Ortega et al v. JR Primos 2 Restaurant Corp. et al

Filing 44

MEMORANDUM AND ORDER: For the reasons set forth above, judgment by default is entered against the defendants, and the plaintiff is awarded $46,929.45 in unpaid wages, $11,431.16 in prejudgment interest, $46,929.45 in liquidated damages, and $5,102.50 in attorneys' fees and costs. The Clerk of Court shall enter judgment accordingly and close this case. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 6/16/2017) Copies Mailed By Chambers. (anc)

determine damages.

(Memorandum Endorsement dated Feb. 6, 2017).

The defendants did not appear at the inquest, which was held on
April 4, 2017.

The following findings are therefore based on

evidence provided by the plaintiff.

For the reasons set forth

below, judgment by default is entered against the defendants, and
the plaintiff is awarded $46,929.45 in unpaid wages, $11,431.16 in
prejudgment

interest,

$46,929.45

in

liquidated

damages,

and

$5,102.50 in attorneys’ fees and costs.
Background
Mr. Ortega worked as a deliveryman and dishwasher at JR Primos
2,

a

restaurant

owned

and

operated

by

Roberto

(Complaint (“Compl.”), ¶¶ 3, 7, 41; Tr. at 4-5). 2

Valenzuela.

He alleges that

the defendants violated the FLSA and the NYLL by failing to pay
him minimum wage, overtime, and “spread-of-hours” compensation.
(Compl., ¶ 16).

Specifically, he alleges that he worked at JR

Primos 2 from August 2011 through November 20, 2015, the date on
which he filed the Complaint.

(Compl., ¶¶ 21, 41); that he worked

seven days per week from 6:00 a.m. to 4:00 p.m. without any breaks
for meals or rest (Compl., ¶¶ 48, 51); and that he was paid $370.00
in cash per week (Compl., ¶¶ 49-50).

He alleges further that the

defendants never provided him with written notice of his rate of
pay, provided wage statements, provided notice of how his tips

2

“Tr.” refers to the transcript of the inquest held on April
4, 2017.
2

were credited toward his wages, or tracked the hours that he
worked.

(Compl.,

¶¶

52-56).

Finally,

he

alleges

that

the

defendants required him to purchase a bicycle, helmet, jacket, and
bike lights to complete his duties as a deliveryman at a total
cost of $325.00.

(Compl., ¶ 58).

In addition to the allegations in the Complaint, Mr. Ortega
supported his application for damages with his own testimony at
the inquest.

He could not recall the specific dates of his

employment at the hearing.

Rather, he testified that he worked at

JR Primos 2 for four years beginning “in the summertime” four years
ago.

(Tr. at 6).

He also testified that he worked from 5:00 a.m.

to 4:00 p.m. every day (Tr. at 7-8), as opposed to starting the
day at 6:00 a.m.

Finally, he testified that he was paid $350.00

per week for the first three years of his employment and $370.00
per week during the final year of his employment (Tr. at 7-8), as
opposed

to

employment.

$370.00
The

per

week

remainder

throughout

of

Mr.

the

Ortega’s

duration

of

his

testimony

--

the

defendants’ failure to provide him with notice of his rate of pay,
provide wage statements, provide notice of how his tips were
credited to his wages, track his hours worked, or reimburse him
for purchasing “tools of the trade” -- is consistent with the
allegations in the complaint.

(Tr. at 9-11).

3

Discussion
A.

Liability

Where a defendant has defaulted, all of the facts alleged in
the complaint, except those relating to the amount of damages,
must be accepted as true.

See Transatlantic Marine Claims Agency,

Inc. v. Ace Shipping Corp., Division of Ace Young Inc., 109 F.3d
105, 108 (2d Cir. 1997); Keystone Global LLC v. Auto Essentials,
Inc., 12 Civ. 9077, 2015 WL 224359, at *3 (S.D.N.Y. Jan. 16, 2015).
The court may also rely on factual allegations pertaining to
liability contained in affidavits and declarations submitted by
the plaintiff.

