Morales v. MW Bronx, Inc.

LISSA MORALES, et al., Plaintiffs, v. MW BRONX, INC., et al., Defendants.

No. 15-cv-6296 (TPG)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 1, 2016

OPINION & ORDER

Plaintiffs Lissa Morales, Danny Jimenez-Corcione, and Thomas R. Martinez brought suit on August 11, 2015 against certain owners and supervisors of their former employer to recover unpaid minimum wages, overtime premium wages, liquidated damages, and statutory penalties under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., and the New York Labor Law (NYLL), NYLL § 650 et seq. Plaintiff Morales, who joins plaintiffs Martinez and Jimenez-Corcione in these FLSA and NYLL claims, has brought additional claims relating to her treatment by one supervisor, including gender discrimination and retaliation under the New York State Human Rights Law (NYSHRL), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law (NYCHRL), N.Y. City Admin. Code §8-101 et seq., and for intentional infliction of emotional distress.

For the reasons provided in the opinion below and in the appendices that follow it, the court grants plaintiffs' motion in part and reserves decision in part, pending further briefing my plaintiffs Morales and Martinez. Plaintiff Morales's sexual harassment-related claims are dismissed without prejudice for lack of subject-matter jurisdiction.

Background

A. Procedural History

Plaintiffs brought suit on behalf of themselves and all others similarly situated against the owners of their former employer restaurant, and three supervisors who were also employees of the restaurant. All defendants were duly served with the summons and complaint. ECF Nos. 5-7. None of the defendants entered a notice of appearance, filed an answer, or otherwise moved with respect to the complaint, and the time for them to do so has passed. Accordingly, on December 3, 2015, the Clerk of Court issued a Certificate of Default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure. ECF Nos. 9-13.

On March 1, 2016, plaintiffs moved for default judgment, ECF Nos. 24-31, and, although defendants were served with copies of the motion, they failed to file any opposition.

Plaintiffs originally sought designation of this action as a collective action pursuant to 29 U.S.C. § 216(b). Compl. ¶¶ 20-22. Because plaintiffs now seek a default judgment and have not reiterated their request for collective action in the present motion, the court deems plaintiffs' collective action request to be waived.

B. Factual History

Plaintiffs' complaint unfolds in two parts: Part I covers all plaintiffs' wage and hour-related claims, and Part II addresses one plaintiff's allegations of sexual harassment, discrimination, and retaliation under state and municipal law. The court accepts all well-pled facts in the complaint as true in this unopposed motion for default. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009).

Defendants MW Bronx, Inc. (MW) and Master Wok, Inc. (Master Wok) operate a restaurant known as Wok Restaurant, located at 200 Baychester Avenue in the Bronx. Defendants Ryan Reymond Sanchez, Norma Doe, and Ken Doe, all of whose true last names were unknown to plaintiffs at the time the complaint was filed, Compl. ¶ 11, are employees of defendants MW and Master Wok who work at Wok Restaurant. All of those individuals also acted as employers to all plaintiffs, with the power to determine payment, hire, fire, and supervise. Compl. ¶ 15; see also Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999), modified by Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61 (2d Cir. 2003) (noting factors to consider when determining if a person or entity is an "employer" under the FLSA).

Plaintiffs Martinez, Morales, and Jiminez-Corcione are three former employees at Wok Restaurant. They claim they were underpaid their due minimum wages, overtime wages, and spread-of-hours pay, and that defendants failed to provide them with wage-and-hour statements or an employment contract or employee handbook. All plaintiffs seek relief that includes damages(including liquidated damages), penalties, pre- and post-judgment interest, and attorney's fees and costs. Compl. 24, ¶¶ A-H.

Each of the three plaintiffs worked at Wok Restaurant for only a brief period. On December 9, 2014, defendant Ken Doe hired plaintiff Jimenez-Corcione to work as a server at an hourly rate of $8.50, though Jimenez-Corcione was paid only $8.25 per hour.¹ In the first week of his employment, Jimenez-Corcione worked a total of 105 hours, 40 of which were regular hours and 65 of which were overtime. Jimenez-Corcione Aff., Feb. 25, 2016, ECF No. 30, ¶¶ 6-9. In the next and final four days of his employment, Jimenez-Corcione worked a total of 60 hours, 40 of which were regular hours and 20 of which were overtime hours. Id. In total, Jimenez-Corcione worked a total of 165 hours but was compensated for only 73 regular hours.² In addition, Jimenez-Corcione says he never received a wage notice at the time of hiring, regular wage statements, or annual wage notices. At some point, Jimenez-Corcione complained to defendants Norma Doe and Ken Doe that he was being shorted his wages, and Jimenez-Corcione's employment was terminated on December 19, 2014. See Jimenez-Corcione Aff., Feb. 25, 2016, ECF No. 30, ¶ 14.

