Dossou v. Reyer Parking Corp. et al
MEMORANDUM DECISION AND ORDER: In light of Defendant Dar's willful violations of the FLSA and NYLL, Plaintiff is entitled to unpaid overtime under the FLSA and NYLL in the amount of $65,643.75, and liquidated damages under the FLSA in the amount of $65,643.75, for a total of $131,287.50. Plaintiff is also entitled to post-judgment interest after the Clerk of the Court has entered the judgment in this case. SO ORDERED. (Signed by Judge George B. Daniels on 7/08/2015) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOSSOU GALLIE PINOVI a/k/a GALLIE
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13 Civ. 2800 (GBD) (KNF)
FDD ENTERPRISES, INC. and ALI DAR,
GEORGE B. DANIELS, United States District Judge:
This Court held a bench trial to adjudicate the claims of Plaintiff Gallie Dossou 1 against
Defendant Ali Dar. Plaintiff alleges that Defendants FDD Enterprises, Inc. and Ali Dar violated
the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and corresponding provisions
of the New York State Labor Law ("NYLL"), §§ 650 et seq., by insufficiently compensating
Plaintiff for his work as a parking attendant at the garage that Defendants owned.
This Opinion constitutes this Court's findings of fact and conclusions of law pursuant to
Federal Rule of Civil Procedure 52. This Court finds for Plaintiff and will award damages
consistent with this Opinion.
Plaintiff brought this action against Gerald Lieblich and Reyer Parking Corp. on April 26,
2013. (Complaint (ECF No. 1).) Plaintiff was granted leave to amend the complaint to add new
defendants. (So-ordered Letter Request (ECF No. 22).) He filed the Amended Complaint on
October 31, 2013. (See Am. Compl. (ECF No. 23).) The original two defendants, Gerald Lieblich
and Reyer Parking Corp., were subsequently dismissed from this action: Gerald Lieblich was
dismissed by stipulation, dated March 20, 2014, and Reyer Parking Corp. was dismissed by order,
At trial, Plaintiff identified himself as "Dossou Gallie Pinovi."
dated April 10, 2015, granting Defendant Reyer Parking Corp.'s motion for summary judgment.
(See Stipulation (ECF No. 41) and Order (ECF No. 62), respectively.) On May 21, 2015-five
days before the bench trial was scheduled to commence on May 26, 2015-defense counsel
informed this Court that Defendant FDD Enterprises, Inc. had filed for Chapter 11 bankruptcy
protection in United States Bankruptcy Court for the Southern District of New York under case
file number 15-11326. (Letter dated May 21, 2015 (ECF No. 66).) Accordingly, pursuant to 11
U.S.C. § 362(a)(l), this action was automatically stayed as to Defendant FDD Enterprises, Inc.
However, this Court denied Defendants' request that the stay extend to non-debtor Defendant Dar.
(See Letter dated May 21, 2015 (ECF No. 67); see also Queenie, Ltd. v. Nygard Int'!, 321 F.3d
282, 287-88 (2d Cir. 2003) (holding that a Section 362(a) stay does not automatically extend to a
From May 26 to May 27, 2015, this Court held a two-day bench trial to address whether
Defendant Dar is liable to Plaintiff as his employer. Plaintiff called three witnesses in his case-inchief, including himself and Defendant Dar, and he offered two exhibits that were admitted into
evidence. Defendant Dar called only himself in his case-in-chief, and he offered three exhibits
that were admitted into evidence. 2
STANDARD OF REVIEW
Federal Rule of Civil Procedure 52(a) provides, in relevant part, that a court conducting a
bench trial "must find the facts specially and state its conclusions of law separately," and that
"[j]udgment must be entered under Rule 58." Fed. R. Civ. P. 52(a)(l). Rule 52(a) further provides
that such "[flindings of fact, whether based on oral or other evidence, must not be set aside unless
Defense exhibits one through three consist of FOO Enterprises, Inc. 's 2011 through 2013 federal tax
clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to
judge the witnesses' credibility." Fed. R. Civ. P. 52(a)(6).
