Morales et al v. Gourmet Heaven, Inc. et al

Filing 99

ORDER granting 93 Motion for Summary Judgment for the reasons set forth in the attached Memorandum of Decision. Signed by Judge Vanessa L. Bryant on 11/29/2016. (Lee, E.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ULBER MORALES, JULIO OLIVAR,
HISAI RAMIREZ, ALEJANDRO
RODRIGUEZ, CRISTIAN RAMIREZ,
and MISAEL MORALES,
Plaintiffs,
v.
GOURMET HEAVEN, INC.,
CHUNG CHO, and YONG CHO
Defendants.

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Civil Case Number
3:14-cv-01333 (VLB)
November 29, 2016

Memorandum of Decision
Plaintiffs Ulber Morales, Julio Olivar, Hisai Ramirez, Alejandro Rodriguez,
Cristian Ramirez, and Misael Morales (collectively, “Plaintiffs”) brought claims for
minimum wage and overtime violations under the Fair Labor Standards Act of 1938
(“FLSA”), 29 U.S.C. § 201, et. seq., and the Connecticut Minimum Wage Act
(“CMWA”), Conn. Gen. Stat. § 31-58, et. seq., against Defendants Gourmet Heaven,
Inc. and Chung Cho (collectively, “Defendants”).1 Plaintiffs now move for partial
summary judgment against Defendants on these claims.

The Court also sua

sponte addresses Plaintiffs’ wage payment claim under Conn. Gen. Stat. §§ 31-71
and 31-72 because it relates to the award of actual and liquidated damages for
which the Plaintiffs seek judgment. For the following reasons, the Court GRANTS

1

Plaintiffs also sued Yong Cho and asserted claims against all defendants under
Connecticut’s Wage Payment Law, Conn. Gen. Stat §§ 31-71, 31-72; retaliation
claims under the FLSA; and claims for retaliation in violation of Conn. Gen. Stat. §
31-51q. This memorandum does not address the claims against Yong Cho or the
retaliation claims against all defendants.
1

Plaintiffs’ motion for partial summary judgment and awards damages in the amount
of $175,664.24.
Facts
The following undisputed facts are drawn primarily from Plaintiffs’ 56(a)1
Statement.2 As the Defendants did not oppose the Plaintiffs’ Motion for Summary
Judgment, the Court also considers all facts from the Amended Complaint to be
undisputed where they are either admitted by the Defendants or supported by
evidence. See Fed. R. Civ. P. 56(e).
I.

Defendants
Gourmet Heaven, Inc. (“Gourmet Heaven”) is a Connecticut corporation that

operated at the relevant time two grocery stores in New Haven, CT. [Dkt. 64 ¶¶ 1112; Dkt. 85 ¶¶ 11-12; Dkt. 93, Ex. 10 ¶ 3]. Gourmet Heaven purchased food and
other products originating outside Connecticut, generating more than $500,000 in
annual revenue. [Dkt. 64 ¶¶ 13-14; Dkt. 85 ¶¶13-14]. The company also hired, paid,
supervised and scheduled the work performed by the Plaintiffs. [Dkt. 64 ¶15; Dkt.
85 ¶15].
Chung Cho (“Cho”) is the President and sole owner of Gourmet Heaven.
[Dkt. 64 ¶¶16-17; Dkt. 85 ¶¶16-17]. He is personally primarily responsible for all
operations of the business, including hiring and firing employees, wage payments,

2

The Court has reviewed Plaintiff’s 56(a)1 Statement to ensure “that each
statement is, in fact, supported by admissible evidence.” See Wilson v. McKenna,
No. 3:12-cv-1581 (VLB), 2015 WL 5455634, at *1 (D. Conn. Sept. 15, 2015) (observing
that the failure to oppose summary judgment does not relieve the Court of its duty
of ensuring that the moving party offers admissible evidence in support of its
motion).
2

and maintaining records. [Dkt. 93, Ex. 10 ¶ 5; see also Dkt. 93, Ex. 8 ¶ 9 (Cho
claimed to conduct “day to day affairs” of Gourmet Heaven as his “own business”
in an unrelated civil case filed in the District of Connecticut)]. Cho paid all his
employees, including the Plaintiffs in this case, in cash and did not post legallyrequired notices of wage and hour rights or otherwise inform his employees of their
said rights. [Dkt. 93, Ex. 10 ¶ 7].
II.

Plaintiffs

Plaintiffs are six individuals who worked for Gourmet Heaven and Cho in one or
both of the New Haven grocery stores. See [id. at ¶ 7]. Ulber Morales (“U. Morales”)
worked for Defendants making deli sandwiches from July 2011 until January 2012.
[Dkt. 93. Ex. 7 ¶ 2]. U. Morales saw Cho almost every week at the grocery store.
[Id. at ¶ 4]. Cho determined U. Morales’s pay, including a salary raise. [Id. at ¶ 6].
Defendants did not keep an accurate record of Morales’s hours or pay. [Dkt. 64 ¶
43; see Dkt. 93, Ex. 10 ¶ 11].
Julio Olivar (“Olivar”) worked for Defendants from June 4, 2006, until
December 21, 2013. [Dkt. 93. Ex. 6 ¶ 2]. Olivar saw Cho almost every week at
Gourmet Heaven, and Cho personally interviewed him, hired him, set his hours,
and approved of any requested changes in his schedule. [Id. at ¶ 6]. Cho also
personally paid Olivar multiple times, and they negotiated Olivar’s salary. [Id. at ¶
7].

Cho gave Olivar direction on flower and produce arrangements. [Id. at ¶ 8].

Defendants did not keep an accurate record of Olivar’s hours or pay. [Dkt. 64 ¶ 38;
Dkt. 93, Ex. 10 ¶ 11].

3

Hisai Ramirez (“H. Ramirez”) worked for Defendants in the kitchen from
January 2012 until December 2013. [Dkt. 93, Ex. 4 ¶ 2]. Cho personally paid H.
Ramirez in cash on many occasions, and H. Ramirez signed a record of the
payment. [Id. ¶ 5]. Defendants did not keep an accurate record of H. Ramirez’s
hours or pay. [Dkt. 64 ¶ 48; see Dkt. 93, Ex. 10 ¶ 11].
Alejandro Rodriguez (“Rodriguez”) has worked for Defendants since March
2003. [Dkt. 64 ¶ 49; Dkt. 93, Ex. 11 ¶ 5]. From 2003 until 2014, he typically worked
at least 72 hours per week. [Id. at ¶ 6]. Defendants did not keep an accurate record
of Rodriguez’s hours or pay. [Dkt. 64 ¶ 53; see Dkt. 93, Ex. 10 ¶ 11].
Cristian Ramirez (“C. Ramirez”) worked for Defendants in the front of the
store from September 2010 until December 2013. [Dkt. 93, Ex. 3 ¶ 2]. Cho had
control over his schedule; for example, one time Cho refused to allow Ramirez to
reduce his schedule to five days a week. [Id. at ¶ 5]. Cho also often personally
paid C. Ramirez in cash. [Id. at ¶ 6]. Defendants did not keep an accurate record
of C. Ramirez’s hours or pay. [Dkt. 64 ¶ 58; see Dkt. 93, Ex. 10 ¶ 11].
Misael Morales (“M. Morales”) worked for Defendants in the kitchen from
June 2009 until December 2013. [Dkt. 93, Ex. 5 ¶ 2]. Morales observed Cho at the
store almost every week, where he worked in his office “all the time,” monitoring
the employees on computer screens connected to cameras. [Id. at ¶ 4]. One time,
M. Morales burned himself, and Cho told him that he would be fired if he missed
more than three days of work. [Id. at ¶ 5]. Cho oversaw the kitchen workers’ hours
and determined the types of foods they cooked on any given day. [Id. at ¶¶ 6-7].

