Torralba et al v. Little India Stores Inc. et al
Filing
118
OPINION AND ORDER. For the foregoing reasons, the parties' cross-motions for summary judgment (Docket ##83 and 92 (refiled as Docket #106) are denied. re: 83 FIRST MOTION for Summary Judgment filed by Alejandro Zacatenco, Santiago Torralba, 92 MOTION for Summary Judgment EXHIBITS AND PROOF OF SERVICE filed by Sushma Gupta, 106 MOTION for Summary Judgment (refiled) filed by Sushma Gupta. (Signed by Magistrate Judge Gabriel W. Gorenstein on 2/29/2016) (rjm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SANTIAGO TORRALBA AND ALEJANDRO
:
ZACATENCO,
:
Plaintiffs,
:
-against:
LITTLE INDIA STORES et al.,
:
OPINION & ORDER
14 Civ. 595 (GWG)
Defendants.
:
---------------------------------------------------------------X
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Santiago Torralba and Alejandro Zacatenco bring this suit against defendants
Little India Stores Inc., Little India Grocery Inc. (collectively “Little India”), Sushma Gupta
(“Sushma”), Shipra Doe1 (“Shipra”), and Rajan Doe2 (“Singh”). Plaintiffs allege violations of
the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”). The parties
have consented to having this case adjudicated before a United States Magistrate Judge pursuant
to 28 U.S.C. § 636(c). Currently before the court are the parties’ cross-motions for summary
judgment.3 For the reasons stated below, both motions are denied.
1
Shipra Doe was later identified as Shipra Gupta.
2
Rajan Doe was later identified as Salinder Singh.
3
See Notice of Motion, filed November 24, 2015 (Docket # 83); Declaration of Joshua
Butnick in Support of Plaintiffs’ Motion for Summary Judgment, filed November 24, 2015
(Docket # 84) (“Butnick Decl.”); Affidavit of Plaintiff Santiago Torralba, filed November 24,
2015 (Docket # 85) (“Torralba Aff.”); Affidavit of Plaintiff Alejandro Zacatenco, filed
November 24, 2015 (Docket # 86) (“Zacatenco Aff.”); Plaintiff’s Memorandum of Law in
Support of Their Motion for Summary Judgment, filed November 24, 2015 (Docket # 87) (“Pl.
Mem.”); Plaintiffs [sic] Local Rule 56.1 Statement of Undisputed Material Facts, filed
November 24, 2015 (Docket # 88) (“Pl. 56.1"); Notice of Motion, filed Dec. 30, 2015 (Docket #
106); Declaration of Satish K. Bhatia in Support of Motion for Summary Judgment on Behalf of
Little India Grocery Inc., Shipra Gupta, and Sushma Gupta, filed December 30, 2015 (Docket #
107) (“Bhatia Decl.”); Affidavit of Shipra Gupta, dated October 30, 2015 (Docket # 108);
I.
BACKGROUND
Little India is an Indian grocery store located in Manhattan. See Deposition of Shipra
Gupta, dated October 9, 2014 (annexed as Ex. C to Bhatia Decl.) (“Shipra Dep.”), at 5, 8;
Torralba Aff. ¶ 3. It primarily sells “Indian snacks, nuts, Indian food . . . lentils, rice, [and]
spices.” Shipra Dep. at 6. Although Little India purchases its inventory from vendors within
New York State, the products come from outside the state of New York, often from international
sources. Shipra Dep. at 6-7. Little India is open every day of the year. Id. at 9; Torralba Aff.
¶ 9. Its hours of operation are generally 10:00 a.m. to 9:30 p.m., though it sometimes closes
early on holidays. Shipra Dep. at 9; Torralba Aff. ¶ 9. Little India does not sell items over the
phone or online but has, on rare occasions, shipped products to customers outside New York
State. See Shipra Dep. at 7.
