Santana v. Latino Express Restaurants, Inc.
Filing
25
MEMORANDUM OPINION AND ORDER re: 17 MOTION for Default Judgment as to Plaintiff's claims against all defendants. filed by Lucero Santana. For the foregoing reasons, Plaintiff's motion for default judgment is granted. With respect to her FLSA and NYLL claims, Plaintiff is hereby awarded $3,193.75 in unpaid minimum hourly and overtime wages, 9% prejudgment interest per annum thereon from April 22, 2015, to the date of entry of judgment, $3,193.75 in li quidated damages, $1,550 in WTPA damages and reasonable attorney's fees and costs. This case is referred to Magistrate Judge Freeman for an inquest on Plaintiff's claims for back pay and emotional distress damages in respect of her claims under the NYCHRL. This Memorandum Opinion and Order resolves Docket Entry No. 17. (Signed by Judge Laura Taylor Swain on 7/28/2016) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
LUCERO SANTANA,
Plaintiff,
-v-
No. 15CV4934-LTS
LATINO EXPRESS RESTAURANTS, INC.
and TOMMY PIMENTAL,
Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Plaintiff Lucero Santana (“Santana” or “Plaintiff”) brings this action against
Latino Express Restaurants, Inc. (“the Restaurant”) and Tommy Pimental (“Pimental” and,
collectively, “Defendants”), asserting claims of failure to pay minimum and overtime wages
pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”) and New York State
Labor Law (“NYLL”), Articles 6 and 19. Plaintiff also asserts claims of failure to provide
written notice of wage rates pursuant to the Wage Theft Prevention Act, New York Labor Law
§ 195, et seq. (“WTPA”) and for discrimination and retaliation pursuant to the New York City
Human Rights Law, New York City Administrative Code § 8-107, et seq. (“NYCHRL”).
Plaintiff seeks to recover unpaid back wages, liquidated damages, prejudgment interest, WTPA
damages, emotional distress damages, punitive damages, and reasonable attorneys’ fees and
costs. Now before the Court is Plaintiff’s motion for default judgment against Defendants made
pursuant to Federal Rule of Civil Procedure 55(b)(2). (See Docket Entry No. 17.) The Court has
jurisdiction of the action pursuant to 28 U.S.C. §§ 1331 and 1367.
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
1
The Court has reviewed Plaintiff’s unopposed submissions, which include a
memorandum of law and documentary evidence, thoroughly. For the reasons stated below, the
Court grants Plaintiff’s motion for default judgment with respect to liability on all of her claims,
and awards the damages claimed by Plaintiff that are attributable to Defendants’ wage and hour
violations. The Court refers this matter to Magistrate Judge Debra C. Freeman for an inquest
into damages attributable to her claims under the NYCHRL.
BACKGROUND1
On or about April 3, 2015, Plaintiff Santana began working for Defendants as a
server at the Latino Express Restaurant, located in the Bronx, New York. (Compl. ¶¶ 9, 17.)
Pimental was the co-owner and manager of the Restaurant, and was Santana’s supervisor. (Id.
¶¶ 12-13.) The Restaurant had the power to determine Santana’s wages, schedule, rate of pay,
and other terms and conditions of her employment. (Id. ¶¶ 10-11.) Accordingly, Pimental had
the power to hire and fire Santana, to affect the terms and conditions of her employment, and to
manage her daily work activities. (Id. ¶ 13.) The Restaurant grossed more than $500,000 per
year in revenue and, throughout the course of Santana’s employment, she routinely engaged in
activities that facilitated or were related to interstate or foreign commerce. (Id. ¶ 16.)
Santana worked at the Restaurant from on or about April 3, 2015, to on or about
May 10, 2015. (Id. ¶¶ 17, 47.) From approximately April 3, 2015, to April 26, 2015, Santana
1
The facts recited herein are drawn from Plaintiff’s Complaint (“Compl.”) in this
action. In light of Defendants’ failure to respond to the Complaint, Plaintiff’s
well-pleaded factual allegations are accepted as true for purposes of this motion
practice. See Fed. R. Civ. P. 8(b)(6); Greyhound Exhibitgroup, Inc. v. E.L.U.L.
Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992) (“[A] party’s default is deemed to
constitute a concession of all well pleaded allegations of liability.”). Plaintiff has
supplemented the Complaint with her declaration as to the material facts.
