Solis v. SCA Restaurant Corp. et al

Filing 83

MEMORANDUM AND OPINION: For the reasons set forth herein, the Court concludes, after carefully considering the evidence introduced at trial, the arguments of counsel, and the controlling law on the issues presented, that the Secretary has shown by a preponderance of the evidence that defendants violated the minimum wage, overtime, record-keeping, and anti-retaliation provisions of the FLSA. The Court hereby enters judgment in the amount of $277,734.24 against defendants, consisting of $ ;137,867.12 of unpaid damages, $137,867.12 in liquidated damages, and $2,000 in retaliatory damages. A prospective injunction restraining defendants from future violations of the FLSA is also imposed. The Clerk of the Court shall enter judgment accordingly. SO ORDERED. Ordered by Judge Joseph F. Bianco on 4/5/2013. (Pilmar, Philip)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 09-CV-2212 (JFB) (ETB)

_____________________

HILDA L. SOLIS, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF
LABOR,
Plaintiff,
VERSUS

SCA RESTAURANT CORP. D/B/A LUIGI Q ITALIAN RESTAURANT, A CORPORATION
AND LUIGI QUARTA, INDIVIDUALLY AND AS OWNER,
Defendants.
___________________
MEMORANDUM AND ORDER
April 5, 2013
__________________

JOSEPH F. BIANCO, District Judge:

U.S.C. §§ 206, 207, 211(c), 215(a)(2),
215(a)(3) 215(a)(5). The Secretary seeks an
injunction, pursuant to Section 17 of the
FLSA, permanently restraining defendants
from violating Sections 7, 11(c), 15(a)(2),
15(a)(3) and 15(a)(5) of the FLSA, and an
order, pursuant to Section 16(c) of the
FLSA, finding defendant liable for unpaid
overtime compensation and an equal amount
of liquidated damages. The Secretary also
requests compensatory and punitive
damages for violations of the anti-retaliation
provisions of the FLSA.

Plaintiff Hilda L. Solis, Secretary of
Labor, United States Department of Labor
(“the Secretary”) brings this action against
SCA Restaurant Corporation, d/b/a Luigi Q
Italian Restaurant (“SCA Restaurant Corp.”)
and Luigi Quarta (“Quarta”) (collectively,
“defendants”), asserting claims under the
Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201, et seq. Specifically, the
Secretary alleges that defendants violated
the following provisions of the FLSA: (1)
Sections 6, 7, and 15(a)(2), by failing to pay
minimum wage and overtime compensation
to the employees of SCA Restaurant Corp.;
(2) Sections 11(c) and 15(a)(5), by failing to
keep full and accurate records concerning
their employees’ wages, hours, and
conditions of employment; and (3) Section
15(a)(3), by threatening to fire employees
who testified against them in this action. 29

A bench trial was held on April 9 and
April 10, 2012, as well as on October 4,
2012, to determine defendants’ liability, if
any. Having held a bench trial, the Court
now issues its findings of fact and
conclusions of law, as required by Rule
52(a) of the Federal Rules of Civil
Procedure, and concludes, after carefully

1

considering the evidence introduced at trial,
the arguments of counsel, and the
controlling law on the issues presented, that
the Secretary has met her burden of proof on
all of her claims. The Court finds that the
Secretary has proven that she is entitled to
the following relief: (1) $137,867.12 in
unpaid wages for violations of the minimum
wage and overtime provisions of the FLSA;
(2) $137,867.12 in liquidated damages for
willful violations of the Act; (3) $2,000 in
compensatory damages ($1,000 for Mr.
Acosta and $1,000 for Mr. Cantos-Chavez)
for emotional distress from the violations of
the anti-retaliation provisions; and (4) a
prospective injunction restraining the
defendants from future violations of the Act.

Alexander Torres, Santos Alfaro Pastor,
Jose Anibal Acosta, and Juan Carlos CantosChavez testified for the Secretary in her
case-in-chief as a representative sample of
employees. Department of Labor (“DOL”)
investigator Zorayda Vasquez also testified
for the Secretary. Richard Gluszak testified
for the defense. Both sides submitted
exhibits to be considered by the Court and
the Secretary made a post-trial legal
submission.
After the initial trial, the Secretary
amended her complaint on April 13, 2012 to
add the retaliation claim, and the defendants
filed an answer on April 27, 2012. The
parties undertook additional discovery
regarding the retaliation claim. The Court
held a bench trial on October 4, 2012 so that
defendants could present any additional
evidence with respect to the retaliation
claim.2 Defendant Luigi Quarta was the only
witness for defendants on the remaining
retaliation claim.

I. BACKGROUND
On May 26, 2009, the Secretary filed her
complaint alleging violations of the FLSA.
Defendants answered on October 15, 2009.
The parties undertook discovery for much of
2010.

The Court has fully considered all of the
evidence presented by the parties, as well as
their written submissions. Below are the
Court's Findings of Fact and Conclusions of
Law.

On April 6, 2012, the Court issued a
temporary restraining order preventing
defendants from discharging or taking
discriminatory action against two employees
who the defendants threatened to fire due to
their involvement in this lawsuit. (See
Temporary Restraining Order, Apr. 6, 2012,
ECF No. 61.) The Court issued a
preliminary injunction on April 19, 2012
barring defendants from firing or
discriminating against any employees in
violation of Section 15(a)(3) of the FLSA
until the Court adjudicated this matter. (See
Preliminary Injunction, Apr. 19, 2012, ECF
No. 67.)

2

With the consent of both sides, the Secretary was
permitted to present her evidence regarding the
retaliation claim during the trial on April 9 and 10.
However, to avoid any potential prejudice to
defendants, the Court required the Secretary to
formally amend the complaint to add the retaliation
claim in order to give defendants the opportunity to
conduct additional discovery on that claim and then
present any additional evidence regarding such claim.
Thus, the Secretary presented no additional evidence
regarding the retaliation claim on October 4, 2012.

The Court held a bench trial on April 9
and April 10, 2012. 1 Employees Alvin
1

Both sides consented to a bench trial. (See Joint
Pretrial Order (“PTO”), ECF No. 30, ¶ 5.)

2

II. FINDINGS OF FACT

Carlos Cantos-Chavez. All four individuals
were employed by defendants for a period of
time during the relevant time period of May
25, 2006 through the trial. The Secretary
also submitted excerpts from the deposition
of employee Melvin Isidro Banegas. The
Secretary offered this testimony as a
representative sample for the twelve
employees for which violations of the FLSA
were alleged. Based upon the evidence at
trial – including the credible testimony of
the employees, which was corroborated by
the credible testimony of DOL investigator
Vasquez – the Court makes the following
findings regarding the hours of operation for
the restaurant, as well as the employees’
hours.

The following section constitutes the
Court's Findings of Fact3 pursuant to Federal
Rule of Civil Procedure 52(a)(1). These
Findings of Fact are drawn from witness
testimony at trial and the parties’ trial
exhibits, including the undisputed facts
submitted by the parties in the PTO.
Defendant Luigi Quarta is the sole
owner of SCA Restaurant Corp. d/b/a Luigi
Q Italian Restaurant in Hicksville, NY (“the
restaurant”) (PTO, Stip. Facts ¶¶ 5-7.) The
annual dollar volume of sales by the
corporation for each of the years 2006,
2007, and 2008 exceeded $500,000. (Id.
¶¶ 1-3.) Luigi Quarta is in active control and
management of SCA Restaurant Corp. (Id.
¶ 8.) Defendants’ employees are engaged in
commerce, including handling, selling, or
otherwise working on goods or materials
that have been moved in or produced for
commerce. (Id. ¶ 13.)

The restaurant was open for lunch and
dinner Monday through Friday, and for
dinner on Saturday, with the exception of
certain holidays and other periodic closings.
(Id. ¶ 14.) Employees worked all six days of
the week that the restaurant was open. (See
e.g., Apr. Tr. 35, 81, 125, 184. 4 ) The
employees always began work at 10:30 a.m.
Monday through Friday, and at 3:00 p.m. on
Saturday. (See e.g., id. 35-36, 81-82, 125126, 184.) On Monday through Friday, the
employees had a scheduled break from 3:00
p.m. until 4:30 p.m.5 (See, e.g., id. 36, 8283, 126-28, 184-85.)

Quarta has the authority to hire and
terminate employees of SCA Restaurant
Corp.
(Id. ¶¶ 9-10.) Quarta has the
authority to determine the rates of
compensation of such employees, as well as
to direct the work activities of the
employees.
(Id. ¶¶ 11-12.) For the
defendants’ restaurant, Quarta does the
following: (1) decides the menu (id. at ¶ 16);
(2) decides the prices of the menu offerings
(id. at ¶ 17); (3) selects the suppliers (id. at
¶ 18); and (4) negotiates prices with the
suppliers (id. at ¶ 19).

The only variation in the employees’
schedules related to the time they finished
work in the evening. Mr. Torres, a
4

Due to the format of the transcript, the pagination
repeats for portion of the trial held on October 4,
2012. Therefore, the transcript for the testimony
given on April 9 and April 10, 2012 is referred to as
“Apr. Tr.” and the transcript for the testimony given
on October 4, 2012 is referred to as “Oct. Tr.”
5
Although employees testified that they did not
always receive a full hour and a half break (see, e.g.,
Apr. Tr. 36, 82-83, 126-28, 184-85), the Secretary is
not seeking damages related to any minimum wage
or overtime violations as a result of these additional
hours (see id. 268).

