Mendez v. MCSS Rest. Corp.
| Decision Date | 30 September 2021 |
| Docket Number | 16-CV-2746 (RPK) (RLM) |
| Citation | 564 F.Supp.3d 195 |
| Parties | Catalino MENDEZ, Eduardo Chocoj, and Israel Rodriguez, individually and on behalf of all others similarly situated, Plaintiffs, v. MCSS REST. CORP., Jointly and Severally, Al-Ken Corp., doing business as Cross Bay Diner, Miko Enterprises, LLC, doing business as Parkview Diner, Michael Siderakis, Jointly and Severally, Christos Siderakis, Jointly and Severally, Konstantinos Siklas, Jointly and Severally, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Brent E. Pelton, Pelton Graham LLC, New York, NY, for Plaintiffs.
Joshua S. Androphy, Brian James Hufnagel, Morrison and Tenenbaum, P.C., New York, NY, for Defendants MCSS Rest. Corp., Miko Enterprises, LLC.
Joshua S. Androphy, Morrison and Tenenbaum, P.C., New York, NY, for Defendants AL-KEN Corp., Michael Siderakis.
Craig Saunders, Munzer & Saunders LLP, Craig A. Saunders, New York, NY, for Defendant Konstantinos Siklas.
Christos Siderakis, Pro Se.
Plaintiffs Catalino Mendez, Eduardo Chocoj, and Israel Rodriguez bring this collective action against defendants MCSS Rest. Corp. ("MCSS"), Al-Ken Corp. ("Al-Ken"), Miko Enterprises, LLC ("Miko"), Michael Siderakis, Christos Siderakis, and Konstantinos Siklas alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. , and the New York Labor Law ("NYLL"), N.Y. Lab. L. § 650 et seq. After the lead plaintiffs filed their amended complaint, sixteen additional plaintiffs joined the action. See Consent to Become Party in a Collective Action (Dkts. #24-31, 33-39, 44). Plaintiffs have moved for summary judgment on defendants’ failure to pay minimum and overtime wages and spread-of-hours compensation, failure to provide adequate wage notices and statements, and failure to reimburse uniform expenses. For the reasons set out below, only opt-in plaintiff Reyes Flores has established that summary judgment is warranted for his overtime and deficient wage statement claims against MCSS and Siderakis. The motion for summary judgment is otherwise denied.
The following facts are taken from plaintiffs’ Rule 56.1 statement and relevant portions of the record and are undisputed unless otherwise noted.
Parkview Diner ("Parkview") and Cross Bay Diner ("Cross Bay") are restaurants in New York. Pls.’ Rule 56.1 Statement ¶¶ 5, 8 ( ). Defendant MCSS operates Cross Bay, and defendant Al-Ken is a part owner of the property where Cross Bay is located. Id. ¶¶ 5-6.
Defendants Michael Siderakis and Christos Siderakis each owned fifty percent of MCSS from July 2001 until March 2013, when Christos sold his share to Michael. Id. ¶ 11. After the sale, Michael Siderakis became the owner and Chief Executive Officer of MCSS and Al-Ken. Id. ¶ 2.
Miko Enterprises operated Parkview from April or May 2010 until July 2014. Id. ¶ 8. Michael Siderakis and Konstantinos Siklas owned sixty and forty percent of Miko, respectively. Id. ¶ 10. They sold Parkview in July 2014. Ibid.
Cross Bay is usually open twenty-four hours per day, 365 days per year. Id. ¶ 23. But in November 2012, after Hurricane Sandy, the diner closed for about six months. Id. ¶ 24. During that time, many Cross Bay employees went to work at Parkview. Id. ¶ 25.
At Parkview, defendants tracked employee hours with timecards and a punch clock. Id. ¶ 37. Siklas transferred information from the timecards to a document that he faxed to Parkview's payroll processing company. Id. ¶ 35. Defendants produced wage and hour records for one Parkview employee, plaintiff Nicoles Jimenez, for the period between January 1, 2010 and December 31, 2012. Id. ¶ 31. But defendants possess no other Parkview records. Id. ¶ 33. Defendants did not notify Parkview employees about their hours worked, hourly rates, or tip credits. Id. ¶ 52. Instead, defendants assumed that their payroll company would issue paychecks that showed employee hours. Ibid. Siderakis and Siklas gave inconsistent accounts about whether Parkview employees were paid in cash. See id. ¶ 56. Defendants could not provide further information about Parkview's wage policies and practices. Id. ¶ 51.
At Cross Bay, defendants also used timecards to track employee hours. Id. ¶ 46. The timecards were stamped when employees clocked in and out of work. See ibid. Managers added handwritten notes to the timecards about employee names and positions, hours paid at regular and overtime rates, and deductions for meals and uniforms. Ibid. In addition to those edits, managers often reduced the hours recorded on the timecards. See ibid. ; id. ¶ 65.
Cross Bay took a tip credit and paid employees who received tips the tipped minimum wage. Id. ¶ 59. Some non-tipped employees received the minimum wage. Id. ¶ 60. The parties dispute whether some employees received a flat-rate salary and whether Cross Bay paid overtime wages and spread-of-hours compensation. Id. ¶¶ 62-64; Defs.’ Resp. to Pls.’ Rule 56.1 Statement at 19-20 (Dkt. #99) ("Def.’s Resp."). Siderakis testified that Cross Bay provided "hire sheets" to employees when they were hired and in each subsequent year. Pl.’s Statement ¶ 73. The form included a box to alert employees to an employer's tip credit, but Cross Bay did not check the box. Ibid.