Although the existence of an employment relationship between the parties remains in
dispute, defendants agree that plaintiffs were “off the books completely,” that any payments
made to plaintiffs were in cash, and that the payments were unaccompanied by any
documentation. See Shipra Dep. at 16-17. There are no records of plaintiffs’ hours. Shipra
Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment, filed
Dec. 30, 2015 (Docket # 109) (“Def. Mem.”); Declaration of Satish K. Bhatia in Opposition to
Motion for Summary Judgment Filed by Plaintiffs, filed December 24, 2015 (Docket # 104);
Defendants’ Local Rule 56.1 Counterstatement of Facts in Opposition to Plaintiffs’ Motion for
Summary Judgment, filed December 24, 2015 (Docket # 105) (“Def. Opp. 56.1"); Declaration of
Joshua Butnick in Opposition to Defendants’ Motion for Summary Judgment, filed January 4,
2016 (Docket # 112); Plaintiffs’ Memorandum of Law in Opposition to Defendants’ Motion for
Summary Judgment, filed January 4, 2016 (Docket # 113) (“Pl. Opp.”); Plaintiffs Local Rule
56.1 Counter-Statement of Facts in Opposition to Defendants’ Motion for Summary Judgment,
filed December 21, 2015 (Docket # 101) (“Pl. Opp. 56.1"); Plaintiffs’ Reply Brief in Support of
Motion for Summary Judgment, filed January 7, 2016 (Docket # 114) (“Pl. Reply.”);
Defendants’ Memorandum of Law/Reply in Opposition to the Plaintiffs’ Memorandum of Law
in Opposition to the Defendants’ Motion for Summary Judgment, filed January 7, 2016 (Docket
# 115) (“Def. Reply”).
2
Dep. at 17-18; Torralba Aff. ¶ 17; Zacatenco Aff. ¶ 18.
Beyond these basic facts, little else is undisputed between the parties. Torralba contends
that he worked at Little India from November 22, 2008, though July 4, 2013, except for a onemonth vacation. Torralba Aff. ¶¶ 10, 15. He states that the defendants determined his shifts and
that throughout his employment “[he] worked seven days per week, 10am-8pm, sometimes
longer.” Id. ¶ 8. Torralba described his duties at Little India as “general store help,” which
included stocking, unloading inventory, cleaning, and anything else defendants required. Id. ¶ 7.
He was paid an hourly rate of $7.25 per hour from November 2008 to November 2009; $7.75 per
hour from November 2009 to May 2011; $8.00 per hour from May 2011 to February 2012; and
$9.00 per hour from February 2012 until July 2013. Id. ¶ 18. He states that he was never paid at
an overtime rate throughout his employment at Little India and that he was not paid at all for his
final partial week of employment, from June 30, 2013 to July 4, 2013. Id. ¶¶ 20, 22.
Defendants recount a dramatically different story. Defendants contend that, rather than starting
employment in 2008, Torralba began work only in November 2012, and that he worked, on
average, “only once or twice a week . . . [for] four hours” a day. Shipra Dep. at 12-15.
Furthermore, defendants submit that Torralba was paid a flat rate of $15 per hour throughout his
employment and that his job duties were primarily to clean the store and occasionally help stock
deliveries. Id. at 11-12, 14, 17. Shipra further testified that she has never “had [any] employee[]
that worked more than forty hours,” per week. Id. at 21.
With regard to Zacatenco, the parties’ respective recollections of the facts are even more
divergent. Plaintiffs contend that Zacatenco was employed at Little India from January 2012
until July 4, 2013, and that he regularly worked Monday through Saturday from 12:00 p.m. to
10:00 p.m. Zacatenco Aff. ¶¶ 9-11. Zacatenco states that throughout his employment he
3
received a wage of $9 per hour, which was paid in cash on a weekly basis. Zacatenco Aff. ¶¶
19-21.
Defendants contend that Zacatenco was hired only to help clean the store after a fire and
that he worked exactly two days. Shipra Dep. at 15-16. Defendants state that after this work
was completed, Zacatenco would often “come and . . . visit” Torralba at the store. Shipra Dep. at
15. Defendants believe Zacatenco is Torralba’s son. Id.
In sum, defendants have taken the position that “Little India does not owe any money to
either of the Plaintiffs, as both Plaintiffs were paid for the work performed by them.” Affidavit
of Shipra Gupta, dated April 2, 2015 (annexed as Ex. H to Bhatia Decl.) (“Shipra April 2, 2015
Aff.”), ¶ 13.
