Perez v. Merrick Deli & Grocery, Inc. et al
Filing
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ORDER granting in part and denying in part 30 Motion for Partial Summary Judgment. Ordered by Judge I. Leo Glasser on 7/8/2015. (Russell, Alexandra)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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EDGAR PEREZ,
MEMORANDUM AND ORDER
Plaintiff,
13 Civ. 5166 (ILG) (JO)
- against MERRICK DELI & GROCERY, INC., ET ANO.,
Defendants.
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GLASSER, Senior United States District Judge:
Plaintiff Edgar Perez1 brings this action against Merrick Deli & Grocery, Inc.
(“Merrick”) and Hussain S. Mused, alleging violations of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”), Art. 6 § 190
et seq., Art. 19 § 650 et seq. Plaintiff moves for partial summary judgment, pursuant to
Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion is
GRANTED in part and DENIED in part.
BACKGROUND
The following facts are undisputed, unless otherwise noted.2 From June 11, 2012
through May 5, 2013, Plaintiff worked as a sandwich maker and customer service
associate at the Merrick Deli & Grocery in Laurelton, New York. Plaintiff’s Statement of
Facts (“SOF”) ¶¶ 1, 3; Compl. ¶ 5. Defendant Mused is a shareholder and officer of
Merrick. See Plaintiff’s Ex. 8 (Defendants’ Interrogatory Responses 9-10). Mused
Plaintiff filed this lawsuit on behalf of himself and all others similarly situated, but has not moved for
conditional certification of a collective action under the FLSA.
2 Defendants failed to comply with Local Rule 56.1(b), which requires a party opposing summary
judgment to submit a counterstatement to the moving party’s Local Rule 56.1 statement of undisputed
facts. Although Defendants did not file a counterstatement, they submitted two affidavits which
controvert statements made in Plaintiff’s 56.1 Statement. In light of this evidence, the Court will not deem
the facts asserted in the Plaintiff’s 56.1 Statement admitted and will consider the full record in ruling on
Plaintiff’s motion.
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supervised Plaintiff, set his work schedule, and determined when and how much he
would be paid. SOF ¶ 2.
Plaintiff asserts that from June 11 through October 2012, he worked 84 hours
each week and received a weekly cash salary of $600, and from October 20123 through
May 5, 2013, he worked 66 hours each week and received a weekly cash salary of $515.
Id. ¶¶ 5-9. He claims Defendants failed to compensate him for overtime. Id. ¶¶ 10-11.
Defendants dispute this and have submitted affidavits from Mused and Jorge Vasquez, a
Merrick employee who referred Plaintiff to the job. See Dkt. No. 31, Attachment Nos. 1
& 2. According to the affidavit of Mused, Plaintiff was offered and accepted a weekly
salary of $600, which compensated him for 40 hours at an hourly rate of $8.50, plus 20
overtime hours at a premium rate of time and a half. Mused Aff. ¶¶ 3-7. Vasquez states
that he translated the terms of Mused’s offer into Spanish, and Plaintiff acknowledged
his understanding in English and Spanish before accepting the job. Vasquez Aff. ¶ 3.
Furthermore, Mused asserts that Plaintiff’s hours and weekly salary remained the same
throughout his employment. Mused Aff. ¶ 7. It is undisputed that Defendants failed to
maintain records of Plaintiff’s employment and did not provide him with weekly wage
statements. SOF ¶¶ 12-14, 18.
Plaintiff commenced this action on September 17, 2013. Dkt No. 1. On October
24, 2014, he moved for Partial Summary Judgment on (1) the FLSA and NYLL claims
for failure to pay overtime wages and for liquidated damages and (2) the NYLL claim for
failure to provide wage statements. Dkt. No. 30. Additionally, he asserts that both
Merrick and Mused can be held liable as his employers under the FLSA and NYLL.
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Plaintiff does not indicate when in October 2012 his hours and wages changed.