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
2
worked from 4:00 p.m. to 2:00 a.m. seven days per week, for a total of 120 non-overtime hours
and 90 overtime hours. (Compl. ¶ 22.) From approximately April 26, 2015, to May 10, 2015,
she worked from 4:00 p.m. to 2:00 a.m. five days per week, for a total of 80 non-overtime hours
and 20 overtime hours. (Id. ¶ 24.) Defendants failed to pay Santana wages for any of the hours
that she worked. (Id. ¶¶ 23, 25.) The only payment she received was a portion of the weekly tip
pool that she shared with the other servers. (Id. ¶ 23.) At no point during her employment,
however, did the Restaurant provide her with notice that it would apply a tip credit or allowance
towards the payment of a minimum wage salary. (Id. ¶ 19.) The Restaurant also failed to
provide her with: notice of her regular and overtime rates of pay; the method by which she
would be paid; her regular payday; or the official name of her employer. (Id. ¶ 20.) Although
the Restaurant maintained schedules that listed the times particular employees were required to
work, it maintained no system of recording the hours that employees actually worked. (Id. ¶ 21.)
Approximately one or two weeks after Santana started working at the Restaurant,
Pimental began criticizing Santana’s appearance and clothing on a regular basis. (Id. ¶¶ 32-33.)
Although the Restaurant had no dress policy and Santana dressed similarly to her co-workers,
Pimental repeatedly told her to dress “sexier” and to wear tighter clothes. (Id. ¶¶ 33-34.)
Pimental made derisive remarks like “is that your mom’s shirt?” or “are those your mom’s
pants?” on a near-daily basis, and he regularly told Santana that she looked like she was “coming
from church.” (Id. ¶¶ 34-35.) Pimental also offered to buy Santana “tighter jeans” and a belt to
make her jeans “fit tighter.” (Id. ¶ 34.)
In or around the week of April 19, 2015, Pimental asked Santana if she “brought
an application” to apply to be his “girlfriend.” (Id. ¶ 36.) He repeatedly told her that he could do
things for her that younger men could not because he was “older.” (Id. ¶ 38.) On one occasion,
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
3
Pimental stated that he “like[s] younger girls” and that he used to have a fifteen-year-old
girlfriend. (Compl. ¶ 40.) He also repeatedly asked her if she had a boyfriend, even though
Santana responded each time that she was not interested in dating him. (Id. ¶ 39-40.)
In or around the end of April 2015, Santana complained to the Restaurant’s other
co-owner, who was Pimental’s wife, about Pimental’s treatment of Santana. (Id. ¶ 41.) Almost
immediately thereafter, Pimental began singling Santana out and reprimanding her for things he
had not taken issue with previously. (Id. ¶¶ 42-43.) He glared at her during work, and on one
occasion screamed at her in front of others, even though he had never yelled at a server before.
(Id. ¶¶ 45-46.) Pimental also started assigning Santana a disproportionate number of less
desirable tasks like cleaning the back areas and bathrooms of the Restaurant; such tasks had been
assigned equitably prior to Santana’s complaint. (Id. ¶ 44.) Santana quit on or about May 10,
2015. (Id. ¶ 47.) Santana claims to feel humiliated, degraded, victimized, embarrassed, and
emotionally distressed as a result of Pimental’s actions. (Id.)
Santana filed the instant action on June 24, 2015, asserting nine Causes of Action
against Defendants for violations of the FLSA, NYLL, WTPA, and NYCHRL. (See generally
id. ¶¶ 17-94.) Santana served the Restaurant with the Summons and Complaint on July 21,
2015, and served Pimental with the Summons and Complaint on July 23, 2015. (See Docket
Entry Nos. 6, 8.) Both Defendants have since failed to make any formal appearance in this
action or file any responsive pleadings. (See Docket Entry No. 12.) On September 21, 2015,
this Court granted Santana permission to move for default judgment. (Id.) The Clerk of Court
issued a Certificate of Default against Defendants on October 6, 2015 (Docket Entry No. 15),
and Santana thereafter filed the instant motion. (Docket Entry No. 17.) Santana’s motion is
accompanied by evidentiary proffers and exhibits supporting her claims, as well as a
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
4
memorandum of law. (Docket Entry Nos. 18, 19.)
