Secretary of Labor, Thomas E. Perez v. Manna 2nd Avenue LLC d/b/a Gina La Fornarina et al

Filing 98

MEMORANDUM AND ORDER granting in part and denying in part 60 Motion for Partial Summary Judgment; denying 68 Motion for Partial Summary Judgment. There is a genuine dispute as to whether Mr. Rojas, Mr. Padilla, and Mr. Siguencia are exempt f rom the overtime pay rule. Other "pizza" positions are not exempt for the period from June 16, 2013, to November 18, 2015. Summary judgment is denied as to whether other pizza chefs are exempt prior to June 16, 2013. The defendants are j ointly and severally liable. The plaintiff's summary judgment motion for overtime claims -- except for Mr. Rojas', Mr. Padilla's, and Mr. Siguencia's claims -- is granted in the amount of $45,101.42. Liquidated damages is a warded on the overtime claims in the amount of $45,101.42. The parties shall submit the joint pretrial order by March 27, 2017. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 2/28/2017) Copies transmitted via ECF this date. (anc)

defendants’ joint and several liability.

Both parties seek a

decision on the viability of the defendants’ executive exemption
defense.

For the following reasons, the defendants’ motion is

denied, and the plaintiff’s motion is granted in part and denied
in part.
Background
Ms. Pedrignani is the owner of the four corporate defendants,
which operate as the Italian pizza restaurant Gina La Fornarina at
separate locations across Manhattan.

(Stipulation dated Aug. 24,

2016 (“Stip.”), attached as Exh. 1 to Declaration of Amy Tai dated
Sept. 16, 2016 (“9/16/16 Tai Decl.”), ¶¶ 6-7; Defendants’ Rule
56.1 Statement (“Def. 56.1 Statement”), ¶¶ 1-2).

Ms. Pedrignani

has primary managerial control over the restaurants.

(Stip., ¶ 6;

Def. 56.1 Statement, ¶ 8).
During the relevant period, the defendants jointly employed
a variety of employees, including kitchen chefs, pizza chefs,
dishwashers, salad makers, prep cooks, trainees, servers, bussers,
runners, porters, general captains, hosts, baristas, and delivery
people.

(Amended Complaint, ¶¶ 4-7; Stip., ¶¶ 5, 10-11; The

Secretary of Labor’s Rule 56.1 Statement in Support of His Motion
for Partial Summary Judgment (“Pl. 56.1 Statement”), ¶ 31; Def.
56.1 Statement, ¶¶ 3, 5, 9).

Some of the employees worked for

Labor’s Memorandum of Law in Support of His Motion for Partial
Summary Judgment (“Pl. Memo.”) at 5).
2

more than one of the restaurants in the same week.

(Stip., ¶ 11).

The pizza chefs were usually paid a fixed salary.

(Def. 56.1

Statement, ¶ 16).
The

Department

of

Labor

began

an

investigation

of

the

defendants in 2013 for alleged violations of the FLSA’s overtime,
minimum wage, and notice provisions.

(Def. 56.1 Statement, ¶ 17).

After the parties were unable to resolve the dispute, the Secretary
filed this action.

(Def. 56.1 Statement, ¶¶ 18-21).

On summary

judgment, the plaintiff contends that the defendants owe overtime
wages to the above-mentioned kitchen and dining room employees
from June 16, 2013, to November 18, 2015, because the defendants
did not (1) aggregate hours worked at different locations, (2)
combine hours worked at different positions or pay rates, and (3)
properly calculate overtime rates when employees were paid a fixed
sum.

The defendants argue that the pizza chefs are exempt from

the overtime pay rule under the FLSA’s executive exemption.
Discussion
A.

Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, a court
will “grant summary judgment if the movant shows that there is no
genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); accord

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving

party bears the initial burden of identifying “the absence of a

3

genuine issue of material fact.”

Celotex, 477 U.S. at 323.

The

opposing party then must come forward with specific materials
establishing the existence of a genuine dispute.

Id. at 324.

Where the nonmoving party fails to make “a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial,” summary judgment must be granted.

Id. at 322-23.

Where

“the party opposing summary judgment bears the burden of proof at
trial, summary judgment should be granted if the moving party can
‘point to an absence of evidence to support an essential element
of the nonmoving party’s claim.’”