4

Defendants did not keep an accurate record of Morales’s hours or pay. [Dkt. 64 ¶
63; see Dkt. 93, Ex. 10 ¶ 11].
III.

Connecticut Department of Labor Investigation

Upon receiving a complaint by U. Morales, the Connecticut Department of Labor
(“CT-DOL”) initiated an investigation on June 24, 2013, regarding Gourmet
Heaven’s potential violations of Connecticut’s wage and hour and wage payment
laws. See [Dkt. 93, Ex. 7 ¶ 9, Ex. 10 ¶ 4]. The audit period spanned from June 19,
2011 through August 2, 2013. [Dkt. 93, Ex. 10 ¶ 11]. With respect to the Plaintiffs,
the investigator concluded that Cho owed them overtime compensation in the
following amounts:
Plaintiff

Wages Due from Audit 1

Ulber Morales

$8,291.00

Julio Olivar

$7,136.63

Hisai Ramirez

$12,024.00

Alejandro Rodriguez

$25,708.00

Cristian Ramirez

$14,982.50

Misael Morales

$15,546.75

See [id.].
Once the investigation commenced, Cho told his employees he intended to
pay them partly under the table and warned them not to speak to the CT-DOL about
their wages. [Dkt. 93, Ex. 4 ¶ 7]. He told the employees to punch in only 40 hours
on their timesheets and that he would pay the rest of their earnings in cash, but he

5

never paid the overtime as promised. [Dkt. 93, Ex. 3 ¶ 10]. Several Gourmet Heaven
employees, including M. Morales, lived in an apartment owned by Cho. [Dkt. 93,
Ex. 5 ¶ 8]. Cho threatened the employees that “the [G]overnment would find [them]
in the apartment and kick [them] out of the country” if they spoke to the CT-DOL.
[Id.] In addition, Cho advised Gourmet Heaven employees to run out the back door
should the CT-DOL ever arrive on site. [Id. at ¶ 9].

He notified them they would

lose their jobs if they talked to the CT-DOL. [Dkt. 93, Ex. 3 ¶ 10].
The investigation revealed that Cho’s records were “incomplete and out of
compliance with state law standards.” [Dkt. 93, Ex. 10 ¶ 12]. After the audit
concluded, the investigator counseled Cho about proper compliance with state
overtime laws. [Id. ¶ 12]. However, Cho continued to violate the record-keeping
and overtime statutes. See [id. at ¶ 15]. The investigator determined that the
Plaintiffs were entitled to additional wages3:
Plaintiff

Wages Due from Audit 2

Ulber Morales

$0.00

Julio Olivar

$2,152.92

Hisai Ramirez

$144.00

Alejandro Rodriguez

$1,496.32

Cristian Ramirez

$190.00

Misael Morales

$160.00

[Id.]

3

Evidence does not indicate the time period during which the second audit
occurred.
6

The total amount of unpaid wages Cho owed each Plaintiff was:
Plaintiff

Wages Due (Sum of Audits)

Ulber Morales

$8,291.00

Julio Olivar

$9,289.55

Hisai Ramirez

$12,168.00

Alejandro Rodriguez

$27,204.32

Cristian Ramirez

$15,172.50

Misael Morales

$15,706.75

[Id. ¶ 11].
As a result of his unremitting violations of state wage and hour laws, Cho
was indicted and charged with multiple counts of criminal wage payment law
violations, failure to maintain wage records, defrauding immigrant workers, and
First Degree Larceny. [Id. at ¶ 18]. Cho entered into an agreement with the CT-DOL
to pay back a portion of the wages due, and, as a result of a late payment, the CTDOL submitted arrest warrants against him. [Dkt. 93, Ex. 13 at 1]. On November
17, 2014, the state court granted Cho accelerated rehabilitation on several
conditions, including that Cho pay back all the money he owed as a result of the
CT-DOL investigation. [Id.  at 4]. Cho paid all the wages listed above as of April
2015 and also issued an apology letter to Plaintiffs. [Dkt. 93, Ex. 10 ¶ 20, Ex. 14].

Discussion
I.

Standard of Review
Summary judgment should be granted if “there is no genuine dispute as to
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any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The moving party bears the burden of proving that no genuine
factual disputes exist. See Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir.
2010). “In determining whether that burden has been met, the court is required to
resolve all ambiguities and credit all factual inferences that could be drawn in favor
of the party against whom summary judgment is sought.” Id. (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). Where, as here, “a motion for summary
judgment is unopposed, the district court is not relieved of its duty to decide
whether the movant is entitled to judgment as a matter of law.” Vt. Teddy Bear Co.
v. 1-800 Beargram Co., 373 F.3d 241, 242 (2d Cir. 2004). “If the evidence submitted
in support of the summary judgment motion does not meet the movant’s burden of
production, then ‘summary judgment must be denied even if no opposing
evidentiary matter is presented.’” Id. at 244 (emphasis omitted) (quoting Amaker
v. Foley, 274 F.3d 677, 681 (2d Cir. 2001)).
II.

FLSA Claims
The FLSA generally requires employers to pay employees the federal

minimum wage for every hour worked and to compensate employees for hours
worked in excess of forty hours at a rate of one and one-half times the regular rate.4

4

The Court uses the word “generally” because certain employment relationships
are exempt. An FLSA exemption, however, is an affirmative defense. Darowski v.
Wojewoda, No. 3:15-cv-00803 (MPS), slip-op. at 10 (D. Conn. Aug. 7, 2016); see
Bilyou v. Dutchess Beer Distribs., Inc., 300 F.3d 217, 222 (2d Cir. 2002). No
exemption is at issue here. Defendants have failed to assert any affirmative
defenses in their answer, see [Dkt. 85], and the failure to plead an affirmative
defense results in waiver. See Probatter Sports, LLC v. Sports Tutor, Inc., 2015 WL
8