FINDINGS OF FACT
Certain facts are not in dispute. Plaintiff was employed by Defendant Dar as a parking
garage attendant. Plaintiff filled out a document titled "Application for Employment," admitted
as Plaintiff's Exhibit 2, that Defendant Dar gave him in October 2012. Plaintiff initially was paid
$350 per week, and he was later paid at least $376 per week. Plaintiff was paid every week in
cash. Plaintiff was not paid overtime and he received no spread-of-hours premium. Defendant
Dar ultimately fired Plaintiff for allegedly stealing money from customers. 3
The Duration of Plaintiff's Employment by Defendant Dar
Plaintiff testified that he began work on January 3, 2011, and his last day was in March
2013, though he could not remember exactly when in March. Plaintiff also testified that he filled
out the "Application for Employment" (Plaintiff's Exhibit 2) after working for Defendants for over
a year. The date accompanying Plaintiff's signature on the application is October 16, 2012.
Plaintiff testified that he was never shown time records when he worked for Defendants.
On direct examination, Defendant Dar had difficulty remembering Plaintiff's dates of
employment. However, Defendant Dar stated that the time records he kept to track Plaintiff's
hours (Plaintiff's Exhibit 1) were an accurate reflection of the total duration of Plaintiff's
employment, the hours that he worked, and his rate of pay. According to Defendant Dar's time
records, Plaintiff began work the week of October 13, 2012, and he worked through March 8,
Plaintiff alleges in the Amended Complaint that he was fired in retaliation for complaining about his rate
of pay. (Am. Comp!.~ 21.)
2013. Defendant Dar also testified that Plaintiff was given the job application on October 13,
2012, before he started working, but that he signed it three days after he began working on October
The third individual to testify, Michael Mensah Abrampah, is also a former employee of
Defendant Dar. Abrampah testified that he began working for Defendants on January 15, 2010.
Abrampah also testified that he met Plaintiff in mid-January 2011 at work while they were both
employees of Defendants. He testified further that Plaintiff already worked for Defendants before
he met Plaintiff. Defendant Dar did not remember whether Abrampah or Plaintiff began working
for him first.
Unlike Plaintiff, Abrampah testified that he was never asked to fill out a job
application. Abrampah also testified that he was never shown any time records.
This Court credits Defendant Dar's testimony that Plaintiff's last day of employment was
March 8, 2013, which is consistent with Plaintiff's testimony. Defendant Dar's testimony that
Plaintiff was not employed before October 13, 2012, however, is not credible. His testimony, and
the purported time records, are contradicted by Plaintiff's testimony and that of Abrampah. Based
on Plaintiff's testimony coupled with the corroborating testimony of Abrampah, whom this Court
also finds to be credible, Plaintiff began working as Defendants' employee on January 3, 2011.
Thus, Plaintiff was employed by Defendants from January 3, 2011 through March 8, 2013.
Plaintiff testified that he worked twelve hours per day for seven days each week, for a total
of eighty-four hours per week. Plaintiff was not given a lunch break during his shift. Plaintiff also
testified that he was given one day off each month. Although Defendant Dar said Plaintiff could
break for thirty minutes to eat, Plaintiff said he was still on duty and was interrupted for workrelated tasks. Abrampah similarly testified that Defendants' employees were not given a lunch
break. In addition, Abrampah testified that the shifts were twelve hours long. Thus, based on
Plaintiff's testimony, as corroborated by Abrampah, he worked approximately 348 hours each
month, assuming a thirty-day month, and he worked 4,236 hours in a year. 4
On direct examination, Defendant Dar insisted that Plaintiff only worked five days
(Monday through Friday) and forty hours in a week; however, he also stated that Plaintiff's hours
were 8 AM to 5 PM (a nine-hour day). He insisted that Plaintiff was allowed thirty minutes for a
lunch break, but acknowledged that Plaintiff could not leave the parking garage for lunch.
