Campos v. Zopounidis et al

Filing 81

ORDER granting 57 Motion in Limine regarding Immigration Status; granting 58 Motion in Limine regarding evidence of Tip Income; denying 80 Motion to Amend/Correct Joint Trial Memorandum to add two of Plaintiff's current employers to the li st of Defendant's trial witnesses. See the attached Memorandum of Decision. The Parties are directed to review this Memorandum of Decision in advance of the Telephonic Pretrial Conference on 10/17/11. Signed by Judge Vanessa L. Bryant on 10/13/11. (Hildebrand, J.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

JAMIE CAMPOS,
Plaintiff,
v.
EVDOXIA ZOPOUNIDIS AND
EZ ENTERPRISES LLC,
Defendants.

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CIVIL ACTION NO.
3:09-cv-1138 (VLB)

October 13, 2011

MEMORANDUM OF DECISION GRANTING [Dkt. #57 and #58] PLAINTIFF’S
MOTIONS IN LIMINE REGARDING EVIDENCE OF TIP INCOME AND IMMIGRATION
STATUS AND ADDRESSING OTHER EVIDENTIARY ISSUES RAISED IN [Dkt. #59]
THE PARTIES’ JOINT TRIAL MEMORANDUM
I.

Tip Evidence

The Court grants [Dkt. #58] the Plaintiff’s Motion in Limine to exclude
evidence relating to tip income received by the Plaintiff. Evidence of any tip
income received by the Plaintiff is inadmissible because Defendants cannot
demonstrate compliance with the prerequisites for reliance on the tip credit under
either the FLSA or Connecticut Minimum Wage Laws.
In order to rely on the tip credit under the FLSA, Defendants must
demonstrate: (1) that Plaintiff satisfies the definition of a “tipped employee”
under 29 U.S.C. §203(t), which requires that the employee “customarily and
regularly receives more than $30 a month in tips;” (2) that Defendants must have
informed Plaintiff of their intent to rely on the tip credit towards the calculation of
Plaintiff’s minimum wage entitlements; and (3) Defendants must demonstrate that
all tips received by Plaintiff were in fact retained by Plaintiff. Defendants

concededly cannot satisfy these prerequisites to the FLSA tip credit as they have
admitted in their responses to Plaintiff’s First Set of Interrogatories [Pl. Trial Ex.
2] that they have no documentation regarding the gross wages earned by Plaintiff
or payroll records relating to wages paid to Plaintiff.
In order to rely on the tip credit under Connecticut Minimum Wage laws
Defendants must have obtained and maintained a signed statement from Plaintiff
certifying that he received gratuities of at least $2 dollars per day in the case of
part-time employees, or $10 dollars per week in the case of full-time employees in
order to rely on the tip credit. Conn. Agencies Regs. § 31-62-E2(c). Further, the
Defendants must also have kept a weekly record of the amount claimed as a
credit as a separate item in a wage record. Id. The Defendants’ concession in
their response to the Plaintiff’s First Set of Interrogatories [Pl. Trial Ex. 2] that
they have no documentation regarding either the gross wages earned by Plaintiff
or payroll records relating to wages paid to Plaintiff indicates that they cannot
satisfy these prerequisites to the tip credit under the Connecticut Minimum Wage
laws.
Therefore, all evidence regarding tip income received by the Plaintiff is
inadmissible as Defendants have failed to satisfy the prerequisites to the tip
credits available under the FLSA and Connecticut Minimum Wage laws.
II.

Immigration Status

The Court grants [Dkt. #57] the Plaintiff’s Motion in Limine to exclude
evidence relating to Plaintiff’s Immigration Status. Evidence of Plaintiff’s
Immigration Status is inadmissible because it directly contradicts a large body of

case law from numerous Circuits including District Courts within the Second
Circuit clearly holding that all employees, regardless of immigration status, are
protected by provisions of the FLSA. See e.g., Uto v. Job Site Services Inc., 269
F.R.D. 209, 211 (E.D.N.Y. 2010) (citing Flores v. Amigon, 233 F.Supp.2d 462, 463
(E.D.N.Y. 2002)); see also Liu v. Donna Daran Int’l, Inc., 207 F.Supp.2d 191
(S.D.N.Y. 2002); Flores v. Albertsons, Inc., 01-cv-00515 (AHM), 2002 WL 1163623,
at *5 (C.D.Cal. Apr. 9, 2002) (noting that “Federal courts are clear that the
protections of the FLSA are available to citizens and undocumented workers
alike”) (citing Patel v. Quality Inn So., 846 F.2d 700, 706 (11th Cir. 1988).
Defendants assert in their Memorandum in Opposition to Plaintiff’s Motion
in Limine as to Immigration Status [Dkt. #64] that the various cases discussing
the admissibility of immigration status in FLSA claims all addressed the
discoverability of immigration status and are therefore inapplicable to the issues
presented in the present case where the Defendants were aware of Plaintiff’s
immigration status from the beginning of Plaintiff’s employment. Moreover,
Defendants argue that here, where Plaintiff affirmatively disclosed his
immigration status, there is no danger that he will suffer unfair prejudice by the
Defendant’s presentation of such evidence. The Court is wholly unpersuaded by
these arguments. A plethora of federal court decisions across the country have
clearly articulated that the provisions of the FLSA apply to protect undocumented
workers and citizens alike. See Uto, 269 F.R.D. at 211; Donna Daran Int’l Inc., 207
F.Supp. 191; Quality Inn So., 846 F.2d at 706.

