Pabello et al v. Carlton Cleaners et al

Filing 38

OPINION AND ORDER: Accordingly, each of the three plaintiffs are entitled to recover $74,880.00 in unpaid overtime premium pay and $74,880.00 in liquidated damages for a total of $149,760.00 per plaintiff. The Clerk of the Court i s directed to enter judgment in favor of each of the plaintiffs in the amount of $149,760.00 each, for a total $449,280.00. The Clerk of the Court is respectfully requested to mark this matter as closed. (Signed by Magistrate Judge Henry B. Pitman on 9/27/2019) Copies Mailed By Chambers. (mro) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x

RONALDO PABELLO, et al.,
11 Civ. 2267

Plaintiffs,

(HBP)

OPINION
AND ORDER

-againstCARLTON CLEANERS,
Defendant.
-----------------------------------x

PITMAN, United States Magistrate Judge:
I.

Introduction
This matter is before me for an inquest with respe t to

defendant Carlton Cleaners.

Plaintiffs commenced this actio

against defendant on April 1, 2011 alleging violations of th
Fair Labor Standards Act, 29 U.S. C.
the New York Labor Law,

§§

§§

650 et seq.

201 et seq.,
("NYLL").

( "FLSA") and

All partie

have consented to my exercising plenary jurisdiction pursuan
28 U.S.C.

§

to

636(c).

Defense counsel withdrew from this matter on April 19,
2013
33)).

(Endorsed Order, dated Apr. 19, 2013

(Docket Item ("D.I ")

To date, defendant has never obtained new counsel.

O

October 17, 2013, I issued a scheduling Order setting the mater
for trial for November 4, 2013 and ordering the parties to a pear
(Scheduling Order, dated Oct. 17, 2013

(D.I. 34)).

A copy o

Ii

this order was mailed to Carlton Cleaners at 310 East 23rd
Street, New York, New York 10010.
Defendant failed to appear in court on November 4, 2013
and, thus, I struck defendant's answer and ordered plaintiff

"to

submit evidentiary material (affidavits and authenticated ex
its) in support of their application for damages and attorne 's
fees no later than November 17, 2013"
(D.

(Order, dated Nov. 5,

013

I. 3 6) ) .
Plaintiffs timely submitted affidavits from Ronald

Pabello, Guillermo Suarez and Moises Perez on November 15, 2 13
(Affidavit of Ronaldo Pabello, dated Nov. 15, 2013
("Pabello Aff.
2013

(D.I. 37)

Nov. 15, 2013

11

);

(D.I. 37)

Affidavit of Guillermo Suarez, dated Nov.

5,

("Suarez Aff. "); Affidavit of Moises Perez, d ted
(D.I. 37)

("Perez Aff. ")).

To date, defendant has not submitted any materials with
respect to this inquest or contacted my chambers in anyway.
Accordingly, on the basis of plaintiffs' submissions alone,
make the following findings of fact and conclusions of law.

2

II

II.

Findings of Fact 1
A.

The Parties
1.

Plaintiffs Ronaldo Pabello, Guillermo Suarez a

Moises Perez are former employees of Carlton Cleaners (First
Amended Complaint, dated Sept. 12, 2011 (D.I. 4)

("Am. Compl ")

1

2) .

2.

Defendant Carlton Cleaners is a domestic corpo a-

tion organized under the laws of the State of New York with

ts

principal place of business at 310 East 23rd Street, New Yor,
New York 10010 (Am. Compl. 1 3).
B.

Plaintiffs' Employment
with Carlton Cleaners
3.

Defendant employed plaintiff Pabello as a cler

from approximately April 2008 until approximately April 2011
(Pabello Aff.

11

3, 5-6).

For the entirety of his employmen,

Pabello worked 72 hours per week and was paid $400 per week
(Pabello Aff.

1 5).

