Pankaj Anjus v. Look & Pick, Inc. et al

Filing 39

MEMORANDUM AND OPINION AND ORDER re: 33 FIRST MOTION for Summary Judgment . filed by Moolchand Bhatia. Defendants' motion for summary judgment is DENIED. By June 10, 2016, the parties shall submit a joint pretrial order in accor dance with the Court's Individual Practices. All counsel shall attend a case management conference on June 20, 2016, at 11:30 a.m., at which time the Court will set a trial date and a schedule for pretrial submissions. The Clerk is instructed to terminate the motion. (Doc. #33). (Signed by Judge Vincent L. Briccetti on 5/10/2016) (rj)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
HENRY PANKAJ ANJUS,
:
Plaintiff,
:
:
v.
:
:
LOOK & PICK, INC. d/b/a GUZZELS,
:
MOOLCHAND BHATIA, and AMARJIT
:
SINGH,
:
Defendants.
:
--------------------------------------------------------------x

MEMORANDUM
OPINION AND ORDER
14 CV 7585 (VB)

Briccetti, J.:
Plaintiff Henry Pankaj Anjus brings this action against defendants Look & Pick, Inc.
(“Look & Pick”), Moolchand Bhatia, and Amarjit Singh, alleging violations of the Fair Labor
Standards Act (“FLSA”) 29 U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”).
Plaintiff seeks unpaid minimum and overtime wages.
On February 1, 2016, Bhatia moved for summary judgment on the grounds that he was
not plaintiff’s employer. (Doc. #33).
For the following reasons, the motion is DENIED.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and § 1367(a).
BACKGROUND
The parties have submitted briefs, statements of facts pursuant to Local Civil Rule 56.1,
and declarations and affidavits with supporting exhibits, which reflect the following factual
background.

1

I.

The Parties
Plaintiff was an employee of Look & Pick, which does business as a deli and

convenience store called Guzzels in Spring Valley, New York. Plaintiff worked at Guzzels from
November 11, 2013, to February 24, 2014.
Singh is Look & Pick’s owner of record. Plaintiff claims Singh’s only actual
responsibility at Guzzels was to make sandwiches at the deli.
Bhatia is a financial service representative for MetLife. The central dispute in this
motion is whether Bhatia was also plaintiff’s employer at Guzzels under the “economic reality”
test. Plaintiff claims that, although Bhatia was not the legal owner of record, he was responsible
for the operation, control, and management of Guzzels, and has a “cash-based ownership stake
and financial interest” in the store. (Pl.’s Br. at 2, 4). Bhatia, on the other hand, claims his role
at Guzzels was limited to doing favors for Singh as his longtime friend.
II.

Bhatia’s Role at Guzzels
Plaintiff claims he was introduced to Bhatia by a friend on November 10, 2013,

whereupon Bhatia hired plaintiff “to work in his deli.” (Declaration of Henry Anjus ¶ 7 (“Anjus
Decl.”)). Bhatia promised to pay plaintiff $2,200 per month in cash if plaintiff would work
thirteen hours per day, seven days per week. Plaintiff agreed, and started work the next day.
According to plaintiff, on each of plaintiff’s first few days of employment, Bhatia drove
him 43 miles from Queens to Spring Valley for work. En route, Bhatia explained plaintiff’s
responsibilities at Guzzels, taught plaintiff how to operate the lottery and ATM machines, and
gave plaintiff passwords for the computer consoles in the store. Bhatia directed plaintiff to eat,
sleep, and live at Guzzels, which plaintiff did. Bhatia also “personally authorized [plaintiff’s]
payment of $1,100 in [c]ash every fifteen [] days.” (Anjus Decl. ¶ 9).

2

During plaintiff’s employment, he claims he would speak to Bhatia on the phone several
times per day, and that Bhatia repeatedly told plaintiff “he was watching [plaintiff] on the
cameras that were installed over the cash registers.” (Anjus Decl. ¶ 10 (internal quotation marks
omitted)).
According to plaintiff, Bhatia repeatedly instructed plaintiff to pay Singh cash and keep a
record of doing so in the “Copy Book,” a record, which Bhatia maintained, of “the daily inflows
and outflows of [c]ash,” including cash payments made to employees. (Anjus Decl. ¶¶ 14-15).
Plaintiff claims Bhatia required him to give Bhatia a daily summary of the inflow and outflow of
cash documented in the Copy Book. Plaintiff claims Singh “had no day[-]to[-]day responsibility
for the Copy Book, and did not make the entries” in it. (Id. ¶ 17).
Plaintiff claims Bhatia would pay him “partially in [c]ash and partially by having his son,
Amit Kumar Bhatia, wire money to [plaintiff’s] family in Bangladesh.” (Anjus Decl. ¶ 19).
Finally, plaintiff claims Bhatia personally fired him on February 24, 2014.
In opposition to the present motion, plaintiff also submits the Declaration of Edward
Lauture (“Lauture Decl.”), a non-party who claims to be a frequent customer at Guzzels and
knows Bhatia, Singh, and plaintiff. Lauture claims to have observed Bhatia working at Guzzels,
operating the lottery, purchasing groceries for the store, collecting cash, paying cash to plaintiff
and Singh, and otherwise acting “like he owned the store.” (Lauture Decl. ¶ 3). Lauture also
claims to have seen both plaintiff and Singh “work very long hours and [] live inside” Guzzels at
Bhatia’s behest. (Id. ¶ 4).
Lauture recounts an incident shortly before plaintiff was hired, in which Lauture lent
another Guzzels employee, “Babu,” about $270. When Lauture, in Bhatia’s presence, asked

3

Babu to repay him, Bhatia told Lauture he would “take the money out of his ‘salary’ and paid
[Lauture] the $270.” (Lauture Decl. ¶ 5). Lauture claims Bhatia fired Babu shortly thereafter.
Bhatia sharply disputes almost everything plaintiff claims about Bhatia’s role at Guzzels.
Bhatia claims he helped Singh read and understand forms and documents related to the business
because Singh does not read or understand English well, but that Bhatia has no financial interest
or control over the store.
DISCUSSION
I.