II.
LAW GOVERNING MOTIONS FOR SUMMARY JUDGMENT
Fed. R. Civ. P. 56(a) provides that summary judgment is appropriate when “the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A
genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“[O]nly admissible evidence need be considered by the trial court in ruling on a motion for
summary judgment.” Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (citation omitted); see
also Fed. R. Civ. P. 56(c)(4) (parties shall “set out facts that would be admissible in evidence.”)
In determining whether a genuine issue of material fact exists, “[t]he evidence of the
non-movant is to be believed,” and the court must draw “all justifiable inferences” in favor of the
non-moving party. Anderson, 477 U.S. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 158-59 (1970)). Nevertheless, once the moving party has shown that there is no genuine
4
issue as to any material fact and that it is entitled to a judgment as a matter of law, the
non-moving party must offer “concrete evidence from which a reasonable juror could return a
verdict in his favor,” Anderson, 477 U.S. at 256, and “may not rely on conclusory allegations or
unsubstantiated speculation,” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citation
omitted). Where “the nonmoving party bears the burden of proof at trial, summary judgment is
warranted if the nonmovant fails to ‘make a showing sufficient to establish the existence of an
element essential to [its] case.’” Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (alteration in
original) (quoting Celotex, 477 U.S. at 322). Thus, “[a] defendant moving for summary
judgment must prevail if the plaintiff fails to come forward with enough evidence to create a
genuine factual issue to be tried with respect to an element essential to its case.” Allen v.
Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).
Where, as here, a court is faced with cross-motions for summary judgment, “neither side
is barred from asserting that there are issues of fact, sufficient to prevent the entry of judgment,
as a matter of law, against it.” Heublein, Inc. v. U.S., 996 F.2d 1455, 1461 (2d Cir. 1993). In
such cases the reviewing court need not “grant judgment as a matter of law for one side or the
other . . . [but rather] must evaluate each party’s motion on its own merits, taking care in each
instance to draw all reasonable inferences against the party whose motion is under
consideration.” Id. (citing Schwabenbauer v. Bd. of Educ. of Olean, 667 F.2d 305, 313-14 (2d
Cir. 1981).
III.
DISCUSSION
Plaintiffs initially moved for summary judgment on the following issues: that they are
“covered” by the FLSA and NYLL, that they are owed overtime pay, that they are owed
liquidated damages, and that they are owed attorney’s fees, costs, and prejudgment interest. Pl.
5
Mem. at 3, 4, 7, 11. The defendants’ memorandum of law in support of their cross-motion for
summary judgment is not organized into distinct points for which they oppose or seek summary
judgment. Nonetheless, it appears they argue that they are not covered by the FLSA, that no
employer/employee relationship existed, and that the plaintiffs have failed to meet their burden
with respect to liability. Def. Mem. at 6, 9. In their response to defendants’ motion, plaintiffs
conceded that the defendants had created an issue of fact regarding both the employer/employee
relationship and overall liability. See Pl. Opp. at 11-13. There does not appear to be an issue to
be decided regarding “coverage” under the NYLL that is distinct from the issue of defendants’
liability. Accordingly, we do not address it separately. Additionally, in light of the fundamental
dispute over plaintiffs’ wages and hours, which we have already described, plaintiffs cannot be
granted summary judgment on the issue of liquidated damages. It is also premature to rule on
the entitlement to attorney’s fees, costs, and prejudgment interest. Accordingly, it appears the
following issues remain to be decided: plaintiffs’ and defendants’ cross-motions for summary
judgment on the issue of coverage under the FLSA, and the defendants’ motion on the
employer/employee relationship and liability for overtime.
A.