See, e.g., Grammar v. Sharinn & Lipshie, P.C., No.

14 Civ. 6774, 2016 WL 4249155, at *2 (S.D.N.Y. Aug. 5, 2016).
Nonetheless,

a

court

is

“required

to

determine

whether

the

[plaintiff’s] allegations establish [the defendant’s] liability as
a matter of law.”

Hood v. Ascent Medical Corp., No. 13 Civ. 628,

2016 WL 1366920, at *14 (S.D.N.Y. March 3, 2016) (alterations in
original) (quoting City of New York v. Mickalis Pawn Shop, LLC,
645 F.3d 114, 137 (2d Cir. 2011)).
1.

Prerequisites for FLSA and NYLL Coverage

The plaintiff’s allegations establish that the defendants are
subject to liability under the FLSA and the NYLL.

The Complaint

alleges that JR Primos 2 was an enterprise engaged in interstate
commerce that had revenue of at least $500,000 annually.
¶¶ 37-38).

(Compl.,

It alleges further that Mr. Valenzuela had control
4

over employment practices at the restaurant.
36).

(Compl., ¶¶ 26-27,

JR Primos 2 is therefore an “enterprise engaged in commerce”

under the FLSA, and the defendants qualify as “employers” under
both

the

FLSA

and

the

NYLL.

29

U.S.C.

§

203(d),

(r)(1),

(s)(1)(A)(i)-(ii); NYLL §§ 190(2)-(3), 198(1)-(4), 651(5)-(6);
Herman v. RSR Security Services Ltd., 172 F.3d 132, 139 (2d Cir.
1999) (“[T]he overarching concern is whether the alleged employer
possessed the power to control the workers in question, with an
eye to the ‘economic reality’ presented by the facts of each case.”
(internal citation omitted) (quoting Goldberg v. Whitaker House
Cooperative, Inc., 366 U.S. 28, 33 (1961))); Rosas v. Alice’s Tea
Cup, LLC, 127 F. Supp. 3d 4, 13 (S.D.N.Y. 2015) (“[D]istrict courts
in this Circuit have interpreted the definition of employer under
the [NYLL] coextensively with the definition used by the FLSA.”
(second alteration in original) (quoting Sethi v. Narod, 974 F.
Supp. 2d 162, 188 (E.D.N.Y. 2013))).
that he was an employee of JR Primos 2.

The plaintiff also alleges
(Compl., ¶ 5).

Thus, the

prerequisites for coverage under both the FLSA and NYLL are met.
2.

Statute of Limitations

The statute of limitations is six years for claims under the
NYLL and three years for claims under the FLSA if a defendant’s
acts are willful.

29 U.S.C. § 255(a); NYLL §§ 198(3), 663(3);

Herrara v. 12 Water Street Gourmet Cafe, Ltd., No. 13 Civ. 4370,
2016 WL 1274944, at *4 (S.D.N.Y. Feb. 29, 2016).
5

The Complaint,

filed on November 20, 2015, properly pleads willfulness (Compl.,
¶¶

71-78),

so

the

plaintiff

may

recover

under

the

FLSA

for

violations occurring after November 19, 2012, and under the NYLL
for violations occurring after November 19, 2009.
3.

Unpaid Minimum Wage

Both the FLSA and the NYLL mandate that employees be paid at
least a minimum hourly rate. 3 29 U.S.C. § 206(a)(1); NYLL § 652(1);
N.Y. Comp. Codes R. & Regs. tit. 12 (“12 NYCRR”), § 146-1.2.

“The

federal minimum wage does not preempt the state minimum wage, and
a plaintiff may recover under whatever statute provides the highest
measure of damages.”