1

As a result of defendant's default, all the allegation of
the complaint, except as to the amount of damages, must bet ken
as true. Bambu Sales, Inc. v. Ozak Trading Inc., 58 F.3d 84 ,
854 (2d Cir. 1995); Greyhound Exhibitgroup, Inc. v. E.L.U.L.
Realty Corp., 973 F.2d 155, 158-59 (2d Cir. 1992); Trans Word
Airlines, Inc. v. Hughes, 449 F.2d 51, 69-70 (2d Cir. 1971),
rev'd on other grounds sub nom., Hu hes Tool Co. v. Trans Wold
Airlines, Inc., 409 U.S. 363 (1973).
3

4.

Defendant employed plaintiff Suarez as a clerk from

approximately April 2008 until approximately April 2011 (Sua ez
Aff. 11 3, 5-6).

For the entirety of his employment, Suarez

worked 72 hours per week and was paid $400 per week (Suarez

1

ff.

5) .

5.

Defendant employed plaintiff Perez as a delive y

person from approximately April 2008 until approximately Apr 1
2011 (Perez Aff. 11 3, 5-6).

For the entirety of his emplo

ent,

Perez worked 72 hours per week and was paid $400 per week (Prez
Aff.

1

5) .
6.

None of the above named plaintiffs were ever p id

overtime premium pay, i-~-, time and a half, as required by

tate

and federal law, for the hours that each worked in excess of 40
hours per week (Am. Compl.
III.

1

3).

Conclusions of Law
7.

The Court has subject matter jurisdiction over this

action pursuant to 28 U.S.C. § 1331 because plaintiffs alleg
violation of a federal statute -- the FLSA.

a

The Court also

as

supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) wi h
respect to plaintiffs' NYLL claims because they are part of

he

"same case or controversy" as their FLSA claims and arise ou
the same facts.

28 U.S.C.

of

§ 1367(a).

4

II

8.

Venue is proper in this district pursuant to 2

U.S.C. § 1391(b) (2) because the events giving rise to plaint ffs'
claims occurred in this district.
9.
is in default.

As a result of its answer being stricken, defe

ant
's

As noted in footnote 1, by virtue of defenda

default, its liability is established.
10.

Under the FLSA, an employee plaintiff general

"has the burden of proving that he performed work for which
was not properly compensated."

Anderson v. Mt. Clemens Pott r

Co., 328 U.S. 680, 687 (1946), superseded on other grounds b

29

U.S.C. §§ 251, et seq.; accord Santillan v. Henao, 822 F. Su
2d 284, 293-94 (E.D.N.Y. 2011).

However,

"employees seldom

. records [of hours worked] themselves."

Anderson v. Mt

Clemens Pottery Co., supra, 328 U.S. at 687.

Accordingly, t

FLSA requires that an employer "make, keep, and preserve
records of the persons employed by him and of the wages, hou .s,
and other conditions and practices of employment."
211 (c).

29 U.S.C

§

In default situations such as this one, if the defe dant

employer does not maintain proper time or payroll records, h
essentially deprives "plaintiff of the necessary employee re ords
required by the FLSA, thus hampering plaintiff's ability to
his damages."

rove

Santillan v. Henao, supra, 822 F. Supp. 2d at 294.

Accordingly, the Supreme Court has held that "an employee ha

carried out his burden if he proves that he has in fact perf rmed

5

II

work for which he was improperly compensated and if he produ es
sufficient evidence to show the amount and extent of that wok as
a matter of just and reasonable inference."

Anderson v. Mt.

Clemens Pottery Co., supra, 328 U.S. at 687; accord Tho Dinh Tran
v. Alphonse Hotel Corp., 281 F.3d 23, 31 (2d Cir. 2002), abr,gated on other grounds, Slayton v. American Exp. Co., 460 F. d
215 (2d Cir. 2006).
11.

In light of the holding in Mt. Clemens Potter

Co., courts in this Circuit have routinely found that where
defendant employer defaults, a plaintiff may sustain his bur en
of proof "'by relying on his recollection alone.'"

Martinez v.