Coverage under the FLSA
Defendants argue that because Little India is not an enterprise “engaged in interstate
commerce,” plaintiffs’ purported employment is not covered under the FLSA. Def. Mem. at 6-8.
As an initial matter, we reject defendants’ argument that this issue raises the question of whether
this Court has “jurisdiction” over the FLSA claim. Id. at 6. Case law makes clear that “the
question [of] whether ‘enterprise coverage’ applies is an element of the FLSA cause of action,
and is not jurisdictional.” Shu Lan Chen v. Gypsophilia Nail & Spa Inc., 2015 WL 3473510, at
*1 (S.D.N.Y. June 2, 2015) (citations omitted); accord Jia Hu Qian v. Siew Foong Hui, 2012 WL
6
1948820, at *2-3 (S.D.N.Y. May 30, 2012); Rocha v. Bakhter Afghan Halal Kababs, Inc., 44 F.
Supp. 3d 337, 343-44 (E.D.N.Y. 2014). Rather, whether defendants qualify as an “enterprise
engaged in commerce” is an issue that “goes to the merits of Plaintiff[’s] claims rather than the
[c]ourt’s subject matter jurisdiction.” Qian, 2012 WL 1948820, at *2 (quoting Velez v.
Vassallo, 203 F. Supp. 2d 312, 323 (S.D.N.Y. 2002).
The FLSA provides coverage to those “employees who . . . [are] engaged in commerce or
in the production of goods for commerce, or [are] employed in an enterprise engaged in
commerce or in the production of goods for commerce.” 29 U.S.C. § 206(a). Covered
employees are guaranteed a minimum wage as set forth in the statute and, when an employee
works beyond 40 hours in one week, the FLSA requires that he or she be compensated at a rate
“not less than one and one-half times the regular rate” of pay. 29 U.S.C. § 207(a)(1).
Accordingly, “an employer is subject to both the minimum wage and overtime provisions of the
FLSA if either (1) its employees are engaged in commerce or (2) the employer is an enterprise
engaged in commerce.” Chen, 2015 WL 3473510, at *1 (internal brackets, quotations, and
citation omitted). These two types of coverage are commonly referred to as “individual
coverage” and “enterprise coverage.” Id. (citation omitted).
“Individual coverage” applies to an employee who has “‘engaged in commerce’ or
‘engaged in the production of goods for commerce.’” Boekemeier v. Fourth Universalist Soc. in
City of New York, 86 F. Supp. 2d 280, 287 (S.D.N.Y. 2000) (quoting 29 U.S.C. § 207(a)(1)).
This type of coverage — which we do not address here — is implicated when “a substantial part
of the employee’s work . . . [is] related to interstate commerce.” Id. (quoting Divins v. Hazeltine
Electronics Corp., 163 F.2d 100, 103 (2d Cir. 1947)). Enterprise coverage, on the other hand,
applies when an employer:
7
(i) has employees engaged in commerce or in the production of goods for commerce, or
that has employees handling, selling, or otherwise working on goods or materials that
have been moved in or produced for commerce by any person; and
(ii) is an enterprise whose annual gross volume of sales made or business done is not less
than $500,000 . . .
29 U.S.C. § 203(s)(1)(A)(I).
Under Department of Labor regulations, whether an employer meets the above criteria is
“determined on an annual basis” and is satisfied if the employer meets the gross sales
requirement and “regularly and recurrently has at least two or more employees engaged in . . .
activities” provided for under the Act. 29 C.F.R. § 779.238. The regulation states that “an
enterprise that has employees engaged in such activities only in isolated or sporadic occasions,
will not meet this condition.” Id. Surpassing this threshold, however, “is relatively easy to
establish.” Rocha v. Bakhter Afghan Halal Kababs, Inc., 44 F. Supp. 3d 337, 346 (E.D.N.Y.