Gemmink v. Jay Peak Inc., 807

F.3d 46, 48 (2d Cir. 2015) (quoting Goenaga v. March of Dimes Birth
Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995)).
In assessing the record to determine whether there is a
genuine

issue

ambiguities

of

and

nonmoving party.

material

draw

all

fact,
factual

the

court

inferences

must
in

resolve
favor

of

all
the

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

255 (1986); Smith v. Barnesandnoble.com, LLC, 839 F.3d 163, 166
(2d Cir. 2016).

However, the court must inquire whether “there is

sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party,” Anderson, 477 U.S. at 249, and
may grant summary judgment where the nonmovant’s evidence is
conclusory, speculative, or not significantly probative, id. at
249-50.

When evaluating cross-motions for summary judgment, the

4

court reviews each party’s motion on its own merits, and draws all
reasonable inferences against the party whose motion is under
consideration.

Morales v. Quintel Entertainment, Inc., 249 F.3d

115, 121 (2d Cir. 2001).
B.

Defendants’ Failure to Comply with Local Rule 56.1

Local Civil Rule 56.1(a) of the Southern and Eastern Districts
of New York requires that a party moving for summary judgment annex
“a separate, short and concise statement, in numbered paragraphs,
of the material facts as to which the moving party contends there
is no genuine issue to be tried.”

The opposing party, in response,

must “include a correspondingly numbered paragraph responding to
each numbered paragraph in the statement of the moving party, and
if necessary, additional paragraphs containing a separate, short
and concise statement of additional material facts as to which it
is contended that there exists a genuine issue to be tried.”

Local

Civil Rule 56.1(b).
Although the defendants provided a Rule 56.1(a) statement for
their own summary judgment motion, they failed to controvert the
plaintiff’s

Rule

56.1(a)

statement.

Accordingly,

the

facts

contained in the plaintiff’s statement could be deemed admitted.
See Local Civil Rule 56.1(c); Dejana Industries, Inc. v. Village
of Manorhaven, No. 12 CV 5140, 2015 WL 1275474, at *3 (E.D.N.Y.
March 18, 2015).

However, the “court has broad discretion to

determine whether to overlook a party’s failure to comply with

5

local court rules . . . [and] may in its discretion opt to ‘conduct
an assiduous review of the record’ even where one of the parties
has failed to file such a statement.”

Holtz v. Rockefeller & Co.,

258 F.3d 62, 73 (2d Cir. 2001) (quoting Monahan v. New York City
Department of Corrections, 214 F.3d 275, 292 (2d Cir. 2000)).
Because there is a preference for deciding cases on the merits, I
will conduct an “assiduous review” of the record where necessary.
See Dejana Industries, 2015 WL 1275474, at *3; Lopez v. Echebia,
693 F. Supp. 2d 381, 386 (S.D.N.Y. 2010).
C.

Defendants’ Joint Liability as Employers

The plaintiff contends that the defendants jointly employed
their employees and are jointly and severally liable.

An employee

is jointly employed “if the facts establish that the employee is
employed jointly by two or more employers, i.e., that employment
by one employer is not completely disassociated from employment by
the other employer(s).”

29 C.F.R. § 791.2(a).

Whether a joint

employment arrangement exists is to be “resolved from the totality
of the evidence.”

Barfield v. New York City Health and Hospitals

Corp., 537 F.3d 132, 149 (2d Cir. 2008).

If two employers jointly

employ an employee, then
all of the employee’s work for all of the joint employers
during the workweek is considered as one employment for
purposes of the Act. In this event, all joint employers
are responsible, both individually and jointly, for
compliance with all of the applicable provisions of the
act, including the overtime provisions, with respect to
the entire employment for the particular workweek.

6

29 C.F.R. § 791.2(a); see Barfield, 537 F.3d at 141; Zheng v.
Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir. 2003).
The parties stipulated, “Together, Manna 2nd Avenue LLC,
Manna

Madison

Avenue

LLC,

Manna

Amsterdam

Avenue

LLC,

Manna

Lexington Avenue LLC, and Paola Pedrignani jointly employed their
employees.”

(Stip., ¶ 10).

They also agreed that Ms. Pedrignani

centrally managed the corporate defendants and that the business
activities of the restaurants were related.

(Stip., ¶¶ 6, 8-9).