29 U.S.C. § 207(a)(1). A plaintiff claiming unpaid minimum or overtime wages under
the FLSA must show that: (1) the plaintiff engaged in commerce or is employed by
an enterprise engaged in commerce; (2) the defendant employed the plaintiff; and
(3) the plaintiff performed work for which he was not properly compensated. See
Zhong v. Aug. Aug. Corp., 498 F. Supp. 2d 625, 628 (S.D.N.Y. 2007); see also Morgan
v. Family Dollar Stores, Inc., 551 F.3d 1233, 1277 n.68 (11th Cir. 2008). The Court
addresses each element in turn.
A. Commerce Element
The FLSA’s minimum wage and overtime provisions apply to an employee
who is: (1) “engaged in commerce or in the production of goods for commerce”;
or (2) “employed in an enterprise engaged in commerce or in the production of
goods for commerce.” 29 U.S.C. § 207(a)(1). “The two categories are commonly
referred to as ‘individual’ and ‘enterprise’ coverage, respectively.” Jacobs v. New
York Foundling Hosp., 577 F.3d 93, 96 (2d Cir. 2009). A plaintiff bears the burden
of proving either individual or enterprise coverage. See Rocha v. Bakhter Afghan
Halal Kababs, Inc., 44 F. Supp. 3d 337, 343-44 (E.D.N.Y. 2014) (ruling that “whether
Plaintiffs can establish [FLSA] coverage is an element of Plaintiffs’ claim”).
In this case, the employees are protected by the FLSA based on enterprise
coverage, because the undisputed record shows that Gourmet Heaven constituted

4390055, at *3 (D. Conn. July 15, 2015) (observing that “a general denial does not
sufficiently plead an affirmative defense, and ‘failure to plead an affirmative
defense in the answer results in the waiver of that defense and its exclusion from
the case’”) (quoting Satchell v. Dilworth, 745 F.2d 781, 784 (2d Cir.1984)); Archie v.
Grand Cent. P’ship, 997 F. Supp. 504, 536 (S.D.N.Y. 1998).
9

an enterprise engaged in interstate commerce.5 “Commerce” is defined under the
FLSA as “trade, commerce, transportation, transmission, or communication
among the several States or between any State and any place outside thereof.” 29
U.S.C. § 203(b).

The FLSA defines an “enterprise,” inter alia, as “the related

activities performed . . . by any person or persons for a common business purpose
. . . .” 29 U.S.C. § 203(r)(1); Jacobs v. New York Foundling Hosp., 577 F.3d at 97.
An “enterprise engaged in commerce” is one that (i) “has employees engaged in
commerce or in the production of goods for commerce, or that has employees
handling, selling or otherwise working on goods or materials that have been moved
in or produced for commerce by any person”; and (ii) has “annual gross volume of
sales made or business done . . . not less than $500,000.” 29 U.S.C. § 203(s)(1)(A)
(emphases added). It is undisputed that Gourmet Heaven purchased and used
food and other products originating outside Connecticut and generated more than
$500,000 in sales annually. [Dkt. 64 ¶¶ 13-14; Dkt. 85 ¶¶13-14].
B. Employer-Employee Element
Under the FLSA, an “employee” is “any individual employed by an
employer,” and 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), (e)(1).
These definitions should be broadly construed to achieve the statute’s goal of
“outlawing from interstate commerce goods produced under conditions that fall
below minimum standards of decency.” Irizarry v. Catsimatidis, 722 F.3d 99, 103
(2d Cir. 2013) (quoting Tony & Susan Alamo Found. V. Sec’y of Labor, 471 U.S. 290,

5

The Plaintiffs have not argued a theory of individual coverage. 
10

296 (1985)). The determination of an “employer-employee relationship” is founded
on “economic reality rather than technical concepts.” Id. at 104 (quoting Goldberg
v. Whitaker House Coop., Inc., 366 U.S. 28, 33 (1961).
The Second Circuit uses a four-factor test to determine “economic reality,”
which evaluates whether the employer: “(1) had the power to hire and fire the
employees, (2) supervised and controlled employee work schedules or conditions
of employment, (3) determined rate and method of payment, and (4) maintained
employment records.” Id. at 104-05 (quoting Carter v. Dutchess Cmty. Coll., 735
F.2d 8, 12 (2d Cir. 1984)). This test is a “flexible concept to be determined on a
case-by-case basis by review of the totality of the circumstances.” Id. at 104.
i.

Employer-Employee Element as to Gourmet Heaven

It is undisputed that all Plaintiffs worked for Gourmet Heaven and that
persons acting on behalf of Gourmet Heaven hired, scheduled the work hours of,
supervised and paid the Plaintiffs. [Dkt. 64 ¶ 15; Dkt. 85 ¶ 15]. Therefore, Gourmet
Heaven was their “employer” under the FLSA.
ii.

Employer-Employee Element as to Cho

Defendant Cho is also individually liable as an “employer” under the FLSA.
In some circumstances, an individual may be personally liable for damages as an
“employer” when that individual is “engaged in the culpable company’s affairs to
a degree that it is logical to find him liable to plaintiff employees.” Irizarry v.
Catsimatidis, 722 F.3d at 117. The Second Circuit traditionally considers: (1) the
individual’s “operational control” over the company, (2) the four-factor “economic
reality” test, and (3) the totality of the circumstances. Velasquez v. U.S. 1 Farm

11

Market, Inc., 3:13-cv-00643 (GWC), slip-op. at 6 (D. Conn. May 3, 2016) (citing
Herman v RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)).
“A person exercises operational control over employees if his or her role
within the company, and the decisions, it entails, directly affect the nature or
conditions of the employees’ employment.” Irizarry v. Catsimatidis, 722 F.3d at
110. Relevant considerations are the individual’s “direct control over employees”
as well as “evidence showing [an individual’s] authority over management,
supervision, and oversight of [a company’s] affairs in general.” Id. Cho was the
President and sole owner of Gourmet Heaven, and he personally hired all managers
and supervisory staff. [Dkt. 64 ¶¶16-17, 20; Dkt. 85 ¶¶16-17, 20]. He invested funds
in Gourmet Heaven, negotiated the lease, contracted with food and equipment
supply vendors, and conducted the banking and financial affairs of the business.
[Dkt. 93, Ex. 8 ¶ 9]. In addition, Cho managed the daily affairs, such as directing
employees how to arrange flowers and produce in the front of the store. [Dkt. 93,
Ex. 6 ¶ 8]. Such evidence establishes that Cho’s role in Gourmet Heaven directly
affected the employees, demonstrating his “operational control.”
The undisputed facts indicate that Cho's role also satisfies all factors of the
“economic reality” test as he was personally responsible for all operations of the
business, including (1) hiring and firing employees, (2) scheduling employee
hours, (3) wage payments, and (4) maintaining records. See Irizarry v. Catsimatidis,
722 F.3d at 104-05; [Dkt. 93, Ex. 5 ¶ 6, Ex. 10 ¶ 5]. Notably, Cho admitted on the
record in another case before this Court that he runs the “day-to-day affairs” of

12

Gourmet Heaven. [Dkt. 93, Ex. 8 ¶ 9]. These facts establish that Cho’s role at
Gourmet Heaven clearly satisfies the “economic reality” test.
Upon considering the totality of the circumstances, the Court rules that that
Cho is an “employer” under the FLSA and is individually liable for the damages
owed to the Plaintiffs under either the operational control or economic reality
standard.
C. Wage Payment Violation Element
The FLSA awards back pay for unpaid minimum wage and overtime
compensation as well as liquidated damages. 29 U.S.C. § 216(b). Evidence from
affidavits and the CT-DOL investigation establishes that Defendants failed to pay
Plaintiffs wages as required under the FLSA. See, e.g., [Dkt. 93, Ex. 10 ¶ 14]. Cho
has also been subject to state criminal prosecution for his failure to pay his
employees minimum wage and overtime, his failure to keep records, defrauding
immigrant laborers, and larceny. See [Dkt. 93, Ex. 13 at 1]. The parties do not
dispute this issue.
III.