An initial pretrial conference was held on February 19, 2016, at which Defendant
Pimental appeared pro se. The Court directed Pimental to enter a Notice of Appearance either
by counsel or pro se by April 22, 2016, and notified Pimental that the Restaurant would have to
appear by counsel no later than April 22, 2016. (See February 19, 2016, Minute Entry.) The
Court also warned Pimental that if appearances were not entered by that date, the Court would
take Plaintiff’s motion for default judgment on submission. (See id.) The Court thereafter filed
an order summarizing those instructions. (See Docket Entry No. 23.) The deadline for
appearances passed and, on May 12, 2016, the Court entered an order indicating that it would
decide the default motion on submission. (See Docket Entry No. 24.)
DISCUSSION
When determining whether to grant a motion for default judgment, courts in this
district consider three factors: “(1) whether the defendant’s default was willful; (2) whether
defendant has a meritorious defense to plaintiff’s claims; and (3) the level of prejudice the
non-defaulting party would suffer as a result of the denial of the motion for default judgment.”
Mason Tenders Dist. Council v. Duce Const. Corp., No. 02CV9044-LTS-GWG, 2003 WL
1960584, at *2 (S.D.N.Y. Apr. 25, 2003); see also Guggenheim Capital, LLC v. Birnbaum, 722
F.3d 444, 455 (2d Cir. 2013) (applying these factors in review of a lower court’s grant of default
judgment). Here, the Court finds that all three factors weigh in Plaintiff’s favor.2 Once the court
2
Defendants’ non-appearance and failure to respond to Plaintiff’s Complaint or
Motion to For Default Judgment indicates willful conduct. See Indymac Bank,
F.S.B. v. National Settlement Agency, Inc., No. 07CV6865-LTS-GWG, 2007 WL
4468652, at *1 (S.D.N.Y. Dec. 20, 2007) (holding that non-appearance and
failure to respond to a complaint or motion for default judgment indicates willful
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
5
determines that these factors favor the plaintiff, it must decide whether the plaintiff has pleaded
facts supported by evidence sufficient to establish the defendant’s liability with respect to each
cause of action asserted. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981);
see also Gunawan v. Sake Sushi Restaurant, 897 F. Supp. 2d 76, 83 (E.D.N.Y. 2012) (“[A]
defendant’s default does no more than concede the complaint’s factual allegations.” (citations
omitted)).
If the facts and evidence presented are sufficient to establish liability, the court
must go on to “determine the appropriate amount of damages, which involves two tasks:
determining the proper rule for calculating damages on such a claim, and assessing plaintiff’s
evidence supporting the damages to be determined under this rule.” Credit Lyonnais Sec.
(USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999); see also Greyhound Exhibitgroup,
Inc., 973 F.2d at 158 (“While a party’s default is deemed to constitute a concession of all well
pleaded allegations of liability, it is not considered an admission of damages.”). Although the
court is not “obligated to hold an evidentiary hearing” to determine damages, it must “take the
necessary steps to establish damages with reasonable certainty.” See Transatlantic Marine
Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc., 109 F.3d 105, 111 (2d Cir.
1997); see, e.g., Fustok v. ContiCommodity Services, Inc., 873 F.2d 38, 40 (2d Cir. 1989)
(holding that detailed affidavits, documentary evidence, and district judge’s personal knowledge
of the record provided sufficient basis for calculating damages).
conduct). With respect to the second factor, the Court is unable to determine
whether Defendants would be able to present any meritorious defense to
Plaintiff’s claims because Defendants have failed to appear. Finally, the Court
finds that Plaintiff will be prejudiced if, in light of Defendants’ default, she is
unable to vindicate her rights and receive appropriate compensation for her hours
worked.
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
6
Violations of the Fair Labor Standards Act and New York Labor Law
Liability
The FLSA minimum wage and overtime provisions apply to employees who are
“(1) personally engaged in interstate commerce or in the production of goods for interstate
commerce . . . or (2) [were] employed in an enterprise engaged in interstate commerce or in the
production of goods for interstate commerce.” Rodriguez v. Almighty Cleaning, Inc., 784 F.
Supp. 2d 114, 120 (E.D.N.Y. 2011) (alteration in original) (citation omitted); see also 29 U.S.C.