A. Hours and Wages of Employees
During the trial, the Secretary offered
the testimony of Alexander Torres, Santos
Alfaro Pastor, Jose Anibal Acosta, and Juan
3

To the extent that any Finding of Fact reflects a
legal conclusion, it shall to that extent be deemed a
Conclusion of Law, and vice-versa.

3

and confirmed some of their representations.
(See id. 221.) Ms. Vasquez credibly testified
that, during the week, the employees arrived
at 10:30 a.m., and that they never left the
restaurant for their afternoon break for
longer than an hour and a half. (See id. 22223.) Ms. Vazquez did not testify regarding
the time employees left in the evening, nor
did she observe the restaurant on a Saturday.
(See id. 274.)

dishwasher, credibly testified that he often
left work at 9:00 p.m. on Mondays through
Wednesdays, though occasionally he
finished work later than 10:00 p.m. (See id.
37.) On Thursdays he usually left work after
10:30 or 11:00 p.m., and on Fridays and
Saturdays he ended work between 11:00 and
11:30 p.m., though he occasionally could
leave earlier if the restaurant did not have
many customers. (See id. 38-39.) Mr.
Acosta, also a dishwasher, credibly testified
that he usually ended work at 9:20 or 9:30
p.m. on Mondays through Thursdays,
although sometimes he stayed until 10:00
p.m.
(See id. 128.) On Fridays and
Saturdays, Mr. Acosta left work after 10:20
p.m., and sometimes he stayed until 10:30
p.m. or 11:30 p.m. (See id. 128-29.) Mr.
Banegas, a dishwasher who did not testify at
the trial but whose deposition was submitted
to the Court, credibly testified that he left
work between 10:00 and 11:00 p.m. Monday
through Friday, but that he worked until
between 11:00 and 11:30 p.m. on Saturdays.
(See Pl.’s Ex. 13, Dep. of Melvin Banegas
(“Banegas Dep.”), at 15-16, 23-24.)

Richard Gluszak, defendants’ former
attorney and advisor, was the sole witness
offered by defendants to rebut the
aforementioned testimony regarding the
hours of employees. Mr. Gluszak testified
that he was at Luigi Q Italian Restaurant
almost every day from 2001 until some
point in 2007. (See id. 234.) He observed
that employees would usually not arrive
until 11:00 or 11:15 a.m., and that the last
employee would arrive around 11:30 or
11:40 a.m. (See id. 235.) He testified that, on
Monday through Friday, employees would
begin leaving work at 9:00 p.m., and that all
employees would end work by 10:00 p.m.
(See id. 236.) He also testified that, on
Saturdays, some employees finished work at
9:45 p.m., and that no employees worked
later than 10:30 p.m. (See id.) However,
Mr. Gluszak admitted that not only had he
not been to the restaurant since 2007, but
that he would not have been able to observe
the back door from where he sat in the
restaurant, and therefore could not have seen
if employees were leaving through the back
door. (See id. 242-44.)

Mr. Pastor Alfaro, who was employed
by defendants as a cook, credibly testified
that he frequently left work at exactly 9:00
p.m. on Monday through Thursday, but that
he finished working between 10:00 and
10:30 p.m. on Fridays and Saturdays. (See
Apr. Tr. 84-85.)
Mr. Cantos-Chavez, who prepared the
salads, credibly testified that he usually
finished work at 9:00 p.m. Monday through
Thursday, though he left later than that one
or two days per week. (See id. 186.) He
finished work at 10:00 p.m. on Fridays and
Saturdays, although he stayed at work later
than that approximately once per week. (See
id. 186-87.)

As noted above, the Court finds the
testimony of all of the Secretary’s witnesses
to be fully credible.6 Therefore, based on the
hours that the employees testified that they
6

To the extent that Mr. Gluszak’s testimony as to the
hours worked by employees differed from the
testimony of the employees, the Court finds the
employees to be credible.

DOL investigator Zorayda Vasquez
observed the employees on at least five days

4

only (see Pl.’s Ex. 12, Quarta Dep., at 108,
128-29; Apr. Tr. 41-42, 129). Defendants
failed to make, keep, and preserve any
records of wages paid to their employees in
cash. (See Pl.’s Ex. 12, Quarta Dep., at 4647, 67-68, 108, 121, 129.) Moreover,
although defendants made records of
payments by check to their employees, those
records are inaccurate and incomplete
because they do not reflect the additional
cash payments that were made to the
employees. (Id. at 67-68; Apr. Tr. 260-61.)
Therefore, based upon the evidence at trial,
the Court finds that defendants failed to
make, keep, and preserve accurate records of
the wages paid to and hours worked by their
employees, including the number of hours
worked each day, the total number of hours
worked each work week, the regular rate of
pay, the basis upon which wages were paid,
the total straight-time earnings for each
work week, and the total overtime
compensation paid for each work week.

worked, the Court finds that all of the
employees worked more than forty hours per
week. Thus, during the relevant time period,
defendants’ employees regularly worked
between 51 and 62 hours per week at the
restaurant. (See, e.g., id. 35-39, 81-85, 12529, 184-87.)
Despite working more than forty hours
per week, all of the employees credibly
testified that they were paid a flat weekly
wage which did not vary based on the
number of hours they worked. (See, e.g., id.
42, 89-90, 129-130, 187-90.) The employees
also testified that they had never been told
about overtime. (See, e.g., id. 43, 78-79,
125, 182.) Defendant Quarta admitted
during his deposition that he always paid the
employees of SCA Restaurant Corp. a
“fixed weekly rate.” (Pl.’s Ex. 12, Dep. of
Luigi Quarta (“Quarta Dep.”) at 36-37.)
Therefore, the Court finds that defendants
did not compensate their employees for the
hours worked in excess of forty per week.

The Secretary also introduced credible
evidence that defendants submitted false
time-keeping records to the DOL. The
Secretary submitted exhibits of “Daily Time
Records” from January 12, 2008 through
November 8, 2008, and employee time
sheets for August and September 2008
which had been given to the DOL by SCA
Restaurant Corp. (See Pl.’s Ex. 5; Pl.’s Ex.
6.) The “Daily Time Records” state that
employees worked exactly forty hours per
week (see Pl.’s Ex. 5), while the timesheets
show that employees worked forty-four
hours per week (see Pl.’s Ex. 6). These two
records directly contradict each other for
employees Jeffrey Chavez and Juan Carlos
Cantos-Chavez for August and September
2008. (See Pl.’s Ex. 5, at 40-47; Pl.’s Ex. 6,
at 1-2.) The timesheets also state that
defendants compensated employees for
hours worked in excess of forty per week
(see Pl.’s Ex. 6, at 1-2), while Quarta
admitted during his deposition that he paid

B. Records of Employees’ Hours and
Wages
Defendants stipulated that they did not
maintain written records of the hours
worked by their employees from June 5,
2006 through at least May 21, 2009. (PTO,
Stip. Facts ¶ 15.) In addition, Quarta
acknowledged in June 2008 to the DOL that
SCA Restaurant Corp. did not keep daily
time records or schedules. (See Pl.’s Ex. 1,
Request for Business Data, at 2.) Although
defendants only stipulated that they did not
maintain records until May 21, 2009,
defendants did not submit any time-keeping
records to the Court for the period from May
21, 2009 until the trial on April 9, 2012. In
addition, during the relevant time period,
defendants paid some of their employees
partly by check and partly in cash (Pl.’s Ex.
12, Quarta Dep., at 65; Apr Tr. 88-89, 187),
and paid some of their employees in cash

5

testify in court. (Apr. Tr. 142-43.) When
Mr. Acosta answered in the affirmative,
Quarta told him that, if he testified, “then
there’s no more work for you.” (Id. 142.)
Mr. Acosta also stated that an employee of
the restaurant told him that Quarta said if
Mr. Acosta appeared in court that “he would
look for other workers.” (Id. 145.) After
being told that he would lose his job if he
testified, Mr. Acosta felt afraid. (Id. 147.)

his employees a fixed weekly salary (Pl.’s
Ex. 12, Quarta Dep., at 36-37). The pages of
the “Daily Time Records” were actually
photocopies of the first page, with some of
the information on the subsequent pages
being added in pencil. (See Apr. Tr. 250256.)
Defendants also prepared a fake
schedule that was hung in Quarta’s office.
This schedule falsely claimed that
employees worked fewer hours and days
than those employees, in fact, worked.
(Pl.’s Ex. 7; Apr. Tr. 101-06.) In addition,
during DOL’s investigation of the
defendants, Quarta told employees to tell the
DOL investigator that they only worked five
days per week and did not start work until
2:00 p.m., even though that information was
false. (Apr. Tr. 106-07.)

Mr. Cantos-Chavez also testified that,
several days prior to the commencement of
the trial, Quarta told the employees, using
another employee as a translator, that if they
came to court they “would only have work
there until Saturday” (id. 199), and “if [they]
showed up in court then [they] . . . would
not have a job anymore,” (id. 202). Quarta
also told the employees that it was their
decision whether to come to court, because
they could “either come to court or [could]
go to work.” (Id. 201.) Following these
conversations, Mr. Chavez felt pressure not
to testify and questioned whether he would
testify in court, and was afraid and nervous.
(Id. 202, 214.)

Not only do the records contradict the
testimony of defendants’ employees whom
the Court find credible, they contradict each
other. In addition, these records are
supposedly from 2008, although defendants
stipulated that in 2008 they “did not keep
written records of the hours worked by their
employees.” (PTO, Stip. Facts ¶ 15.)