Wicaksono v. XYZ 48 Corp., No. 10 Civ. 3635,

2011 WL 2022644, at *3 (S.D.N.Y. May 2, 2011) (internal citation
omitted),

report

and

recommendation

(S.D.N.Y. May 24, 2011).

adopted,

2011

WL

2038973

In the period at issue -- August 2011 to

November 20, 2015 -- the plaintiff was entitled to a minimum wage
of $7.15 per hour from August 2011 to November 19, 2012, 4 see NYLL

3

Although “[b]oth the FLSA and the NYLL permit an employer
to pay a tipped worker a cash wage that is lower than the statutory
minimum wage, provided that the cash wage and the employee’s tips,
taken together, are at least equivalent to the minimum wage,” this
“tip credit” is available only if certain notice requirements are
met. Inclan v. New York Hospitality Group, Inc., 95 F. Supp. 3d
490, 497-98 (S.D.N.Y. 2015) (citing 29 U.S.C. §§ 203(m), 206(a)(1),
and 12 NYCRR §§ 146–1.3(b), 146-2.2). The plaintiff alleges that
he was not informed of any tip credit on his wages. (Compl., ¶¶
52-53). Moreover, it is the employers’ burden to show that they
have complied with the notice requirements. Inclan, 95 F. Supp.
3d at 497. Since JR Primos 2 and Mr. Valenzuela have not appeared,
they have not made the required showing here.
6

§ 652(1); $7.25 per hour from November 20, 2012, to December 30,
2013, see 29 U.S.C. § 206(a)(1); NYLL § 652(1) $8.00 per hour from
December 31, 2013, to December 30, 2014, see 29 U.S.C. § 206(a)(1);
NYLL § 652(1); and finally to $8.75 per hour from December 31,
2014, to November 20, 2015, see 29 U.S.C. § 206(a)(1); NYLL §
652(1).
When an employee is paid a flat weekly salary, “there is a
rebuttable

presumption

that

[it]

covers

40

hours,”

which

an

employer can overcome “by showing the existence of an employeremployee agreement that the salary cover a different number of
hours.”

Yuquilema v. Manhattan’s Hero Corp., No. 13 Civ. 461,

2014 WL 4207106, at *5 (S.D.N.Y. Aug. 26, 2014) (quoting Doo Nam
Yang v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005)).
The defaulting defendants have provided no evidence to rebut the
presumption here.

The plaintiff’s weekly salary should therefore

be divided by forty hours per week in determining whether the
defendants violated the minimum wage laws.

The lowest weekly

salary the plaintiff alleges is $350.00, or $8.75 per hour ($350
per week/40 hours per week).

At no point during the plaintiff’s

employment was the minimum wage above $8.75 per hour.

Therefore,

the plaintiff has not established liability for unpaid minimum

4

The FLSA minimum wage during this time period was $7.25 per
hour, see 29 U.S.C. § 206(a)(1), but the statute of limitations
bars recovery under the FLSA during this time period.
7

wages based on his weekly salary.
However,

the

plaintiff

also

alleges

that

the

defendants

failed to pay him at all for an unspecified “extended period of
time” (Compl., ¶ 50); his testimony clarifies that he was not paid
for one full week of work at the end of his employment (Tr. at
11).

The testimony therefore establishes liability for unpaid

minimum wages during that week.
4.

Unpaid Overtime

Both the FLSA and the NYLL provide that a non-exempt employee
must be paid one and one-half times his regular rate for hours
worked in excess of forty hours per week.
12 NYCRR § 146-1.4.

29 U.S.C. § 207(a)(1);

The plaintiff alleges that he worked more

than forty hours per week during every week that he worked for the
defendants and that he was not compensated at one and one-half
times his regular hourly rate for hours worked in excess of forty
hours per week.

(Compl., ¶¶ 15, 47-50).

Therefore, he has

established the defendants’ liability for unpaid overtime under
the FLSA and the NYLL.
5.

Unpaid Spread-of-Hours Premium

The “spread-of-hours” provision in the New York regulations
requires an additional hour’s pay at the “basic minimum hourly
rate” for any day where the employee works in excess of ten hours.
12 NYCRR § 146-1.6.

Employers are required to pay spread-of-hours

wages for “all employees in restaurants and all-year hotels,
8

regardless of a given employee’s regular rate of pay.”