Defendant Dar conceded that Plaintiff was not entitled to vacation. He also testified that he kept
records of Plaintiff's hours as reflected in Plaintiff's Exhibit 1. Defendant Dar testified that he
showed these records to Plaintiff while Plaintiff was his employee. His recordkeeping consisted
of writing Plaintiff's hours on a piece of scrap paper contemporaneously, subsequently recording
those hours on the time records on a weekly basis, and then discarding the scrap paper. According
to the records, Plaintiff worked from exactly 9 AM to 5 PM, Monday through Friday. Not only do
these records contradict the testimony of Plaintiff and Abrampah that employees worked twelvehour shifts, they also contradict the testimony of Defendant Dar that Plaintiff worked from 8 AM
to 5 PM. Defendant Dar further testified that he had three employees during the relevant time who
each worked only eight hours per day and five days per week, but that the garage was open twentyfour hours per day and seven days per week. When asked to explain who covered the unaccountedfor hours, Defendant Dar testified that sometimes a "reliever" would cover those hours, and that
sometimes he would cover some hours. Defendant Dar did not keep track of his own time.
Twelve hours per day, less one twelve-hour shift per month, for a thirty-day month: (12 x 30)- 12 = 348
hours/month. Twelve hours per day, less one twelve-hour shift per month, for a total of 365 days: (12 x
365)- (12 x 12) = 4,236 hours/year.
Defendant Dar's records of employment and his attendant testimony are not credible.
Thus, this Court credits Plaintiff's testimony regarding his hours, including that he worked twelve
hours per day, which is supported by Abrampah's testimony. Thus, Plaintiff worked for Defendant
Dar from January 3, 2011 through March 8, 2013, which is 2 years, 2 months and 6 days (or 796
days), before accounting for vacation. Accounting for the one day off per month, Plaintiff worked
approximately 769 days or 114 weeks for Defendant Dar.
Plaintiff testified that he was paid $350 per week, until a point in time when he began
receiving $400 per week. He received his pay in cash every Friday. He testified that he was never
given any paper documentation reflecting his pay. This is generally consistent with Abrampah's
testimony regarding how much Abrampah was paid and when.
When asked about Plaintiff's pay on direct examination, Defendant Dar referred Plaintiff's
counsel to the time records and could not provide a figure for Plaintiff's pay. According to the
time records, Plaintiff was paid $350 per week at a rate of $8.75 per hour, until January 5, 2013,
when he began getting paid at a rate of $9.40 per hour for a weekly salary of $376. Crediting
Plaintiff's testimony, this Court concludes that, on average, Plaintiff was paid $3 7 5 per week for
Plaintiff alleges that due to Defendant Dar's violations of the FLSA and NYLL, he is
entitled to (1) backpay in the amount of the legally sufficient minimum wage; (2) overtime
compensation; (3) the "spread of hours" premium required under the NYLL; (4) liquidated
damages; (5) prejudgment and post-judgment interest; and (6) attorneys' fees and costs.
Plaintiff's action is timely under both the FLSA and NYLL. The statute of limitations
under the FLSA is two years, "except that a cause of action arising out of a willful violation may
be commenced within three years after the cause of action accrued." 29 U.S.C. § 255(a). The
statute of limitations under the NYLL is six years. N.Y. Lab. Law§§ 198(3), 663(3).
Plaintiff has met his burden of demonstrating that Defendant Dar's violations of the FLSA
were willful. An employer willfully violates the FLSA where he "either knew or showed reckless
disregard for the matter of whether [his] conduct was prohibited by the statute." McLaughlin v.
Richland Shoe Co., 486 U.S. 128, 133 (1988). "Recklessness is defined as, at the least, an extreme
departure from the standards of ordinary care, to the extent that the danger was either known to
the defendant or so obvious that the defendant must have been aware of it." McLean v. Garage
Mgmt. Corp., No. 10 Civ. 3950 (DLC), 2012 WL 1358739, at *7 (S.D.N.Y. Apr. 19, 2012) (citation
omitted). Defendant Dar was paying Plaintiff on average less than $5 per hour to work daily
twelve-hour shifts for over two years. His representations to this Court and his time records
regarding Plaintiff's hours are not credible. He deliberately-or at a minimum, recklesslydisregarded his FLSA wage obligations of which he was aware.
