Woods v. Fitzcon Constr./Ren Corp.

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EDWARD WOODS and TYRONE HILTON, individually, Plaintiffs, v. FITZCON CONSTRUCTION/REN CORP., FITZCON EXCAVACATION, ESCO HIRF CO INC., RONAN COTTER, individually, CORNELIUS O'SULLIVAN, individually, and MARTIN TEVLIN, individually, Defendants.

Civil Action No. 20 Civ. 8088 (ALC) (SLC)

United States District Court, S.D. New York

August 3, 2022

TO THE HONORABLE ANDREW L. CARTER, JR., United States District Judge:

REPORT AND RECOMMENDATION

SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.

I. INTRODUCTION

Plaintiff Edward Woods (“Woods”) and Tyrone Hilton (“Hilton,” together with Woods, the “Plaintiffs”), filed this action asserting claims under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., New York Labor Law (“NYLL”), §§ 190 et seq. and 650 et seq., New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 296 et seq., New York City Human Rights Law (“NYCHRL”) N.Y.C. Admin. Code §§ 8-101 et seq., and 42 U.S.C § 1981 (“Section 1981”), against, inter alia, Defendants Esco Hirf Co Inc. (“Esco”) and Martin Tevlin (“Tevlin,” together with Esco, the “Defaulting Defendants”). (ECF No. 1 ¶¶ 1, 73-93 (the “Complaint”)).^[1] Following Defaulting Defendants' failure to appear and defend themselves in this action, Plaintiffs moved for entry of default judgment. (ECF No. 55 (the “Motion”)). The District Court referred the Motion to the undersigned for a report and recommendation. (ECF No. 62).

For the reasons set forth below, I respectfully recommend that: (i) a default judgment be entered against Defaulting Defendants for violations of the FLSA, NYLL, NYSHRL, NYCHRL, and Section 1981, (see § II.B, supra); and (ii) the calculation of damages against Defaulting Defendants be deferred until the case is resolved as to the Non-Defaulting Defendants.

II. BACKGROUND

A. Factual Background

The Court summarizes the factual background of Plaintiffs' claims based on the allegations in the Complaint (ECF No. 1), which are accepted as true for purposes of determining liability. See J&J Sports Prods. Inc. v. Vasquez, No. 19 Civ. 08440 (ALC), 2020 WL 3170588, at *1 (S.D.N.Y. June 15, 2020); see also Analogic Corp. v. Marquis Clearance Servs., Ltd., No. 10 Civ. 3801 (SJ) (ALC), 2011 WL 3919310, at *1 (E.D.N.Y. June 3, 2011), adopted by, 2011 WL 4056295 (E.D.N.Y. Sept. 7, 2011); Okeke v. Aviator Sports & Recreation, Inc., No. 08 Civ. 2343 (ARR) (ALC), 2010 WL 3780383, at *1 (E.D.N.Y. Aug. 31, 2010) (“A defendant's default is an admission of all well-pleaded allegations in the complaint except those relating to damages.”). Where noted, additional facts are drawn from documents Plaintiffs submitted in support of the Motion, including the Memorandum of Law in Support of Plaintiffs' Motion for Default Judgment (ECF No. 56 (the “Memorandum of Law”)), the Proposed Findings of Fact and Conclusions of Law (ECF No. 68 (the “Proposed Findings”)), the Declarations of Melissa Vo (ECF No. 57 (the “Vo Decl.”)) and Shawn Clark (ECF No. 69 (the “Clark Decl.”)), and their supporting exhibits (ECF Nos. 56-1;57-1 - 57-9; 69-1 - 69-9 (the Proposed Findings, the Clark Decl., and its supporting exhibits, the “Default Submission”)).

1. Defaulting Defendants

Esco is a construction company organized under New York law. (ECF No. 1 ¶¶ 14, 29). At all times relevant to this action, Esco was an employer “within the meaning of the FLSA[,] . . . NYLL and discrimination statutes[,]” in that it: (1) engaged in “interstate commerce[,]” as Woods “regularly handled goods . . . produced outside the State of New York[,] and (2) “had a gross annual volume of sales of not less than $500,000.00[.]” (Id. ¶¶ 33-34, 38).

At all relevant times, Tevlin was employed by Esco as a foreman. (ECF No. 1 at 5 ¶ 27). Tevlin had “supervisory authority” over Plaintiffs, including “the authority to hire, fire, or affect the terms and conditions of Plaintiffs' employment, or to otherwise influence the decisionmaker of the same.” (Id. ¶ 28).

Defaulting Defendants “possesse[d] a substantial control over Plaintiffs' working conditions[,]” including the authority to “determine the rate and method of compensation in exchange for [Plaintiffs'] services[.]” (Id. ¶¶ 30, 33). Further, Defaulting Defendants “maintained a policy and practice of requiring Plaintiffs to work in excess of forty (40) hours per week without providing the minimum wage and overtime compensation required by federal and state law and regulations.” (Id. ¶ 3).

