Laboy v. Office Equip. & Supply Corp.

• Decision Date: 29 September 2016
• Docket Number: 15 Civ. 3321 (RA) (AJP)
• Parties: JAVIER LABOY, Plaintiff, v. OFFICE EQUIPMENT & SUPPLY CORP., MICHAEL PRINCE AND STEVEN MAGLIO, Defendants.
• Court: U.S. District Court — Southern District of New York

JAVIER LABOY, Plaintiff, v. OFFICE EQUIPMENT & SUPPLY CORP., MICHAEL PRINCE AND STEVEN MAGLIO, Defendants.

15 Civ. 3321 (RA) (AJP)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 29, 2016

REPORT & RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge.

To the Honorable Ronnie Abrams, United States District Judge:

On March 10, 2016, Judge Abrams entered a default judgment against all defendants (Dkt. No. 20) and referred this matter for an inquest on damages (Dkt. No. 19).

For the reasons discussed below, the Court should enter judgment for Laboy against all defendants, jointly and severally, in the amount of $84,185.94, plus $30,121.74 in attorneys' fees and costs, and $1,840.26 in prejudgment interest, plus continuing prejudgment interest of $1.74 per day until judgment is entered.

FACTS

"Where, as here, 'the court determines that defendant is in default, the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.'" Chen v. Jenna Lane, Inc., 30 F. Supp. 2d 622, 623 (S.D.N.Y. 1998) (Carter, D.J. & Peck, M.J.) (quoting 10A C. Wright, A. Miller & M. Kane, Federal Practice & Procedure: Civil 3d § 2688 at 58-59 (3d ed. 1998)).

The Complaint

The complaint (Dkt. No. 1) alleges as follows:

Defendants sell office supplies and employed Laboy as a delivery driver from December 2011 through December 23, 2014. (Compl. ¶¶ 14, 16.) During that time, defendants Prince and Maglio supervised the truck loading, and "exercised control over the terms and conditions" of Laboy's employment as the principals of defendant Office Equipment & Supply Corp. (Compl. ¶¶ 9-12, 19.) Laboy worked from 7:30 A.M. to 7:50 P.M., without a break, for an average of sixty-two hours per week. (Compl. ¶¶ 17, 22, 27, 32.) Defendants paid Laboy $425.00 per week without regard to the number of hours he worked and never paid overtime. (Compl. ¶¶ 34-35.) Defendants terminated Laboy "after he asked for minimum wage." (Compl. ¶¶ 36-37.)

Prince and Maglio referred to Laboy "and other dark skinned individuals" by the N-word on an "almost daily" basis throughout Laboy's employment. (Compl. ¶¶ 41-43.) Laboy claims that the racial discrimination made it difficult to perform his job and interact with Prince and Maglio. (Compl. ¶¶ 52-53.) Laboy told Prince and Maglio "to stop calling him [the N-word] on several occasions" because he "took offense to that language," but they refused, and thereafter terminated Laboy. (Compl. ¶¶ 48-50, 54.) Defendants hired another person to perform Laboy's job. (Compl. ¶ 56.)

Laboy brought this action under the Fair Labor Standards Act ("FLSA"), New York Labor Law ("NYLL") and New York City Human Rights Law ("NYCHRL"). (Compl. ¶¶ 1-3.) Laboy alleges that defendants willfully violated the FLSA and NYLL. (Compl. ¶¶ 59, 65, 67, 71-72, 77-78, 83, 86-87.) The complaint seeks unpaid minimum and overtime wages and liquidated damages under the FLSA (Compl. ¶¶ 57-73), overtime, spread of hours and liquidated damages under the NYLL (Compl. ¶¶ 74-88), lost wages and compensatory and punitive damages under the NYCHRL (Compl. ¶¶ 89-100; Compl. Wherefore ¶¶ g, i), and attorneys' fees and costs (Compl. Wherefore ¶¶ j-k).

Inquest Submissions

Laboy submitted an affidavit attesting to most of the complaint's allegations. (See generally Ex. E: Laboy Aff.)¹ Laboy avers that he was paid a flat weekly rate of $425 and "worked no fewer than 62 hours per week," Monday through Friday, from December 2011 through December 15, 2014. (Laboy Aff. ¶¶ 2-3, 10, 13.) Laboy alleges that Prince and Maglio are the principals of defendant Office Equipment & Supply Corp. with "the power to hire and fire employees." (Laboy Aff. ¶¶ 6-7.) Prince and Maglio provided Laboy his job assignments, set his schedule, and paid him. (Laboy Aff. ¶ 7.)

Laboy was "told not to come to work after December 15, 2014" and was formally fired on December 23, 2014 (Laboy Aff. ¶ 3), "shortly after" complaining about his wages and discrimination (Laboy Aff. ¶¶ 25-26). Laboy believes that the "real reason the Defendants fired [him] was because [he] complained about unpaid wages and discrimination." (Laboy Aff. ¶ 28.)

Laboy claims that defendants' discrimination and his subsequent unemployment caused him to suffer: (1) "[a]n inability to sleep for more than a few hours at a time"; (2) an "anxiety attack in 2013"; (3) symptoms of depression including hopelessness, sadness, loss of appetite, insomnia and irritability; (4) marital strain; and (5) low self-esteem. (Laboy Aff. ¶ 31.)