Thus, the defendants jointly employed the employees and are jointly
and severally liable under the FLSA for any damages award.

See

Fermin v. Las Delicias Peruanas Restaurant, Inc., 93 F. Supp. 3d
19, 37 (E.D.N.Y. 2015).
D.

Pizza Chefs

Both parties seek judgment with respect to the defendants’
affirmative defense that the pizza chefs are subject to the FLSA’s
executive exemption.
with

respect

to

The FLSA’s overtime pay rule does not “apply

. . .

any

employee

employed

in

a

bona

fide

executive, administrative, or professional capacity.”

29 U.S.C.

§

executive

213(a)(1).

The

regulations

defining

the

FLSA’s

exemption provide that
[t]he term “employee employed in a bona fide executive
capacity” . . . shall mean any employee:
(1) Compensated on a salary basis at a rate of
not less than $455 per week . . . , exclusive
of board, lodging or other facilities;

7

(2) Whose primary duty is management of the
enterprise in which the employee is employed
or of a customarily recognized department or
subdivision thereof;
(3) Who customarily and regularly directs the
work of two or more other employees; and
(4) Who has the authority to hire or fire other
employees
or
whose
suggestions
and
recommendations as to the hiring, firing,
advancement, promotion or any other change of
status of other employees are given particular
weight.
29 C.F.R. § 541.100(a); accord Ramos v. Baldor Specialty Foods,
Inc., 687 F.3d 554, 559-60 (2d Cir. 2012). “The exemption question
. . . is a mixed question of law and fact.

The question of how

the employees spent their working time is a question of fact.

The

question of whether their particular activities excluded them from
the overtime benefits of the FLSA is a question of law.”

Pippins

v. KPMG LLP, 759 F.3d 235, 239 (2d Cir. 2014) (quoting Ramos, 687
F.3d at 558).

The employer bears the burden of showing that an

employee is exempt, Ramos, 687 F.3d at 558, a showing that requires
that all four prongs of the test be met, Solis v. SCA Restaurant
Corp., 938 F. Supp. 2d 380, 396 (E.D.N.Y. 2013); see 29 C.F.R.
§ 541.100(a).
The parties do not clearly state which employees qualify as
pizza chefs.
Antonio

Rojas,

The plaintiff appears to consider Cesar Padilla,
and

Joffre

Siguencia

to

be

the

only

relevant

individuals because they were the only salaried pizza chefs.

8

(Pl.

Memo. at 18; Pl. 56.1 Statement, ¶ 74; Declaration of Elizabeth
Perez dated Oct. 14, 2016 (“10/14/16 Perez Decl.”), ¶¶ 6-8).

It

is also clear from the plaintiff’s June 16, 2013, to November 18,
2015 payroll records that there are other employees who were in
non-salaried “pizza” positions. 2
87, 97, 121-24).

(Back Wages Owed at 58, 68-70,

However, it is not clear whether the defendants

employed other pizza chefs before June 16, 2013. 3 I will therefore
consider the status of Mr. Padilla, Mr. Rojas, and Mr. Siguencia.
I will also consider the status of other employees with “pizza”
positions from June 16, 2013, to November 18, 2015, but I will not
rule on whether other pizza chefs may be exempt prior to that time.
1.

Salaried Pizza Chefs

It is clear that Mr. Padilla, Mr. Rojas, and Mr. Siguencia
are pizza chefs whose salaries satisfy the first prong of the

2

Excluding Mr. Padilla, Mr. Rojas, and Mr. Siguencia, there
are employees whose positions are categorized as “Pizza Chef” or
just “Pizza” in the plaintiff’s submissions, and these other
employees were either only classified as “Pizza Chefs” for a few
weeks or had a “Pizza” position in combination with another
position (such as “barista”).
(Detailed Summary of Back Wages
Owed for June 16, 2013 – November 18, 2015 (“Back Wages Owed”),
attached as Exh. B to Declaration of Elizabeth Perez dated Sept.
16, 2016 (“9/16/16 Perez Decl.”), at 58, 68-70, 87, 97, 121-24).
For example, Miguel Velasquez Martinez was in an hourly “Pizza”
position starting in 2014 and also worked as a porter and
deliveryman. (Back Wages Owed at 121-24; Declaration of Miguel
Velasquez Martinez dated Oct. 12, 2016 (“Martinez Decl.”), ¶ 10).
3

For example, the defendants appear to consider Victor
Fuentes, Pedro Gutierrez, and Lucas Tenesca to be pizza chefs.
(Def. 56.1 Statement, ¶ 22).
9

exemption: they received more than $455 per week.