§§ 206(a), 207(a). Plaintiff’s Complaint alleges that the Restaurant’s gross revenues exceeded
the requisite statutory amount and Santana regularly engaged in activities that facilitated
interstate commerce while working at the Restaurant, and thus is a covered employee under the
FLSA. (See Compl. ¶¶ 16-17.) Moreover, to be held liable under the FLSA, a defendant must
be an “employer,” which is defined as “any person acting directly or indirectly in the interest of
an employer in relation to an employee.” 29 U.S.C.S. § 203(d) (LexisNexis 2013); Herman v.
RSR Sec. Services Ltd., 172 F.3d 132, 139 (2d Cir. 1999). It is uncontested that Latino Express
employed Plaintiff, and had the power to determine her wages. (See Compl. ¶ 10.) Because
Pimental had the power to hire and fire Santana, affect her terms and conditions of employment,
and manage her work activities, he is also an employer of Santana under the FLSA. (Id.
¶¶ 10-11, 13.) See Herman, 172 F.3d at 139 (holding that supervisory authority, determining
schedule, rate of pay and terms of employment are sufficient indicia of employer status).
Under the FLSA, an employee bears the burden of proving that she was not
properly compensated for her work. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680,
687 (1946) (superseded on other grounds). The employee can do so by obtaining and producing
her employer’s records. See id. However, when “the employer’s records are inaccurate or
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
7
inadequate” and “the employee cannot offer convincing substitutes,” the employee can meet her
burden of proof if she “produces sufficient evidence to show the amount and extent of that work
as a matter of just and reasonable inference.” Id. “The burden then shifts to the employer to
come forward with evidence of the precise amount of work performed . . . .” Id. If the employer
fails to do so, “the court may then award damages to the employee, even though the result be
only approximate.” Id. at 688; see also Liu v. Jen Chu Fashion Corp., No. 00CV4221-RJH-AJP,
2004 WL 33412, at *3 (S.D.N.Y. Jan. 7, 2004) (“[I]n the absence of rebuttal by defendants,
plaintiffs’ recollection and estimates of hours worked are presumed to be correct.”). Under the
NYLL, employers who fail to maintain appropriate records “bear the burden of proving that the
complaining employee was paid.” N.Y. Lab. Law § 196-a.
Here, the Restaurant did not maintain records of the hours its employees worked.
(Compl. ¶ 21.) However, because Plaintiff has provided unrebutted recollections and estimates
of the hours she worked, and her allegation that she was never paid minimum hourly pay or
overtime (id. ¶¶ 23, 25) is deemed admitted, she has satisfied her burden for establishing liability
under the FLSA within the Anderson framework. (See also Decl. of Lucero Santana (“Santana
Decl.”) Ex. A.) Defendants have not satisfied their burden under the NYLL of demonstrating
that Plaintiff was paid a minimum hourly wage or overtime. Defendants’ violations of the FLSA
and the NYLL are thus established. Moreover, Defendants’ failure to provide Plaintiff with
notice of her rates of pay, her regular payday, how she would be paid, or tip credits or
allowances taken as part of the minimum wage violated the WTPA (id. ¶¶ 19-20), entitling
Plaintiff to damages under that statute. N.Y. Lab. Law § 195.
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
8
Damages
The Court finds that Plaintiff has proffered sufficient evidence to establish
damages with respect to Defendants’ FLSA and NYLL violations “with reasonable certainty.”
Transatlantic Marine Claims Agency, 109 F.3d at 111; see also Tamarin v. Adam Caterers, Inc.,
13 F.3d 51, 54 (2d Cir. 1993) (finding that the district court did not abuse its discretion by
determining damages with the aid of a single affidavit only partially based upon real numbers).
Plaintiff is entitled to unpaid minimum hourly and overtime wages for the five weeks she
worked at the Restaurant. Under the FLSA, an employer cannot claim a tip credit on an
employee’s wages unless the employer has notified the employee of the FLSA provisions
permitting the tip credit. 29 U.S.C. § 203(m); Inclan v. New York Hospitality Group, Inc., 95 F.
Supp. 3d 490, 497 (S.D.N.Y. 2015) (citations omitted). If the employer cannot show that it
provided the employee with notice of the tip credit, the tip credit cannot be taken and the
employer is liable for the full minimum wage. See id. During Plaintiff’s employment at the
Restaurant, the New York minimum wage rate was $8.75 per hour. Plaintiff’s overtime rate was
one and one-half times her normal wage rate of $8.75, or $13.125. Over Plaintiff’s period of
employment, Plaintiff worked a total of 200 regular non-overtime hours and 110 overtime hours.