12 NYCRR

§ 146-1.6(d); see also Saravia v. 2799 Broadway Grocery LLC, No.
12 Civ. 7310, 2014 WL 2011720, at *5 n.4 (S.D.N.Y. May 16, 2014).
The plaintiff alleges that he worked exactly ten hours per day
(6:00

a.m.

to

employment. 5

4:00

p.m.)

throughout

(Compl., ¶ 48).

the

duration

of

his

As the regulations only require a

spread-of-hours premium to be paid when an employee works in excess
of ten hours on a given day, the plaintiff has failed to establish
liability for any unpaid spread-of-hours pay.

See Bedasie v. Mr.

Z Towing, Inc., No. 13 CV 5453, 2017 WL 1135727, at *39 n.56
(E.D.N.Y. March 24, 2017) (spread-of-hours pay not awarded where
plaintiff worked for exactly ten hours per day).
6.
Under

the

Tools of the Trade
FLSA,

an

employer

may

not

shift

the

cost

of

purchasing “tools of the trade” to an employee if “the cost of
such tools cuts into the minimum or overtime wages required to be
paid him under the [FLSA].”

29 C.F.R. § 531.35; see also Tian v.

Ollies 42nd LLC, No. 15 Civ. 5499, 2016 WL 6900684, at *2 (S.D.N.Y.

5

Although the plaintiff testified that he worked from 5:00
a.m. to 4:00 p.m., or eleven hours per day, inconsistencies in the
plaintiff’s submissions on a damages inquest are resolved in favor
of the defendants.
See Coulibaly v. Millenium Super Car Wash,
Inc., No. 12 CV 4760, 2013 WL 6021668, at *7 (E.D.N.Y. Nov. 13,
2013).
The plaintiff also testified that he sometimes arrived
early or stayed late (Tr. at 11-12), but this testimony is not
sufficiently specific to determine how often the plaintiff worked
more than ten hours per day.
9

Nov. 22, 2016).

The plaintiff adequately alleges that he was owed

unpaid overtime and that the defendants failed to reimburse him
for his purchase of a bicycle, bike lights, helmet, and jacket.
The bicycle, bike lights, jacket, and helmet are compensable “tools
of the trade” for a deliveryman.

See Hernandez v. Jrpac Inc., No.

14 Civ. 4176, 2016 WL 3248493, at *30-31 (S.D.N.Y. June 9, 2016).
The plaintiff has therefore established the defendants’ liability
for the cost of these items.
B.

Damages

Once

liability

provide

evidence

has

established,

establishing

reasonable certainty.
F.3d at 111.

been

the

amount

the
of

plaintiff

must

damages

with

Transatlantic Marine Claims Agency, 109

“Where, on a damages inquest, a plaintiff fails to

demonstrate its damages to a reasonable certainty, the court should
decline to award any damages, even though liability has been
established through default.”

Lenard v. Design Studio, 889 F.

Supp. 2d 518, 527 (S.D.N.Y. 2012).
1.
In

Actual Damages

assessing

plaintiff’s
defendants.
plaintiff’s

actual

submissions
Coulibaly,
testimony

damages,

should
2013
is

be
WL

found

inconsistencies
resolved

6021668,
to

be

in

in

favor

at

*7

of

the
the

(“Where

inconsistent

a

with

corresponding facts submitted to the court or is otherwise not
credible, the court must resolve the inconsistencies in favor of
10

the defendant.”).

Accordingly, the plaintiff should be credited

for working at JR Primos 2 from August 15, 2013, to November 20,
2015 -- the latest start date 6 and earliest end date he alleged.
(Compl., ¶ 48; Tr. at 6).

He should be credited for working

seventy hours per week -- 6:00 a.m. to 4:00 p.m., seven days per
week -- the lowest number of hours worked he alleged.
48).

(Compl., ¶

His rate of pay should be set at $350.00 per week until

November 20, 2014, after which his rate of pay should be set at
$370.00 per week -- the lowest rates of pay he alleged during those
time periods. 7

(Tr. at 7-8).