Standard of Review
The Court must grant a motion for summary judgment if the pleadings, discovery

materials before the Court, and any affidavits show there is no genuine issue as to any material
fact and it is clear the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
A fact is material when it “might affect the outcome of the suit under the governing law
. . . . Factual disputes that are irrelevant or unnecessary” are not material and thus cannot
preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute about a material fact is genuine if there is sufficient evidence upon which a
reasonable jury could return a verdict for the non-moving party. See id. The Court “is not to
resolve disputed issues of fact but to assess whether there are any factual issues to be tried.”
Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010) (citation omitted). It is the moving
party’s burden to establish the absence of any genuine issue of material fact. Zalaski v. City of
Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir. 2010).
If the non-moving party has failed to make a sufficient showing on an essential element
of his case on which he has the burden of proof, then summary judgment is appropriate. Celotex

4

Corp. v. Catrett, 477 U.S. at 323. If the non-moving party submits “merely colorable” evidence,
summary judgment may be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50. The
non-moving party “must do more than simply show that there is some metaphysical doubt as to
the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.”
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal quotation marks and
citations omitted). The mere existence of a scintilla of evidence in support of the non-moving
party’s position is likewise insufficient; there must be evidence on which the jury could
reasonably find for him. Dawson v. Cty. of Westchester, 373 F.3d 265, 272 (2d Cir. 2004).
On summary judgment, the Court construes the facts, resolves all ambiguities, and draws
all permissible factual inferences in favor of the non-moving party. Dallas Aerospace, Inc.
v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). If there is any evidence from which a
reasonable inference could be drawn in favor of the non-moving party on the issue on which
summary judgment is sought, summary judgment is improper. See Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).
In deciding a motion for summary judgment, the Court need only consider evidence that
would be admissible at trial. Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736,
746 (2d Cir. 1998).
II.

Employment Relationship
The sole question in this motion is whether there is a genuine issue of fact regarding

whether Bhatia is plaintiff’s employer under the FLSA and NYLL.
“To be held liable under the FLSA, a person must be an ‘employer,’ which § 3(d) of the
statute defines broadly as ‘any person acting directly or indirectly in the interest of an employer
in relation to an employee.’” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)

5

(quoting 29 U.S.C. § 203(d)). To determine who is an “employer,” the Second Circuit may look
to “the ‘economic reality’ of a putative employment relationship, specifically, ‘whether the
alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled
employee work schedules or conditions of employment, (3) determined the rate and method of
payment, and (4) maintained employment records.’” Barfield v. N.Y.C. Health & Hosps. Corp.,
537 F.3d 132, 142-43 (2d Cir. 2008) (internal quotation marks omitted). No one factor is
dispositive. Herman v. RSR Sec. Servs. Ltd., 172 F.3d at 139.
The standard for whether a defendant is an “employer” under the NYLL is substantively
the same as it is under the FLSA. See, e.g., Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.
Supp. 3d 19, 24-25 (E.D.N.Y. 2015). If Bhatia was plaintiff’s employer for purposes of the
FLSA, he was plaintiff’s employer for purposes of the NYLL as well. Therefore, the Court
analyzes these claims together.
III.

Whether Bhatia was Plaintiff’s Employer
Plaintiff’s contentions create a genuine issue of material fact as to whether Bhatia was

plaintiff’s employer, because he has submitted admissible evidence showing Bhatia meets all
four factors of the economic reality test.
First, according to plaintiff, Bhatia had the power to hire and fire the employees. Indeed,
plaintiff has submitted evidence showing Bhatia hired plaintiff, and fired both plaintiff and Babu.
Second, according to plaintiff, Bhatia supervised and controlled employee work
schedules, by setting plaintiff’s and Singh’s hours. Bhatia also controlled the conditions of
employment: he trained plaintiff, supervised plaintiff in person and over the telephone, required
plaintiff to make daily reports, and told plaintiff he was monitoring him on cameras installed
over the cash register. He also required plaintiff and Singh to live in the store.

6

Third, Bhatia determined the rate and method of payment for employees. Bhatia set
plaintiff’s salary when he hired plaintiff, and authorized payment in cash and via wire transfer.
Bhatia also instructed plaintiff to pay Singh. Finally, Bhatia had the authority to deduct money
from Babu’s salary to pay Lauture.
Fourth, Bhatia maintained employment records. Bhatia kept the Copy Book, which listed
payments made to employees. According to plaintiff, Singh had no role in the record-keeping
process.
All of these factors weigh in favor of a finding an employment relationship between
Bhatia and plaintiff. A reasonable jury could therefore find Bhatia was plaintiff’s employer
under the FLSA and NYLL.
CONCLUSION
Defendants’ motion for summary judgment is DENIED.
By June 10, 2016, the parties shall submit a joint pretrial order in accordance with the
Court’s Individual Practices.
All counsel shall attend a case management conference on June 20, 2016, at 11:30 a.m.,
at which time the Court will set a trial date and a schedule for pretrial submissions.
The Clerk is instructed to terminate the motion. (Doc. #33).
Dated: May 10, 2016
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

7