At the continuation of the bench trial on
October 4, 2012, Quarta testified that when
he told Mr. Acosta and Mr. Cantos-Chavez
not to come to work if they testified, he
meant that they did not need to show up
because he would have either closed the
restaurant for the day or gotten temporary
replacements. (Oct. Tr. 2, 5-7.)

In sum, based upon the evidence at trial,
the Court finds that defendants clearly
created false records in an attempt to
convince the DOL that they complied with
the FLSA.
C. Retaliation Against Employees

The Court finds the testimony of Mr.
Acosta and Mr. Cantos-Chavez credible, and
the testimony of Quarta not credible. It is
clear from the evidence, including an
evaluation of the credibility of the witnesses,
that there was no misunderstanding by the
employees of the substance of Quarta’s
statements. Quarta clearly intended to
communicate, and did communicate, his
intention to terminate these employees if

The Secretary presented credible
testimony at trial from Mr. Acosta and Mr.
Cantos-Chavez that Quarta attempted to
intimate employees from testifying.
Mr. Acosta testified that, on Thursday,
April 5, 2012 (just days before the trial was
set to commence on April 9, 2012), Quarta
asked Mr. Acosta whether he intended to

6

compensation owed for the overtime hours
worked by multiplying half of the regular
straight-time hourly rate by the number of
overtime hours worked (i.e., hours worked
in excess of 40 hours each week). Where the
state or federal minimum wage exceeded an
employee’s regular straight time hourly rate
of pay as computed above, the Secretary
used the applicable minimum wage rate to
determine the total wages, regular and
overtime, that defendants should have paid
each employee for each week. In order to
determine the total amount of back wages
that defendants owe, the Secretary then
subtracted the weekly amount that
defendants actually paid to each employee
from the amount the employee should have
received. (Id. 266-71.)

they testified, in an attempt to retaliate
against them and dissuade them from doing
so. Therefore, the Court finds that
defendants
attempted
to
intimidate
employees from cooperating with the DOL
and testifying at the trial.
D. Economic Losses for Pay Violations
During the relevant period, defendants
failed to pay 12 employees a total of
$137,867.12 in FLSA overtime premium
pay. This figure contained in the Secretary’s
back wage computations, which is Plaintiff’s
Exhibit 9 (as revised on May 14, 2012,
reflecting back wages accrued through April
8, 2012). The Court finds the Secretary’s
computation to be accurate based upon the
credible evidence adduced at trial.

E. Additional Evidence Regarding
Willfulness

In the absence of accurate and complete
contemporaneous employer records of
employees’ hours worked and wages
received, the Secretary reconstructed the
weekly numbers of hours worked by
employees and their weekly salaries
received during the relevant time period.
(Apr. Tr. 262-65.) The Secretary generally
reconstructed these figures by relying upon
the deposition testimony and trial testimony
of defendants’ current and former
employees. In addition, for some employees,
the Secretary relied upon defendants’
deposition
testimony
and
discovery
responses to reconstruct the employees’
weekly salaries. (Id.) In order to compute
the amount of defendants’ back wage
liability, the Secretary had to first compute
each employee’s regular straight-time hourly
rate of pay, which was done by dividing the
amount of the weekly salary that defendants
paid each employee by the approximate
number of hours the employee worked each
week.
Having computed the regular
straight-time rate of pay for all hours of
work in the work week, the Secretary then
computed the amount of overtime

As discussed in the Conclusions of Law,
the Court finds that the defendants’ acts and
omissions in committing overtime pay and
record-keeping violations were not in good
faith; rather, such violations were willful.
Summarized below are some additional
factual findings by the Court from the trial
relating to the willfulness issue.
Since at least 2005, Quarta was aware
of state and federal requirements that (1)
employees must be paid a minimum wage;
(2) any overtime hours worked, in excess of
40 hours in a week, must be paid at one and
one-half times the employees’ regular
hourly wage; and (3) employers must keep
records of employee wages and hours. (Pl.’s
Ex. 12, Quarta Dep., at 192-94, 196.) In
2003, the New York State Department of
Labor issued a Notice of Labor Law
Violation to the defendants that included a
violation for failure to keep true and
accurate records of employee wages and
hours worked. (Pl.’s Ex. 8a.)

7

As discussed in the Conclusions of Law, this
factual finding relates to the affirmative
exemption defense asserted by defendants.

As noted supra, defendants submitted to
the U.S. Department of Labor falsified
“Daily Time Records” (Pl.’s Ex. 5), and
other timesheets (Pl.’s Ex. 6), which were
created after the U.S. Department of Labor
had initiated its investigation of the
defendants. In addition, as noted supra,
defendants prepared a fake schedule (Pl.’s
Ex. 7), which falsely claimed that employees
worked fewer hours and days than they
worked in fact, and that schedule was hung
in Quarta’s office (Apr. Tr. 101-06).

Defendants employed Mr. Pastor Alfaro
as a chef at defendants’ restaurant from at
least May 25, 2006 through approximately
July 1, 2010. (Apr. Tr. 77.) Mr. Alfaro
spent the vast majority of his time at the
restaurant preparing and cooking food for
the restaurant, including the fish and meat
dishes, as well as daily specials and sauces.
(Id. 91-92, 136-37.) Mr. Pastor Alfaro did
not hire or fire employees and did not have
the authority to do so. (Id. 93-95, 137.) Mr.
Alfaro did not make suggestions or
recommendations as to the hiring, firing, or
promotion of employees of the restaurant.
(Id. 93-95.) Mr. Pastor Alfaro had no role in
interviewing prospective employees of the
restaurant, never disciplined defendants’
employees, and did not have the authority to
discipline. (Id. 93-95, 138, 197.) Mr. Pastor
Alfaro had no role in determining the
salaries or work schedules of defendants’
employees. (Id. 92-94, 126, 128, 137, 197.)
Mr. Pastor Alfaro’s work schedule at the
restaurant was set by Quarta, not by Mr.
Pastor Alfaro. (Id. 78, 92.) Mr. Pastor Alfaro
did not have keys to the restaurant. (Id. 91,
131, 196.) Mr. Pastor Alfaro did not make or
keep records for the restaurant. (Id. 100-01.)
Mr. Pastor Alfaro did not select suppliers for
the restaurant, and did not negotiate prices
or place orders with the suppliers for the
restaurant. (Id. 92-93.) Mr. Pastor Alfaro’s
primary duty at the restaurant was not
management, and he did not customarily and
regularly direct the work of other employees
at the restaurant. (Id. 80, 108, 111, 163.)

Moreover, during the DOL investigation
of defendants, Quarta told his employees to
tell the DOL investigator that they only
worked five days per week and did not start
work until 2:00 p.m., even though that
information was false. (Id. 106-07.)
Defendants’ manager/maître d’ Omar told
defendants’ employee Mr. Acosta that, with
respect to the DOL, Mr. Acosta “only
worked 40 hours” per week and “only
worked for five days.” (Id. 141.)
Finally, after the Secretary notified
defendants of their violative practices, and
after the commencement of the instant
lawsuit, defendants failed to come in to
compliance with the pay and record-keeping
requirements of the Act. (Pl.’s Ex. 12,
Quarta Dep., at 212; Apr. Tr. 262.) Instead,
defendants continued to pay their employees
a weekly salary without paying the
employees one and one-half times their
regular straight time hourly rate for those
hours worked in excess of 40 per week, and
also continued to fail to make, keep,
maintain, or preserve accurate records of
employee hours worked. (Pl.’s Ex. 12,
Quarta Dep., at 212; Apr. Tr. 35-39, 81-85,
125-29, 184-87, 262.)

During the time period relevant to Mr.
Pastor Alfaro (namely May 25, 2006
through July 1, 2010), the following credible
facts were established: (1) Quarta was
generally present at the restaurant for most
of the work day each day that the restaurant

F. Santos Pastor Alfaro
The Court finds that Santos Pastor
Alfaro worked as chef, not as an executive.

8

was open (Apr. Tr. 48, 80, 138); (2) Quarta
made all decisions for the restaurant
regarding
employee
hiring,
firing,
promotion, pay, and work schedules (Id. 9395, 118, 125, 129-30, 181, 183-84, 189, 19697); (3) Quarta regularly directed Mr. Pastor
Alfaro regarding how to prepare dishes that
Mr. Alfaro cooked for the restaurant (Id. 79,
111); (4) Quarta and the manager/maître d’
had keys to the restaurant (Id. 91, 130-31);
(5) the manager/maître d’ was responsible
for opening the restaurant each morning (Id.
48, 91, 131, 190-91); (6) the manager/maître
d’ was generally present at the restaurant
throughout the work day every day that the
restaurant was open (Id. 48, 81, 131); (7) on
the few days when Quarta was not at the
restaurant, the manager/maître d’ was in
charge of the restaurant (Id. 80-81); (8)
Quarta supervised, directed and monitored
the work of defendants’ employees at the
restaurant, including Mr. Pastor Alfaro (Id.
79, 92, 111, 138, 197); and (9) the
manager/maître d’ also supervised, directed,
and monitored the work of defendants’
employees at the restaurant (Id. 40, 80-81,
141).7

improperly compensated and produce
sufficient evidence to show the amount and
extent of that work ‘as a matter of just and
reasonable inference.’” (quoting Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 687
(1946))). The Secretary must also prove by a
preponderance of the evidence that
defendants violated the recordkeeping and
anti-retaliation provisions of the FLSA.
Finally, the Secretary must prove the
amount of damages by a preponderance of
the evidence.
IV. CONCLUSIONS OF LAW
A. FLSA Claims
The Secretary asserts that defendants’
employees have not been fully compensated
for their overtime wages under the FLSA,
and that many of their employees were not
paid in accordance with the minimum wage
requirement. She also alleges that
defendants failed to maintain adequate and
accurate records as required by the FLSA. In
addition, the Secretary asserts that
defendants retaliated against two employees
for cooperating with this litigation. For the
reasons set forth below, the Court finds that
the Secretary has proved by a preponderance
of the evidence that defendants have
violated the overtime, minimum wage,
record
keeping,
and
anti-retaliation
provisions of the FLSA.