Accordingly, Plaintiff is entitled to $3,193.75 in unpaid wages.3
Plaintiff also seeks to recover liquidated damages on this amount under both the
FLSA and NYLL. The Second Circuit has not yet addressed “whether a plaintiff may recover
3
Plaintiff also requests lost back pay in the amount of $8,750 for the twenty-five
weeks between Plaintiff’s last day of employment at the Restaurant and the
commencement of her present job. (See Wolnowski Decl. ¶¶ 18-19.) In light of
the fact that Plaintiff has failed to proffer a legal basis in support of such an
award, the request is denied insofar as it is premised on her FLSA, NYLL and
WTPA claims.
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
9
cumulative . . . liquidated damages under the FLSA and NYLL, and the district courts in this
Circuit are deeply divided.” Inclan, 95 F. Supp. 3d at 505. “A majority of courts [in this
Circuit] have held that plaintiffs may recover under both [the] FLSA and [the] NYLL, because
the liquidated damages provisions serve fundamentally different purposes.” Yu Y. Ho v. Sim
Enterprises, Inc., No. 11CV2855-PKC, 2014 WL 1998237, at *18 (S.D.N.Y. May 14, 2014)
(citations omitted). Other courts within the district have ruled that a plaintiff is not entitled to
recover under both statutes because they “serve the same practical purposes in compensating the
plaintiff and deterring wage violations” and compensate “the exact same harm.” See Li Ping Fu
v. Pop Art Intern. Inc., No. 10CV8562-DLC-AJP, 2011 WL 4552436, at *5 (S.D.N.Y. Sept. 19,
2011) (citations omitted).
Recent amendments to the NYLL strengthen the position that double liquidated
damages are not available because the two liquidated damages provisions serve the same
purpose. Prior to the amendments, the NYLL required proof of a willful violation to trigger
liquidated damages; the provision was therefore construed as punitive in nature. See Yu Y. Ho,
2014 WL 1998237, at *18. However, a November 24, 2009, amendment changed the NYLL
liquidated damages provision to resemble that of the FLSA, which requires only an absence of
good faith on the part of the employer, shifting the burden to the employer to prove that he acted
in good faith. An April 9, 2011, amendment to the NYLL further aligned the NYLL with the
FLSA by increasing the level of available liquidated damages from twenty five- to one hundredpercent of the total amount of wages due. N.Y. Lab. Law § 198(1-a).
As a result of these amendments bringing the statutes into alignment, a trend of
denying cumulative liquidated damages has emerged within this Circuit. See Santana v. Brown,
No. 14CV4279-LGS, 2015 WL 4865311, at *5 (S.D.N.Y. Aug. 12, 2015); see, e.g., Inclan, 95 F.
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
10
Supp. 3d at 506 (“Even assuming there were [sic] 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.”); see also Garcia v. JonJon Deli Grocery
Corp., No. 13CV8835-AT, 2015 WL 4940107, at *6 (S.D.N.Y. Aug. 11, 2015) (“As the
standards for liquidated damages under both statutes have now coalesced, there is no longer a
rationale for cumulative recovery.”). The Court finds the reasoning of these recent decisions
persuasive and holds that Plaintiff is not entitled to double recovery for liquidated damages
under both the FLSA and NYLL. Thus, Plaintiff is awarded a total of $3,193.75 in liquidated
damages in respect of Defendants’ violations of the FLSA and NYLL.
There is also a split within the Second Circuit as to whether prejudgment interest
should be awarded – in addition to liquidated damages – for unpaid wages owed under both the
FLSA and NYLL. Zhen Ming Chen v. New Fresco Tortillas Taco LLC, No. 15CV2158-RAAJP, 2015 WL 5710320, at *9 (S.D.N.Y. Sept. 25, 2015) (citations omitted). It has long been
established that “prejudgment interest may not be awarded in addition to liquidated damages” for
FLSA violations. Brock v. Superior Care, Inc., 840 F.2d 1054, 1064 (2d Cir. 1988) (citing
Brooklyn Savings Bank v. O’Neil, 324 U.S. 697, 714-16 (1945)). However, the Second Circuit
has stated that under the NYLL, both prejudgment interest and liquidated damages may be
awarded because the two provisions serve fundamentally different purposes. See Reilly v.
Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999) (citations omitted). Nonetheless, the
recent amendments to the NYLL undermine the distinction between liquidated damages and
prejudgment interest, and some courts have accordingly refused to grant prejudgment interest for
claims arising under both the FLSA and NYLL. See, e.g., Zhen Ming Chen, 2015 WL 5710320,
at *9 (“The same logic which prevents this Court from allowing cumulative liquidated damages
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
11
under both the NYLL and FLSA likewise prevents prejudgment interest on overlapping claims
for which FLSA liquidated damages have been awarded.”) (citations omitted).
Other courts within this Circuit that have denied cumulative liquidated damages
have nonetheless awarded prejudgment interest in addition to liquidated damages under the
NYLL. See, e.g., Castillo v. RV Transport, Inc., No. 15CV0527-LGS, 2016 WL 1417848, at *3
(S.D.N.Y. Apr. 11, 2016). The Court agrees that both liquidated damages and prejudgment
interest are appropriate, as Plaintiff should be permitted to “recover under the statute that
provides the greatest relief,” which in this case is the NYLL. Id. (citation omitted); see also Jiao
v. Shi Ya Chen, No. 03CV0165-DCF, 2007 WL 4944767, at *17 (S.D.N.Y. Mar. 30, 2007)
(“Where a plaintiff is entitled to damages under both federal and state wage law, a plaintiff may
recover under the statute which provides the greatest amount of damages.”). The NYLL
expressly provides for both liquidated damages and prejudgment interest. See N.Y. Lab. Law
§ 198(1-a) (“[T]he court shall allow such employee to recover . . . prejudgment interest . . . and,
unless the employer proves a good faith basis to believe that its underpayment of wages was in
compliance with the law, an additional amount as liquidated damages equal to one hundred
percent of the total amount of the wages found to be due.”).
The statutory annual rate of prejudgment interest is nine percent per annum (N.Y.
C.P.L.R. § 5004), and interest can be awarded from a reasonable intermediate date during the
course of the plaintiff’s employment (see id. § 5001(b)). “A court has discretion to choose a
reasonable accrual date.” Gunawan, 897 F. Supp. 2d at 93 (citation omitted). The Court finds
that the midpoint of Plaintiff’s employment period from April 3, 2015, to May 10, 2015, was
April 22, 2015. Accordingly, Plaintiff is awarded prejudgment interest at a nine percent annual
interest rate on the principal amount of $3,193.75 for the period from April 22, 2015 through the
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
12
date judgment is entered.
Plaintiff is also entitled to damages stemming from Defendants’ WTPA
violations, calculated at the rate of “fifty dollars for each work day that the violations occurred or
continue to occur, but not to exceed a total of five thousand dollars, together with costs and
reasonable attorney’s fees.” N.Y. Lab. Law § 198(1-b). Plaintiff is awarded statutory damages
of $50 per work day of her employment period of thirty-one days, for a total of $1,550.
NYCHRL Discrimination and Retaliation Claims
Liability
Plaintiff alleges that Defendants unlawfully discriminated against her on the basis
of gender by sexually harassing her and maintaining discriminatory working conditions. Under
the NYCHRL, it is unlawful for an employer to discriminate against an individual “in
compensation or in terms, conditions, or privileges of employment” because of the individual’s
gender. McKinney’s Executive Law § 296(1); Admin. Code § 8-107(1). “Through
developments in case law, the concept of sex-based discrimination in employment has come to
include sexual harassment of employees.” Father Belle Cmty. Ctr. v. New York State Div. of
Human Rights on Complaint of King, 642 N.Y.S.2d 739, 744 (App. Div. 4th Dep’t 1996)
(citations omitted).
In order to establish a prima facie case of sexual harassment, an employee must
show that “(1) she belongs to a protected group, (2) she was the subject of unwelcome sexual
harassment, (3) the harassment was based on her gender, (4) the sexual harassment affected a
term, condition, or privilege of employment, and (5) the employer knew or should have known
of the harassment and failed to take remedial action.” Pace v. Ogden Servs. Corp., 692 N.Y.S.2d
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
13
220, 223 (App. Div. 3rd Dep’t 1999) (citations omitted). The employer must then present “a
legitimate, independent, and nondiscriminatory reason for its actions,” after which the burden
shifts back to the employee to prove that the employer’s stated reasons were only a pretext for
discrimination. See Town of Lumberland v. New York State Div. of Human Rights, 644
N.Y.S.2d 864, 869 (App. Div. 3rd Dep’t 1996).
