl. ¶ 5. She seeks an award of $13,650 as a result. See Id. Plaintiff does not explain how she arrived at this number, and she does not provide paystubs to substantiate her claim. Moreover, it is not clear from Plaintiff's submissions whether this additional hour of work, during her lunch break, was included by Plaintiff in her estimate that she worked eight hours of overtime each week. Duran Decl. ¶ 4. In calculating overtime wages, I assume Plaintiff worked eight hours of overtime each week and do not otherwise account for this hour of work during Plaintiff's lunch break.
Additionally, in her Declaration, Plaintiff alleges that she was not compensated for having worked 11 federal holidays each year. Duran Decl. ¶ 6. However, neither the FLSA nor the NYLL require an employer to provide holiday pay. Gaughan v. Rubenstein, 261 F.Supp.3d 390, 426 (S.D.N.Y. 2017). And, Plaintiff provides no evidence to support a finding that she had an agreement with Defendants whereby they agreed to provide holiday pay. I therefore do not recommend an award of damages for unpaid holiday pay, as Plaintiff requests in her declaration.
Plaintiff's unpaid overtime wages are calculated in the chart below.
Overtime Pay Owed to Plaintiff
Dates
Regular Hourly Pay
Overtime Hourly Pay (1.5 x)
Number of Weeks
Hours of Overtime Worked Per Week
Overtime Wages Owed
March 30, 2017 -September 30, 2017
$11.00
$16.50
26
8
$3,432
October 1, 2017 -December 31, 2017
$12.25
$18.375
13
8
$1,911
January 1, 2018 -December 31, 2018
$13.50
$20.25
52
8
$8,424
January 1, 2019 - March 1, 2020
$15.00
$22.50
59
8
$10,620
TOTAL
$24,387
In sum, I recommend an award of $24,387 in overtime wages to Plaintiff.
2. Liquidated Damages
Plaintiff also seeks liquidated damages under the NYLL (see Compl. ¶ 70), which provides that liquidated damages may be awarded in an amount equal to “one hundred percent” of the total unpaid wages. See N.Y. Labor Law § 663(1). Under state law, “liquidated damages are presumed unless [Defendants] can show subjective good faith.” Zubair v. EnTech Eng'g, P.C., 900 F.Supp.2d 355, 360 n.3 (S.D.N.Y. 2012). Because Defendants defaulted, they have not established good faith to rebut the presumption of liquidated damages. See Lopez v. Emerald Staffing, Inc., No. 18 Civ. 2788 (SLC), 2020 WL 915821, at *11 (S.D.N.Y. Feb. 26, 2020) (“Having defaulted, Defendants have not carried their burden of demonstrating good faith under the NYLL.”).
I thus recommend an award of liquidated damages in the amount of $24,387, which is equal to the amount of Plaintiff's unpaid overtime wages.
3. Prejudgment Interest
Plaintiff also requests and is entitled to prejudgment interest under the NYLL. See N.Y. Lab. Law § 663; see Reilly v. Natwest Markets Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999) (finding that the NYLL permits an award of both liquidated damages and prejudgment interest); see also Pineda v. Tokana Cafe Bar Restorant Inc., No. 16-CV-1155 (JPO), 2017 WL 1194242, at *4 (S.D.N.Y. 2017) (“Prejudgment interest may be awarded in addition to liquidated damages under NYLL but not under the FLSA.”). A plaintiff under the NYLL may recover prejudgment interest only on the amount of compensatory damages; she may not obtain prejudgment interest on the amount of liquidated damages under the state law. Gamero, 272 F.Supp.3d at 515; Lopez, 2020 WL 915821, at *11.
In her complaint, Plaintiff requests an award of “interest thereon” on the amount of “unpaid wages owed.” See Compl., Prayer for Relief ¶ D. That request is consistent with a request she made in her second claim, under the NYLL, for an award of prejudgment and postjudgment interest. See id. ¶ 70.
The statutory rate of interest is nine percent per annum. N.Y. C.P.L.R. § 5004. Where damages were incurred at various times, interest may be calculated from a single reasonable intermediate date. Id. § 5001(b). The midpoint of a plaintiff's employment is a reasonable intermediate date for purposes of calculating prejudgment interest. See Gamero, 272 F.Supp.3d at 515; see Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 91 (2d Cir. 1998), holding modified by Baron v. Port Auth. of New York & New Jersey, 271 F.3d 81 (2d Cir. 2001) (noting courts' discretion to calculate prejudgment interest based on the “date when damages were incurred or ‘a single reasonable intermediate date,' which can be used to simplify the calculation”) (citation omitted). The midpoint of Plaintiff's employment, assuming a start date of March 31, 2017, and an end date of March 31, 2020, is September 30, 2018.
To calculate prejudgment interest, the Court must multiply the total amount of Plaintiff's compensatory damages (for unpaid overtime wages) by an interest rate of nine percent which will yield the amount of prejudgment interest per year. Accordingly, Plaintiff should receive prejudgment interest on the amount of her compensatory damages ($24,387) at an interest rate of nine percent per year as applied from September 30, 2018, to the date of entry of judgment.
4. Post-Judgment Interest
Plaintiff also seeks an award of post-judgment interest. Compl., Prayer for Relief, ¶ D. A plaintiff is “entitled to post-judgment interest on all money awards as a matter of right.” Tacuri v. Nithun Constr. Co., No. 14-CV-2908 (CBA) (RER), 2015 WL 790060, at *12 (E.D.N.Y. Feb. 24, 2015) (citations omitted). According to 28 U.S.C. § 1961(a), an award of post-judgment interest is mandatory in any civil case where money damages are recovered. See Espinoza v. Broadway Pizza & Rest. Corp., No. 17-CV-7995 (RA) (KHP), 2021 WL 7903991, at *14. I thus recommend that Plaintiff be awarded post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. See Begum v. Ariba Discount, Inc., No. 12-CV-6620 (DLC), 2015 WL 223780, at *8 (S.D.N.Y. Jan. 16, 2015) (awarding post-judgment interest).