III. BURDEN OF PROOF
The Secretary bears the burden of proof
in this case on each and every claim, as well
as on the issue of damages. She must prove
by a preponderance of the evidence that
defendants did not adequately compensate
employees as required by the FLSA. See
Reich v. S. New England Telecomm. Corp.,
121 F.3d 58, 67 (2d Cir. 1997) (“[The
Secretary] must produce sufficient evidence
to establish that the employees have in fact
performed work for which they were

As a threshold matter, the Court
concludes that jurisdiction over this action
exists pursuant to Section 17 of the Fair
Labor Standards Act, 29 U.S.C. § 217, and
28 U.S.C. §§ 1331 and 1345. Moreover, the
Court concludes that (1) the business
activities of the SCA Restaurant Corporation
constitute an enterprise within the meaning
of Section 3(r) of the Act, and (2) SCA
Restaurant Corporation is an enterprise
engaged in commerce within the meaning of
Sections 3(s)(1)(A) of the Act and,

7

Prior to approximately late 2008, the
manager/maitre d’ at the restaurant was Vinnie
Salluzzi. (Apr. Tr. 80, 190-92.) After approximately
late 2008, the manager/maitre d’ was Omar Ortega.
(Id. 81, 191-92.)

9

therefore, is covered by the Act. In addition,
the Court concludes that, at all relevant
times, (1) SCA Restaurant Corporation has
been an employer of employees of the
defendants’ restaurant within the meaning of
Section 3(d) of the Fair Labor Standards
Act, 29 U.S.C. § 203(d) (PTO, Stip. Law
¶ 2), (2) Luigi Quarta has been an employer
of the employees of the defendants’
restaurant within the meaning of Section
3(d) of the Fair Labor Standards Act, 29
U.S.C. § 203(d) 8 (PTO, Stip. Law ¶ 3); and
(3) each defendant is jointly and severally
liable for all back wages and liquidated
damages owed under the Act.

1. Statute of Limitations
A suit under the FLSA must be
commenced within two years after the cause
of action has accrued, unless a plaintiff can
show that a defendant’s violation of the Act
was willful, in which case a three-year
statute of limitation applies. 29 U.S.C.
§ 255(a). For an employer’s actions to be
willful, the employer must have “either
[known] or showed reckless disregard for
the matter of whether its conduct was
prohibited by the [FLSA].” McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 133,
(1988). Courts in this Circuit have generally
left the question of willfulness to the trier of
fact. See, e.g., Kaur v. Royal Arcadia
Palace, Inc., 643 F. Supp. 2d 276, 294-95
(E.D.N.Y. 2007) (denying summary
judgment as to willfulness where plaintiffs
had complained to defendants about their
pay); Damassia v. Duane Reade, Inc., No.
04 Civ. 8819, 2005 WL 1214337, at *2-3
(S.D.N.Y. May 20, 2005) (denying motion
to dismiss as to willfulness where plaintiffs
alleged defendants knew the requirements of
FLSA and deliberately misclassified them as
executives); Vaicaitiene v. Partners in Care
Inc., No. 04 Civ. 9125, 2005 WL 1593053,
at *7 (S.D.N.Y. July 6, 2005) (finding
willfulness to be a question for the trier of
fact); Davis v. Lenox Hill Hosp., No. 03 Civ.
3746, 2004 WL 1926086, at *7 (S.D.N.Y.
Aug. 31, 2004) (same). Plaintiff bears the
burden of proof as to an employer’s
willfulness. See Herman, 172 F.3d at 141.

8

With respect to this conclusion, the Court has
applied the standard set forth in Herman v. RSR
Security Services, Ltd., 172 F.3d 132 (2d Cir. 1999),
which states that “the overarching concern [in
determining whether an individual is an employer] is
whether the alleged employer possessed the power to
control the workers in question, with an eye to the
‘economic reality’ presented by the facts of each
case.” Id. at 139 (internal citations omitted); see also
Zheng v. Liberty Apparel Co., 355 F.3d 61, 71 (2d
Cir. 2003) (determining whether an entity is an
employer “is to be based on the circumstances of the
whole activity, viewed in light of ‘economic reality’”
(internal citation and quotation marks omitted)). Four
non-exclusive factors that a court should consider in
determining whether an individual is an employer
are: “‘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.’” Copantitla v. Fiskardo
Estiatorio, Inc., 788 F. Supp. 2d 253, 308 (S.D.N.Y.
2011) (quoting Carter v. Dutchess Cmty. Coll., 735
F.2d 8, 12 (2d Cir. 1984)). After considering the
Carter factors, as well as all of the evidence in the
record, there is no question that under the Herman
standard that Quarta has ownership and operational
control of the restaurant in every respect and has the
power to control the employees of the restaurant.
Therefore, Quarta is an employer for purposes of the
FLSA and is jointly and severally liable for all
damages under the Act.

The Court finds, based on all of the
evidence, that the Secretary has met her
burden in proving that defendants willfully
violated the Act. Quarta admitted during his
deposition that he has been aware of
minimum wage requirements since 1999,
and learned of the overtime requirements
when he owned a previous restaurant. (See
Pl.’s Ex. 12, Quarta Dep., at 192-94.) He
also admitted that he did not change his
10

§ 216(b). In an action to recover unpaid
overtime wages under the FLSA, a plaintiff
must show that: “(1) he was an employee
who was eligible for overtime ([i.e.,] not
exempt from the Act’s overtime pay
requirements); and (2) that he actually
worked overtime hours for which he was not
compensated.” Hosking v. New World
Mortg., Inc., 602 F. Supp. 2d 441, 447
(E.D.N.Y. 2009).

practices even after the DOL began their
investigation. (See id. at 212.) Instead, he
created false records and told employees to
lie to the DOL about the amount of days and
hours they worked. (See Apr. Tr. 106-07,
141.)
Courts have held that similar conduct
constituted a willful violation of the FLSA.
See, e.g., Chao v. Vidtape, Inc., 196 F. Supp.
2d 281, 295-96 (E.D.N.Y. 2002) (finding
that defendants acted willfully when they
admitted to knowledge of the minimum
wage and overtime laws and told their
employees to lie to DOL investigators);
Moon v. Kwon, 248 F. Supp. 2d 201, 231
(S.D.N.Y. 2002) (finding willful violations
where the evidence was “clear that the
defendants [] flagrantly violated basic
recordkeeping
requirements”).
Since
defendants’ violation of the Act was willful,
a three-year statute of limitations applies and
the Secretary may seek damages from May
21, 2006, three years before the complaint
was filed in this action, until April 8, 2012,
the day before the trial began.

The FLSA grants the Secretary of Labor
the right “to bring an action by or on behalf
of any employee” to recover unpaid
minimum wages or overtime compensation.
29 U.S.C. § 216(c).
The Secretary alleges that the employees
worked between 53.5 and 61.5 hours per
week, and that they were not compensated
for overtime work. The Secretary also
alleges that four of defendants’ employees
were not paid the minimum wage as
required by federal and New York law.
Although a plaintiff normally “has the
burden of proving that he performed work
for which he was not properly
compensated,” when an employer has
“inaccurate or inadequate” records, the
plaintiff “has carried out his burden if he
proves that he has in fact performed work
for which he was improperly compensated
and if he produces sufficient evidence to
show the amount and extent of that work as
a matter of just and reasonable inference.”
Mt. Clemens, 328 U.S. at 687. Sufficient
evidence
may
be
established
by
“recollection alone.” Doo Nam Yang v.
ACBL Corp., 427 F. Supp. 2d 327, 335
(S.D.N.Y. 2005); see also Kuebel v. Black &
Decker Inc., 643 F.3d 352, 362 (2d Cir.
2011) (“It is well settled among the district
courts of this Circuit, and we agree, that it is
possible for a plaintiff to meet this burden
through estimates based on his own
recollection.”). “The burden then shifts to

2. Unpaid Wages Claim
Under the FLSA, employers engaged in
interstate commerce must pay overtime pay
to an employee working more than forty
hours per week “at a rate not less than one
and one-half times the regular rate at which
he is employed.” 29 U.S.C. § 207(a)(1). The
regular, minimum rates at which employees
must be paid are established by Section 6 of
the FLSA. Id. § 206(a). In addition, the
FLSA sets forth a broad civil enforcement
scheme, pursuant to which “[a]ny employer
who violates the provisions of section 206 or
section 207 of this title shall be liable to the
employee or employees affected in the
amount of their unpaid minimum wages, or
their unpaid overtime compensation, as the
case may be, and in an additional equal
amount as liquidated damages.” Id.