Thus, all of Plaintiff's claims accrued within the limitations periods under the FLSA and the
Regular Rate of Pay and Actual Damages
As the parties stipulated, the applicable minimum wage rate during the relevant period was
$7.25 per hour. (See Joint Pretrial Order~ 4); see also 29 U.S.C. § 206(a); N.Y. Lab. Law§ 652.
The FLSA and the NYLL carry a rebuttable presumption that a weekly salary covers only the first
forty hours, unless the parties have an alternate agreement. See, e.g., Perez v. Platinum Plaza 400
Cleaners, Inc., No. 12 Civ. 9353 (PAC), 2015 WL 1881080, at *2 (S.D.N.Y. Apr. 24, 2015)
("Defendants have not overcome the presumption that a flat weekly salary is intended to
compensate employees for forty hours of work per week."); Amaya v. Superior Tile & Granite
Corp., 10 Civ. 4525 (PGG), 2012 WL 130425, at *9 (S.D.N.Y. Jan. 17, 2012) ("An agreement for
a fixed weekly salary for more than 40 hours of work per week only complies with the FLSA and
Labor Law if there is an explicit understanding between the employer and employee as to regular
and overtime rates."); Giles v. City of NY, 41 F. Supp. 2d 308, 317 (S.D.N. Y. 1999) ("Unless the
contracting parties intend and understand the weekly salary to include overtime hours at the
premium rate, courts do not deem weekly salaries to include the overtime premium for workers
regularly logging overtime, but instead hold that weekly salary covers only the first 40 hours.")
Here, Plaintiff was paid a weekly rate of approximately $375. Defendant Dar offers no
evidence that there was any agreement or understanding between Plaintiff and Defendants that this
salary was intended to cover overtime hours. In fact, Defendant Dar testified that Plaintiffs
weekly salary was only intended to cover forty hours per week. Thus, Defendant Dar paid Plaintiff
approximately $9.38 per hour, which is above the minimum wage required under the FLSA and
the NYLL. Plaintiff therefore is not entitled to recover for unpaid minimum wage payments.
Under the FLSA and the NYLL, Plaintiff must be paid one and one-half times his regular
hourly rate for every hour worked over forty hours per week. 29 U.S.C. § 207(a)(l); N.Y. Comp.
Codes. R. & Regs. Tit. 12 § 142-2.2. Thus, Plaintiff is entitled to approximately $14 for every
hour beyond forty hours that he worked in a given week as reflected in the below Table A. Based
on Plaintiff's credible testimony, he is therefore entitled to forty-four hours of overtime pay for a
total of $618. 7 5 for each full week that he worked, and thirty-two hours of overtime pay for a total
of $450.00 for each week that he took his monthly vacation day. 5 However, he is not entitled to
double-recover this overtime pay under both statutes. See, e.g., Cao v. Wu Liang Ye Lexington
Rest., Inc., 08 Civ. 3725 (DC), 2010 WL 4159391, at *3 (S.D.N.Y. Sept. 30, 2010).
Spread of Hours
Plaintiff also contends that he is entitled to "spread-of-hours" pay. Under the NYLL, an
employer must give an employee "one hour's pay at the basic minimum hourly rate, in addition to
the minimum wage" for each day in which "the spread of hours [worked] exceeds 10 hours." N.Y.
Comp. Codes R. & Regs. Tit. 12, § 142-2.4 (emphasis added). "[R]ecent case law has been nearly
unanimous that the spread-of-hours requirement extends only to workers paid at the minimumwage level." Williams v. Tri-State Biodiesel, L.L.C., No. 13 Civ. 5041(GWG),2015 WL 305362,
at * 16 (S.D.N.Y. Jan. 23, 2015) (citing cases). At $9.38 per hour, Plaintiffs hourly wage was
greater than the $7.25 per hour minimum wage. Therefore, Plaintiff is not entitled to recover
"spread of hours" pay because the "explicit reference to 'minimum wage' in § 142-2.4 indicates
that such a provision is properly limited to those employees who receive only the minimum
compensation required by law." Id. at *17 (quoting Zubair v. EnTech Eng'g P.C., 808 F. Supp.