(Pl. 56.1

Statement, ¶ 74; Back Wages Owed at 83, 98-101, 105-06; 10/14/16
Perez Decl., ¶¶ 6-8).
June

16,

2013,

to

It is also evident from the plaintiff’s

November

18,

2015

payroll

and

time

card

submissions that other employees in “pizza” positions fail to
satisfy the salary requirements because they were paid hourly.
(Back Wages Owed at 58, 68-70, 87, 97, 121-24; Payroll Register
for Week 26 (Julian Melendez), attached as Exh. 14 to 9/16/16 Tai
Decl.,

at

11;

Payroll

Register

for

Week

26

(Esteban

Perez),

attached as Exh. 18 to 9/16/16 Tai Decl., at 16; Payroll Register
for Week 43 (Miguel Velasquez Martinez), attached as Exh. 23 to
9/16/16 Tai Decl.; Time Card Report from June 17, 2013, to June
23, 2013 (Julian Melendez), attached as Exh. 15 to 9/16/16 Tai
Decl., at 3-4; Time Card Report from Feb. 9, 2015, to Feb. 15,
2015, attached as Exh. 24 to 9/16/16 Tai Decl.).

Therefore, only

the exempt status of Mr. Padilla, Mr. Rojas, and Mr. Siguencia is
relevant.
2.
To

Primary Duty

determine

management,

a

whether

district

an

court

employee’s
considers

the

primary

duty

character

of

employment as a whole, including factors such as
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

10

was
the

employees for the kind of nonexempt work performed by
the employee.
Mullins v. City of New York, 653 F.3d 104, 106-07 (2d Cir. 2011)
(quoting 29 C.F.R. § 541.700(a)).

Management includes, 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;
maintaining production or sales records for use in
supervision
or
control;
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; . . . providing for the safety and
security of the employees or the property; planning and
controlling the budget; and monitoring or implementing
legal compliance measures.
Id. at 107 (alteration in original) (quoting 29 C.F.R. § 541.102).
“In this Circuit, courts have found that a chef’s ‘primary duty’
is not management where
. . . .

his

duties

primarily

entail

cooking

[W]here it is undisputed that a chef’s management duties

were more important to his employer than his cooking duties, courts
have

found

that

the

chef’s

primary

duty

is

management.”

Karropoulos v. Soup Du Jour, Ltd., 128 F. Supp. 3d 518, 530-31
(S.D.N.Y. 2015).
Here, the defendants’ submissions indicate that the pizza
chefs -- along with the kitchen chefs -- were responsible for
running and managing the restaurant, supervising kitchen staff,
ensuring food was produced, deciding on supplies and ingredients,

11

ordering food, attending meetings, scheduling and rescheduling
employees, hiring, training, and distributing paychecks.

(Def.

56.1 Statement, ¶¶ 5-12; Declaration of Paola Pedrignani dated
Oct.

28,

2016

(“Pedrignani

Decl.”),

attached

as

Exh.

B

to

Declaration of Stephen D. Hans dated Oct. 27, 2016 (“10/27/16 Hans
Decl.”), ¶¶ 4-5, 8; Declaration of Igor Segota dated Oct. 27, 2016
(“Segota Decl.”), attached as Exh. A to 10/27/16 Hans Decl., ¶¶ 89).

Ms. Pedrignani states that pizza chefs only make pizzas

“[f]ifty percent” of the time.

(Deposition of Paola Pedrignani

dated April 25, 2016 (“Pedrignani Dep.”), attached as Exh. D to
Declaration of Stephen D. Hans dated Aug. 15, 2016 (“8/15/16 Hans
Decl.”), at 121).

She also states that the pizza chefs attended

management meetings where equipment, hiring, and recipes were
discussed.

(Pedrignani Dep. at 68-70).

However, the plaintiff’s submissions suggest that a pizza
chef’s only duty is to make pizza (Pl. 56.1 Statement, ¶¶ 78, 82,
86, 88), and that checking on other employees or making the
schedule takes only “seconds” or “minutes” (Pl. 56.1 Statement, ¶¶
90, 93).