2
Defendants filed their Opposition on November 19, 2014, and Plaintiff replied on
December 5, 2014. Dkt. Nos. 31 and 32.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. . . . A fact is material if it
might affect the outcome of the suit under the governing law.” Fincher v. Depository
Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal quotations and
citations omitted). The moving party bears the burden of establishing the absence of
any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
deciding a motion for summary judgment, the court must “construe the facts in the light
most favorable to the nonmoving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d
Cir. 2011) (quotation omitted).
DISCUSSION
I.
Defendants’ Liability Under the FLSA and NYLL
Plaintiff argues that Mused and Merrick qualify as his employers and are both
subject to liability under the FLSA and NYLL. The FLSA broadly defines “employer” as
“any person acting directly or indirectly in the interest of an employer in relation to an
employee.” 29 U.S.C. § 203(d). The similarly circular definition of “employer” under the
NYLL embraces any business or individual “acting as [an] employer.” NYLL § 651(6).
“Courts have interpreted the definition of ‘employer’ under the [NYLL] coextensively
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with the definition used by the FLSA.” Fermin v. Las Delicias Peruanas Rest., Inc., No.
14-CV-0559, 2015 WL 1285960, at *15 (E.D.N.Y. Mar. 19, 2015).
The Second Circuit “has treated employment . . . as a flexible concept to be
determined on a case-by-case basis by review of the totality of the circumstances.”
Irizarry v. Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013). In determining whether a
defendant qualifies as an “employer” under the FLSA and NYLL, courts consider
“whether the [defendant] (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. There is no question that Merrick was Plaintiff’s employer and is subject
to liability under the FLSA and NYLL. As for Mused, the undisputed record shows that
he supervised Plaintiff, controlled his work schedule, and set his hourly wages and
method of payment. In light of the factors outlined above, the Court finds that Mused
qualifies as Plaintiff’s employer under the FLSA and NYLL and may be held individually
liable.
II.
FLSA and NYLL Claims for Overtime Wages and Liquidated Damages4
Under the FLSA and NYLL, employees must be paid one-and-a-half times their
regular hourly rate for every hour over 40 worked each week. See 29 U.S.C. § 207(a)(1);
N.Y. Comp. Codes R. & Regs. tit. 12, § 142–2.2. The laws provide for the recovery of
unpaid overtime compensation and liquidated damages. 29 U.S.C. § 216(b); NYLL §
663(1). “There is a rebuttable presumption that an employer’s payment of [a] weekly
salary represents compensation for [only] the first 40 hours of an employee’s work
4 It is undisputed that Merrick is a business engaged in interstate commerce which had annual gross
revenues of at least $500,000 during the period of Plaintiff’s employment. SOF ¶ 3. Thus, Plaintiff was a
covered employee under the FLSA. See 29 U.S.C. §§ 207(a); 203(s)(1)(A).
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week.” Benitez v. Demco of Riverdale, LLC, No. 14-Civ-7074, 2015 WL 803069, at *2
(S.D.N.Y. Feb. 19, 2015). This presumption may be rebutted by evidence that the
employer and employee agreed that the weekly salary would include compensation for
overtime hours. Giles v. City of New York, 41 F. Supp. 2d 308, 317 (S.D.N.Y. 1999).
Defendants submitted affidavits asserting that Plaintiff agreed to and did receive
a weekly salary which compensated him for 20 hours of overtime at a premium rate.
Plaintiff denies there was any such agreement or compensation for overtime received by
him. Thus, a dispute of material fact exists which precludes summary judgment on
Plaintiff’s FLSA and NYLL claims for overtime wages and liquidated damages.
III.
NYLL Claim for Failure to Provide Wage Statements
The NYLL requires employers to provide a statement with every payment of
wages listing, among other items, the employee’s regular rate of pay, deductions,
allowances, and overtime rate of pay. NYLL § 195(3). It is undisputed that Defendants
did not provide Plaintiff with wage statements. Accordingly, summary judgment is
granted on this claim.
CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Partial Summary Judgment is
GRANTED as to the NYLL claim for failure to provide wage statements. The Motion is
DENIED as to the FLSA and NYLL claims for unpaid overtime wages and liquidated
damages.
SO ORDERED.
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Dated:
Brooklyn, New York
July 8, 2015
_/s/__
I. Leo Glasser
Senior United States District Judge
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