Nepomuceno v. Amsterdam Deli & Convenience Corp

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EDUARDO REYES NEPOMUCENO, Plaintiff, v. AMSTERDAM DELI AND CONVENIENCE CORP, COLUMBIA DELI & GRILL INC., AMMAR AL KUTAINY, NASSER AL KUTAINY, SHAWQI ALGAAD, and FOUAD THABET SALEH, Defendants.

No. 19-cv-3150 (MKV)

United States District Court, S.D. New York

September 23, 2022

ORDER DENYING IN PART AND GRANTING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

MARY KAY VYSKOCIL UNITED STATES DISTRICT JUDGE

Plaintiff Eduardo Reyes Nepomuceno brings this action asserting violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., and various provisions of the New York Labor Law (“NYLL”). Before the Court is Plaintiff's unopposed motion for partial summary judgment against Defendant Shawqi Algaad. For the reasons set forth below, the motion is GRANTED in part and DENIED in part.

I. BACKGROUND^[1]

A. Facts

Defendant Shawqi Algaad, along with three other individuals, owned Columbia Deli & Grill, Inc. from 2015 until January 17 2019. Pl. 56.1 ¶¶ 1, 2; Algaad Depo. at 7:3-8:3; Contract of Sale. Columbia Deli & Grill, Inc. owned Columbia Deli & Grill, a bodega in Manhattan. Pl. 56.1 ¶ 3; Pl. Aff ¶ 2; Algaad Depo. at 8:23-9:3.

During his time as an owner, Mr. Algaad hired and fired employees. See Pl. 56.1 ¶ 9, 10, 11; Algaad Depo. at 11:16-18, 31:12, 35:11-12. He decided how much to pay employees. Pl. 56.1 ¶ 8; Algaad Depo. at 11:13-15. He handed employees their wages. Pl. 56.1 ¶ 6; Algaad Depo. at 11:7-9. He made their schedules. Pl. 56.1 ¶ 7; Algaad Depo. at 11:10-12. Mr. Algaad also told employees “what to do.” Pl. 56.1 ¶ 5; Algaad Depo. at 11:3-6.

Mr. Algaad hired Plaintiff Eduardo Reyes Nepomuceno in March 2018, although the exact date of his hiring is unclear. See Pl. 56.1 ¶¶ 10, 16, 17; Pl. Aff. ¶ 3; Algaad Depo. at 30:23-31:10. Mr. Algaad did not give Plaintiff any written documents or ask Plaintiff to sign anything when he was hired or at any time thereafter. Pl. Aff. ¶¶ 11, 12; Algaad Depo. at 33:8-24. Plaintiff worked at Columbia Deli & Grill until at least July 2018, although he avers that he worked there longer. Pl. 56.1 ¶ 20; Pl. Aff. ¶ 13. Specifically, Plaintiff asserts that he was not fired until January 2019, although he did not work at the bodega for a period of time between late October 2018 and early November 2018. Pl. Aff. ¶ 10. Mr. Algaad decided what to pay Plaintiff, set his schedule, and handed him wages. Pl. Aff. ¶ 5; see also Algaad Depo. at 33:14-16, 34:1-7. Mr. Algaad also ultimately fired Plaintiff. Pl. 56.1 ¶ 11; Algaad Depo. at 35:11-12.

Plaintiff “made sandwiches and cleaned the kitchen.” Pl. Aff. ¶ 4. When he cleaned the kitchen, Plaintiff used a product called Mistolin, which is made in Puerto Rico. Pl. Aff. ¶ 6 [ECF No. 103-3]. The bodega sold, among other things, Pepsi, Coca-Cola, and Ben & Jerry's ice cream. Pl. 56.1 ¶ 14. The gross revenues of Columbia Deli & Grill exceeded $500,000 in 2018. Pl. 56.1 ¶ 15; Algaad Depo. at 27:15-17.

Plaintiff worked at least 48 hours per week. Pl. 56.1 ¶ 19; see Pl. Aff. ¶ 8; Algaad Depo. at 32:15-17. Plaintiff maintains that he “worked approximately 59 hours in [his] first week, and 60 hours per week thereafter, with the exception of one month, either April or May 2018, where [he] worked 12 hours per day five days per week and 10 hours per day one day per week.” Pl. Aff. ¶ 8. However, Mr. Algaad testified at a deposition that Plaintiff worked six days a week from 7:00 am to 3:00 p.m., for a total of 48 hours per week, and never worked more than ten hours in a day. Algaad Depo. at 32:1-21.

Plaintiff avers that he was paid “what averaged to approximately $540 per week.” Pl. Aff. ¶ 9. Mr. Algaad, however, testified that he paid Plaintiff $840 per week. Algaad Depo. at 32:67. Plaintiff asserts that Mr. Algaad simply paid Plaintiff what he “felt was fair,” rather than “relying on any statute in good faith.” Pl. 56.1 ¶ 25.

Plaintiff asserts in his affidavit that Mr. Algaad fired him because Plaintiff, through counsel, demanded unpaid wages. Pl. Aff. ¶ 13. Mr. Algaad testified that he fired Plaintiff because he came to work drunk and “used to play in the store.” Algaad Depo. at 35:7-12.

B. Procedural History

Plaintiff initiated this action by filing a complaint in April 2019, which he later amended twice [ECF Nos. 1, 16, 47]. The Second Amended Complaint (“SAC”) asserts a number of claims under the Fair Labor Standards Act and various provisions of the New York Labor Law. However, the SAC groups these claims into four sections that are styled as four claims for relief.

