Santana v. Latino Express Restaurants, Inc.

198 F. Supp. 3d 285, 2016 U.S. Dist. LEXIS 98954, 2016 WL 4059250
CourtDistrict Court, S.D. New York
DecidedJuly 28, 2016
DocketNo. 15CV4934-LTS
StatusPublished
Cited by49 cases

This text of 198 F. Supp. 3d 285 (Santana v. Latino Express Restaurants, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Santana v. Latino Express Restaurants, Inc., 198 F. Supp. 3d 285, 2016 U.S. Dist. LEXIS 98954, 2016 WL 4059250 (S.D.N.Y. 2016).

Opinion

MEMORANDUM OPINION AND ORDER

LAURA TAYLOR SWAIN, United States District Judge

Plaintiff Lucero Santana (“Santana” or “Plaintiff’) brings this action against Latino Express Restaurants, Inc. (“the Restaurant”) and Tommy Pimental (“Pi-mental” and, collectively, “Defendants”), asserting claims of failure to pay minimum and overtime wages pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (“FLSA”) and New York State Labor Law (“NYLL”), Articles 6 and 19. Plaintiff also asserts claims of failure to provide written notice of wage rates pursuant to the Wage Theft Prevention Act, New York Labor Law § 195, et seq. (“WTPA”) and for discrimination and retaliation pursuant to the New York City Human Rights Law, New York City Administrative Code § 8-107, et seq. (“NYCHRL”). Plaintiff seeks to recover unpaid back wages, liq[289]*289uidated damages, prejudgment interest, WTPA damages, emotional distress darm ages, punitive damages, and reasonable attorneys’ fees and costs. Now before the Court is Plaintiffs motion for default judgment against Defendants made pursuant to Federal Rule of Civil Procedure 55(b)(2). (See Docket Entry No. 17.) The Court has jurisdiction of the action pursuant to 28 U.S.C. §§ 1331 and 1367.

The Court has reviewed Plaintiffs unopposed submissions, which include a memorandum of law and documentary evidence, thoroughly. For the reasons stated below, the Court grants Plaintiffs motion for default judgment with respect to liability on all of her claims, and awards the damages claimed by Plaintiff that are attributable to Defendants’ wage and hour violations. The Court refers this matter to Magistrate Judge Debra C. Freeman for an inquest into damages attributable to her claims under the NYCHRL.

Background 1

On or about April 3, 2015, Plaintiff Santana began working for Defendants as a server at the Latino Express Restaurant, located in the Bronx, New York. (Compl. ¶¶ 9, 17.) Pimental was the co-owner and manager of the Restaurant, and was Santana’s supervisor. (Id. ¶¶ 12-13.) The Restaurant had the power to determine Santana’s wages, schedule, rate of pay, and other terms and conditions of her employment. (Id ¶¶ 10-11.) Accordingly, Pimental had the power to hire and fire Santana, to affect the terms and conditions of her employment, and to manage her daily work activities. (Id. ¶ 13.) The Restaurant grossed more than $500,000 per year in revenue and, throughout the course of Santana’s employment, she routinely engaged in activities that facilitated or were related to interstate or foreign commerce. (Id. ¶ 16.)

Santana worked at the Restaurant from on or about April 3, 2015, to on or about May 10,2015. (Id. ¶¶ 17, 47.) From approximately April 3, 2015, to April 26, 2015, Santana worked from 4:00 p.m. to 2:00 a.m. seven days per week, for a total of 120 non-overtime hours and 90 overtime hours. (Compl. ¶22.) From approximately April 26,2015, to May 10, 2015, she worked from 4:00 p.m. to 2:00 a.m. five days per week, for a total of 80 non-overtime hours and 20 overtime hours. (Id. ¶ 24.) Defendants failed to pay Santana wages for any of the hours that she worked. (Id. ¶¶ 23, 25.) The only payment she received was a portion of the weekly tip pool that she shared with the other servers. (Id. ¶ 23.) At no point during her employment, however, did the Restaurant provide her with notice that it would apply a tip credit or allowance towards the payment of a minimum wage salary. (Id. ¶ 19.) The Restaurant also failed to provide her with: notice of her regular and overtime rates of pay; the method by which she would be paid; her regular payday; or the official name of her employer. (Id. ¶ 20.) Although the Restaurant maintained schedules that listed the times particular employees were required to work, it maintained no system of recording the hours that employees actually worked, (Id. ¶ 21.)