His hourly rates were therefore

$8.75 per hour while he was making $350.00 per week ($350/40 hours
per week) and $9.25 per hour while he was making $370.00 per week
($370/40 hours per week). 8

His overtime rates for those periods

6

The plaintiff testified at the inquest that he started
working for the defendants four years ago “in the summertime,” but
could not recall the exact date. (Tr. at 6). Because the Complaint
alleges that he began working during the month of August, albeit
in 2011, I use August 15, 2013 -- the middle of August four years
ago -- as an approximation.
7

The Complaint alleges that the plaintiff was paid $370.00
per week throughout the duration of his employment (Compl., ¶ 50),
but he testified that he received $350.00 per week for the first
three years of employment and $370.00 per week in the final year
of his employment. (Tr. at 7-8). As both the Complaint and the
plaintiff’s testimony indicate that he was paid $370.00 per week
during the last year of his employment, I treat $370.00 per week
as his pay rate during the last year of his employment credited
here, even though his testimony suggests that his last year of
employment was April 2016 to April 2017. (Tr. at 6).
8

As already discussed, the defendants have not rebutted the
presumption that the plaintiff’s weekly pay covered forty hours.
11

were $13.13 per hour ($8.75 x 1.5) and $13.88 per hour ($9.25 x
1.5), respectively.

He was never paid at the overtime rate for

hours worked above forty hours per week. In addition, he testified
that he was not paid for one week of work at the end of his
employment (Tr. at 11), during which he worked seventy hours at an
hourly rate of $9.25 per hour and an overtime rate of $13.88 per
hour. 9
Applying these dates, hours, and rates of pay, the plaintiff
has demonstrated damages to a reasonable certainty.

However, I

deduct two weeks of wages per year from the plaintiff’s damages
award because it is highly unlikely that he worked every day of
the year for more than two-and-a-half years without taking a single
sick day, vacation day, or day off on a holiday, or that he never
arrived late, left early, or took a single meal or rest break.
See Coulibaly, 2013 WL 6021668, at *8-9.

These damages are

summarized below:

9

Under the FLSA, the plaintiff is only entitled to recover
unpaid hours for the first forty hours worked at the statutory
minimum wage rate. Kernes v. Global Structures, LLC, No. 15 Civ.
659, 2016 WL 880199, at *3 (S.D.N.Y. March 1, 2016).
However,
under the NYLL, the plaintiff may recover unpaid hours at a rate
higher than the minimum wage if the parties agreed upon the rate.
See Soto v. Armstrong Management Realty Corp., No. 15 Civ. 9283,
2016 WL 7396687, at *2 (S.D.N.Y. Dec. 21, 2016) (collecting cases).
As the defendants agreed to pay the plaintiff $370.00 per week (or
$9.25 per hour) during the last year of his employment, he is
entitled to recover unpaid hours at that rate under the NYLL. The
plaintiff’s straight-time damages under the FLSA for this week,
which would be calculated using the statutory minimum wage rate
rather than the agreed-upon rate, would be slightly lower.
12

Hourly Rate
Overtime Rate
Weeks Worked
Unpaid Overtime Hours/Week
Unpaid Overtime Wages 12
Unpaid Work Week
Actual Damages 14

8/15/13 – 11/20/14
11/21/14 – 11/20/15
$8.75
$9.25
$13.13
$13.88
10
64.14
50.14 11
30
30
$25,264.75
$20,878.30
$786.40 13
$46,929.45

On the other hand, the plaintiff has not established actual
damages to a reasonable certainty on his “tools-of-the-trade”
claim. Although he testified that the defendants did not reimburse
him for purchasing a bicycle, helmet, vest, and bike (Tr. at 10),
he did not testify to or otherwise submit evidence of the cost of
any of these items.
2.