Plaintiff Martinez began working at Wok Restaurant on December 5, 2014, after Ken Doe hired him as a server. Martinez Aff., Feb. 25, 2016, ECF No. 31, ¶ 2. At the outset of his employment, Martinez never received a wage notice, regular wage statements, or annual wage notices. Martinez, too, was promised an hourly rate of $8.50 but was paid only $8.25 per hour.³ He also claims he was underpaid and, after complaining to Ken Doe about his unpaid wages, Martinez's employment was terminated on December 22, 2014. Martinez Aff., Feb. 25, 2016, ECF No. 31, ¶ 16.

The court lacks information sufficient to determine if Martinez's factual allegations are actionable.⁴ To make that determination, the court must know the total number of hours worked during his first week of work (12/05/14 through 12/11/14) and how much he was paid that week; the total number of hours worked during his second week of work (12/12/14 through 12/18/14) and how much he was paid that week, the total number of hours worked during his third week of work (12/19/14 through 12/25/14) and how much he was paid that week, what proportion of his payments (if any) were marked as overtime compensation, and on how many days Martinez worked an excess of ten hours.

Plaintiff Morales began working as a server at Wok Restaurant on December 11, 2014, and ceased working there on December 24, 2014. MoralesAff., Feb. 25, 2016, ECF No. 29, ¶¶ 2, 22. She, too, was hired by Ken Doe to work as a server and agreed to an hourly rate of $8.25. Morales never received a wage notice at the time of hiring, regular wage statements, or annual wage notices.

Morales's work shifts varied during her brief period of employment at Wok Restaurant. But, like Martinez, Morales has provided the court with incorrect or, at least, irreconcilable information. First, her affidavit is rife with mathematical error. See, e.g., Morales Aff. ¶ 6 (miscalculating the number of hours she worked by stating that there are 8 hours between the hours of 10:00 AM and 7:00 PM, when, in fact, there are 9). Second, she contends that she worked 136.5 hours of regular time in the two weeks of work at Wok Restaurant, id. ¶ 7, when this is not possible, since regular hours are defined based on a 40-hour work week, and any hours in excess of 40 in a seven-day period are considered overtime.

The court has recalculated Morales's hours based on the information provided in her Affidavit. See App. A, infra. According to the court's calculations, Morales worked a total of 157.5 hours in her fourteen days of employ at Wok Restaurant. See App. A, infra; Morales Aff. ¶ 6. She worked 40 regular hours in her first week and 30.5 overtime hours in her first week. In her second week, Morales worked 40 regular hours and 47 overtime hours. But the court still lacks the information necessary to determine if Morales's allegations are actionable. To make that determination, Morales must confirm that she worked 30.5 overtime hours the first week and 47 hours overtime the second week,separately state how much money she earned during her first and second weeks of work, indicate what proportion of her earnings (if any) were denoted as overtime payments, and specify the number of days she worked an excess of ten hours.

Plaintiff Morales has also separately alleged that, during the period she was employed at Wok Restaurant, she was repeatedly subjected to sexual harassment by defendant Sanchez. He called her unsolicited pet names, attempted to touch her body, tried to follow her to the restroom, repeatedly asked her to be his girlfriend, and otherwise behaved inappropriately in the face of Morales's unambiguous aversion. Morales complained to Norma Doe and Ken Doe about Sanchez's behavior. While both Norma and Ken Doe asked Sanchez to leave Morales alone, nothing was done to discipline Sanchez. In fact, following Morales's complaints, Sanchez intensified his harassing behavior. Sanchez's behavior—and Ken and Norma Doe's apparent tolerance of it—forced Morales to end her employment at Wok Restaurant. Morales Aff. ¶¶ 14-22.

Morales asserts that defendants created a hostile work environment that caused her severe emotional distress during the fourteen days that she was employed at Wok Restaurant and for a period of time afterward. Id. ¶ 24; Compl. ¶¶ 121-24. Based on claims filed under state and municipal law, Morales seeks compensatory damages, including damages for mental and emotional injuries, punitive damages, pre- and post-judgment interest, restitution to her prior position, and attorney's fees and costs based on the allegations of sexualharassment, employment discrimination and retaliation, and damages for...