The pizza chefs themselves state that their primary duty

was to make pizza, only infrequently assisting in the management
of the restaurant.
2016

(“Padilla

(Declaration of Cesar Padilla dated Oct. 6,

Decl.”),

¶¶

3,

8,

11;

Declaration

of

Siguencia dated Oct. 7, 2016 (“Siguencia Decl.”), ¶¶ 5-11).

12

Joffre

Determining whether management was the primary duty is a factintensive inquiry, and “[m]any courts have held that resolving
this difficult and intensive factual inquiry is inappropriate at
summary judgment.”

Indergit v. Rite Aid Corp., Nos. 08 Civ. 9361,

08 Civ. 11364, 2010 WL 1327242, at *6 (S.D.N.Y. March 31, 2010)
(citing cases).

Accordingly, neither party is entitled to summary

judgment with respect to this factor.
3.

Directing the Work of Two or More Employees

The plaintiff asserts that the pizza chefs did not customarily
and regularly direct the work of at least two employees because
any such supervisory responsibility was shared with the kitchen
chef.
To qualify for the exemption, the regulations require the
supervision of the “equivalent” of two full-time employees, 29
C.F.R. § 541.104(a), and thus a supervisor need only supervise
eighty

hours

of

employee

time,

regardless

of

the

number

of

employees actually supervised, Moore v. All Star Auto Recycling,
Inc., No. 11 CV 223, 2013 WL 595271, at *6 & n.4 (E.D. Cal. Feb.
14, 2013); Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d 567,
577 (E.D. La. 2008) (“Perhaps the clearest way to make sense of
these rules is the Department of Labor’s ‘80-hour’ rule, which
generally requires an exempt supervisor to ‘direct a total of 80
employee-hours
Delimiting

the

of

work

each

Exemptions

week.’”
for

13

(quoting

Executive,

Defining

and

Administrative,

Professional, Outside Sales and Computer Employees, 69 Fed. Reg.
22122-01, 22135, 2004 WL 865626 (April 23, 2004))).

However,

“[h]ours worked by an employee cannot be credited more than once
for different executives.

Thus, a shared responsibility for the

supervision of the same two employees in the same department does
not satisfy this requirement.”

29 C.F.R. § 541.104(d); see Moore,

2013 WL 595271, at *6; In re Enterprise Rent-a-Car Wage & Hour
Employment Practices Litigation, MDL No. 2056, Misc. No. 09-210,
Civ. Nos. 07-1687 et al., 2012 WL 4048845, at *17 (W.D. Pa. Sept.
13, 2012) (“The record indicates there were many times during which
there were fewer than two nonexempt employees working at the
Thompson branch.

There is insufficient evidence in the record to

conclude that there were sufficient collective hours . . . to
satisfy this element of the executive exemption . . . .”); Johnson,
561 F. Supp. 2d at 577.

Still, “[a] full-time employee who works

four hours for one supervisor and four hours for a different
supervisor, for example, can be credited as a half-time employee
for both supervisors.”

29 C.F.R. § 541.104(d).

At each restaurant, a kitchen chef, pizza chef, salad maker,
and dishwasher generally worked in the kitchen at one time 4 (Def.
56.1 Statement, ¶ 9), and there is evidence that each restaurant
typically employed two dishwashers and two salad makers to cover

4

The Amsterdam location had a full-time prep cook in addition
to the salad maker and dishwasher. (Pedrignani Dep. at 82, 131).
14

different shifts (Deposition of Alfredo Bello dated March 11, 2016
(“Bello Dep.”), attached as Exh. 6 to 9/16/16 Tai Decl., at 6768).

The defendants’ submissions indicate that the kitchen chef

and pizza chef shared supervision of the kitchen employees equally.
(Def. 56.1 Statement, ¶¶ 9-11).

The kitchen chef and pizza chef

each worked five days per week and would stagger their days off.
(Bello Dep. at 35).

Thus, portions of the record indicate that

the pizza chef would be the only supervisor two days per week.
(Bello Dep. at 68-69, 71).

The pizza chefs typically worked at

least sixty hours per week.

(Back Wages Owed at 83, 98-101, 105-

06).