Liquidated Damages

Both the FLSA and the NYLL provide for liquidated damages.
An employer who violates the minimum wage or overtime provisions

10

The time between August 15, 2013, and November 20, 2014 is
66.14 weeks. The number above reflects a two-week deduction from
the plaintiff’s damages award for a period of slightly more than
one year.
11

The time between November 21, 2014, and November 20, 2015
is 52.14 weeks. The number above reflects a two-week deduction
for a period of one year.
12

Unpaid Overtime Wages = Overtime Rate x Weeks Worked x
Unpaid Overtime Hours/Week.
13

($9.25 x 40) + ($13.88 x 30) = $786.40.

14

Actual Damages = Unpaid Overtime Wages + Unpaid Work Week.
13

of the FLSA is liable for an amount in liquidated damages equal to
the amount owed in compensatory damages. 15

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).

Under the NYLL, a prevailing employee is entitled

to liquidated damages in the amount of 100% of unpaid wages accrued
on or after April 9, 2011.

NYLL §§ 198(1-a), 663(1); Garcia v.

Giorgio’s Brick Oven & Wine Bar, No. 11 Civ. 4689, 2012 WL 3339220,
at *4 (S.D.N.Y. Aug. 15, 2012).
In Chowdhury v. Hamza Express Food Corp., 666 F. App’x 59 (2d
Cir. 2016), the Second Circuit addressed a split among district
courts as to whether a plaintiff could be awarded liquidated
damages under both statutes for the same violation.

The court

held that such “stacked” liquidated damages are not permissible
because, after amendments to the NYLL liquidated damages provision
in 2009 and 2010, “the NYLL now mirrors the FLSA,” and “double
recovery is generally disfavored where another source of damages
already remedies the same injury for the same purpose.”
60-61.

Id. at

Although Chowdhury is a non-precedential panel opinion, a

district court is ill advised “to flout germane guidance of a

15

The district court has discretion to deny these damages
where an employer shows that “it acted in subjective ‘good faith’
with objectively ‘reasonable grounds’ for believing that its acts
or omissions did not violate the FLSA.” Barfield v. New York City
Health and Hospitals Corp., 537 F.3d 132, 150 (2d Cir. 2008)
(quoting 29 U.S.C. § 260). Here, the defendants did not appear
and thus did not make the required showing.
14

Circuit Court panel and to substitute its own conclusion of law.” 16
United States v. Tejeda, 824 F. Supp. 2d 473, 475 (S.D.N.Y. 2010).
Therefore, “stacked” liquidated damages are disallowed in this
case.
Still, the plaintiff should “recover under the statute that
provides the great[er] relief.”

Castillo v. RV Transport, Inc.,

No. 15 Civ. 527, 2016 WL 1417848, at *3 (S.D.N.Y. April 11, 2016).
Here, he is entitled to 100% of his unpaid wages in liquidated
damages under both statutes.

As his unpaid wages are slightly

higher under the NYLL than the FLSA, see supra note 9, I award
$46,929.45 in liquidated damages under the NYLL.
C.

Prejudgment Interest

The NYLL provides for an award of prejudgment interest in
addition to liquidated damages.

See NYLL §§ 198(1-a) (“In any

action instituted in the courts upon a wage claim by an employee
or the commissioner in which the employee prevails, the court shall
allow such employee to recover . . . prejudgment interest as
required under the civil practice law and rules, and . . . an
additional amount as liquidated damages . . . .”); 663(1) (same);
Reilly v. Natwest Markets Group Inc., 181 F.3d 253, 265 (2d Cir.

16

I have previously noted that there are compelling reasons
why courts allowed “stacked” liquidated damages before the
Chowdhury decision, see Granados v. Traffic Bar & Restaurant, Inc.,
No. 13 Civ. 500, 2016 WL 7410725, at *4 n.7 (S.D.N.Y. Dec. 21,
2016), but decline to depart from the position adopted by the
Second Circuit here.
15

1999); Chuchuca v. Creative Customs Cabinets Inc., No. 13 CV 2506,
2014 WL 6674583, at *16 (E.D.N.Y. Nov. 25, 2014).

Prejudgment

interest is available on actual damages awarded under the NYLL,
but not on liquidated damages.