11

Because, as discussed supra, the Court
has found that defendants did not maintain
accurate records, the Secretary must only
put forth sufficient evidence that employees
were not compensated as required by the
FLSA, and must produce sufficient evidence
to show the amount and extent of that work
as a matter of just and reasonable inference.
The Court finds that the Secretary has met
that burden. As previously stated, the Court
finds the testimony of the employees to be
credible, and therefore, finds that they
worked more than forty hours per week at a
fixed rate. Quarta also admitted during a
deposition that he paid his employees based
on a fixed weekly rate. As discussed more
fully infra, the amount and extent of the
work has been proven by the Secretary
through the credible testimony of the
witnesses.
Defendants have not presented evidence
of the precise amount of work performed or
evidence to negate the inference drawn from
the Secretary’s evidence. Defendants only
presented one witness regarding the hours of
the employees, and that witness admitted
that he not only could not see the back door
that employees frequently used, but that he
was not present at the restaurant for the vast
majority of the time period covered by this
suit. In short, defendants’ evidence does not,
in any way, undermine the credible
testimony of the Secretary’s witnesses and
the exhibits offered into evidence.

the Court finds the following: (1) during the
relevant time period, defendants violated
Sections 7 and 15(a)(2) of the Act because
defendants paid their employees a fixed
weekly salary for working more than 40
hours per week without paying them the
statutory overtime premium of one and onehalf times the regular straight time hourly
rate for the hours worked in excess of 40 per
week; (2) during the relevant time period,
defendants further violated Sections 7 and
15(a)(2) of the Act for the work weeks when
defendants paid certain employees at a
reconstructed regular hourly rate lower than
the then-applicable New York State and
federal minimum wage rate, see 29 C.F.R.
§§ 778.5, 778.315; and (3) that defendants
are, therefore, liable for the difference
between the amount that employees were
paid and the amount that employees would
have earned if they had received (a) hourly
pay at the higher of their regular rate of pay
or the applicable minimum wage, plus (b)
time and a half their regular rate of pay (or
the applicable minimum wage rate, if
higher) in overtime compensation for all
hours worked in excess of forty. See, e.g.,
Rodriguez v. Queens Convenience Deli
Corp., No. 09-CV-1089, 2011 WL 4962397,
at *2 (E.D.N.Y. Oct. 18, 2011); Cao v.
Chandara Corp., No. 00 Civ. 8057, 2001
WL 34366628, at *6 (S.D.N.Y. July 25,
2001).
a. Classification of Santos Pastor Alfaro
as an Exempt Employee

the employer to come forward with evidence
of the precise amount of work performed or
with evidence to negative the reasonableness
of the inference to be drawn from the
employee's evidence.” Mt. Clemens, 328
U.S. at 687-88.

Defendants attempted to prove at trial
that Santos Pastor Alfaro was exempt from
the overtime pay requirements because he
was “employed in a bona fide executive,
administrative, or professional capacity.” 29
U.S.C. § 213(a)(1). After considering the
evidence presented at trial, the Court finds
that Mr. Pastor Alfaro is not exempt from
the overtime provisions of the FLSA.

Therefore, the Court finds that
defendants have violated the minimum wage
and overtime provisions of the FLSA. 29
U.S.C. §§ 206, 207, 215(a)(2). Specifically,

12

i. Legal Standard

the employee must receive “the full salary
for any week in which the employee
performs any work without regard to the
number of days or hours worked.” Id.

Not all workers are covered by the
overtime provisions of the FLSA. For
example, “any employee employed in a
bona fide executive, administrative, or
professional capacity” is exempt from the
overtime pay requirements. 29 U.S.C.
§ 213(a)(1). FLSA exemptions such as this
one are to be “narrowly construed.” Martin
v. Malcolm Pirnie, Inc., 949 F.2d 611, 614
(2d Cir. 1991). Moreover, the “employer
bears the burden of proving that its
employees fall within an exempted category
of the [FLSA].” Id. “[I]t is a strict question
of law whether the activities and
responsibilities of the employee, once
established, exempt him or her from the
FLSA’s overtime requirements.” Alberti v.
Cnty. of Nassau, 393 F. Supp. 2d 151, 174
(E.D.N.Y. 2005) (citing Tomney v. Int’l Ctr.
for Disabled, 357 F. Supp. 2d 721, 739-40
(S.D.N.Y. 2005)).

The employee must also: (1) have
“management” as her “primary duty”; (2)
“customarily and regularly direct[] the work
of two or more other employees”; and (3)
have either “the authority to hire or fire
other employees” or whose suggestions on
“hiring, firing, advancement, promotion or
any other change of status of other
employees are given particular weight.” 29
C.F.R. §§ 541.100(a)(2-4). A defendant
must prove that the employee satisfies all
four prongs of the regulation to be classified
as exempt. See Perez v. Radioshack Corp.,
552 F. Supp. 2d 731, 736 (N.D. Ill. 2005).
The regulations further explain that
“management” may include, but is not
limited to, activities such as:
interviewing, selecting, and training
of employees; setting and adjusting
their rates of pay and hours of work;
directing the work of employees; . . .
appraising employees’ productivity
and efficiency for the purpose of
recommending promotions or other
changes in status; handling employee
complaints
and
grievances;
disciplining employees; planning the
work; determining the techniques to
be used; apportioning the work
among the employees; determining
the type of materials, supplies,
machinery, equipment or tools to be
used or merchandise to be bought,
stocked and sold; . . . providing for
the safety and security of the
employees or the property; planning
and controlling the budget; . . . .

The DOL has enacted regulations that
clarify whether an employee is exempt as
“employed in a bona fide executive,
administrative, or professional capacity”
under Section 213(a)(1). 9 Under the first
prong, the employees must be paid on a
“salary basis” at least $455 per week. 29
C.F.R. § 541.100(a)(1). An employee is
considered to be paid on a “salary basis” if
the employee “regularly receives each pay
period on a weekly, or less frequent basis, a
predetermined amount” that is not subject to
deductions based on the “quality or quantity
of the work performed.” 29 C.F.R. §
541.602(a). Subject to certain exceptions,
9

The regulations that are promulgated by the
Secretary of Labor pursuant to an express grant of
authority from Congress under the FLSA have the
force and effect of law. They are to be given
controlling weight unless they are found to be
arbitrary, capricious, or manifestly contrary to the
statute. See Freeman v. Nat’l Broad. Co., 80 F.3d 78,
82 (2d Cir. 1996).

29 C.F.R. § 541.102.

13

his day cooking food. (See, e.g., Apr. Tr. 9192, 136-37.) He did not have keys to the
restaurant, interview prospective employees,
or determine the salaries or schedules of
other employees in the kitchen. (See id. 9195.) Although the amount of time that Mr.
Pastor Alfaro spent cooking is not
dispositive, defendants have not introduced
sufficient evidence that his “primary duty”
was, in fact, management.

The regulations state that “‘primary
duty’ means the principal, main, major or
most important duty that the employee
performs.”
Id.
§ 541.700(a).
When
determining the primary duty of an
employee, the factors to be considered
include, but are not limited to, “the relative
importance of the exempt duties as
compared with other types of duties; the
amount of time spent performing exempt
work; the employee’s relative freedom from
direct supervision; and the relationship
between the employee’s salary and the
wages paid to other employees for the kind
of nonexempt work performed by the
employee.” Id. Although the amount of time
spent is only a “useful guide” and not
dispositive, “employees who spend more
than 50 percent of their time performing
exempt work will generally satisfy the
primary duty requirement.” Id. § 541.700(b).

Even if defendants had satisfied their
burden on that prong, they have introduced
no evidence that Mr. Pastor Alfaro had the
authority to hire and fire employees, or that
his suggestions were given particular
weight. Mr. Pastor Alfaro credibly testified
that he did not have the responsibility to hire
or fire employees, and Mr. Acosta
confirmed that fact. (See id. 93-95, 137-38.)
The only suggestion otherwise is that a
former dishwasher stated during a
deposition that he quit his job at the
restaurant because he did not get along with
Mr. Pastor Alfaro, but he did not state that
Mr. Pastor Alfaro fired him or suggested to
Quarta that he be fired. (Pl.’s Ex. 13,
Banegas Dep., at 10.)

ii. Application
As to the “salary” prong of the test, Mr.
Pastor Alfaro’s salary ranged from $850 to
$1000 per week during the relevant time
period. (See Apr. Tr. 89-90.) This salary
well exceeds the minimum of $455 per week
required for an employee to fall within the
Section 213(a) exemption. There is no
indication that Mr. Pastor Alfaro’s payments
were “subject to reduction because of
variations in the quality or quantity of the
work performed.” 29 C.F.R. § 541.602(a).
Accordingly, Mr. Pastor Alfaro satisfies the
“salary” prong of the test for an exemption
under Section 213(a)(1).

In sum, the Court concludes that, when
Mr. Pastor Alfaro was employed by
defendants, he did not have the authority to
hire or fire other employees, did not have
management as his “primary duty,” and did
not “customarily and regularly direct the
work of two or more other employees.”
Therefore, the Court finds that Mr. Pastor
Alfaro was not an “employee employed in a
bona fide executive capacity” within the
meaning of Section 13(a)(1) of the Act, as
well as 29 C.F.R. Part 541. Accordingly,
Mr. Pastor Alfaro was not an exempt
employee under the FLSA, and the
Secretary may recover unpaid overtime
wages on his behalf. Compare Garcia v.
Panco Villa’s of Huntington Vill., Inc., No.
09-CV-486, 2011 WL 1431978, at *3

However, after considering all of the
evidence, the Court finds that management
was not Mr. Pastor Alfaro’s primary duty.
Some testimony was presented that he
would direct which salads and dressings to
make (see Apr. Tr. 206), or which dishes to
clean (see Pl.’s Ex 13, Banegas Dep., at 3839). However, he spent the vast majority of

14

worked. Defendants even stipulated that
they did not maintain records from June 5,
2006 through at least May 21, 2009. The
Court also found that any records that
defendants did maintain were inaccurate.