C. Attorney's Fees & Costs
1. Attorney's Fees
The FLSA and NYLL provide for an award of reasonable attorneys' fees to successful plaintiffs. See 29 U.S.C. § 216(b); N.Y. Lab. Law §§ 198(1-a), 663(1). Plaintiff was represented by Farva Jafri, of Jafri Law Firm. See Motion for Default J., at 2, ECF No. 26. Although Plaintiff seeks an award of reasonable attorneys' fees and costs, see Compl. Prayer for Relief, ¶ F, her attorney has not provided contemporaneous time records. Instead, counsel informed the Court that she kept only “a handful of contemporaneous time records” and requested “leave to submit [the] engagement letter with the client as evidence that the matter was taken purely on contingency and for the Court's consideration of [the] fee proposal.” See Letter, ECF No. 35. The Court warned Plaintiff's counsel that “the Court will likely be unable to determine the reasonableness of her requested attorneys' fees in the absence of contemporaneous time records.” See Memo Endorsement, ECF No. 37. Counsel did not submit any contemporaneous time records; she has provided invoices for costs associated with service of various filings on Defendants and a copy of her retainer agreement. See ECF Nos. 40-41.
The prevailing party bears the burden to produce “contemporaneous time records indicating, for each attorney, the date, the hours expended, and the nature of the work done.” Scott v. City of New York, 626 F.3d 130, 133-34 (2d Cir. 2010) (citation omitted). As the Second Circuit has made clear, “applications for attorney's fees allowed by federal law ‘must' be accompanied by contemporaneous time records,” absent “unusual circumstances.” Id. (quoting Carey, 711 F.2d at 1148); N.Y. State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1147 (2d Cir. 1983) (holding that contemporaneous time records “are a prerequisite for attorney's fees in this Circuit”). “The requirement that attorneys support their fee requests with contemporaneous time records is a ‘hard-and-fast-rule' with only rare exceptions.” Kottwitz v. Colvin, 114 F.Supp.3d 145, 150 (quoting Scott v. City of New York, 643 F.3d 56, 57 (2d Cir.2011)). There are “few examples” of the Circuit permitting a district court to award fees in the absence of full contemporaneous records. Scott, 626 F.3d at 133-34 (describing circumstances). And, here, Plaintiff's counsel has not even attempted to put forth any facts to support a finding justifying an exception to the rule that contemporaneous records are required, such as where the records are “consumed by fire or rendered irretrievable by a computer malfunction.” Id. at 134.
Given the lack of contemporaneous time records, I recommend that Plaintiff's counsel not be awarded any attorneys' fees.
2. Costs
An employee who prevails in a wage-and-hour action is entitled to recover costs under both the FLSA and the NYLL. 29 U.S.C. § 216(b); N.Y. Lab. Law § 663(1). “As with attorneys' fees, [a] requesting party must substantiate the request for costs.” Guo v. Tommy's Sushi, Inc., No. 14-CV-3964 (PAE), 2016 WL 452319, at *3 (S.D.N.Y. Feb. 5, 2016); see also Euceda v. Preesha Operating Corp., No. 14-CV-3143 (ADS) (SIL), 2017 WL 3084490, at *4 (E.D.N.Y. June 30, 2017), report and recommendation adopted, 2017 WL 3084408 (E.D.N.Y. July 18, 2017). “An award of costs ‘normally include[s] those reasonable out-of-pocket expenses incurred by the attorney and which are normally charged [to] fee-paying clients.'” Fisher v. S.D. Protection Inc., 948 F.3d 593, 600 (2d Cir. 2020) (quoting Reichman Bonsignore, Brignati & Mazzotta P.C., 818 F.2d 278, 283 (2d Cir. 1987)).
In her “Statement of Damages,” Plaintiff indicates that she seeks $642 in costs, comprised of $402 for the case filing fee, and $240 in process server fees. See Statement of Damages, ECF No. 23 (“Statement of Damages”). Plaintiff provided the Court with receipts for the process service fees and a review of those receipts indicates that Plaintiff paid more in process service fees, totaling $445.10. See ECF No. 41. The Court can take judicial notice of the filing fee and Plaintiff has substantiated the amount she spent on process server fees with receipts. See BWP Media USA, Inc. v. Uropa Media, Inc., No. 13-CV-7871 (JSR) (JCF), 2014 WL 2011775, at *4 (S.D.N.Y. May 16, 2014) (taking judicial notice of court filing fee); Sanchez v. Jyp Foods Inc., No. 16-CV-4472 (JLC), 2018 WL 4502008, at *17 (S.D.N.Y. Sept. 20, 2018) (explaining that a request for an award of costs requires adequate substantiation of the amount sought). Consequently, I recommend an award to Plaintiff of $847.10 in costs.
CONCLUSION
For the reasons set forth above, I recommend that Plaintiff be awarded the following amount, which are comprised of unpaid overtime wages and liquidated damages: $48,774. I also recommend an award of post-judgment interest, to be calculated from the date the Clerk of Court enters judgment in this action until the date of payment, using the federal rate set forth in 28 U.S.C. § 1961. Additionally, I recommend awarding Plaintiff costs in the amount of $847.10. Finally, the Clerk of the Court is respectfully directed to calculate prejudgment interest at the statutory rate of 9% a year as follows, as applied from September 30, 2018, to the date of entry of judgment, on Plaintiff's unpaid overtime damages of $24,387. Plaintiff is directed to serve a copy of this Order on Defendants and file proof of service of the same on the docket no later than September 28, 2023.