2d 592, 601 (S.D.N.Y. 2011)).
Under the FLSA, courts are required to award liquidated damages in an amount equal to
actual damages unless the employer demonstrates that it acted in "good faith." 29 U.S.C. § 216(b)
(Employers who violate the FLSA "shall be liable ... in the amount of their unpaid minimum
Forty-four hours is calculated by taking the difference between the eighty-four total hours Plaintiff
worked in a regular week and the forty hours for which he was compensated at the rate of approximately
$375 per week.
wages, or their unpaid overtime compensation, ... and in an additional equal amount as liquidated
damages"); see also Barfield v. N. Y City Health & Hasps. Corp., 53 7 F .3d 132, 150 (2d Cir. 2008)
(quoting 29 U.S.C. § 260) (A district court has "discretion to deny liquidated damages where the
employer shows that, despite its failure to pay appropriate wages, it acted in subjective 'good faith'
with objectively 'reasonable grounds' for believing that its acts or omissions did not violate the
FLSA."). "The employer bears the burden of proving good faith and reasonableness, but the
burden is a difficult one, with double damages being the norm and single damages the
exception." Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999) (citing Reich v. S.
New Engl. Telecomms. Corp., 121 F.3d 58, 71 (2d Cir. 1997)).
During the time period in question, the NYLL similarly imposed liquidated damages unless
the defendant could "prove a good faith basis to believe that its underpayment of wages was in
compliance with the law." See N.Y. Lab. Law§§ 198(1-a), 663(1). Prior to April 9, 2011,
however, the NYLL imposed liquidated damages in an amount equal to twenty-five percent of the
total amount of wages due to plaintiff. The NYLL was amended, effective April 9, 2011, to be
more in line with its FLSA counterpart, and it now provides for liquidated damages "equal to one
hundred percent of the total of such underpayments found to be due." N.Y. Lab. Law§ 663(1).
Defendant Dar has provided no credible evidence that he had a good faith basis to believe
that he was complying with the FLSA or the NYLL. The only evidence he provided is the
purported time records, which-as discussed-contradict the testimony of all three witnesses,
including portions of Defendant Dar's testimony. In fact, the purported time records are direct
evidence of his awareness of his obligations under the law. Plaintiff is therefore entitled to
The remaining question is whether Plaintiff may be awarded cumulative liquidated
damages under both statutes. Courts in this Circuit are split on this issue. The prevailing view
remains that recovery under both is proper because the statutes serve different purposes. See, e.g.,
Bazignan v. Team Castle Hill Corp., No. 13 Civ. 8382 (PAC), 2015 WL 1000034, at *3 (S.D.N.Y.
Mar. 5, 2015) ("While a split of authority exists on whether a plaintiff may recover liquidated
damages under both the FLSA and the NYLL for the same violations during the same time period,
the majority of courts in the Second Circuit allow for the simultaneous recovery of both forms of
liquidated damages.") (citations omitted); Easterly v. Tri-Star Transp. Corp., No. 11 CV 6365
(VB), 2015 WL 337565, at *7 (S.D.N.Y. Jan. 23, 2015) ("Adhering to th[e] majority view" and
recommending that "Plaintiff be awarded liquidated damages under both federal and New York
law based on her recovery for unpaid wages"); Tackie v. KejfEnters. LLC, No. 14-CV-2074 (JPO),
2014 WL 4626229, at *5 (S.D.N.Y. Sept. 16, 2014) (holding that double-recovery for liquidated
damages is permissible because "the Supreme Court has specified that liquidated damages under
[the] FLSA are compensatory ... but the Second Circuit has held that liquidated damages under
the NYLL are punitive") (citations omitted); Kev. Saigon Grill, Inc., 595 F. Supp. 2d 240, 262
(S.D.N.Y. 2008) ("[A] prevailing plaintiff who can justify both [FLSA] liquidated damages and
state-law [liquidated] damages should be eligible to recover both, since they . . . serve
fundamentally different purposes.") (citations and internal quotation marks omitted).