The restaurants were open from 11:00 a.m. to 10:00 p.m.

everyday. (Pl. 56.1 Statement, ¶ 78; Deposition of Esteban Salazar
dated April 20, 2016, attached as Exh. 5 to 9/16/16 Tai Decl., at
64).

Thus, the pizza chefs ostensibly worked an average of twelve

hours each workday.
Thus, for two days during the week, each pizza chef logged
forty-eight hours of supervisory time, because he worked twelve
hours each day and solely supervised two employees all day. 5 Then,
for three days during the week, each pizza chef accumulated a total
of thirty-six hours of supervisory time, because he worked twelve
hours each day and split the supervision of two employees with the

5

2 employees x 12-hour shift x 2 days.

15

kitchen chef. 6

Therefore, there is evidence that the pizza chefs

earned a total of eighty-four hours of supervisory time per week.
However, the plaintiff submits evidence indicating that the
pizza chefs did not exercise supervisory responsibilities at all.
(Pl. 56.1 Statement, ¶¶ 78, 81, 88 90; Padilla Decl., ¶ 11;
Siguencia Decl., ¶ 7; Martinez Decl., ¶¶ 5, 15).

Therefore, there

is a genuine dispute regarding whether the pizza chefs supervised
at least eighty hours of employee time, as there is conflicting
evidence as to whether the pizza chefs customarily and regularly
supervised employees.
either

party

as

to

Accordingly, judgment cannot be granted to
whether

the

pizza

chefs

customarily

and

regularly directed the work of at least two full-time employees.
4.
To

Hiring and Firing

satisfy

the

fourth

prong,

an

employee

must

have

the

authority to hire and fire, or his suggestions as to the status of
other employees must be given particular weight.
at 559-60.

Ramos, 687 F.3d

“While established position descriptions and titles

may assist in making initial FLSA exemption determinations, the
designation

of

an

employee

as

FLSA

exempt

or

nonexempt

must

ultimately rest on the duties actually performed by the employee.”
5 C.F.R. § 551.202(e); see Madden v. Lumber One Home Center, Inc.,
745 F.3d 899, 906 (8th Cir. 2014); Martinez v. Hilton Hotels Corp.,

6

(2 employees x 12-hour shift x 3 days) ÷ 2 supervisors.
16

930 F. Supp. 2d 508, 527 n.18 (S.D.N.Y. 2013) (“Therefore, the
Court is not persuaded that simply having the authority to initiate
disciplinary proceedings is sufficient to satisfy § 541.100(a)(4),
especially on a motion for summary judgment.”).
There is some evidence that the pizza chefs assisted in the
hiring and firing of employees and that their suggestions were
given particular weight.

(Def. 56.1 Statement, ¶¶ 12-13, 15;

Pedrignani Decl., ¶¶ 6-7; Segota Decl., ¶ 10).

Ms. Pedrignani

states, “[N]o one is hired or trained without the absolute approval
of both the kitchen and pizza chef.”

(Pedrignani Decl., ¶ 7).

However, some pizza chefs stated that they had no such authority
and never exercised it.

(Padilla Decl., ¶ 19; Siguencia Decl., ¶

12).
Therefore, there is a genuine, material dispute regarding
whether the pizza chefs are exempt from the FLSA’s overtime pay
rule.
E.

Overtime Claims

The plaintiff seeks judgment on his June 16, 2013, to November
18, 2015 overtime claims.

The plaintiff argues that: (1) the

defendants did not aggregate hours when an employee worked at
different restaurant locations, (2) the defendants did not combine
hours when an employee worked at different positions or different

17

rates, 7 and (3) the defendants miscalculated the “regular rate of
pay” for overtime for some employees. 8

(Pl. Memo at 8).

Under the FLSA, an employee must be compensated at a rate of
at least one and one-half times his regular hourly rate for every
hour worked in excess of forty hours per week.
207(a)(1); 29 C.F.R. § 778.107.

29 U.S.C. §

The employment of any employee

who worked for two or more joint defendants is considered one
employment for the purposes of overtime.

See Teri v. Spinelli,

980 F. Supp. 2d 366, 376 (E.D.N.Y. 2013).

Furthermore, “the

employer must total all the hours worked by the employee for him
in that workweek (even though two or more unrelated job assignments
may have been performed).”