2. Plaintiffs

Both Plaintiffs are African American, Black, male, New York residents, and were formerly employed by Esco and supervised by Tevlin. (ECF No. 1 ¶¶ 1, 8, 18, 28, 36, 57). Throughout their employment, Plaintiffs were “not paid at an overtime rate for any of the hours worked over forty[,]” and Defaulting Defendants did not provide them with “an accurate statement of wages,” their respective “rate[s] of pay,” or Defaulting Defendants' “regular pay day.” (Id. ¶¶ 43-45, 5152).

a. Woods

From April 2018 through March 13, 2020, Woods worked for Defaulting Defendants as a laborer. (ECF No. 1 ¶ 37). From April 2018 through October 2018, Woods worked six days a week for 16.5 hours per day (6:30 a.m. until 11:00 p.m.). (Id. ¶ 39). From October 2018 through March 13, 2020, Woods worked six days a week for ten and a half hours per day (6:30 a.m. until 5:00 p.m.). (Id. ¶ 40). Defaulting Defendants paid Woods, by personal checks, at a rate of $16.00 per hour. (Id. ¶¶ 41-42).

b. Hilton

From August 2017 through September 2019, Hilton worked for Defaulting Defendants as a laborer. (ECF No. 1 ¶ 46). Throughout his employment, Hilton worked five or six days a week for ten hours per day (7:00 a.m. until 5:00pm). (Id. ¶ 48). Defaulting Defendants paid Hilton at a rate of $27.00 per hour. (Id. ¶ 49).

3. Work Environment

Shortly after Plaintiffs started their employment with Defaulting Defendants, Plaintiffs experienced racial harassment from co-workers and supervisors. (ECF No. 1 ¶ 54). This harassment included statements by Plaintiffs' supervisor to their co-worker to push “like you're pushing a black man off your wife[,]” (id. ¶ 56), and repeated use of the word “n****r,” including by Tevlin. (Id. ¶¶ 57-61).

Woods reported the “racist work environment to supervisors multiple times to no avail[.]” (Id. ¶ 62). When Woods complained to Tevlin that a co-worker called him a monkey, Tevlin refused to hear Woods' complaint, and agreed, “you are a monkey.” (Id. ¶¶ 63-64).

B. Procedural Background

On September 30, 2020, Plaintiffs commenced this action by filing a summons and the Complaint against Ren Corp., Excavation, Cotter, O'Sullivan, Esco, and Tevlin (collectively, the Defendants). (ECF Nos. 1, 3-8). In the Complaint, Plaintiffs asserted claims under: (1) FLSA (the “Federal Wage Claim”); (2) NYLL (the “NYLL Claims”); (3) NYSHRL (the “State Discrimination Claim”); (4) NYCHRL (the “City Discrimination Claim”); and (5) Section 1981 (the “Federal Discrimination Claim”), against the Defendants (ECF No. 1 ¶¶ 1, 73-93). On October 8, 2020, Sue Zouky, a legal clerk, accepted service on behalf of Esco. (ECF No. 17). On October 28, 2020, Plaintiffs and Non-Defaulting Defendants filed a proposed stipulation extending their time to respond to the Complaint. (ECF No. 20 (the “Stipulation”)). On October 29, 2020, the Honorable Andrew L. Carter, Jr. so-ordered the Stipulation. (ECF No. 21).

On November 13, 2020, the Non-Defaulting Defendants filed their answer. (ECF No. 23). On November 16, 2020, Judge Carter referred this case to me for general pretrial management. (ECF No. 24). On November 17, 2020, the Court directed the parties to appear for an initial pretrial conference on Tuesday, January 5, 2021. (ECF No. 25). On December 9, 2020, Tevlin accepted service of the Summons and Complaint. (ECF No. 26). On January 5, 2021, the Court held an initial case management conference, and scheduled a status conference with the parties on Tuesday, May 18, 2021. (ECF min. entry Jan. 5, 2021; ECF No. 29 at 5). Defaulting Defendants did not appear. (ECF min. entry Jan. 5, 2021). The parties filed a letter-motion seeking adjournment of the May 18, 2021 status conference due to a conflict, (see ECF No. 31), and the Court re-scheduled the conference for Monday, June 7, 2021. (ECF No. 32).

On June 7, 2021, the Court held a status conference, at which Defaulting Defendants did not appear, and directed Plaintiffs to request Certificates of Default as to Defaulting Defendants. (ECF No. 33; ECF min. entry June 7, 2021). On June 14, 2021, the Clerk of the Court entered Certificates of Default against Defaulting Defendants. (ECF No. 38-39). On December 8, 2021, the Court directed Plaintiffs to either (i) voluntarily discontinue their claims against Defaulting Defendants or (ii) move for default judgment as to them by January 7, 2022. (ECF No. 48). On January 6, 2022, Plaintiffs filed a letter-motion, with Non-Defaulting Defendants' consent, seeking a two-week extension to file a motion for default judgment. (ECF No. 52). The Court granted the request, and directed Plaintiffs to file the motion for default judgment by January 21, 2022. (ECF No. 53). On January 21, 2022, Plaintiffs filed the Motion, (see ECF No. 55), which Judge Carter referred for a report and recommendation. (ECF No. 62).

On March 15, 2022, the Court directed Defaulting Defendants to file a response to the Motion, if any, no later than April 5 2022. (ECF No. 63 (the “Scheduling Order”)). The Court warned that if Defaulting Defendants failed to respond to Plaintiffs' submission in response to the Scheduling Order or to contact the Court to request an in-court hearing, the Court would issue a report and recommendation based on Plaintiffs' Default Submission alone, without an incourt hearing. (Id.) On April 22,...