2014). Notably, unlike individual coverage, enterprise coverage does not require “the employee
. . . to be involved in an activity that affects interstate commerce.” Boekemeier, 86 F. Supp. 2d
at 285 (citations omitted). Thus, “even a local laundry is covered if the soap it uses moved in
interstate commerce.” Velez, 203 F. Supp. 2d at 328 (internal quotations and citations omitted);
Archie v. Grand Cent. Partnership, Inc., 997 F. Supp. 504, 530 (S.D.N.Y. 1998) (sanitation crew
equipment, including bags, brooms, shovels, and scrapers, “undoubtedly moved in interstate
commerce to New York City”).
Plaintiffs argue that Little India is covered under the FLSA’s enterprise coverage
provision. It is undisputed that defendants grossed more than $500,000 annually throughout the
relevant period. Affidavit of Shipra Gupta, dated January 26, 2015 (annexed as Ex. 4 to Butnick
Decl.), ¶ 3. Thus, whether the FLSA is applicable rests on the first prong of the enterprise
8
coverage analysis.
1.
Employment Duties & Interstate Commerce
Defendants argue that plaintiffs have failed to provide sufficient evidence that Little
India engages in interstate commerce. Defendants contend that because the “store very rarely
ship[s] product outside of [the] United States and [didn’t] sell any item[s] online or on [the]
phone,” the store’s participation in the interstate market is insufficient to warrant coverage under
the FLSA. Def. Mem. at 7. But, as just discussed, where the gross sales threshold is met,
enterprise coverage under the FLSA exists merely when employees were engaged in “handling,
selling, or otherwise working . . . [with] materials that have been moved in or produced for
commerce by any person.” 29 U.S.C. § 203(s)(1)(A)(I); see also Jacobs v. N.Y. Foundling
Hosp., 577 F.3d 93, 99 n.7 (2d Cir. 2009) (citations omitted). Here, it is undisputed that the
nature of the plaintiffs’ work at Little India included cleaning the store and occasionally stocking
inventory. Torralba Aff. ¶ 7; Zacatenco Aff. ¶ 8; Shipra Dep. at 12, 14-15. Defendants also
admit that much of that inventory consists of products generated from outside the United States,
Shipra Dep. at 7, and Singh, a non-plaintiff employee of Little India, testified that he acted as the
store’s cashier and ordered supplies on a regular basis, Singh Dep. at 11-12. Accordingly, there
is no dispute that these plaintiffs and Singh handled groceries or materials that “have been
moved in or produced for commerce.” 29 U.S.C. § 203(s)(1)(A)(I); accord 29 C.F.R. 779.238.
Thus, the activities performed by these three employees of Little India fall within the type of
activities defined by the Act.4
4
Defendants cite to a number cases decided between 1942 and 1946 purportedly standing
for the position that the FLSA does not apply to an employer who only engages in interstate
commerce “infrequent[ly].” Def. Mem. at 7-8. All of the cited cases in support of this assertion,
however, were resolved prior to the 1974 amendments to 29 U.S.C. § 203(s)(1)(A)(I) which
9
2.
Number of Employees
To show Little India is a covered enterprise under the Act, plaintiffs must also show that
Little India “regularly and recurrently has at least two or more employees” engaged in the
covered activities — that is, the activities of handling, selling, or otherwise working on goods or
materials that have been moved in or produced for commerce. 29 C.F.R. § 779.238.
The only way the question of coverage would ever be at issue in this case is if a jury
finds that one of the plaintiffs was actually working at the store. Accordingly, for our present
analysis at least one of the plaintiffs will count as one of the two employees required under the
regulation. Thus, we turn to the question of whether there is a worker other than the two
plaintiffs who qualifies as an employee. That question is easily resolved in plaintiffs’ favor.
Accepting the admissible evidence offered by defendants, it is clear that Singh qualifies as an
employee.
The FLSA defines an “employee” as “any individual employed by an employer.” 29
U.S.C. § 203(e)(1). The analysis looks primarily to “whether, as a matter of economic reality,
the workers depend upon someone else’s business for the opportunity to render service or are in
business for themselves.” Godoy v. Rest. Opportunity Ctr. of New York, Inc., 615 F. Supp. 2d
186, 193 (S.D.N.Y. 2009) (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2d Cir.