CMWA Claims
The Connecticut Minimum Wage Act (CMWA) provides wage and overtime

protections similar to the FLSA, except that it does not require the employee or
enterprise to be engaged in interstate commerce. See Tapia v. Mateo, 96 F. Supp.
3d 1, 5 (D. Conn. 2015); Scott v. Aetna Servs., Inc., 210 F.R.D. 261, 263 n.2 (D. Conn.
2002).

Like the FLSA, the overtime provision requires that employers pay

employees one and one-half times the employer’s regular rate for any hours over
forty hours per week. Conn. Gen. Stat. § 31-76c. The definition of “employer” is
13

“any person, partnership, corporation, limited liability company or association of
persons acting directly as, or in behalf of, or in the interest of an employer in
relation to employees.” Conn. Gen. Stat. § 31-58(e).
It is undisputed that Gourmet Heaven is an “employer” under Conn. Gen.
Stat. § 31-58(e) because Gourmet Heaven hired, paid, supervised, and scheduled
Plaintiffs’ hours of employment. [Dkt. 64 ¶ 15; Dkt. 85 ¶ 15].
Cho is also an “employer” under the CMWA, although the standards for
determining individual liability is somewhat different than that of the FLSA. The
Connecticut Supreme Court has declined to adopt the “economic reality” test for
this purpose, and instead asks whether the individual “possesses the ultimate
authority and control within a corporate employer to set the hours of employment
and pay wages and therefore is the specific or exclusive cause of improperly failing
to do so.” Butler v. Hartford Tech. Inst., 704 A.2d 222, 227 (Conn. 1997). As noted
above, the evidence supports the conclusion that Cho set the hours and controlled
the wages of the Gourmet Heaven employees as he hired, scheduled the work
hours of, managed and paid the Gourmet Heaven employees. See, e.g., [Dkt. 93,
Ex. 10 ¶ 5]. Accordingly, Cho is individually liable as an “employer” under the
CMWA.
As aforementioned, the affidavits and CT-DOL investigation establish that
the Defendants owed the Plaintiffs unpaid wages.
IV.

Damages
The FLSA and CMWA permit a plaintiff to recover unpaid minimum wages,

unpaid overtime compensation, and liquidated damages. See 29 U.S.C. § 255;

14

Conn. Gen. Stat. § 31-68. Plaintiffs seek to recover presently unpaid minimum
wage, overtime, and liquidated damages for their entire employment under both
the federal and state statutes.
As a condition of accelerated rehabilitation, Cho paid the Plaintiffs their
unpaid wages accrued during the CT-DOL audit periods. [Dkt. 93, Ex. 10 ¶ 20].
Plaintiffs, therefore, do not seek actual damages for these amounts. However,
Plaintiffs Olivar, Rodriguez, C. Ramirez, and M. Morales worked for Gourmet
Heaven for longer periods than that of the investigation and seek minimum wage
and overtime for the entire time in which they worked, not included in the state
audit and not paid in satisfaction of the state criminal judgment. See [Dkt. 93 (Mot.
for Summ. J.) at 26, 28, 29]. In addition, all Plaintiffs seek liquidated damages for
the audit period amounts.
The damages requests of Olivar, Rodriguez, C. Ramirez, and M. Morales
regarding these earlier periods raise statute of limitations, equitable tolling and
preemption issues, which the Court will now address.
A. Statute of Limitations under the FLSA and CMWA
The FLSA’s statute of limitations is two years from the date the “cause of
action accrues,” unless the Plaintiff can show that the “cause of action ar[ose] out
of a willful violation,” in which case the statute of limitations is three years. 29
U.S.C. § 255(a). A “‘cause of action accrue[s]’ when the defendant ‘fails to pay the
required compensation for any workweek at the regular pay day for the period in
which the workweek ends.’” Darowski v. Wojewoda, slip-op. at 11 (quoting 29
C.F.R.§ 790.21(b)). Therefore, a new cause of action arises after each pay day.

15

The CMWA’s statute of limitations is similarly two years, but with no
exception. See Conn. Gen. Stat. § 52-596. The date of “accrual” under Connecticut
state law is “when an employer refuses to compensate an employee according to
the terms of an express or implied employment contract.” Warzecha v. Nutmeg
Cos., 48 F. Supp. 2d 151, 158 (D. Conn. 1999); Burns v. Koellmer, 527 A.2d 1210,
1218 (Conn. App. Ct. 1987) (“The plaintiff’s cause of action did not arise until the
defendant breached the agreement by refusing to fully compensate the plaintiff for
her services.”).
Plaintiffs filed the complaint on September 15, 2014. A two-year statute of
limitations would limit damages to the period on or after September 15, 2012, and
a three-year statute of limitations would extend recovery to September 15, 2011.
Instead, Plaintiffs seek to recover damages for the entire time of their respective
employments.6

Plaintiffs argue that Defendants have waived the affirmative

defense that the statute of limitations bars recovery. See [Dkt. 93 (Mot. for Summ.
J.) at 26]. Defendants have indeed failed to raise this issue with the Court in any of
their answers, objections to motions, or hearings.

6

U. Morales worked from July 2011 until January 2012. [Dkt. 93, Ex. 7 ¶ 2, Ex. 12;
but see Dkt. 64 ¶ 39 (Amended Complaint cites a time period that extends beyond
the dates of Morales’s employment as stated in his Affidavit, of which the latter
coincides with the CT-DOL Wage Sheet)]. Olivar worked from June 4, 2006, until
December 21, 2013. [Dkt. 93, Ex. 6 ¶ 2; Dkt. 64 ¶ 34]. H. Ramirez worked from
January 2012 until December 2013. [Dkt. 93, Ex. 4 ¶ 2; but see Dkt. 64 ¶ 44].
Rodriguez worked from March 2003 until present. [Dkt. 93, Ex. 11 ¶ 5, Dkt. 64 ¶
49]. C. Ramirez worked from September 2010 until December 2013. [Dkt. 64 ¶ 54;
Dkt. 93, Ex. 3 ¶ 2]. 
16