Alimentos Saludables Corp., 16-cv-1997 (DLI) (CLP), 2017 WL
5033650 at *12 (E.D.N.Y. Sept. 22, 2017), quoting Doo Nam Ya
ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005)

1a

v.

(Sand,

D.J.); see also Park v. Seoul Broad. Sys. Co., 05 Civ. 8956
(BSJ) (DFE), 2008 WL 619034 at *7 (S.D.N.Y. Mar. 6, 2008)
D.J.)

(Jo ~es,

(holding that courts should apply a "special burden-sh ft-

ing standard" where employers fail to comply with this statu~ory
duty of record keeping) . 2

2

Plaintiff's burden of proof to establish proper damage: is
nearly identical under the NYLL.
See N.Y. Lab. Law§ 195(4)
(requiring employers to maintain "payroll records showing thi
hours worked, gross wages, deductions and net wages for each
employee"); Marin v. JMP Restoration Corp., 09-cv-1384
(CBA) (WP), 2012 WL 4369748 at *6 (E.D.N.Y. Aug. 24, 2012)
(Report & Recommendation), adopted at, 2012 WL 4364671 (E.D. f.Y.
Sept. 24, 2012) (to determine damages under the NYLL, courts
(continue ... )
6

12.

All plaintiffs have submitted affidavits atte :ting

to the number of hours they worked at Carlton Cleaners with
specificity and the wages they were paid.

Given defendant's

default in this action, defendant's lack of compliance with
federal statutes governing record keeping practices and the
deferential legal standards set forth above, plaintiffs have
sustained their burden of proof.
A.

Minimum Wage Damages
13.

claim.

Plaintiffs seek damages under a minimum wage

An employer who fails to meet minimum wage obligatio s

under the FLSA and the NYLL "shall be liable to the employee or
employees affected in the amount of their unpaid minimum wags
. and in an additional equal amount as liquidated damages.
U.S.C.

§

216(b); see also 12 N.Y.C.R.R.
14.

§

29

143-1.3.

Plaintiffs allege that they worked an average of

72 hours per week and were paid $400 per week for the entire y of
their employment (Pabello Aff.
5).

1

5; Suarez Aff.

Because "[u]nder both the FLSA and NYLL

1

5; Perez A f.

1

. there is

presumption that such a weekly salary covers only the first

orty

hours" of work per week, plaintiffs were paid an effective hurly
rate of $10.00.

Guallpa v. N.Y. Pro Signs Inc., 11 Civ. 313

2

( • • • continued)
should use "the same burden-shifting scheme employed in FLSA
actions") .

7

II

(LGS ) (FM) , 2 0 14 WL 2 2 0 0 3 9 3 at * 3 ( S . D . N . Y . May 2 7 , 2 0 14 )
M.J.)

(Ma

(Report & Recommendation), adopted at, 2014 WL 4105948

(S.D.N.Y. Aug. 18, 2014)

(Schofield, D.J.); accord Saldarria

Saldarriaga v. IND Glatt, Inc., 17-CV-2904 (PKC) (SMG), 2019
1332887 at *3

(E.D.N.Y. Mar. 25, 2009); Perez v. Platinum Pl za

400 Cleaners, Inc., 12 Civ. 9353
(S.D.N.Y. June 16, 2015)
15.

(PAC), 2015 WL 13402755 *3

(Crotty, D.J.).

The NYLL minimum wage applicable to plaintiff '

employment was $7.15.

N.Y. Lab. Law§ 652(1).

The FLSA min mum

wage applicable from April 1, 2008 until July 24, 2008 was$ .85,
and then $6.55 from July 25, 2008 until July 25, 2010, and,
finally,

$7. 25 after July 25, 2010.

29 U.S. C. § 206 (a) (1) .

Because plaintiffs made more than both the NYLL and the FLSA
minimum wage during their employment and are not entitled to any
minimum wage damages. 3
B.
16.

