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)

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. 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
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
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