(E.D.N.Y. Apr. 14, 2011) (finding that
employee was not exempt under FLSA
when his primary duty was cooking and
there was no evidence that he had
management duties or had the authority to
hire and fire employees) with Coberly v.
Christus Health, 829 F. Supp. 2d 521, 52930 (N.D. Tex. 2011) (holding that senior
chef was an exempt employee when he
procured food supplies and kitchen
equipment, planned meals, directed and
supervised the operation of kitchen staff,
and interviewed and recommended the
hiring of food service workers).

In sum, the Court concludes that
defendants violated the record-keeping
provisions of the FLSA. 29 U.S.C.
§§ 211(c), 215(a)(5). See, e.g., Herman v.
Task Force Sec. & Investigations, Inc., No.
93-CV-5726, 1999 WL 486535, at *6
(E.D.N.Y. Jul. 7, 1999) (finding after a
bench trial that defendants violated the
record-keeping provisions of the FLSA
when they did not record the number of
hours employees worked in a week and
falsified the pay employees received). In
particular, during the relevant time period,
defendants failed to make, keep, and
preserve adequate and accurate records of
their employees and of the wages, hours,
and other conditions of employment which
they maintained as prescribed by the
Regulations issued and found at 29 C.F.R.
Part 516, and such failures constituted a per
se violation of the Act. Moreover, the
insufficient records that defendants did
produce failed to show adequately and
accurately, among other things, the hours
worked each workday, the total hours
worked each workweek, the regulate rate of
pay, the basis upon which wages were paid,
the total straight-time earnings for each
workweek, and/or the total overtime
compensation for each workweek, with
respect to defendants’ employees.

3. Record-Keeping Claim
Under the FLSA, employers engaged in
interstate commerce must “make, keep, and
preserve” records of the wages and hours of
their employees. 29 U.S.C. § 211(c); see
also Mt. Clemens, 328 U.S. at 687 (stating
that employers have a “duty under § 11(c) of
the Act to keep proper records of wages,
hours and other conditions and practices of
employment”).
The DOL has enacted regulations that
detail the precise records an employer must
keep on every employee. An employer is
required to state, among other things, “the
time of day and day of week on which the
employee’s workweek begins,” “hourly rate
of pay for any workweek in which overtime
compensation is due,” “the monetary
amount paid on a per hour, per day, [or] per
week . . . basis,” the “hours worked each
workday and total hours worked each
workweek,” “total daily or weekly straighttime earnings or wages due for hours
worked . . . exclusive of premium overtime
compensation” and “total premium pay for
overtime hours.” 29 C.F.R. § 516.2(a).

4. Retaliation Claim
The anti-retaliation provision of the
FLSA provides that it shall be unlawful for
any person:

As described in the Findings of Fact,
defendants did not maintain records of the
hours and wages that their employees

to discharge or in any other manner
discriminate against any employee
because such employee has filed any

15

the Secretary can satisfy the standard if she
shows that the action would have “dissuaded
a reasonable worker from making or
supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (citation and internal
quotation marks omitted). The adverse
action must be “material” and not “trivial.”
Id. The Second Circuit has held that there is
“little doubt” that an action by an employer
that carries the “possibility of termination”
is a disadvantageous action. Mullins, 626
F.3d at 54. Thus, the Court concludes that
the threatened termination was adverse and
would dissuade a reasonable worker from
making or supporting FLSA claims. The
causal connection is also clear since the
Court found the testimony of the employees
credible that Quarta specifically linked their
appearance in court with the termination of
their employment. The Secretary has,
therefore, established a prima facie case of
retaliation.

complaint or instituted or caused to
be instituted any proceeding under or
related to this chapter, or has
testified or is about to testify in any
such proceeding, or has served or is
about to serve on an industry
committee.
29 U.S.C. § 215(a)(3). To establish a prima
facie case of retaliation, a plaintiff must
show “participation in protected activity
known to the defendant, an employment
action disadvantaging the person engaged in
the protected activity, and a causal
connection between the protected activity
and the adverse employment action.” Cruz v.
Coach Stores, Inc., 202 F.3d 560, 566 (2d
Cir. 2000) (citation and internal quotation
marks omitted); see also Hyunmi Son v.
Reina Bijoux, Inc., 823 F. Supp. 2d 238, 242
(S.D.N.Y. 2011). “Once the plaintiff
establishes a prima facie case of FLSA
retaliation, the burden shifts to the defendant
to articulate a legitimate, non-discriminatory
reason for the employment action.” Mullins
v. City of N.Y., 626 F.3d 47, 53 (2d Cir.
2010) (citation and internal quotation marks
omitted). “If the defendant meets this
burden, the plaintiff must produce sufficient
evidence to support a rational finding that
the legitimate, non-discriminatory reasons
proffered by the defendant were false, and
that more likely than not discrimination was
the real reason for the employment action.”
Id. at 53-54.

Although defendants attempted to
articulate a legitimate, non-retaliatory
explanation for the conversations – namely,
that Quarta was only referring to scheduling
at the restaurant during the trial, not
termination – the Court finds that
explanation not credible. It is abundantly
clear from the credible testimony of Mr.
Acosta and Mr. Cantos-Chavez that Quarta
intended to communicate, and did
communicate, to these employees that they
would be terminated if they testified at the
trial. Thus, Quarta retaliated against the
employees by telling them they would be
terminated.

In this case, there is no question that
testifying at the request of the DOL against
an employer is a “protected activity.” See
Lambert v. Genesee Hosp., 10 F.3d 46, 55
(2d Cir. 1993), abrogated on other grounds
by Kasten v. Saint-Gobain Performance
Plastics Corp., 131 S. Ct. 1325 (2011). Mr.
Acosta and Mr. Cantos-Chavez also suffered
an adverse employment action. Although
they were not actually fired by defendants,

In sum, the evidence established that
Quarta intentionally attempted to prevent
two of his current employees from
testifying, including threatening those
employees with discharge if they testified,
and that his conduct was calculated to

16

employee who had been illegally fired from
his job for supporting a union-organizing
campaign. After the Board had found
against the employer, it was discovered that
the employee was not legally allowed to
work in the United States and had procured
the job through false documentation. See id.
at 140-42. The Supreme Court held that this
relief could not be awarded by the Board
because it contradicted federal immigration
policy as expressed in the Immigration
Reform and Control Act of 1986 (IRCA).
See id. at 140. Specifically, the Court stated
that the Board did not have the authority to
“award backpay to an illegal alien for years
of work not performed, for wages that could
not lawfully have been earned, and for a job
obtained in the first instance by a criminal
fraud.” Id. at 149.

dissuade a reasonable worker from testifying
at the proceeding. Therefore, the Court
concludes, based upon Quarta’s actions
(including the threatening statements), that
the Secretary has demonstrated a violation
of the anti-retaliation provisions of the
FLSA.
B. Damages
The Secretary seeks (1) $137,867.12 in
unpaid wages for violations of the minimum
wage and overtime provisions of the FLSA;
(2) $137,867.12 in liquidated damages for
willful violations of the Act; (3) $4,000 in
compensatory damages for emotional
distress for violations of the anti-retaliation
provisions of the Act; and (4) $15,000 in
punitive damages for violations of the antiretaliation provisions of the Act. The
Secretary also seeks an injunction
restraining defendants from future violations
of the FLSA. 29 U.S.C. § 217. In addition,
the Secretary requests that defendants be
required to pay their costs. 29 U.S.C. §
216(b).

Defendants argue that the Court’s
decision in Hoffman should be extended to
foreclose relief under the FLSA to those
who cannot legally work in this country.
This argument has been presented in district
courts both within this Circuit and across the
country, and has failed in every
circumstance except one. See Madeira v.
Affordable Hous. Found., Inc., 469 F.3d
219, 243 (2d Cir. 2006) (collecting cases
and stating that “a number of district courts
have concluded, even after Hoffman Plastic,
that IRCA does not preclude such FLSA
awards”).

1. Damages for Undocumented Workers
In their pre-trial brief, defendants argue
that many of defendants’ employees are not
entitled to liquidated damages because they
are not legally permitted to work in the
United States. (Defs.’ Proposed Findings of
Facts/Conclusions of Law, Sept. 8, 2011, at
2-3.) As an initial matter, the Court must
determine whether the Supreme Court’s
decision in Hoffman Plastic Compounds,
Inc. v. NLRB, 535 U.S. 137 (2002),
forecloses the possibility of any backpay or
liquidated damages for employees who may
not have been permitted to work in the
United States.

District courts that have declined to
extend Hoffman have done so for a variety
of reasons. Many courts have stated that the
holding in Hoffman is limited to precluding
relief for work not yet performed, as
opposed to work already performed. See
Solis v. Cindy’s Total Care, Inc., No. 10CV-7242, 2011 WL 6013844, at *2
(S.D.N.Y. 2011); Galdames v. N & D Inv.
Corp., No. 08-CV-20472, 2008 WL
4372889, at *2 (S.D. Fl. Sept. 24, 2008);

In Hoffman, the National Labor
Relations Board awarded backpay to an

17

citizens and aliens alike and whether the
alien is documented or undocumented is
irrelevant.”).