“The contention that all or part of an action is barred by the statute of
limitations is an affirmative defense. If not raised by the defendant in his answer,
it is waived.” Archie v. Grand Cent. P’ship, 997 F. Supp. 504, 536 (S.D.N.Y. 1998)
(quoting Wade v. Orange Cty. Sheriff’s Office, 844 F.2d 951, 955 (2d Cir. 1998)); see
also Romprey v. Safeco Ins. Co. of Am., 77 A.3d 726, 737 n.11 (Conn. 2013) (in a
motorist insurance case, “The burden of proving an affirmative defense is, of
course, on the party raising it, and we must presume that the defendant had a good
faith basis to raise this defense”). Plaintiffs in Archie v. Grand Cent. P’ship, who
were homeless and formerly homeless persons working in the Pathways to
Employment Program, filed FLSA and New York State Minimum Wage Act
(“NYSMWA”) claims on February 1, 1995, alleging they were paid sub-minimum
wage and denied overtime during employment periods dating as early as 1990. Id.
at 511. Defendants failed to raise a statute of limitations defense until their joint
trial memorandum, in which they asked for leave to amend their answer to assert
the affirmative defense. Id. at 536. Then District Judge Sotomayor denied leave to
amend, stating, “A court plainly has discretion, however, to deny . . . where the
motion is made after an inordinate delay, no satisfactory explanation is offered for
the delay, and the amendment would prejudice the other party.” Id. The court then
determined the defendants violated both the FLSA and NYSMWA and ordered
damages in back pay as well as liquidated damages.
In this case, Defendants have not raised the statute of limitations defense at
all despite being represented by counsel and despite the Plaintiffs’ having raised
it. The Court concludes the Defendants have waived their right to limit damages to
17

the period within the appropriate statute of limitations. Therefore, it is unnecessary
to determine whether a two-year or three-year statute of limitations would apply
under the FLSA.7
The Court is not obligated to raise a statute of limitations defense sua sponte
as it is not a jurisdictional issue. See Day v. McDonough, 547 U.S. 198, 205, 209
(2006) (holding “district courts are permitted, but not obliged, to consider, sua
sponte, the timeliness of a state prisoner’s habeas petition”); Sanchez v. Truse
Trucking, Inc., 74 F. Supp. 3d 716, 719 n.2 (M.D.N.C. 2014) (electing not to raise a
statute of limitations issue sua sponte in an FLSA case).

Were the

Court to raise such an issue sua sponte, Plaintiffs may nonetheless be entitled to
apply equitable tolling to recover damages outside of the statute of limitations
period.
Equitable tolling is sometimes appropriate where a plaintiff’s federal and
state minimum wage and overtime compensation claims would otherwise be timebarred. Compare Darowski v. Wojewoda, slip-op. at 11-13 (denying defendant’s

Were the Court to rule on the statute of limitations issue, the Court is confident
that the three-year statute of limitations would apply. Cho threatened his
employees with termination and deportation after he learned of the CT-DOL
complaint. See [Dkt. 93, Ex. 3 ¶ 10, Ex. 5 ¶ 8]. He further advised the employees
only to punch in 40 hours and promised to pay the rest of their wages in cash –
this was a promise he did not keep. [Dkt. 93, Ex. 3 ¶¶ 10-11]. Even after the
investigator spoke to Cho about how to properly comply with the state overtime
laws, Cho continued to violate them and did so while a criminal case was pending
against him. [Dkt. 93, Ex. 10 ¶¶ 12, 15]. This conduct would certainly constitute a
“willful violation” of the FLSA. See Young v. Cooper Cameron Corp., 586 F.3d
201, 207 (2d Cir. 2009) (An employer “willfully” violates the FLSA when he “either
knew or showed reckless disregard for the matter of whether its conduct was
prohibited by the statute”).

7

18

motion to dismiss in part based on a “reasonable inference” that equitable tolling
should apply), with Parada v. Banco Indus. De Venezuela, C.A., 753 F.3d 62, 70-71
(2d Cir. 2014) (finding plaintiff did not merit equitable tolling based on her DOL
filing and physical illness), Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 88
(E.D.N.Y. 2012) (requiring plaintiff to show “some sort of deception” before tolling
the statute of limitations). The standard is an onerous one for the plaintiff, because
“[t]o qualify for equitable tolling, the plaintiff must establish that extraordinary
circumstances prevented [him] from filing [his] claim on time, and that [he] acted
with reasonable diligence throughout the period [he] seeks to toll.” Parada v.
Banco Indus. De Venezuela, C.A., 753 F.3d at 71 (quoting Phillips v. Generations
Family Health Ctr., 723 F.3d 144, 150 (2d Cir. 2013)).
Equitable tolling is not relevant here for two reasons. First, Defendants knew
the dates of their employees’ employment and were put on notice that Plaintiffs
seek “all compensation due and owing to them by the Defendants,” yet they still
failed to invoke their affirmative defense. See [Dkt. 64 at 15 (emphasis added)]. In
Darowski v. Wojewoda, the court addressed equitable tolling only after the
Defendant moved to dismiss, in part, on the basis that the Plaintiff’s claims were
time-barred. Slip-op. at 5. Even in Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d
at 88—a case where the court entered default judgment against the Defendant—
the parties previously litigated the statute of limitations issue during the summary
judgment stage and the court ruled on the issue. See Gunawan v. Sake Sushi Rest.,
No. 09-cv-5018 (ALC), 2011 WL 3841420, at 1 (E.D.N.Y. Aug. 26, 2011).

19

Second, the Court elects not to raise the statute of limitations issue sua
sponte. While it is possible Plaintiffs realized they had valid FLSA and CMWA
claims upon the initiation of the CT-DOL investigation and Cho’s criminal state
charges, Cho’s threats of deportation and employment termination most certainly
dissuaded Plaintiffs from exercising their rights. Thus, even if the Court, sua
sponte, were to require Plaintiffs to invoke equitable tolling, such facts militate in
favor of the Plaintiffs. By like measure, it would be futile to permit Defendants to
amend their answer to assert the statute of limitations affirmative defense because
it would be unavailing.
Therefore, the time period in which Plaintiffs may recover unpaid wages and
liquidated damages spans the entirety of their employment at Gourmet Heaven.
The Court awards damages under the statute that provides the greater amount of
recovery. See Velasquez v. U.S. 1 Farm Market, Inc., slip-op. at 11; Pau v. Chen,
2015 WL 6386508, at *8. In this case, the Court will award damages pursuant to the
CMWA because Connecticut has a higher minimum wage than the FLSA.
B. Actual Damages
The Plaintiffs worked for Gourmet Heaven for a total period of 2003 until
2014.

During this time, the FLSA and CMWA minimum wages periodically

increased.8

Plaintiffs Julio Olivar, Alejandro Rodriguez, Cristian Ramirez, and

8

The FLSA changed as follows: $5.15 per hour effective September 1, 1997; $5.85
per hour effective July 24, 2007; $6.55 per hour effective July 24, 2008; and $7.25
effective July 24, 2009. Dept. of Labor, Wage and Hour Div., History of Changes
to the Minimum Wage Law, https://dol.gov/whd/minwage/coverage.htm. The
Connecticut Minimum Wage changed as follows: $7.10 effective as of January 1,
2004; $7.40 effective as of January 1, 2006; $7.65 effective as of January 1, 2007;
20

Misael Morales seek to recover unpaid minimum wage and overtime damages for
the total time period during which they worked for which they have not been
compensated.9 In making this argument, Plaintiffs incorrectly combine minimum
wage and overtime payments, and calculate they were paid “below minimum wage”
by dividing the total amount of payment received for a workweek by the number of
hours worked.10
Retaining a distinction between minimum wage payments and overtime
payments is critical to a proper assessment of damages, because Plaintiffs can
recover under both federal and state law for overtime but cannot do so for minimum
wage. The Second Circuit noted that § 18(a) of the FLSA expressly allows states
to mandate greater overtime benefits and joined with all other Circuits in reaching
“the same conclusion—state overtime wage law is not preempted by the . . . FLSA.”
Overnite Transp. Co. v. Tianti, 926 F.2d 220, 222 (2d Cir. 1991). This same principle

$8.00 effective as of January 1, 2009; $8.25 effective as of January 1, 2010; $8.75
effective as of January 1, 2014. See Conn. Gen. Stat. ¶ 31-58(i).
9

Plaintiffs U. Morales and H. Ramirez do not seek actual damages because they
did not work outside the scope of the DOL investigation, and therefore they have
recovered their unpaid wages by way of the Accelerated Rehabilitation
determination. See [Dkt. 93, Ex. 13].