First, Plaintiff asserts several different violations of the FLSA. Specifically, as relevant here, Plaintiff alleges that Mr. Algaad failed to pay Plaintiff the minimum wage applicable under the FLSA. SAC ¶ 61. Plaintiff also alleges that Mr. Algaad failed to pay him overtime compensation required by the FLSA. SAC ¶ 62. And Plaintiff alleges that Mr. Algaad violated the FLSA by firing Plaintiff when he complained. SAC ¶ 63. Plaintiff further alleges that each of these FLSA violations was willful. SAC ¶ 68.

Second, Plaintiff alleges violations of the New York statutes requiring employers to pay minimum wages, overtime, and spread-of-hours wages. SAC ¶¶ 73, 74, 75. Plaintiff also alleges that Mr. Algaad violated New York law by firing Plaintiff for complaining about these violations of New York law. SAC ¶ 77. Third, Plaintiff alleges that Mr. Algaad failed to provide him with the wage notice, acknowledgment, and wages statements required by New York Law. SAC ¶¶ 84, 86. Fourth, and finally, Plaintiff asserts a claim for declaratory judgment. SAC ¶ 91.

Columbia Deli & Grill, Inc. and Mr. Algaad appeared, answered, and participated in discovery [ECF Nos. 80]. The other defendants named in the lawsuit-the individuals who coowned Columbia Deli & Grill, Inc. with Mr. Algaad and the entity that purchased it in January 2019, never responded to the pleadings.^[2]

After conducting discovery, in accordance with the Court's Individual Rules of Practice in Civil Cases, Plaintiff filed a pre-motion letter seeking leave to file a motion for partial summary judgment and attached a “draft of plaintiff's Local Rule 56.1 statement of material facts” [ECF No. 88 at 2; ECF No. 88-1]. Also in accordance with the Court's Individual Rules, Mr. Algaad's counsel filed a pre-motion letter in opposition to Plaintiff's contemplated motion, along with “a draft of Defendants' Response to Plaintiff's Local Rule 56.1 statement” [ECF No. 97 at 2; ECF No. 91-1 (“Def. Draft 56.1 Response”)]. In his pre-motion letter, Mr. Algaad's counsel noted his intention to dispute certain factual assertions in Plaintiff's draft 56.1 statement, but Mr. Algaad's counsel did not submit or cite any evidence.

The Court set a briefing schedule for Plaintiff's contemplated motion [ECF No. 95]. The Court admonished the parties that any request for an extension had to be made at least 72 hours before the filing deadline and that failure to comply might result in sanctions [ECF No. 95 at 2]. After the Court issued the briefing schedule, but before Plaintiff filed his motion, Mr. Algaad's counsel filed a letter requesting to withdraw as counsel, along with an affidavit from Mr. Algaad affirming that he consented to his counsel's request to withdraw and that he wished to defend himself pro se [ECF Nos. 98, 98-1]. The Court granted defense counsel's request to withdraw, and Mr. Algaad's request to proceed pro se, “on the condition that” counsel take certain steps to ensure that Mr. Algaad was “informed of all of the pending deadlines in this case, including the deadline for his opposition to the anticipated motion for summary judgment” and that Mr. Algaad would continue to receive filings in the case [ECF No. 100].

Thereafter, Plaintiff timely filed his motion for partial summary judgment [ECF Nos. 101, 102, 103, 104, 105]. He seeks summary judgment on Mr. Algaad's liability for failing to pay Plaintiff minimum wages in violation of the FLSA and New York law [ECF No. 105 (“Pl. Mem.” at 5, 12-14)]. He seeks summary judgment on Mr. Algaad's liability for failing to pay Plaintiff overtime in violation of the FLSA and New York law. Pl. Mem. at 5, 14-15. He also seeks summary judgment on Mr. Algaad's liability for failing to pay Plaintiff spread-of-hours wages in violation of New York law. Pl. Mem. at 5, 18. Finally, Plaintiff seeks summary judgment on his claim that Mr. Algaad failed to provide him with a wage notice, acknowledgment, and wage statements in violation of New York law, including entry of judgment for the applicable statutory damages. Pl. Mem. at 5, 20-21.

Plaintiff acknowledges that the amount of any other damages is in dispute, since there are disputes about the length of Plaintiff's employment, the hours he worked, and the wages he received. Pl. Mem. at 5, 9-10. Plaintiff also acknowledges that he is not entitled to summary judgment on his federal and state claims that Mr. Algaad illegally retaliated against Plaintiff for demanding unpaid wages, since the parties “disagree over the reason for the firing.” Pl. Mem. at 9. The motion is silent about Plaintiff's declaratory judgment claim.

Mr Algaad failed to meet the deadline for opposing Plaintiff's motion for partial summary judgment [ECF No. 95]. Before ruling on the unopposed motion, the Court issued an order giving Mr. Algaad, who is now pro se, a final opportunity to be heard and directing that Mr. Algaad file any opposition by August 12, 2022 [ECF No. 112]. The Court stated: “Mr. Algaad is on notice that he must respond by affidavit, or as otherwise provided in Rule 56 of the Federal Rules of Civil Procedure, setting forth specific facts showing that there is a genuine issue of material fact for trial. See Irby v. N.Y. City Transit Auth., 262...