Zavala v. Wal-Mart Stores, Inc., 393 F.
Supp. 2d 295, 322 (D. N.J. 2005).
These courts have argued that this
distinction between work already performed
and work not yet performed means that the
policies of IRCA are “not implicated [] in
the same respect.” Zavala, 393 F. Supp. 2d
at 322. Some courts have stated that
application of the FLSA to illegal aliens
actually supports IRCA because “[i]f the
FLSA did not cover such workers,
employers would have an incentive to hire
them.” Villareal v. El Chile, Inc., 266 F.R.D.
207, 214 (N.D. Ill. 2010) (citation and
internal quotation marks omitted); see also
Flores v. Amigon, 233 F. Supp. 2d 462, 464
(E.D.N.Y. 2002) (“If employers know that
they will not only be subject to civil
penalties . . . and criminal prosecution . . .
when they hire illegal aliens, but they will
also be required to pay them at the same
rates as legal workers for work actually
performed, there are virtually no incentives
left for an employer to hire an
undocumented alien in the first instance.”);
Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F.
Supp. 2d 1056, 1062 (N.D. Cal. 2002)
(stating that the FLSA “discourages
employers from hiring [illegal immigrants]
because it eliminates employers’ ability to
pay them less than minimum wage or
otherwise take advantage of their status.”).

At least one court has also granted
deference to the DOL’s interpretation that
the FLSA covers undocumented workers.
See Zavala, 393 F. Supp. 2d at 324 (“The
fact that the Department of Labor, which is
charged with enforcing the FLSA, construes
the statute to protect undocumented workers,
even after Hoffman, further convinces this
Court that Plaintiffs’ undocumented status
should not bar them from seeking relief
under the Act.”).
In Jin-Ming Lin v. Chinatown
Restaurant Corp., 771 F. Supp. 2d 185 (D.
Mass. 2011), the court rejected all of these
arguments as to why Hoffman should not be
extended to the FLSA. However, the court
still found Hoffman inapplicable because
“[a]wards for back pay under the NLRA, at
issue in Hoffman are discretionary” while
“[c]ourts do not have discretion to deny the
award of FLSA damages when they have
been proved.” Id. at 189-90. The court stated
that while the “tension” between the policies
underlying the FLSA and IRCA exist, “[i]n
Hoffman the Court was able to find a
resolution by giving priority to the statutory
policy of the IRCA over the administrative
discretion of the NLRB. That resolution is
not possible where both poles of the conflict
are statutory directives. A court entertaining
an FLSA suit lacks the authority or
discretion to resolve the tension.” Id. at 190;
see also Cindy’s Total Care, 2011 WL
6013844, at *3 (distinguishing Hoffman
because it arose in the context of judicial
review of administrative action).

Courts have also discussed how
“employee” is defined by the FLSA as “any
individual employed by an employer.” 29
U.S.C. § 203(e). “Because undocumented
workers are not among the groups of
workers specifically exempted in the statute,
they plainly come within the broad statutory
definition of ‘employee.’” Villareal, 266
F.R.D. at 212-213; see also In re Reyes, 814
F.2d 168, 170 (5th Cir. 1987) (“[I]t is well
established that the protections of the Fair
Labor Standards Act are applicable to

It appears that only one district court
decision has denied backpay to an
undocumented worker post-Hoffman. See
Renteria v. Italia Foods, Inc., No. 02-C-495,

18

2003 WL 21995190 (N.D. Ill. Aug. 21,
2003). The court reasoned that “the Supreme
Court has made it clear that awarding back
pay to undocumented aliens contravenes the
policies embodied in [IRCA].” Id. at *6.

the Court had proof that the employees were
not authorized to work in the United States,
which it does not, the Secretary would still
be entitled to damages for backpay on their
behalf.

Although district courts have directly
confronted the application of Hoffman to the
FLSA, the Eleventh Circuit held preHoffman that undocumented workers could
receive compensation under the Act. They
stated that the FLSA should cover these
workers because the Supreme Court “has
adopted an expansive definition of the term
‘employee’ under the [FLSA] . . . [and] has
consistently refused to exempt from
coverage employees not within a specific
exemption.” Patel v. Quality Inn S., 846
F.2d 700, 702 (11th Cir. 1988). The court
also stated that the “FLSA’s coverage of
undocumented aliens goes hand in hand with
the policies behind IRCA.” Id. at 704.10

The Court also holds that the Secretary
would be entitled to liquidated damages
even if the employees were undocumented
workers. At first blush, it may appear that
liquidated damages are a penalty, similar to
the award for work not actually performed
in Hoffman. However, liquidated damages
“are not a penalty exacted by the law, but
rather compensation to the employee
occasioned by the delay in receiving wages
due caused by the employer's violation of
the FLSA.” Herman, 172 F.3d at 142; see
also Reich, 121 F.3d at 71 (“Liquidated
damages under the FLSA are considered
compensatory rather than punitive in
nature.”).

For all of the foregoing reasons, the
Court finds the overwhelming weight of
authority persuasive and holds that Hoffman
does not preclude an award of backpay to
undocumented workers.11 Therefore, even if

Since liquidated damages are a form of
compensation similar to backpay, and are
not damages for work not performed, the
Court finds that Hoffman would not preclude
the Secretary from receiving liquidated
damages even if the employees were not
legally entitled to work in the United States.
See Ulin v. Lovell's Antique Gallery, C-093160, 2010 WL 3768012, at *7-9 (N.D. Cal.
Sept. 22, 2010) (holding that Hoffman does
not prevent a plaintiff who used false
documents to secure employment from
receiving liquidated damages under the
FLSA).

10

The Eleventh Circuit recently held that Patel is still
binding precedent within that Circuit post-Hoffman,
but did not analyze the Hoffman decision and how it
could apply to the FLSA. The panel simply stated
that “[w]hile an intervening decision of the Supreme
Court can overrule the decision of a prior panel of
our court, the Supreme Court decision must be
clearly on point” and that Hoffman was not “clearly
on point.” Galdames v. N & D Inv. Corp., 432
F’Appx. 801, 803-804 (11th Cir. 2011) (citation and
internal quotation marks omitted).
11
During the trial, because the immigration status
was irrelevant to issues in the case and not probative
on the issue of the credibility of the witnesses in this
case, the Court did not allow defendants to question
the employees regarding their immigration status.
See, e.g., Widjaja v. Kang Yue USA Corp., 09-CV2089, 2010 WL 2132068, at *1-2 (E.D.N.Y. May 20,
2010) (denying discovery of plaintiffs’ immigration
status in FLSA case); Zeng Liu v. Donna Karan Int'l,

2. Backpay
The Secretary seeks $137,867.12 in
unpaid wages for violations of the minimum
wage and overtime provisions of the FLSA.
Inc., 207 F. Supp. 2d 191, 192-193 (S.D.N.Y. 2002)
(same).

19

and reasonable inferences from their
testimony, is reflected in Exhibit 9 as
revised May 14, 2012, which calculates back
wages accrued through April 8, 2012. The
DOL’s
methodology
for
computing
defendants’ unpaid overtime liability is fair
and reasonable in light of defendants’ failure
to have contemporaneously and accurately
recorded the employees’ hourly rates of pay
and numbers of hours worked. See Brock v.
Norman’s Country Market, Inc., 835 F.2d
823, 828 (11th Cir. 1988). Defendants have
not produced any credible evidence of the
precise hours the employees worked, or any
evidence to negate the reasonableness of the
inference to be drawn from the Secretary’s
evidence. In sum, the Secretary has met her
burden of demonstrating the appropriate
amount of damages for unpaid wages is
$137,867.12.12

29 U.S.C. § 216(b or c). (See Pl.’s Revised
Trial Ex. 9, at 1.)
Because the Secretary did not have
records of the exact times employees
worked each day, the DOL arrived at this
figure using approximations based on the
credible testimony presented at trial and
during depositions. If an employee did not
testify, the DOL approximated their hours
and wages based on the testimony of an
employee with their same or similar
responsibilities. (See Apr. Tr. 265-271); see
also Reich, 121 F.3d at 67 (stating that “it is
well-established that the Secretary may
present the testimony of a representative
sample of employees”).
The Court finds the damage calculations
by the DOL to be a reasonable estimate of
the amount due to the employees based upon
the evidence in the record, and further finds
that the Secretary has met her burden of
proof on this issue. In FLSA cases, the
damages need not be precise. See Mt.
Clemens, 328 U.S. at 688. (“[T]he court may
[] award damages to the employee, even
though the result be only approximate.”)
Once a plaintiff has proven a prima facie
case, “the burden shifts to the employer, and
if the employer fails to produce evidence of
the ‘precise amount of work performed’ or
evidence to ‘negative the reasonableness of
the inference to be drawn from the
employee’s evidence,’” then approximate
damages may be awarded. Reich, 121 F.3d
at 67 (quoting Mt. Clemens, 328 U.S. at 68788). In particular, the Secretary did establish
a prima facie case and the Secretary has met
her burden, through the testimony of a
representative sample of employees, of
establishing a pattern and practice of
defendants’ FLSA violations, including
overtime pay violations. This methodology,
which is supported by the credible testimony
at trial (including the sample of employees)

3. Liquidated damages
The Secretary seeks $137,867.12 in
liquidated damages for willful violations of
the FLSA. Under the FLSA, employers who
violate the Act are liable not only for unpaid
wages but for “an additional equal amount
as liquidated damages.” 29 U.S.C. § 216(c).
The Portal-to-Portal Act modified the FLSA
by allowing courts, in their discretion, to
reduce the amount awarded in liquidated
damages or to eliminate them entirely if an
employer proves that its actions were “in
good faith and that [it] had reasonable
grounds for believing that [its] act or
omission was not a violation” of the FLSA.”
29 U.S.C. § 260. “[T]he employer bears the
12

In connection with those damages, as reflected in
revised Exhibit 9, the Court concludes that, of the
total unpaid overtime pay and liquidated damages
judgment to which the Secretary is entitled,
$10,739.73 in unpaid overtime pay, and an equal
amount in liquidated damages, discussed infra, for a
combined subtotal of $21,479.46, is owed for the
period of September 15, 2011 (when defendant
Quarta filed for bankruptcy) through April 8, 2012.