1988)). In reaching a determination of whether an individual is an “employee” or a nonemployee independent contractor, a court looks to the “economic realities” of the relationship.
added the words “handling” and “materials” to the scope of coverage. Thus, they have no
relevance. See Archie, 997 F. Supp. at 529-31 (noting that since the 1974 amendment to the
FLSA, courts have found “local business activities fall within the reach of the FLSA when an
enterprise employs workers who handle goods or materials that have moved or been produced in
interstate commerce”).
10
Hart v. Rick’s Cabaret Int’l, Inc., 967 F. Supp. 2d 901, 911-12 (S.D.N.Y. 2013). This analysis
includes a review of the following factors:
(1) the degree of control exercised by the employer over the workers, (2) the workers’
opportunity for profit or loss and their investment in the business, (3) the degree of skill
and independent initiative required to perform the work, (4) the permanence or duration
of the working relationship, and (5) the extent to which the work is an integral part of the
employer’s business.
Brock, 840 F.2d at 1058-59. No single factor is dispositive; rather, “the test is based on a totality
of the circumstances.” Hart, 967 F. Supp. 2d at 912 (quoting Brock, 840 F.2d at 1059).
The facts relevant to this test are as follows: Singh has worked with Little India for seven
or eight years. Singh Dep. at 11. He was hired by Sushma, and currently works under Shipra’s
management. Id. at 11-12, 15. His duties at Little India involve acting as a cashier and ordering
supplies for the store. Id. at 12; Shipra Dep. at 6. Singh testified that he usually works five days
per week, and that, in the past, Shipra had arranged his schedule. Singh Dep. at 12-13. Shipra
initially testified that Singh worked seven days a week and that he is paid an hourly wage of
$12.50. Shipra Dep. at 19, 20. She also initially testified that he works “from noon [to] ninethirty,” id. at 19, though when questioned about whether he was paid overtime, Shipra stated that
she “make[s] sure people don’t work over forty hours in [her] store,” and that Singh
“[s]ometimes . . . comes in at two, sometimes . . . at three,” id. at 20; accord id. (Singh “doesn’t
have a fixed schedule”). In her testimony Shipra agreed with the questioner’s statement that
“[e]ven though [Singh] is there seven days a week, he determines what hour he is going to come
in.” Id. at 22. Shipra describes Singh’s role as the store’s “manager,” id. at 6, although she
states that she, not Singh, was responsible for approving all business decisions at Little India.
See id. at 10-11; Shipra April 2, 2015 Aff. ¶ 11.
Defendants ultimately supplied documents that are purportedly time records for Singh for
11
the period of January 2013 to November 2014. See Raja Time Sheet (annexed as Ex. F to Bhatia
Decl.). These records, however, are unauthenticated by anyone with personal knowledge as to
their creation and no foundation has been supplied for their admissibility. Nonetheless, even if
we were to accept them as evidence, they show that Singh regularly worked approximately 20 to
30 hours each week.
Examining the “economic realities” of the relationship, it is obvious that Singh is an
employee. Shipra and Sushma held significant control over Singh inasmuch as they hired him,
paid him, and instructed him on how to approach any “decisions for the store.” Singh Dep. at
12-16; see also Shipra Dep. at 10, 20. Singh’s role as a cashier at the store involved tasks that
did not require any special skill or talent, and more closely resembled the work of a “wage
earner[] toiling for a living, than [an] independent entrepreneur[] seeking a return on [a] risky
capital investment[].” Hart, 967 F. Supp. 2d at 920 (citation omitted). Although Singh’s
schedule was not always consistent, he worked at Little India at least five days per week for the
better part of a decade. Singh Dep. at 11-12. Finally, his work was obviously an integral part of
Little India’s business as it appears he was often, if not regularly, the only person in charge of
the operation of the store. See Shipra Dep. at 18-19, 29, 34. The claim that Singh did not work
40 hours per week does not affect this analysis. As noted in the regulations, all that is required is
that the employee’s work be “regular[] and recurrent[],” 29 C.F.R. 779.238, which plainly
occurred here given that he generally worked five days a week for 4 to 6 hours a day.