For an employer’s conduct to be actionable as hostile work environment sexual
harassment,4 it “must be both objectively and subjectively offensive, such that a reasonable
person would find the behavior hostile and abusive, and such that the plaintiff herself did, in fact,
perceive it to be so.” San Juan v. Leach, 717 N.Y.S.2d 334, 336 (App. Div. 2nd Dep’t 2000)
(citations omitted). If a reasonable person would consider the conduct to consist merely of
“petty slights and trivial inconveniences,” an employer can avoid liability under the NYCHRL.
Williams v. New York City Hous. Auth., 872 N.Y.S.2d 27, 41 (App. Div. 1st Dep’t 2009).
Whether a workplace is hostile or abusive can only be determined by “considering the totality of
the circumstances.” Father Belle Cmty. Ctr., 642 N.Y.S.2d at 744 (citations omitted). Because
the NYCHRL is designed to be broadly remedial, liability for sexual harassment under the
NYCHRL is determined by the existence of any unequal treatment, and questions of severity and
frequency are reserved for the consideration of damages. Williams, 872 N.Y.S.2d at 38 (citing
Farrugia v. North Shore Univ. Hosp., 820 N.Y.S.2d 718, 718 (Sup. Ct. N.Y. Cty. 2009)).
4
Hostile work environment sexual harassment occurs when an employer’s conduct
“has the purpose or effect of unreasonably interfering with an individual’s work
performance or creating an intimidating, hostile, or offensive working
environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 64, 65 (1986); see
also Harris v. Forklift Sys. Inc., 510 U.S. 17, 21 (1993) (holding that a hostile
work environment exists when “the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive working
environment”) (internal quotation marks and citations omitted).
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
14
Plaintiff’s uncontradicted factual allegations are sufficient to establish that
Pimental discriminated against her and subjected her to a hostile work environment on the basis
of her gender. As a woman, Plaintiff belonged to a protected group. Plaintiff reasonably
believed that Pimental’s constant criticism of Plaintiff’s clothes and romantic advances
constituted sexual harassment. Pimental singled out Plaintiff on the basis of her gender by
directing her to dress “sexier” and wear tighter clothing on a near-daily basis, even though other
servers dressed in a similar way and there was no dress policy. (Compl. ¶¶ 32-35.) Pimental
repeatedly made unwelcome remarks to Plaintiff about Plaintiff being his girlfriend, even after
Plaintiff told him she was not interested. (Id. ¶¶ 36, 39-40.) Taken together, Pimental’s conduct
amounted to more than just petty slights and trivial inconveniences, and created a hostile work
environment for Plaintiff. Pimental knew or should have known that his behavior was unlawful
and, when Plaintiff informed Pimental’s wife, the Restaurant’s other co-owner, of Pimental’s
behavior, neither the Restaurant nor the other owner took remedial action. Thus, because
Plaintiff has established a prima facie case of a hostile work environment and Pimental has failed
to proffer a legitimate, independent, and nondiscriminatory reason for his actions, Plaintiff has
proven her discrimination claim.
Plaintiff also claims that Defendants retaliated against her for opposing
discriminatory practices, and that she was constructively discharged from the Restaurant. It is an
unlawful discriminatory practice for an employer to “discharge, expel or otherwise discriminate
against any person because he or she has opposed any practices forbidden under this article,”
which includes the practice of discriminating against an employee on the basis of gender.
McKinney’s Executive Law § 296(1); Admin. Code § 8-107(7). To establish a prima facie case
of retaliation, an employee must show that “(1) she has engaged in activity protected by [the
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
15
NYCHRL], (2) [she] was aware that she participated in the protected activity, (3) she suffered
from a disadvantageous employment action based upon her activity, and (4) there is a causal
connection between the protected activity and the adverse action.” Pace, 692 N.Y.S.2d at 22324 (citation omitted). Once an employee has established a prima facie case of retaliation, the
burden then shifts to the employer “to present legitimate, independent, and nondiscriminatory
reasons” to support its actions. Pace, 692 N.Y.S.2d at 224. If the employer meets this burden,
the employee must show that the proffered reasons were merely a pretext for the employer’s
retaliatory actions. See id.