29 C.F.R. § 778.103.

To calculate the

regular rate when different straight time rates are paid, courts
in

this

district

use

the

weighted

average

method,

which

is

“properly calculated by adding all of the wages payable for the
hours worked at the applicable shift rates and dividing by the
total number of hours worked.”
Corp.,

488

F.3d

586,

596

(2d

Gorman v. Consolidated Edison
Cir.

2007)

Wilamowsky, 833 F.2d 11, 14 (2d Cir. 1987)).

7

(quoting

Brock

v.

The “regular rate by

For example, the plaintiff states that one employee worked
47.25 hours in one week as a barista and 17 hours as a delivery
person; however, he was only paid for 7.25 hours of overtime
instead of 24.25 hours. (Pl. Memo. at 11).
8 For example, the plaintiff states that a general captain
was paid a salary of $180 per week plus $5.00 per hour and tips,
but the defendants did not factor the weekly salary into the
overtime rate. (Pl. Memo. at 13).
18

its very nature must reflect all payments which the parties have
agreed shall be received regularly during the work [period].”
Scott v. City of New York, 592 F. Supp. 2d 386, 405 (S.D.N.Y. 2008)
(alteration in original) (quoting Bay Ridge Operating Co. v. Aaron,
334 U.S. 446, 468 (1948)).
In support of his motion, the plaintiff submits an affidavit
from

investigator

Elizabeth

Perez,

summations of back wages owed.
analyzed

payroll

spreadsheets.

records,

which

contains

detailed

To create these spreadsheets, she

time

card

reports,

(9/16/16 Perez Decl., ¶ 11).

and

bookkeeper

However, where the

time card reports and payroll records were inconsistent, she used
the payroll records.

(9/16/16 Perez Decl., ¶ 19).

records were complete for the period at issue.
Decl., ¶ 14).

The payroll

(9/16/16 Perez

The payroll records show how many hours an employee

worked as well as his rate or rates of pay.

(9/16/16 Perez Decl.,

¶ 15).
The spreadsheets and payroll samples demonstrate that some
employees worked at more than one location and that their hours
were

not

combined

for

the

purposes

of

overtime.

(Pl.

56.1

Statement, ¶¶ 53, 58-59; Back Wages Owed at 17, 47, 62, 66-68, 71,
75-79, 115-22; Payroll Registers for August 9, 2013, attached as
Exh. 17 to 9/16/16 Tai Decl.).
The spreadsheets also show that the defendants often did not
combine hours worked by an employee at multiple pay rates or at

19

different positions. (Pl. 56.1 Statement, ¶¶ 56-57, 59-60; 9/16/16
Perez Decl., ¶ 7; Back Wages Owed at 73-81, 115-124).

Ms. Perez,

in her summary, calculates the back wages owed to these employees
using the weighted average method 9 (9/16/16 Perez Decl., ¶¶ 22,
25-30).

Thus, the Secretary has carried his burden here.

Finally, the plaintiff shows that some employees received a
“fixed sum” in addition to their hourly compensation that was not
included

when

calculating

their

regular

rates.

(Pl.

56.1

Statement, ¶¶ 61-64; Back Wages Owed at 37-45, 63, 110).

The

plaintiff calculated back wages owed here using the weighted
average method 10 and has thus carried his burden.

(9/16/16 Perez

Decl., ¶ 22, 30, 32; Back Wages Owed at 37-45, 63, 110).

9

Ms. Perez followed a general formula:

For employees who received multiple non-tipped rates of
pay in the same week and did not receive any overtime
premiums, [she] multiplied the hours paid at each rate
and then added them together to determine the total
amount of hours at straight pay. That number was then
divided by the total hours paid . . . to determine the
regular rate of pay . . . . [She] divided the regular
rate of pay by two to get the overtime premium at halftime and then multiplied it by the overtime hours paid
. . . to arrive at the overtime due . . . .
(9/16/16 Perez Decl., ¶ 25).
When the defendants paid some
overtime wages, Ms. Perez credited the defendants that amount.
(9/16/16 Perez. Decl., ¶¶ 28-29).
10

“For employees that received an hourly rate plus a weekly
salary or commission, [Ms. Perez] added [that] to the total
straight time pay for the total hours paid . . . and then divided
that number by the total hours worked to get the regular rate.”
(9/16/16 Perez. Decl., ¶ 30).
20

The defendants fail to show that there are any material facts
in dispute with respect to these claims.