Cross Bay paid some employees by check, and those employees received paystubs that recorded their hours instead of timecards. Id. ¶ 50. The paychecks documented the net wages paid to employees but not their hourly rates, hours worked, tip credits, or deductions from wages. Id. ¶ 70. Some Cross Bay employees received cash in envelopes, and those employees received copies of their timecards. Id. ¶¶ 68-69.
Because Hurricane Sandy destroyed Cross Bay's documents, defendants produced no records for Cross Bay prior to 2013. Id. ¶ 42. Defendants did produce Cross Bay timecards, "tip sign-off reports," schedules, paychecks, and payslips that date from after Hurricane Sandy. Id. ¶ 43.
Parkview and Cross Bay required their non-management employees to wear specific clothes at work. Id. ¶¶ 57, 71. Parkview provided laundry services for employees who worked in the back of the house but not those who worked in the front of the house. Id. ¶ 57. Parkview employees were not reimbursed for maintaining their work clothes. Ibid. Similarly, Cross Bay did not reimburse employees for maintaining their work clothes. Id. ¶ 71.
Plaintiffs’ Rule 56.1 Statement makes factual assertions about defendants’ labor practices with respect to ten plaintiffs.
Plaintiff Denis Rosales testified that he worked as a cook at Cross Bay from June 2013 to June 2014. Id. ¶ 118. Defendants claim that Rosales worked one week at Cross Bay in 2013. Defs.’ Resp. at 35. The parties dispute how many hours Rosales worked, whether he was paid a flat or hourly rate, whether he was paid overtime wages, whether he received a wage statement documenting his hourly rate or hours worked, whether he received a wage notice setting forth his wage rate, and the amount that Cross Bay deducted for meals. Pls.’ Statement ¶¶ 119-20, 122-24, 126; Defs.’ Resp. at 35-37. Rosales had to launder his own work clothes. Pls.’ Statement ¶ 125.
Cross Bay employed plaintiff Marco Bonola Lucero as a cook and grill man between 2014 and 2015. Id. ¶ 128. Bonola usually worked sixty hours per week. Id. ¶ 129. The parties dispute whether Bonola was paid a flat weekly or hourly rate, whether he was paid overtime wages, and whether he received a wage statement documenting his hourly rate or hours worked. Id. ¶¶ 130, 132-33; Defs.’ Resp. at 37-39. Bonola had to launder his own work clothes, and Cross Bay deducted meal charges from his wages. Pls.’ Statement ¶¶ 134-35.
Plaintiff Nicoles Jimenez worked as a cook at Parkview between 2010 and late 2012 or early 2013 and as a cook at Cross Bay from early June 2013 to 2015. Id. ¶ 137. The parties dispute how many hours Jimenez worked, whether he was paid a flat weekly or hourly rate, whether he was paid overtime wages, whether he received a wage notice or was required to sign "blank pages," and the amount that Cross Bay deducted for meals. Id. ¶¶ 138-39, 141, 143-44; Defs.’ Resp. at 39-41. Jimenez had to launder his own work clothes. Pls.’ Statement ¶ 142.
Plaintiff Reyes Flores currently works as a cook at Cross Bay. Id. ¶ 146. He started in that position in 2006. Ibid. After Hurricane Sandy, he worked as a cook at Parkview for about eleven months. Ibid. The parties dispute how many hours Flores worked, whether he was paid a flat weekly or hourly rate at Cross Bay, whether he was paid overtime wages, whether his paystubs accurately stated his total hours worked or wages received, whether he received wage statements, and the amount that Cross Bay deducted for meals. Id. ¶¶ 147-48, 150, 153-54; Defs.’ Resp. at 42-44.
Plaintiffs Catalino Mendez, Eduardo Chocoj, Israel Rodriguez, Jose Cardona, and Rigoberto Alvarez, whose primary language is Spanish, have each submitted English-language declarations in support of their FLSA and NYLL claims. See Decl. of Belinda Herazo ¶¶ 4-6 (Dkt. #104-1). Plaintiff Luis Cardona submitted an undated declaration in support of his claims. The declarations generally describe how plaintiffs worked more than forty hours per week without overtime compensation, were not paid the minimum wage and spread-of-hours compensation, did not receive wage notices and wage statements, and were not reimbursed for uniform expenses. See Decl. of Brent E. Pelton Ex. 9 ( Dkt. #89-9); id. Ex. 10 (Dkt. #89-10); id. Ex. 11 (Dkt. #89-11); id. Ex. 12 (Dkt. #89-12); id. Ex. 13 (Dkt. #89-13); id. Ex. 14 (Dkt. #89-14). Defendants generally dispute those claims. See Defs.’ Resp. at 25-35, 44-52.
On May 31, 2016, Mendez, Chocoj, and Rodriguez filed a complaint on behalf of themselves and similarly situated persons bringing claims under the FLSA and the NYLL. See Compl. (Dkt. #1). The complaint alleges that defend...
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