Xochimitl v. Pita Grill of Hell’s

Kitchen, Inc., No. 14 Civ. 10234, 2016 WL 4704917, at *18 (S.D.N.Y.
Sept. 8, 2016).

New York law sets the relevant interest rate at

nine percent per year.

CPLR § 5004.

Where, as here, the “damages

were incurred at various times,” the court may compute the interest
“upon all of the damages from a single reasonable intermediate
date.”

CPLR § 5001(b); see, e.g., Tackie v. Keff Enterprises,

LLC, No. 14 Civ. 2074, 2014 WL 4626229, at *6 (S.D.N.Y. Sept. 16,
2014) (“In wage and hour cases, courts often choose the midpoint
of the plaintiff’s employment within the limitations period.”).
The

plaintiff’s

$46,929.45.

actual

damages

under

the

NYLL

total

That is $4,223.65 in interest per year, or $11.57 in

interest per day.

He is credited with working at JR Primos 2 from

August 15, 2013, through November 20, 2015, a period of 828 days.
Accordingly, I award prejudgment interest from October 3, 2014,
which is 414 days from the date on which Mr. Ortega began working
at JR Primos 2.
D.

Attorneys’ Fees and Costs

The FLSA and the NYLL provide for an award of reasonable
attorneys’ fees and costs to a prevailing plaintiff in a wage-andhour action.

29 U.S.C. § 216(b); NYLL § 198.
16

District courts

have broad discretion when awarding a fee, but must clearly explain
the reasons supporting an award.

Tackie, 2014 WL 4626229, at *6.

“Courts ordinarily award a lodestar fee, which is the product of
the prevailing market rate for lawyers in the district and the
number of hours a reasonable attorney would spend to litigate the
case

effectively.”

Id.

“The

plaintiff

must

produce

‘contemporaneous time records indicating, for each attorney, the
date, the hours expended, and the nature of the work done.’”

Id.

(quoting Scott v. City of New York, 626 F.3d 130, 133-34 (2d Cir.
2010)).
The plaintiff seeks attorneys’ fees for five timekeepers.
Michael

Faillace,

the

Managing

Member

of

Michael

Faillace

&

Associates, P.C., has practiced law since 1983 and has taught
employment discrimination law at Fordham University School of Law
and Seton Hall University School of Law; he charges $450.00 per
hour.

(Letter of Joshua S. Androphy dated May 5, 2017 (“Androphy

Letter”), at 1).

Joshua S. Androphy, a senior attorney at the

firm, has been practicing law since 2005; he charges $400.00 per
hour.
at

the

(Androphy Letter at 2).
firm,

has

been

Gerald Ellis, a former associate

practicing

law

since

2010

and

began

practicing employment law in 2016; he charges $375.00 per hour.
(Androphy Letter at 2).

Shawn Clark, an associate at the firm,

has been practicing law since 2010 and began practicing employment
law in 2013; he also charges $375.00 per hour.
17

(Androphy Letter

at 1-2).
hour.

An unnamed paralegal at the firm charges $100.00 per

(Androphy Letter at 1).

The requested rates for the four attorneys are above what
attorneys at Mr. Faillace’s firm and firms like his typically
receive

in

FLSA

cases

in

this

district,

straightforward case such as this.

particularly

in

a

See, e.g., Larrea v. FPC

Coffees Realty Co., No. 15 Civ. 1515, 2017 WL 1857246, at *6
(S.D.N.Y. May 5, 2017) (awarding $350.00 per hour to Mr. Androphy);
Sevilla v. Nekasa Inc., No. 16 Civ. 2368, 2017 WL 1185572, at *56 & n.9 (S.D.N.Y. March 30, 2017) (awarding Mr. Faillace $425.00
per hour and noting that “recent cases . . . usually award [him]
between $400 and $425 per hour”; awarding Mr. Clark $250.00 per
hour and noting that “[r]ecent cases have reduced Clark’s hourly
rate from $375 to between $200 and $250”); Andrade v. 168 First
Ave Restaurant Ltd., No. 14 Civ. 8268, 2016 WL 3141567, *11
(S.D.N.Y. June 3, 2016) (“Courts in this Circuit recently have
found $425.00 per hour to be a reasonable rate for Mr. Faillace’s
services, and $300 per hour to be a reasonable rate for Mr.
Androphy’s services.”); Castellanos v. Mid Bronx Community Housing
Management

Corp.,

No.