Because Singh qualifies as a second employee for the purposes of enterprise coverage,
and because the other requirements of the statute have been met, defendants’ motion for
summary judgment on this issue is denied. Plaintiffs’ motion is denied for now in light of the
factual dispute regarding plaintiffs’ status as employees. However, should either plaintiff prove
12
at trial that he was an employee of the defendants, that plaintiff will be entitled to judgment as a
matter of law on the issue of enterprise coverage.
B.
Employer/Employee Relationship
Defendants seek summary judgment that plaintiffs were independent contractors, and not
employees. Def. Mem. at 2; Def. Opp. at 9.5 As noted above, the facts surrounding plaintiffs’
employment with Little India remain in dispute. Defendants nonetheless argue that the
testimony of Singh and Shipra, as well as certain “quarterly federal tax returns,” irrefutably
establish that Torralba and Zacatenco were independent contractors and not employees. Def.
Mem. at 9-11; Def. Opp. at 9. Defendants do not even attempt to address the conflicting
evidence provided in plaintiffs’ affidavits, which shows them to be hourly employees over many
months or years. Accordingly, because the nature and extent of plaintiffs’ employment is in
dispute, summary judgment cannot be granted in favor of defendants on the issue of the
employee/employer relationship under either the FLSA, or the NYLL.
C.
Hours Worked
Defendants argue that the plaintiffs have “failed to discharge their initial burden to
establish . . . that they worked overtime.” Def. Mem. at 9 (capitalization and emphasis omitted);
accord Def. Opp. at 9. While defendants acknowledge that both plaintiffs have submitted
affidavits that assert that they worked overtime hours, defendants inexplicably argue that such
5
The test regarding the employee/employer relationship has already been discussed in
Section III.A.2 above with respect to Singh. The same test governs the relationship under the
NYLL. See, e.g., Inclan v. New York Hospitality Grp., Inc., 95 F. Supp. 3d 490, 511 (S.D.N.Y.
2015) (noting that although neither the Second Circuit nor the New York Court of Appeals has
addressed the issue, “district courts in this Circuit have consistently interpreted the definition of
‘employer’ under the New York Labor Law coextensively with the definition used by the
FLSA.”) (citations omitted).
13
evidence is insufficient to create a dispute of material fact. Def. Mem. at 4; see also id. at 10
(“Except for [the] bald statement of the plaintiffs that they worked for many years . . . and that
they worked overtime, there is not even [an] iota of evidence that they ever worked overtime.”);
Def. Opp. at 9.
Although employees bear the initial burden of showing, “by evidence rather than
conjecture,” the amount of overtime worked, Keubel v. Black & Decker Inc., 643 F.3d 352, 362
(2d Cir. 2011) (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686 (1946)), where
an employer produces “inaccurate or inadequate” time records, the employee need only
“produce[] sufficient evidence to show the amount and extent of that work as a matter of just and
reasonable inference.” Id. (quoting Anderson, 328 U.S. at 687-88). This burden is “not high,”
and may be satisfied by mere “estimates based on [the employee’s] own recollection.” Id. Once
such a showing has been made, the burden then shifts to 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.” Id. (quoting
Anderson, 328 U.S. at 687-88). In the present case, no records of the plaintiffs’ employment
with Little India have been produced and the plaintiffs have submitted sworn testimony
regarding their recollection of the length of their employment and the hours they worked each
day. See Torralba Aff.; Zacatenco Aff. Thus, plaintiffs have met their initial burden and a
dispute of material fact exists precluding summary judgment. See, e.g., Arasimowicz v. All
Panel Systems, LLC, 948 F. Supp. 2d 211, 224-26 (D. Conn. 2013) (denying summary judgment
as to whether plaintiff worked uncompensated overtime, where the employer failed to produce
employment records, and the parties submitted conflicting testimony). Accordingly, defendants’
motion for summary judgment as to liability is denied.
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