An employee’s informal complaint to a supervisor about discrimination is
sufficient to constitute a protected activity under the NYCHRL. See Nieblas-Love v. New York
City Hous. Auth., No. 14CV5444-JMF, 2016 WL 796845, at *6 (S.D.N.Y. Feb. 26, 2016)
(citations omitted). A constructive discharge occurs when an employer intentionally creates
working conditions so intolerable, difficult, or unpleasant that a reasonable person would feel
compelled to resign. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996).
When an employee alleging sex-based discrimination under the NYCHRL was not actually
terminated, the employee can show that she was subject to adverse action by demonstrating that
her employer constructively discharged her. See Dooner v. Keefe, Bruyette & Woods, Inc.,
157 F. Supp. 2d 265, 283 (S.D.N.Y. 2001).
Plaintiff’s uncontradicted factual allegations are sufficient to establish that
Pimental retaliated against her for opposing his sexual harassment of her. Plaintiff engaged in
protected activity when she complained to the Restaurant’s co-owner, Pimental’s wife, about
Pimental’s behavior. (Compl. ¶ 41.) Almost immediately after Plaintiff’s complaint, Pimental’s
treatment of her changed dramatically; his assignment to Plaintiff of a disproportionate number
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
16
of less desirable tasks, such as cleaning the back area and bathrooms (id. ¶ 44), constitutes an
adverse employment action. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 55
(2006) (“[A] reassignment of duties can [still] constitute retaliatory discrimination where both
the former and present duties fall within the same job description. Almost every job category
involves some duties that are less desirable than others.”). Furthermore, Pimental deliberately
created difficult working conditions for Plaintiff by glaring at her, screaming at her in front of
others, and reprimanding her for things he had not reprimanded her for before. (Compl.
¶¶ 42-43.) Because a reasonable employee would feel compelled to resign in light of these
conditions, the Court finds that Plaintiff was constructively discharged.
The Court also finds that there is a causal connection between Plaintiff’s
complaint and the adverse action she suffered. The fact that Pimental’s significant change in
behavior toward Plaintiff occurred almost immediately after her complaint to his wife supports
the existence of a causal link between her engaging in a protected activity and the alleged
adverse employment actions that she suffered. The temporal proximity – a mere two weeks –
between Plaintiff’s complaint and her constructive discharge also permits an inference of a
causal connection. See Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013)
(holding that a three-week period between an employee’s discrimination complaint and her
termination is sufficiently short to establish a causal nexus for the purpose of a retaliation claim).
Thus, Plaintiff has successfully established a prima facie case of retaliation. Defendants have
not met their burden of proffering a legitimate reason to support Pimental’s behavior, and are
thus liable on Plaintiff’s NYCHRL retaliation claim.5
5
The Restaurant is also liable for Pimental’s discriminatory and retaliatory
conduct. An employer is liable for an unlawful discriminatory practice based
upon the conduct of an employee “who exercised managerial or supervisory
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
17
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for default judgment is granted.
With respect to her FLSA and NYLL claims, Plaintiff is hereby awarded $3,193.75 in unpaid
minimum hourly and overtime wages, 9% prejudgment interest per annum thereon from April
22, 2015, to the date of entry of judgment, $3,193.75 in liquidated damages, $1,550 in WTPA
damages and reasonable attorney’s fees and costs. This case is referred to Magistrate Judge
Freeman for an inquest on Plaintiff’s claims for back pay and emotional distress damages in
respect of her claims under the NYCHRL.
This Memorandum Opinion and Order resolves Docket Entry No. 17.
SO ORDERED.
Dated: New York, New York
July 28, 2016
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
responsibility.” Admin. Code § 8-107(13)(b)(1). Pimental was employed by the
Restaurant and exercised managerial and supervisory duties as the Restaurant’s
co-owner and manager as well as Plaintiff’s supervisor. Thus, both Defendants
are liable for the claims of discrimination and retaliation under the NYCHRL.
SANTANADEFAULTMOT.WPD
VERSION JULY 28, 2016
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?