10

For example, Olivar determined that he was paid an average of $5.55 (when the
Connecticut minimum wage was $7.40 at the time) for his first week of work in
November 2006. [Dkt. 64 ¶ 36.] He made this determination by dividing his
weekly paycheck of $400 by the 72 hours he worked. However, the minimum
wage salary owed to Olivar was $296 ($7.40 per hour x 40 weeks), and Olivar was
indeed paid that amount. What he was not paid was a substantial portion of his
overtime payments due, totaling $251.20. Olivar was paid $104 in overtime ($400 $296). The total amount he should have been paid in overtime was one and a half
times minimum wage for a total of 32 weeks ($7.40 x 1.5 x 32) = $355.20.
Therefore, the amount owed to Olivar was $251.2 ($355.2 - $104).   
21

precludes Plaintiffs from obtaining “double recovery” in back pay, because states,
like Connecticut, with a higher minimum wage “necessarily will subsume their
award under the FLSA.” Hernandez v. Jrpac Inc., No. 14 Civ. 4176 (PAE), slip-op.
at 31 (S.D.N.Y. June 9, 2016); see also Velasquez v. U.S. 1 Farm Market, Inc., slipop. at 11 (D. Conn. May 3, 2016) (“Plaintiffs are entitled to damages for their unpaid
minimum wages and overtime under either the FLSA or the CMWA.”). As such,
Plaintiffs can recover under Connecticut’s higher minimum wage. See Velasquez
v. U.S. 1 Farm Market, Inc., slip-op. at 11; Pau v. Chen, No. 3:14cv841(JBA), 2015
WL 6386508, at *8 (D. Conn. Oct. 21, 2015) (awarding damages “pursuant to the
statute that provides the greater amount of damages,” the CMWA).
In general, the employee bears the burden to show he was not properly
compensated for the work he performed. Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 686-87 (1946), superseded by statute on other grounds. This is not
the case, however, when the employer fails to keep adequate employment records.
See id. at 687-88. In the latter circumstance, the employee need only provide
“sufficient evidence to show the amount and extent of that work [improperly
compensated] as a matter of just and reasonable inference.” Id. at 687; Velasquez
v. U.S. 1 Farm Market, Inc., slip-op. at 4. Upon this showing, the burden then shifts
to the employer to show “the precise amount of work performed or with evidence
to negative the reasonableness of the inference to be drawn from the employee’s
evidence.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. at 687-88.
Here, the CT-DOL investigation made two key determinations: (1) that
Gourmet Heaven employees were not paid certain overtime premiums, and (2) that

22

Cho’s records were incomplete and out of compliance with state law. [Dkt. 93, Ex.
10 ¶ 11]. These findings would, in theory, be sufficient to shift the burden to the
Defendants to show the “precise amount of work performed” or “negative the
reasonableness of the inference to be drawn from the employee’s evidence.” See
Anderson v. Mt. Clemens Pottery Co., 328 U.S. at 687-88.
However, the Plaintiffs have not satisfied their initial burden to provide
“sufficient evidence” for the court to make a “just and reasonable inference.” See
id. at 687. The Plaintiffs’ initial burden under Anderson v. Mt. Clemens Pottery is
minimal so as not to “penalize the employee by denying him any recovery on the
ground that he is unable to prove the precise extent of uncompensated work.” Id.
at 687; Daniels v. 1710 Realty LLC, 497 F. App’x 137, 139 (2d Cir. 2012). Likewise,
the FLSA is designed to prevent “the employer [from] keep[ing] the benefits of an
employee’s labors without paying due compensation.” Anderson v. Mt. Clemens
Pottery Co., 328 U.S. at 687. Plaintiffs may satisfy this burden “through estimates
based on [their] own recollection.” Kuebel v. Black & Decker Inc., 643 F.3d 352,
362 (2d Cir. 2011) (finding a declaration estimating the average hours of
uncompensated overtime each week to be sufficient). While the evidence may be
minimal, it must nonetheless be credible. Daniels v. 1710 Realty LLC, 497 F. App’x
at 139. A district court may not “just accept plaintiff’s statement of the damages.”
Hosking v. New World Mortg., Inc., 570 F. App’x 28, 32 (2d Cir. 2014) (internal
citations omitted); see Freeman v. Blake Co., 84 F. Supp. 700, 704 (1st Cir. 1949)
(commenting that “false reporting by the employee, [] silence by her and [] reliance
by the employer on that reporting and silence” do not constitute estoppel for

23

calculating FLSA damages). Overly vague or speculative evidence is insufficient
to satisfy the Plaintiffs’ minimal burden. See id.; Grochowski v. Phoenix Constr.,
318 F.3d 80, 88-89 (2d Cir. 2003) (finding evidence insufficient where one employee
testified that he “usually worked” with plaintiff and they had “basically the same
hours”).
The only evidence Plaintiffs have offered is the CT-DOL audit investigation
of the period of July 19, 2011, through August 2, 2013, which is shorter than the
period for which they seek damages. As a consequence, the Court is unable to
reasonably infer the amount. Plaintiffs Olivar, C. Ramirez, and M. Morales have not
submitted any affidavits or other evidence estimating (1) the average number of
hours they worked per week during the period prior to the CT-DOL investigation,
and (2) the extent to which they were not paid.