However, a number of courts have challenged whether this "different purposes" rationale
is persuasive after the April 9, 2011 amendment to the NYLL, which renders the liquidated
damages provisions of the FLSA and the NYLL nearly identical.
See, e.g., Inclan v. NY
Hospitality Grp., Inc., No. 12 Civ. 4498 (NRB), 2015 WL 1399599, at *12 (S.D.N.Y. Mar. 26,
2015) ("Even assuming there [was] once a plausibly substantive distinction between liquidated
damages under the FLSA and NYLL, the recent amendments to the NYLL have undermined the
basis for such a distinction."); Gunawan v. Sake Sushi Rest., 897 F. Supp. 2d 76, 91 n.11 (E.D.N.Y.
2012) (Post-amendment of the NYLL's liquidated damages statute, the NYLL and FLSA "provide
for essentially identical remedies with respect to liquidated damages, [and] it is harder to argue
that they are designed to compensate a plaintiff for disparate harms"). 6
Here, this Court need not choose a side in this debate because Plaintiff's proposed damages
calculations only request liquidated damages consistent with the FLSA. (See Schedule A to the
Joint Pretrial Order.) Thus, this Court awards liquidated damages in the amount of unpaid overtime
wages as reflected in Table A.
a. Prejudgment Interest
"[P]rejudgment interest may not be awarded in addition to liquidated damages" under the
FLSA. Brock v. Superior Care, Inc., 840 F .2d 1054, 1064 (2d Cir. 198 8) (citations omitted).
Under New York law, however, prejudgment interest may be awarded in addition to liquidated
damages. See Thomas v. iStar Fin., Inc., 652 F.3d 141, 150 n. 7 (2d Cir. 2011); Reilly v. Natwest
Mkts. Grp. Inc., 181F.3d253, 265 (2d Cir. 1999); see also N.Y. C.P.L.R. § 500l(a). "Prejudgment
interest is calculated [ ] on the unpaid wages due under the NYLL, not on the liquidated damages
awarded under the state law." Fermin v. Las Delicias Peruanas Rest., Inc., No. 14-CV-0559
(RRM)(VMS), 2015 WL 1285960, at *25 (E.D.N.Y. Mar. 19, 2015) (citation omitted).
Even before this amendment, some courts in this Circuit refused to allow recovery under both statutes
due to concerns that it provided plaintiffs with a windfall. See, e.g., Chun Jie Yin v. Kim, No. 07-CV1236 (DLI)(JO), 2008 WL 906736, at *7 (E.D.N.Y. Apr. 1, 2008) ("[T]o the extent the 'liquidated
damages' available under the FLSA can properly be characterized as compensation, it is apparent that the
'liquidated damages' available under the state statute compensate the exact same harm-namely, the
harm caused by the defendant's culpable state of mind.").
Accordingly, Plaintiff is only entitled to prejudgment interest on unpaid state wages or overtime
for which FLSA liquidated damages were not awarded. See Berrezueta v. Royal Crown Pastry
Shop, Inc., 12-CV-4380 (FB)(RML), 2013 WL 6579799, at *6 (E.D.N.Y. Dec. 16, 2013). Because
Plaintiff has been awarded liquidated damages on all of his unpaid overtime wages under the
FLSA, he is not entitled to recover prejudgment interest.
b. Post-Judgment Interest
Plaintiff requests that post-judgment interest be awarded.
Post-judgment interest is
mandatory on awards in civil cases. Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008).
Accordingly, Plaintiff is entitled to post-judgment interest calculated pursuant to 28 U.S.C. §
In light of Defendant Dar's willful violations of the FLSA and NYLL, Plaintiff is entitled
to unpaid overtime under the FLSA and NYLL in the amount of $65,643.75, and liquidated
damages under the FLSA in the amount of$65,643.75, for a total of $131,287.50. Plaintiff is also
entitled to post-judgment interest after the Clerk of the Court has entered the judgment in this
Dated: New York, New York
July 8, 2015
This case is referred to Magistrate Judge Fox for a determination ofreasonable attorneys' fees upon
application of Plaintiff's counsel.
Total Wages Lost
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