Further, the Defendants argue that evidence of Plaintiff’s immigration
status is relevant to their defense that they did not act willfully, arbitrarily,
unreasonably or in bad faith when compensating Plaintiff because they held a
reasonable belief that any act or omission was not a violation of the FLSA.
However, this argument is in direct contradiction with the Second Circuit’s
construction of the “good faith” defense under the FLSA. The Second Circuit has
held that to rely on the “good faith” defense under the FLSA, “an employer must
show that it took ‘active steps to ascertain the dictates of the FLSA’ and then act
to comply with them.’” Barfield v. New York City Health and Hospitals Corp., 537
F.3d 132 (2d Cir. 2008) (citing Herman v. RSR Servs. Ltd., 172 F.3d at 132, 142 (2d
Cir. 1999)). However, Defendants’ admitted in the Joint Trial Memorandum and in
sworn deposition testimony that they “lack of knowledge of minimum wage laws
and rates.” Given the patent inconsistency of the Defendants statements
regarding a lack of knowledge as to minimum wage standards on the on the one
hand, and a “reasonable” belief that any act or omission regarding such
minimum wage standards was not a violation of such regulations, it is apparent
that Defendants cannot satisfy the standard established by the Second Circuit to
rely on the “good faith” defense under the FLSA, and therefore evidence of
Plaintiff’s immigration status purportedly offered in pursuit of such a defense is
inadmissible. See also Fed. R. Evid. 404.
For all of the aforementioned reasons, the information regarding Plaintiff’s
immigration status is inadmissible as it is irrelevant to Plaintiff’s claims.
III.

Real Estate Transactions

In the Parties’ Joint Trial Memorandum [Dkt. #59] the Defendants indicated
their intent to include as trial exhibits information about Plaintiff’s real estate
transactions which they assert are relevant to support their contention that
Plaintiff earned income in excess of the FLSA and Connecticut State Minimum
Wage standards. Specifically, Defendants seek to admit a Warranty Deed
documenting the Plaintiff’s acquisition of a residential property from a third party
in January of 2005 [Defs. Trial Ex. B], a Mortgage Deed acquired by the Plaintiff
covering the purchased property dated December 2004 [Defs. Trial Ex. C], and a
Warranty Deed documenting the Plaintiff’s sale of the residential property to a
third party in June 2007 [Defs. Trial Ex. D].
The Court holds that such evidence is inadmissible under F.R.E. 403 as any
inference drawn from such evidence alone is wholly speculative and therefore the
limited probative value of the evidence is outweighed by the danger of unfair
prejudice and confusion of the issues. See Fed. R. Evid. 403.
IV.

Current Employers

In the Parties’ Joint Trial Memorandum [Dkt. #59] the Defendants indicated
their intent to offer the testimony of three of the Plaintiff’s current employers to
testify as to the terms and conditions of his employment and the manner in which
he is compensated. The Court holds that all testimony of Plaintiff’s current
employers is inadmissible because it is wholly irrelevant to the issue of whether
or not Plaintiff received adequate compensation from the Defendants under the
FLSA and Connecticut Minimum Wage Laws. Moreover, to the extent that the
Defendants seek to the offer the testimony of the employers to indicate an

agreement to receive tip income and compensation below the applicable
minimum wage standards, such evidence is inadmissible in so far as both the
FLSA and Connecticut Minimum wage laws provide that employers may not rely
upon an agreement to work for less than minimum wage as a defense to a claim
for failure to pay minimum wage or overtime wages. See Brooklyn Sav. Bank v.
O’Neill, 324 U.S. 697, 707 (1945) (holding that employees cannot release their
rights under the FLSA by private agreement, because such action contravenes a
statutory right granted in the public interest); see also Conn. Gen. Stat. § 31-68.
Therefore evidence of any such agreement by the Plaintiff with either the
Defendants or any other of the Plaintiff’s former or current employers to work for
less than minimum wage or overtime wages is not admissible because it is not
relevant to any permissible defense.
V.

Defendants’ Trial Exhibits E, F and G

In the Parties’ Joint Trial Memorandum [Dkt. #59] the Defendants indicated
their intent to include as trial exhibits E, F and G, a listing of weekly hours worked
by Plaintiff less than 60 hours, an illustration of Plaintiff’s earnings in excess of
Federal minimum wage and overtime rates, and an illustration of Plaintiff’s
earnings in excess of State minimum wage and overtime rates. The Court holds
that Defendants’ Trial Exhibits E, F and G are inadmissible because they do not
qualify as summaries under F.R.E. 1006 where the source documents are being
offered by the Plaintiff as Plaintiff’s Trial Ex. 1. Therefore, without an applicable
exception to the rules against hearsay evidence, the documents are inadmissible.

VI.

Conclusion

Based on the foregoing reasoning, the Court grants [57] Plaintiff’s Motion
in Limine to exclude evidence of Plaintiff’s Immigration Status, and [58] Plaintiff’s
Motion in Limine to exclude evidence of Plaintiff’s tip income. Additionally, the
Court holds that Defendants’ proposed evidence regarding Plaintiff’s real estate
transactions is inadmissible, Defendants’ proposed testimony of Plaintiff’s
current and former employers aside from the Defendants’ themselves is
inadmissible, and Defendants’ proposed Trial Exhibits E, F and G are
inadmissible.
IT IS SO ORDERED.

/s/
Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: October 13, 2011