13

Civ.

3061,

2014

WL

2624759,

at

*7

(S.D.N.Y. June 10, 2014) (“In labor and employment cases, courts
in

this

district

have

approved

hourly

rates

of

$300–400

for

partners.”); Wong v. Hunda Glass Corp., No. 09 Civ. 4402, 2010 WL
3452417, at *3 (S.D.N.Y. Sept. 1, 2010) (reasonable hourly rate
18

for

“employment

law

litigators

with

approximately

ten

years’

experience is between $250.00 per hour and $350.00 per hour”).
Consistent with the case law above, I award $425.00 per hour
to Mr. Faillace, $350.00 per hour to Mr. Androphy, $250.00 per
hour to Mr. Clark, and $250.00 per hour to Mr. Ellis, whose
experience level is comparable to Mr. Clark’s.
per

hour

is

reasonable

for

the

paralegal.

A rate of $100.00
See

Gonzalez

v.

Scalinatella, Inc., 112 F. Supp. 3d 5, 29 (S.D.N.Y. 2015).
Plaintiff’s counsel has provided contemporaneous time records
reflecting the hours each timekeeper spent on this case.

(Time

Records, attached as Exh. to Androphy Letter).

Mr. Faillace bills

4.8

and

hours

Complaint.

for

meeting

with

the

(Time Records at 1).

plaintiff

the

Mr. Clark bills 0.2 hours for

drafting a motion to adjourn an initial conference.
at 1).

drafting

(Time Records

Mr. Ellis bills 10.1 hours for meetings with the plaintiff,

communications with opposing counsel, attendance at the pre-trial
conference, drafting documents in preparation for the inquest, and
attending the inquest.

(Time Records at 1-2).

Mr. Androphy bills

0.5 hours for drafting and filing the attorneys’ fees submission.
(Time Records at 2).

The paralegal bills 3.5 hours for filing the

Complaint electronically, attending the inquest, and translating
the plaintiff’s testimony at the inquest.
The

vast

majority

of

the

billing

(Time Records at 2).
reflects

a

modest

reasonable number of hours to complete the listed tasks.
19

and

However,

two reductions are warranted.

First, Mr. Ellis twice bills travel

time to and from the courthouse at his regular hourly rate, even
though travel time is only compensable at half of an attorney’s
hourly rate.

LV v. New York City Department of Education, 700 F.

Supp. 2d 510, 526 (S.D.N.Y. 2010).

As Mr. Ellis block-bills his

travel time (Time Records at 2), it is unclear precisely how much
time he spent traveling.

Accordingly, I assume that fifty percent

of the time in the block-billed entries, or 1.9 hours, is travel
time, and award the 1.9 hours dedicated to travel at half of his
hourly rate. Second, the paralegal bills three hours for attending
the inquest (Time Records at 2), even though the inquest before me
lasted less than one hour.

Indeed, Mr. Ellis bills 1.5 hours for

attending the inquest, which includes his travel time to and from
the courthouse.

(Time Records at 2).

Accordingly, I reduce the

paralegal’s compensable time for the inquest to one hour.
plaintiff is awarded $4,702.50 in attorneys’ fees:
Timekeeper

Hours Awarded

Rate Awarded

Total Fees

Faillace

4.8

$425.00

$2,040.00

Androphy

0.5

$350.00

$175.00

Ellis

8.2

$250.00

$2,050.00

Ellis (travel) 1.9

$125.00

$237.50

Clark

0.2

$250.00

$50.00

Paralegal

1.5

$100.00

$150.00

Lodestar

$4,702.50

20

The