Overtime Damages
Plaintiffs also allege violations of the FLSA and

the NYLL arising out of defendant's failure to pay them over ime
premium pay for all hours worked in excess of 40 hours per w ek.
Both the FLSA and the NYLL require employers to pay overtime

While plaintiffs correctly argue that their actual hou ly
rate of pay was $10.00, they incorrectly calculate their min mum
wages damages to be $27,768 and their overtime premium pay
damages to be $47,174.40 (Pabello Aff. 11 8-10; Suarez Aff.
1 810; Perez Aff. 11 8-10) .
3

8

wages, equal to one and one-half the employee's regular sala
for every hour worked in excess of 40 hours in any given wee
29 U.S.C. § 207(a); N.Y. Lab. Law§ 651; 12 N.Y.C.R.R. § 142 2.2.
The method for calculating overtime under both statutes is t e
same, and a plaintiff is not entitled to receive double dama es.
Martinez v. Alimentos Saludables Corp., supra, 2017 WL 50336 0 at
*15.

A plaintiff must plead sufficiently detailed informati n to

"support a reasonable inference that
hours a week.

[he] worked more than 4

Kleitman v. MSCK Mayain Olam Habba Inc., 11- v-

11

2817 (SJ), 2013 WL 4495671 at *4 (E.D.N.Y. Aug. 20, 2013).
17.

Plaintiffs allege that they worked 32 overtim

hours per week for the entirety of their employment (Pabello Aff.

1

5; Suarez Aff.

1

1

5; Perez Aff.

5).

Multiplying plaintif s'

actual hourly rate of pay of $10.00 by 1.5, plaintiffs were
entitled to a premium pay of $15.00 for each hour worked in
excess of 40 hours per week.

Multiplying this premium pay r t e

by 32 overtime hours per week, yields a total of $74,880.00

n

unpaid overtime damages for each of the plaintiffs, calculat d as
follows:
Pay period 04/01/2008 to 04/01/2011:
156 weeks of work x 32 O/T hours x $15.00 =
C.
18.

$74,880. 0

Liquidated Damages
In addition to compensatory damages, plaintif s

also seek to recover liquidated damages.
9

Under the FLSA, an

employee can collect 100% of his total unpaid wages as liqui
See 29 U.S.C. § 216(b) . 4

damages.

ted

Thus, each plaintiff is

entitled to $74,880.00 in liquidated damages.

IV.

Conclusion
Accordingly, each of the three plaintiffs are enti led

to recover $74,880.00 in unpaid overtime premium pay and
$74,880.00 in liquidated damages for a total of $149,760.00
plaintiff.

er

The Clerk of the Court is directed to enter judg ent

in favor of each of the plaintiffs in the amount of $149,760 00
each, for a total $449,280.00.

The Clerk of the Court is re

spectfully requested to mark this matter as closed.
Dated:

New York, New York
September 27, 2019
SO ORDERED

/
United States Magistrate

udge

Plaintiffs incorrectly argue that they are entitled to .100%
of their unpaid wages as liquidated damages under the FLSA ad
25% of their unpaid wages under the NYLL. While plaintiffs ay
recover liquidated damages under the "law providing the grea est
recovery" for plaintiffs, see Bha wat v.
ueens Car et Mall
Inc., 14-cv-5475 (ENV) (PK), 2018 WL 4921637 at *9 (E.D.N.Y. ept.
12, 2018) (citation omitted) (Report & Recommendation), ado ed
at, 2018 WL 4941771 (E.D.N.Y. Oct. 11, 2018), plaintiffs ma not
receive double liquidated damages under both statutes. Rana v.
Islam, 887 F.3d 118, 123 (2d Cir. 2018); Chowdhury v. Hamza
Express Food Corp., 666 F. App'x 59, 60-61 (2d Cir. 2016).
4

10

II

Copy transmitted to:
Counsel for plaintiffs
Copy mailed to:
Carlton Cleaners
310 East 23rd Street
New York, New York 10010

11

II