20

awarded “such legal or equitable relief as
may be appropriate to effectuate the
purposes” of the anti-retaliation provisions.
29 U.S.C. § 216(b); Fair Labor Standards
Amendments of 1977, Pub. L. No. 95-151,
91 Stat. 1245 (1977). Courts have held that
compensatory damages for emotional
distress and punitive damages are both
appropriate remedies under Section 216(b).
See Travis v. Gary Cmty. Mental Health
Ctr., Inc., 921 F.2d 108, 111-112 (7th Cir.
1990); Sines v. Serv. Corp Int’l, No. 03-CV5465, 2006 WL 3247663, at *1-3 (S.D.N.Y.
Nov. 8, 2006) (finding that punitive
damages are available); Lai v. Eastpoint
Int’l, Inc., No. 99-CV-2095, 2002
WL 265148, at *1 (S.D.N.Y. Feb. 22, 2002)
(adopting Report and Recommendation)
(awarding damages for emotional distress).

burden of establishing, by plain and
substantial evidence, subjective good faith
and objective reasonableness.” Reich, 121
F.3d at 71 (citation and internal quotation
marks omitted). “The burden . . . is a
difficult one to meet, however, and double
damages are the norm, single damages the
exception.” Id. (alteration, citation and
internal quotation marks omitted).
In holding that the statute of limitations
in this case should be three years, the Court
found that the Secretary had met her burden
in proving that defendants’ actions were
willful. Quarta admitted in his deposition
that he knew of the minimum wage and
overtime provisions of the law, and yet he
continued to violate the law. Defendants
also attempted to cover-up their violations
by creating false records, telling employees
to lie to the DOL, and threatening them with
termination. Therefore, the Court concludes
that defendants’ actions were not in good
faith, and that they had no reasonable
grounds for so acting. Accordingly, the
Court finds that the Secretary is entitled to a
judgment in the amount of $137,867.12 in
liquidated damages. See Brock v.
Wilamowsky, 833 F.2d 11, 20 (2d Cir. 1987)
(“The [FLSA] does not authorize the court
to decline to award liquidated damages, in
whole or in part, unless the employer has
established its good-faith, reasonable-basis
defense.”).

The Court hereby awards the Secretary
$2,000 in compensatory damages for
emotional distress ($1,000 each for Mr.
Acosta and Mr. Cantos-Chavez). Mr. Acosta
and Mr. Cantos-Chavez did not testify that
they exhibited any physical symptoms from
their emotional distress. Mr. Acosta said he
“kind of felt afraid” (Apr. Tr. 147), and Mr.
Cantos-Chavez testified that he “felt afraid,
nervous” (id. 202). They did not elaborate
further on any emotional distress. Therefore,
the Court concludes that $1,000 per
employee for compensatory damages has
been proven by the Secretary in this case
and awards that amount.

4. Retaliation
However, the Court declines to award
punitive damages. Punitive damages are
discretionary and may be awarded “to
punish the defendant for his outrageous
conduct and to deter him and others like him
from similar conduct in the future.” Smith v.
Wade, 461 U.S. 30, 54 (1983) (alteration,
citations and internal quotation marks
omitted). Given that Mr. Acosta and Mr.
Cantos-Chavez were not actually terminated
from their employment, and given the

The Secretary also requests $4,000 in
compensatory damages for emotional
distress for violations of the anti-retaliation
provisions of the FLSA ($2,000 each for Mr.
Acosta and Mr. Cantos-Chavez), and
$15,000 in punitive damages for violations
of the anti-retaliation provisions of the Act
($7,500 each for Mr. Acosta and Mr.
Cantos-Chavez).
In
1977,
Congress
amended the FLSA to allow plaintiffs to be
21

the Court finds that the Dunlop factors
weigh in favor of the Secretary, and a
prospective
injunction
restraining
defendants from future violations of the
FLSA will be issued. Compare Dunlop, 524
F.2d at 1281 (finding that a prospective
injunction is warranted in part because an
employer falsified records) and Marshall v.
Sam Dell’s Dodge Corp., 451 F. Supp. 294,
306 (N.D.N.Y. 1978) (finding that an
injunction is necessary due to defendants’
willful violations of the Act including the
falsification of time records) with Brock,
662 F. Supp. at 1489 (declining to issue an
injunction in a “close” case when defendant
was found to have committed willful
violations but the Court found that the
violations were not deliberate and defendant
had remedied the violation by installing a
sophisticated computer system to track
employee’s hours).

amount of compensatory damages already
assessed, as well as the imposition of an
injunction (discussed infra), the Court does
not believe that punitive damages should be
assessed in this case.
5. Injunction
In addition, the Secretary seeks a
prospective injunction restraining the
defendants from future violations of the Act.
Under the FLSA, district courts have the
jurisdiction to “restrain violations” of the
Act. 29 U.S.C. § 217. “Prospective
injunctions are essential because the cost of
noncompliance is placed on the employer,
which lessens the responsibility of the
[DOL] in investigating instances of
noncompliance.” Martin v. Funtime, Inc.,
963 F.2d 110, 114 (6th Cir. 1992) (internal
citation omitted). “The imposition of an
injunction is not punitive, nor does it impose
a hardship on the employer since it requires
him to do what the Act requires anyway – to
comply with the law.” Id. (citation and
internal quotation marks omitted).

6. Costs
The Secretary also requests that
defendants be required to pay her costs in
this action. 29 U.S.C. § 216(b). The FLSA
states that the “court . . . shall, in addition to
any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorney’s fee
to be paid by the defendant, and costs of the
action.” Id. Thus, the Court intends to award
attorneys’ fees and costs under the FLSA.
However, the Secretary did not submit her
costs. Thus, an additional submission on this
issue will be required.

In Dunlop v. Davis, 524 F.2d 1278 (5th
Cir. 1975), the Fifth Circuit held that the two
factors to be considered in determining
whether a prospective injunction should be
granted are the “previous conduct of the
employer and the dependability of his
promises for future compliance.” Id. at
1281; see also Brock v. Wackenhut Corp.,
662 F. Supp. 1482, 1488 (S.D.N.Y. 1987)
(citing the Dunlop standard). Defendants
willfully violated the Act, including creating
false records and requesting employees lie
once the DOL began their investigation.
Thus, an injunction is necessary because
defendants willfully continued to violate the
Act after being notified by DOL of their
non-compliance,
deliberately
falsified
records of hours worked, and engaged in
retaliatory conduct against employees for
their participation in this lawsuit. In short,

V. CONCLUSION
For the foregoing reasons, the Court
concludes, after carefully considering the
evidence introduced at trial, the arguments
of counsel, and the controlling law on the
issues presented, that the Secretary has
shown by a preponderance of the evidence
that defendants violated the minimum wage,

22

overtime,
record-keeping,
and
antiretaliation provisions of the FLSA. The
Court hereby enters judgment in the amount
of
$277,734.24
against
defendants,
consisting of $137,867.12 of unpaid
damages, $137,867.12 in liquidated
damages, and $2,000 in retaliatory
damages. 13 A prospective injunction
restraining defendants from future violations
of the FLSA is also imposed. The Clerk of
the Court shall enter judgment accordingly.

SO ORDERED.

_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: April 5, 2013
Central Islip, NY

***
Plaintiff is represented by Daniel M.
Hennefeld and Elena S. Goldstein, U.S.
Department of Labor, Office of the Solicitor,
201 Varick Street, Room 983, New York,
N.Y. 10014. Defendant is represented by
Raymond Nardo, 129 Third Street, Mineola,
N.Y. 11501.

13

The Court agrees with the Secretary’s October 15,
2012 letter to the Court that Quarta’s bankruptcy
discharge has no effect on the ability of this Court to
enter a judgment against both defendants. In
particular, the Court has already held that the police
and regulatory powers exemption applies. Moreover,
the Court has the authority to issue a money
judgment against both defendants for conduct arising
from pre-petition and post-petition conduct. See, e.g.,
SEC v. Brennan, 230 F.3d 65, 71 (2d Cir. 2000)
(exemption “permits the entry of a money judgment
against a debtor”); Martin v. Safety Elec. Const. Co.,
151 B.R 637, 639 (D. Conn. 1993) (the Secretary’s
FLSA enforcement proceeding could continue, but
“[a]ctual collection” of money damages would
“proceed according to normal bankruptcy
procedures”); see also In re Methyl Tertiary Butyl
Ether (“MTBE”) Prods. Liab. Litig., 488 F.3d 112,
133 (2d Cir. 2007) (explaining that the government’s
“actions seeking money damages for past conduct”
are not subject to the bankruptcy stay, but that
enforcement of judgment are subject to bankruptcy
proceedings.) Thus, the money judgment would
“simply fix the amount of the government’s
unsecured claim against the debtors.” United States
ex rel. Fullington v. Parkway Hosp. Inc., 351 B.R.
280, 283 (E.D.N.Y. 2006) (citation and internal
quotation marks omitted). In short, Quarta’s
bankruptcy, including the bankruptcy discharge, have
no legal impact on the Court’s ability to render a
money judgment against Quarta, or to enter a
prospective injunction restraining him from future
violations of the Act.

23