It would not be a “just and

reasonable inference” to calculate the average amount of overtime wages owed to
each Plaintiff during the CT-DOL investigation period and apply it retroactively to
past dates as the Plaintiffs suggest; such a calculation does not take into account
the minimum wage and overtime payment changes that occurred overtime and the
resulting difference in unpaid wages. Without knowing (1) the approximate number
of hours Plaintiffs worked and (2) the number of hours or amount of money
Plaintiffs were paid (or not paid) for the given time periods, the Court cannot make
an appropriate damages assessment. See Velasquez v. U.S. Farm 1 Market, Inc.,
slip-op. at 11-12; Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d at 89-90.
The Amended Complaint documents a few examples of average hours each
employee worked and lists payments made to each Plaintiff for the relevant period:

24



Olivar was paid $400 for working 72 hours during the first
week in November 2006, [Dkt. 64 ¶ 36];



Rodriguez was paid $240 for working 72 hours during the
first week of December 2003, [id. at ¶ 51];



C. Ramirez was paid $240 for working 72 hours during the
first week of October 2010, [id. at ¶ 56];



M. Morales was paid $340 for working 72 hours during the
first week of October 2009, [id. at ¶ 61].

While the Court can rely on an employee’s estimate of the hours he worked and
wages he was paid, evidence must be credible. Evidence of the hours worked and
wages paid for a single week is insufficient for the Court to justly and reasonably
infer the amount of unpaid wages over a substantially longer period of time. The
Plaintiff’s claim that they worked 72 hours a week is also contradicted by the CTDOL audit, which found that C. Ramirez and M. Morales generally worked 60 hours
instead of 72 hours per week, 12 fewer hours a week than the Plaintiffs now claim
they worked. There is no evidence on the record that these Plaintiffs challenged
the CT-DOL audit finding. On the contrary, there is evidence that those Plaintiffs
accepted payment of the amount of unpaid wages the auditor found they owed.
[Dkt. 93, Ex. 12].
The most helpful evidence Plaintiffs submitted is from Alejandro Rodriguez’s
Affidavit, in which he alleges that he worked 72 hours per week from 2003 until
2014 under the following conditions: “I was never paid the minimum wage or
overtime by Gourmet Heaven. For example, when I started I was paid at a rate of
$3.33 per hour. In July 2013, I was still being paid at a rate of $7.33 per hour with
no overtime premium for hours over 40.” [Dkt. 93, Ex. 11 ¶ 7]. However, given that
the Court has determined the Plaintiffs conflated minimum wage and overtime,
25

Rodriguez’s statement is not useful without knowing the amount he was paid. The
Court cannot use this information to calculate unpaid wages post-investigation
because Rodriguez does not indicate when, if ever, Defendants made proper
payments and the time period for which he seeks damages.
Therefore, the Court determines that it will extend the recovery period past
the statute of limitations given that Defendants have waived their affirmative
defense, but such an extension is limited to the period of time specified in the CTDOL wage sheets. Plaintiffs have not provided sufficient credible evidence for the
Court to make a “just and reasonable inference” as to unpaid wages that are owed
prior to and subsequent to the CT-DOL investigation, and, therefore, the Court
cannot award damages for those periods on the current record.
Given that Plaintiffs have recovered minimum wage and overtime
compensation for the investigation period as a result of Cho’s accelerated
rehabilitation judgment, they are not entitled to actual damages here.

Thus,

Plaintiffs’ request for actual damages during this time period is DENIED without
prejudice to filing within 35 days a motion for judgment that includes evidence in
support thereof. The Court will limit C. Ramirez’s and M. Morales’s recovery to 60
hour work weeks regarding the outstanding recovery period unless Plaintiffs can
provide evidence that they are entitled to damages for 72 hour work weeks during
this period.
C. Liquidated Damages
Both the FLSA and CMWA permit the recovery of liquidated damages. See
29 U.S.C. § 216(b); Conn. Gen. Stat. §§ 31-68(a), 31-72; see also Tapia v. Mateo, 96

26

F. Supp. 3d at 4. Under the FLSA, Plaintiffs are entitled to unpaid wages “and an
additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). However,
Defendants may avoid liquidated damages under § 260 of the FLSA “if the employer
shows to the satisfaction of the court that the act or omission giving rise to such
act was in good faith and that he had reasonable grounds for believing that his act
or omission was not a violation of the [FLSA].” 29 U.S.C. § 260. The employer
bears the difficult burden of establishing subjective good faith and objective
reasonableness by “plain and substantial” evidence. See Reich v. S. New England
Telecomms. Corp., 121 F.3d 58, 70-71 (2d Cir. 1997).
Although it is the Defendants who must prove good faith to avoid double
damages, Plaintiffs nonetheless have submitted evidence making it clear that
Defendants acted in bad faith. First, Cho improperly recorded his employees’
hours and wages and then promised, yet neglected, to pay employees under the
table after the investigation commenced. [Dkt. 93, Ex. 3 ¶ 10, Ex. 4 ¶ 7; Ex. 10 ¶ 11].
Second, Cho threatened his employees with deportation and employment
termination. [Dkt. 93, Ex. 3 ¶ 10, Ex. 5 ¶ 8]. Third, Cho continued to violate wage
and overtime laws with an “open criminal case for the same offenses” even after
the investigator explained how to properly comply. [Dkt. 93, Ex. 10 ¶¶ 12, 15]. The
Court will award each Plaintiff liquidated damages under the FLSA in the amount
equal to that which the CT-DOL audit found each Plaintiff was owed in unpaid
wages.

27

Whether Plaintiffs are entitled to recover liquidated damages under the
CMWA in addition to the FLSA is a contested issue within this Circuit.11 Courts
justify a liquidated damages award under federal and state statutes “when the
relevant statutes serve fundamentally different purposes.” See, e.g., Velasquez v.
U.S. 1 Farm Market, Inc., slip-op. at 12 (internal quotations omitted). The CMWA
damages provision historically required Plaintiffs to “show evidence of bad faith,
arbitrariness, or unreasonableness” in order to recover liquidated damages.
Morales v. Cancun Charlie's Rest., 2010 WL 7865081 at *9 (D. Conn. Nov. 23, 2010).
As such, courts within this district generally awarded liquidated damages under
both the FLSA and CMWA, determining the FLSA is compensatory whereas the
CMWA is punitive. Id.; see Reich v. Southern New England Telecomm. Corp., 121
F.3d at 71 (“Liquidated damages under the FLSA are considered compensatory
rather than punitive in nature.”); Pau v. Chen, 2015 WL 6386508, at *10 (“[T]he
CMWA provides for liquidated damages as a penalty.”).
On October 1, 2015, the Connecticut General Assembly amended the CMWA
damages provision to create, like the FLSA, a presumption of double damages and
a burden on the employer to demonstrate a “good faith belief that the
underpayment of such wages was in compliance with the law.” Conn. Gen. Stat.
§31-72. The Court agrees with the Plaintiffs that the legislative change should
apply retroactively, as procedural statutes typically apply retroactively unless