The defendants refer to

a number of errors and deficiencies in an initial audit by the
Department of Labor.

(Declaration of Stephen D. Hans dated Oct.

14, 2016 (“10/14/16 Hans Decl.”), ¶¶ 5, 7-17).

The defendants

specifically point to mistakes in a previous back wages owed chart,
but those charts were preliminary computations that were corrected
in the charts prepared for summary judgment.

(Compare Back Wages

Summary for Munir Agushi dated June 9, 2016, attached as Exh. M to
10/14/16 Hans Decl.; Back Wages Summary for Masa Balandric dated
June 9, 2016, attached as Exh. O to 10/14/16 Hans Decl., with Back
Wages Owed at 5, 17).

Indeed, the Secretary’s initial computation

of back wages owed was revised after discovery in this case.
(9/16/16 Perez Decl., ¶¶ 9-10).

Ms. Perez reviewed a complete set

of payroll records as well as voluminous time card and bookkeeper
records.

(9/16/16

defendants’

Perez

assertion

that

Decl.,
Ms.

¶

11).

Perez

should

Furthermore,
have

the

interviewed

employees and supervisors fails to create a disputed issue of fact.
(10/14/16 Hans Decl., ¶¶ 7-8).
The defendants present no competent evidence opposing the
plaintiff’s submissions.
for

the

plaintiff

on

Therefore, summary judgment is granted
his

overtime

21

claims

in

the

amount

of

$45,101.42. 11

(Summary of Back Wages Owed for June 16, 2013 – Nov.

18, 2015, at 1-2).
F.

Liquidated Damages

An employer who violates the overtime provisions of the FLSA
is liable for an amount in liquidated damages equal to the amount
owed in compensatory damages.

29 U.S.C. § 216(b); Smith v. Nagai,

No. 10 Civ. 8237, 2012 WL 2421740, at *4 (S.D.N.Y. May 15, 2012).
However, the court has the discretion to deny liquidated damages
if the employer shows that, despite the failure to pay proper
wages, she acted in subjective good faith and had an objectively
reasonable

ground

for

violation of the FLSA.

believing

that

the

actions

were

not

a

29 U.S.C. § 260; Herman v. RSR Security

Services Ltd., 172 F.3d 132, 142 (2d Cir. 1999).

“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, 172 F.3d at 142.

Good

faith is established only if the employer takes “active steps to
ascertain the dictates of the FLSA and then act to comply with
them.”

Id.

11

The plaintiff requests back-wages totaling $80,148.36 for
the June 16, 2013, to November 18, 2015 period; however, because
summary judgment cannot be granted on the pizza chef claims, the
total must be reduced by $35,046.94. (Summary of Back Wages Owed
for June 16, 2013 – Nov. 18, 2015, attached as Exh. A to 9/16/16
Perez Decl., at 1-2).
22

Here, there is no evidence suggesting that the defendants
took active steps to comply with the FLSA.

Indeed, even after the

Department of Labor began its investigation in May 2013, the
defendants’ improper pay practices continued.
1-124).

(Back Wages Owed at

While Ms. Pedrignani consulted accountants about the

structure of her businesses (Pl. 56.1 Statement, ¶ 48), this was
clearly not to ascertain “the dictates of the FLSA,” Copantitla v.
Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253, 317 (S.D.N.Y. 2011)
(quoting Barfield, 537 F.3d at 150).

Therefore, the plaintiff is

entitled to liquidated damages on his claims.
Conclusion
For the reasons stated above, the defendants’ motion for
summary judgment (Docket no. 68) is denied, and the plaintiff’s
motion for summary judgment (Docket no. 60) is granted in part and
denied in part:
1.

There is a genuine dispute as to whether Mr. Rojas,
Mr. Padilla, and Mr. Siguencia are exempt from the
overtime pay rule.

2.

Other “pizza” positions are not exempt for the
period from June 16, 2013, to November 18, 2015.

3.

Summary judgment is denied as to whether other
pizza chefs are exempt prior to June 16, 2013.

4.

The defendants are jointly and severally liable.

5.

The plaintiff’s summary judgment motion for
overtime claims -- except for Mr. Rojas’, Mr.
Padilla’s, and Mr. Siguencia’s claims -- is granted
in the amount of $45,101.42.

23