Garcia et al v. Village Red Restaurant Corp., et al

Filing 79

MEMORANDUM AND ORDER re: 69 MOTION for Summary Judgment Supplemental Declaration filed by Miguel Botello Gonzaga, Luis Magana, Delfino Tlacopilgo, Franklyn Perez, Miguel Romero Lara, Jesus Delgado, Valente Garcia, Justino Garcia . The plaintiffs' supplemental motion for summary judgment (Docket no. 69) is denied. The parties shall submit the joint pretrial order by September 8, 2017. SO ORDERED. (Pretrial Order due by 9/8/2017.) (Signed by Magistrate Judge James C. Francis on 8/14/2017)Copies Transmitted this Date by Chambers. (anc)

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I will not repeat it here. I note, however, that the only reliable employee time records maintained by the defendants are what the parties refer to as the “Red Book,” which indicates for each employee the number of days worked each week and the amount of pay, but which does not reflect the number of hours worked in any given day. Id. at *2. 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 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. In assessing the record to determine whether there is a genuine issue ambiguities of and material draw all fact, factual 2 the court inferences must in resolve favor of all the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Smith v., 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 summary judgment may be granted where the nonmovant’s evidence is conclusory, speculative, or not significantly probative, id. at 249-50. B. Proof of Damages Both the FLSA and the NYLL require employers to keep detailed records of employee wages, tips, hours, and other employment information. 661. See 29 U.S.C. § 211(c); N.Y. Lab. Law §§ 195(4), Specifically, employers must maintain records showing, among other things, (1) total daily and weekly hours worked, (2) regular hourly rates of pay for each week in which overtime compensation is due, (3) total daily and weekly earnings, (4) total wages paid, (5) total weekly premium pay for overtime hours, and (6) dates of payment. See 29 C.F.R. §§ 516.2, .28; N.Y. Comp. Codes R. & Regs. tit. 12, §§ 146–2.1 to .2. When an employer fails to meet these record-keeping obligations, an employee’s burden of proving that he performed work for which he was not properly compensated is reduced. Lanzetta v. Florio’s Enterprises, Inc., 763 F. Supp. 2d 615, 618 (S.D.N.Y. 2011). The employee may carry his burden simply by testifying to his recollection of the hours worked and the 3 compensation received, even if his calculation is only approximate. Yuquilema v. Manhattan’s Hero Corp., No. 13 Civ. 461, 2014 WL 4207106, at *3 (S.D.N.Y. Aug. 26, 2014); Lanzetta, 763 F. Supp. 2d at 618; Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 254-55 (S.D.N.Y. 2008). “The employer then must ‘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.’” Lanzetta, 763 F. Supp. 2d at 618 (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 688 (1946)). In effect, in the absence of employer records, the employee’s testimony assumes a “rebuttable presumption of accuracy.” Goett v. VI Jets International, Inc., No. 14 Civ. 8256, 2015 WL 3616961, at *2 (S.D.N.Y. April 22, 2015). Here, the plaintiffs rely on representations in affidavits with respect to the hours worked, as they may. their The problem is that these representations are frequently inconsistent with the facts as alleged in the Complaint. Furthermore, the plaintiffs’ attestations are contradicted by the testimony of the defendants’ witness. Take, for example, plaintiff Valente Garcia. In his affidavit, Mr. Garcia attests that he worked seventy-three to seventy-four hours per week in 2012 and seventy-one to seventytwo hours per week thereafter (twice per month, he worked as a manager for eleven of these hours). (Affidavit of Valente Garcia dated June 14, 2017, attached as Exh. E to Declaration of Louis 4

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