11

The Court is aware that the Honorable Leuba, former Chief Court Administrator,
whose opinion this court greatly values, has indicated Connecticut courts do not
award double damages under Connecticut and federal law. See Stokes v.
Norwich Taxi, LLC, No. 4100689S, 2006 WL 3690953 (Conn. Super. Ct. Nov. 15,
2006).
28

expressly stated otherwise, and laws such as this “that affect remedies and
prescribe methods of obtaining redress typically fall into [the procedural]
category.” Velasquez v. U.S. 1 Farm Market, Inc., slip-op. at 13. The stated purpose
for the legislative change is “[t]o allow employees or labor organizations to recover
twice the full amount of damages associated with an employer’s failure to pay
wages unless the employer can demonstrate a good faith belief that it was
complying with the law.” B. 914, Gen. Assemb., Jan. Sess. (Conn. 2015).
It is no longer clear that Plaintiffs should be entitled to liquidated damages
under both the FLSA and CMWA as “the amendments seem to render the previous
distinctions between the FLSA and the CMWA ‘largely illusory.’” Velasquez v. U.S.
1 Farm Market, Inc., slip-op. at 13 (quoting Santana v. Brown, No. 14 Civ. 4279(LGS),
2015 WL 4865311, at *5 (S.D.N.Y. Aug. 12, 2015)). In Velasquez v. U.S. 1 Farm
Market, Inc., the plaintiffs, who similarly worked in the defendants’ grocery store in
New Haven, sought back pay and liquidated damages under the FLSA and CMWA.
The plaintiffs filed a motion for summary judgment, and while it remained pending
the Connecticut General Assembly amended § 31-72 to make double damages
mandatory unless the exception applied. See id. at 12-13. The court determined
the plaintiffs were entitled to liquidated damages under the FLSA but ordered the
parties to file supplemental briefing as to whether, in relevant part, the CMWA
amendment now precluded double damages under both statutes. Id. at 13. The
court reflected, “The weight of authority in this district has been to support an
award of liquidated damages under both the FLSA and the CMWA because the
FLSA has been interpreted as a compensatory statute, whereas the CMWA was

29

traditionally viewed as punitive.” Id. at 12. However, the court opined that the new
CMWA amendment would grant plaintiffs liquidated damages “for the same
reasons they are entitled to such damages under the FLSA (namely, that Defendant
have produced no evidence of good faith.)” Id. at 13. The case subsequently
settled prior to additional briefing. [Dkt. 85].
Courts in this district have not yet determined whether plaintiffs are entitled
to double liquidated damages under the FLSA and the amended CMWA.

“In

determining the meaning of the statutory language as it relates to this case, the
Court looks to ‘the words of the statute itself, to the legislative history and
circumstances surrounding its enactment, to the legislative policy it was designed
to implement, and to its relationship with existing legislation and common law
principles governing the same general subject matter.”

Butler v. Cadbury

Beverages, Inc., No. 3:97-CV-2241 (EBB), 1999 WL 464527, at *2 (D. Conn. June 30,
1999) (quoting Butler v. Hartford Tech. Inst., Inc., 704 A.2d 222, 225 (Conn. 1997)).
It is assumed the legislature is aware of existing law when passing or amending a
statute.

See Chandler v. Cardiothoracic and Vascular Grp., P.C., No. X02 CV

94014718, 1998 WL 828116, at *4 (Conn. Super. Ct. Nov. 18, 1998) (interpreting
statutory rule on spousal privilege in civil cases to incorporate common-law
principles); see also Dekalb Cty Pension Fund v. Transocean Ltd., 817 F.3d 393,
409 (2d Cir. 2016) (quoting Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We
assume that Congress is aware of existing law when it passes legislation.”).
Connecticut courts frequently compare the Connecticut wage laws to the federal
corollary, the FLSA, to interpret statutory meaning under state law. See, e.g., State

30

v. AFSCME, AFL-CIO, 777 A.2d 169, 179-80 (Conn. 2001) (comparing Conn. Gen.
Stat. § 5-245, et. seq., to 29 U.S.C. §§ 207, 213); Roach v. Moran Foods, Inc., No.
2012 WL 1139073, at *9 (Conn. Super. Ct. Mar. 16, 2012) (in comparing a CMWA
overtime payment methodology amendment to the FLSA equivalent, the court
stated, “There is also no question that the Legislature could have completely
rejected the FWW methodology when it amended § 31–76b(1) in 2003”).
The amended statutory language in § 31-72 does not preclude recovery
under both federal and state statutes, nor does the amendment’s legislative history
expressly address the purpose of making double damages mandatory. Notably,
prior to the amendment the Supreme Court of Connecticut identified the purpose
of § 31-72: to “provide[] penalties in order to deter employers from deferring wage
payments once they have accrued.” Mytych v. May Dep’t Stores Co., 793 A.2d 1068,
1073 (Conn. 2002); see also Harty v. Canto Fitzgerald and Co., 881 A.2d 139, 156
(Conn. 2005) (stating § 31-72 “serves both a remedial and punitive or deterrent
purpose”).
Several factors militate in favor of concluding the General Assembly
intended § 31-72 to remain punitive.

First, and chief among them, is the

presumption that a legislature is aware of prior case law interpreting § 31-72 as
punitive, but despite this, the General Assembly did not address that issue either
in the statutory text or the legislative history, thereby validating the view of the
majority of courts that it was and remains punitive. Id. On at least one occasion
after the amendment passed, the Supreme Court of Connecticut continued to
describe § 31-72 as providing penalties “to deter employers from deferring wage

31

payments once they have accrued.” Geysen v. Securitas Sec. Servs. USA, Inc., 142
A.3d 227, 234 (Conn. 2016) (addressing § 31-72 penalties as it relates to the
statute’s remedial nature).

Second, the amendment is a procedural evidentiary

change to the statute rather than a substantive change. Third, the majority of
courts in this district award damages under state and federal law. Finally, an award
of damages under both federal and state law is not uncommon. See, e.g., Herrera
v. Tri-State Kitchen and Bath, Inc., No. 14-CV-1695(ARR)(MDG), 2015 WL 1529653,
at *12 (E.D.N.Y Mar. 31, 2015) (awarding double liquidated damages under both
federal and New York law because the plaintiff’s damages application was
uncontested due to the defendant’s default). This court finds that § 31-72 remains
punitive and therefore an unpaid worker in Connecticut is entitled to liquidated
damages under the FLSA and punitive damages under the CMWA. Further, the
Plaintiffs have offered persuasive evidence that the Defendant willfully failed to pay
them wages due in violation of the CMWA and therefore rule that the Plaintiffs are
entitled to extra-compensatory damages under both the FLSA and the CMWA.
The Court awards damages and enters judgment for the Plaintiffs in the
amount of $175,664.24 under the FLSA and the CMWA measured by unpaid wages
found by the CT-DOL audit as follows:
Plaintiff

Liquidated Damages
Under the FLSA

Liquidated Damages
under the CMWA

Total Liquidated
Damages

Julio Olivar

$9,289.55

$9,289.55

$18,579.10

Alejandro
Rodriguez

$27,204.32

$27,204.32

Cristian
Ramirez

$15,172.50

$54,408.64
$15,172.50
$30,345.00
32

Misael Morales

$15,706.75

$15,706.75

Ulber Morales

$8,291.00

$31,413.50

$8,291.00
$16,582.00

Hisai Ramirez

$12,168.00

$12,168.00

TOTAL

$24,336.00
$175,664.24

This judgment is without prejudice to the Plaintiffs filing a motion to supplement
the judgment to add additional compensatory and liquidated damages for periods
not covered by the CT-DOL audit supported by credible evidence, including
citations to the prevailing minimum wage and an annotated computation of the
wages sought.
Conclusion
For the foregoing reasons, the Court grants partial summary judgment in
Plaintiffs’ favor and awards damages in the amount of $175,664.24.

IT IS SO ORDERED.
________/s/______________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: November 29, 2016

33