Approximately one or two weeks after Santana started working at the Restaurant, Pimental began criticizing Santana’s [290]*290appearance and clothing on a regular basis. (Id. ¶¶ 32-38.) Although the Restaurant had no dress policy and Santana dressed similarly to her co-workers, Pimental repeatedly told her to dress “sexier” and to wear tighter clothes. (Id ¶¶ 33-34.) Pimen-tal made derisive remarks like “is that your mom’s shirt?” or “are those your mom’s pants?” on a near-daily basis, and he regularly told Santana that she looked like she was “coming from church.” (Id. ¶¶ 34-35.) Pimental also offered to buy Santana “tighter jeans” and a belt to make her jeans “fit tighter.” (Id, ¶ 34.)

In or around the week of April 19, 2015, Pimental asked Santana if she “brought an application” to apply to be his “girlfriend.” (Id. ¶ 36.) He repeatedly told her that he could do things for her that younger men could not because he was “older.” (Id ¶ 38.) On one occasion, Pimental stated that he “like[s] younger girls” and that he used to have a fifteen-year-old girlfriend. (Compl. ¶40.) He also repeatedly asked her if she had a boyfriend, even though Santana responded each time that she was not interested in dating him. (Id ¶ 39-40.)

In or around the end of April 2015, Santana complained to the Restaurant’s other co-owner, who was Pimental’s wife, about Pimental’s treatment of Santana. (Id. ¶ 41.) Almost immediately thereafter, Pimental began singling Santana out and reprimanding her for things he had not taken issue with previously. (Id ¶¶ 42-43.) He glared at her during work, and on one occasion screamed at her in front of others, even though he had never yelled at a server before. (Id. ¶¶ 45-46.) Pimental also started assigning Santana a disproportionate number of less desirable tasks like cleaning the back areas and bathrooms of the Restaurant; such tasks had been assigned equitably prior to Santana’s complaint. (Id. ¶ 44.) Santana quit on or about May 10, 2015. (Id ¶ 47.) Santana claims to feel humiliated, degraded, victimized, embarrassed, and emotionally distressed as a result of Pimental’s actions. (Id.)

Santana filed the instant action on June 24, 2015, asserting nine Causes of Action against Defendants for violations of the FLSA, NYLL, WTPA, and NYCHRL. (See generally id. ¶¶ 17-94.) Santana served the Restaurant with the Summons and Complaint on July 21, 2015, and served Pimental with the Summons and Complaint on July 23, 2015. (See Docket Entry Nos. 6, 8.) Both Defendants have since failed to make any formal appearance in this action or file any responsive pleadings. (See Docket Entry No. 12.) On September 21, 2015, this Court granted Santana permission to move for default judgment. (Id.) The Clerk of Court issued a Certificate of Default against Defendants on October 6, 2015 (Docket Entry No. 15), and Santana thereafter filed the instant motion. (Docket Entry No. 17.) Santana’s motion is accompanied by evidentiary proffers and exhibits supporting her claims, as well as a memorandum of law. (Docket Entry Nos. 18,19.)

An initial pretrial conference was held on February 19, 2016, at which Defendant Pimental appeared pro se. The Court directed Pimental to enter a Notice of Appearance either by counsel or pro se by April 22, 2016, and notified Pimental that the Restaurant would have to appear by counsel no later than April 22, 2016.

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198 F. Supp. 3d 285, 2016 U.S. Dist. LEXIS 98954, 2016 WL 4059250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/santana-v-latino-express-restaurants-inc-nysd-2016.