Laboy began work at a new job on March 30, 2015 that pays more than his position with defendants. (Laboy Aff. ¶ 30.)

ANALYSIS

I. APPLICABLE LEGAL STANDARDS

The Second Circuit has approved the holding of an inquest by affidavit, without an in-person court hearing, "'as long as [the Court has] ensured that there was a basis for the damages specified in the default judgment.'" Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (quoting Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)).

In a FLSA case, in the absence of rebuttal by defendants, plaintiffs' recollection and estimates of hours worked are presumed to be correct. See, e.g., Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S. Ct. 1187, 1192 (1946) ("[A]n employee has carried out his burden [of production under the FLSA] if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate."); Kuebel v. Black & Decker Inc., 643 F.3d 352, 362-64 (2d Cir. 2011); Grochowski v. Phoenix Constr., 318 F.3d 80, 87-88 (2d Cir. 2003); Harold Levinson Assocs., Inc. v. Chao, 37 F. App'x 19, 20 (2d Cir. 2002), cert. denied, 546 U.S. 933, 126 S. Ct. 415 (2005); Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 66 (2d Cir. 1997); Zhen Ming Chen v. New Fresco Tortillas Taco LLC, 15 Civ. 2158, 2015 WL 5710320 at *2 (S.D.N.Y. Sept. 25, 2015) (Peck, M.J.); Carrasco v. W. Village Ritz Corp., 11 Civ. 7843, 2012 WL 2814112 at *2 (S.D.N.Y. July 11, 2012) (Peck, M.J.), R. & R. adopted, 2012 WL 3822238 (S.D.N.Y. Sept. 4, 2012).²

II. APPLICATION OF THE STANDARDS TO THIS CASE

The Court has reviewed plaintiff's affidavit (Ex. E) and damages calculations (see Dkt. No. 27: Laboy Br.) and accepts his estimates of hours worked.

A. Statute of Limitations

Laboy brings claims pursuant to the FLSA and NYLL. The statute of limitations is six years under the NYLL and two years under the FLSA, increased to three years for "willful" violations. See N.Y. Labor Law § 198(3); 29 U.S.C. § 255(a). The complaint alleges that defendants' FLSA and NYLL violations were willful. (See page 2 above.) By virtue of the entry of default, the Court accepts Laboy's allegation as true. See, e.g., Baltierra v. Advantage Pest Control Co., 14 Civ. 5917, 2015 WL 5474093 at *3 (S.D.N.Y. Sept. 15, 2015) (Peck, M.J.); Alvarez v. 215 N. Ave. Corp., 13 Civ. 7049, 2015 WL 3855285 at *1, *3 (S.D.N.Y. June 19, 2015); Fu v. Pop Art Int'l Inc., 10 Civ. 8562, 2011 WL 4552436 at *4 (S.D.N.Y. Sept. 19, 2011) (Peck, M.J.), R. & R. adopted as modified on other grounds, 2011 WL 6092309 (S.D.N.Y. Dec. 7, 2011);Wicaksono v. XYZ 48 Corp., 10 Civ. 3635, 2011 WL 2022644 at *6 (S.D.N.Y. May 2, 2011) ("[T]he defendant is in default, and therefore the plaintiffs' allegation that its conduct was willful is credited."), R. & R. adopted, 2011 WL 2038973 (S.D.N.Y. May 24, 2011); Jin M. Cao v. Wu Liang Ye Lexington Rest., Inc., 08 Civ. 3725, 2010 WL 4159391 at *2 (S.D.N.Y. Sept. 30, 2010) (Chin, D.J.) ("[D]efendants defaulted and thus plaintiffs' allegations that the FLSA violations were willful are deemed admitted.").

Thus, the three-year statute of limitations applies to Laboy's FLSA claims, and the six-year statute of limitations applies to his NYLL claims. Since Laboy's complaint was filed on April 29, 2015, he is entitled to recover damages for FLSA violations beginning on April 29, 2012, and for NYLL violations beginning in December 2011 (he did not work for defendants before that).

B. Minimum Wage and Overtime Pay

The FLSA requires employers to pay employees at least the federal minimum wage for every hour worked. 29 U.S.C. § 206. Where the state minimum wage exceeds the federal minimum wage, federal law does not preempt the higher state minimum. See 29 U.S.C. § 218(a) ("No provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter . . . ."). The NYLL also protects against minimum wage underpayment. 12 N.Y.C.R.R. § 142-2.1. Furthermore, the FLSA and NYLL require employers to pay employees one and one-half times the minimum wage for any hours over forty in a given week. 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142-2.2.³

The statutory minimum wage in New York and under federal law between December 2011 and December 30, 2013 was $7.25 per hour. 12 N.Y.C.R.R. § 142-2.1(a)(2); 29 U.S.C. § 206(a)(1)(C). From December 31, 2013 to December 30, 2014, New York's minimum wage was $8.00 per hour, which exceeded the federal minimum wage of $7.25. N.Y. Labor Law § 652(1); see 29 U.S.C. § 206.

Laboy's complaint seeks minimum wages under the FLSA, but strangely does not seek minimum wages under the NYLL. (See page 2 above.) Federal Rule of Civil Procedure 54(c) states that "[a] default judgment must not differ in kind from, or exceed in amount, what is...