Mestizo v. H2 Candy & Nuts
| Decision Date | 22 January 2021 |
| Docket Number | No. 17-cv-8519 (NSR),17-cv-8519 (NSR) |
| Court | U.S. District Court — Southern District of New York |
| Parties | SONIA GARCIA MESTIZO & MAURA AMASTAL, Plaintiffs, v. H2 CANDY & NUTS, INC. D/B/A SWEET RAINBOW, HISHAM AL-ASSAF, individually and as an officer of H2 Candy & Nuts, Inc., & HAYTHAM KHALIL, individually and as an officer of H2 Candy & Nuts, Inc., Defendants. |
Plaintiffs Sonia Garcia Mestizo ("Mestizo") and Maura Amastal ("Amastal," together "Plaintiffs") bring this action against their former employer, Defendant H2 Candy & Nuts, Inc. ("H2CN") d/b/a Sweet Rainbow, Defendant Hisham Al-Assaf ("Al-Assaf"), individually and as an officer of H2CN, and Defendant Haytham Khalil, individually and as an officer of H2CN (collectively, "Defendants"), alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq, the New York State Human Rights Law ("NYSHRL"), New York Executive Law § 290, et seq., the retaliation and recordkeeping1 requirements of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 211(c), and the retaliation and wage statements requirements of the New York Labor Law ("NYLL") § 195(3). (ECF No. 1.)
Presently before the Court is Plaintiffs' motion and Defendants' cross-motion forsummary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 57 & 62.) For the following reasons, Plaintiffs' motion and Defendants' cross-motion for summary judgment are DENIED.
The following facts are derived from the parties' respective Local Rule 56.1 statements and the record and are undisputed unless otherwise indicated.
Defendants Khalil and Al-Assaf own Defendant H2CN. Defendants Khalil and Al-Assaf are President and Vice President of Defendant H2CN and have the power to hire, fire, and discipline employees. (Al-Assaf Tr. 11:7-12; 20:3-15; Khalil Tr. 25:25-26:3; 31:10-15.) Plaintiffs worked for Defendants as candy packers. (Pls. 56.1 ¶ 2, 13; Defs. 56.1 Resp. ¶ 2, 13.) Plaintiff Mestizo began working for Defendants in December 2011. (Mestizo Tr. 17:17-20.) Plaintiff Amastal began working for Defendants approximately eleven years prior to her deposition. (Amastal Tr. 12:7-9.) Plaintiffs were born in Mexico and are of Mexican origin. (Pls. 56.1 ¶ 1, 12; Defs. 56.1 Resp. ¶ 1, 12.) The manager of the candy packers was a Filipino woman named Vicky. (Pls. 56.1 ¶ 5; Defs. 56.1 Resp. ¶ 5.)
Plaintiffs' last day working for Defendants was September 1, September 2, or September 4, 2016. (Pls. 56.1 ¶ 3, 16; Defs. 56.1 Resp. ¶ 3, 16.)2 At the time, Defendants paid Plaintiffs a flat salary of $65 per day in cash. (Pls. 56.1 ¶ 4, 14; Defs. 56.1 Resp. ¶ 4, 14.) On their last day, Plaintiffs and a group of approximately five additional candy packers spoke with Defendants Khalil and Al-Assaf regarding a salary increase from $65 per day to either $75 per day or $80per day.3 .) This group of approximately seven total employees constituted all candy packer employees except their manager Vicky. (Pls. 56.1 ¶ 7; Defs. 56.1 Resp. ¶ 7.) All of the negotiating candy packer employees were Mexican women. Defendant Khalil offered to increase the candy packers' salary to $70 per day. (Mestizo Tr. 30:2-6; Amastal Tr. 20:4-5; Defs. 56.1 Resp. ¶ 9) Defendants told the employees that they could not afford to pay the candy packers $80 per day. (Pls. 56.1 ¶ 30; Defs. 56.1 Resp. ¶ 30.) According to Plaintiff Amastal, Defendant Khalil told Plaintiffs that they could leave if they did not agree to the offered raise. (Amastal Tr. 20:2-10.) According to Plaintiff Mestizo, Plaintiff Mestizo told Defendant Khalil that "the fact that we didn't have any papers, that didn't mean we had no rights; we still have rights." (Mestizo Tr. 3 30:21-31:2.)
According to Plaintiffs, Defendant Al-Assaf joined the conversation after approximately ten minutes. (Amastal Tr. 21:2-10.) The candy packers indicated that if they did not receive their desired increase, they would leave. (Mestizo Tr. 33:9-13.) Defendant Al-Assaf then became upset and told the candy packers "to just leave the place." (Mestizo Tr. 33:6-32:8.) Defendant Al-Assaf told the women that he would not give them their desired increase and that if they wanted to go, they could because Defendants had other people who would work for less money. (Amastal Tr. 21:2-10.) Defendants dispute this characterization of the conversation. According to Defendant Al-Assaf, Plaintiffs left when Defendants refused to give them a raise to $80 per day and Defendants attempted to convince the Plaintiffs to come back. (Al-Assaf Tr. 40:6-21.) Consistent with Defendants' claims, Marcella Toxqui, one of the negotiating candy packers, stated at her deposition that the candy packers were not fired and that they "wanted to leavebecause [Defendants] didn't want to give us a raise." (Toxqui Tr. 38:14-25.) Toxqui did not return to work the following day, but ultimately rejoined H2CN. (Toxqui Tr. 39:12-15.)
As the Plaintiffs left and gathered their belongings, Defendant Al-Assaf told them to get out and made a comment as to their Mexican heritage. According to Plaintiff Mestizo, Defendant Al-Assaf said: (Mestizo Tr. 3:14-21.) According to Plaintiff Amastal, Defendant Al-Assaf said: "Go Mexicans." (Amastal 25:20-22.) According to Defendant Al-Assaf, he said: (Al-Assaf Tr. 47:20-25.) Also, according to Defendant Al-Assaf, the derogatory statement was made after the women were outside the door of the company. (Al-Assaf Tr. 47:20-25.)
The salary increase conversation was recorded by Marcella Toxqui, a candy packer. (Pls. 56.1 ¶ 11; Defs. 56.1 Resp. ¶ 11.) The recording is part of the record.4 In the recording, Plaintiffs and Defendants negotiate salary and other terms of employment for approximately twenty-five minutes. Towards the end of the recording Defendant Al-Assaf yells at the Plaintiffs: (Pls. 56.1 ¶ 32; Defs. 56.1 Resp. ¶ 32.) The recording confirms some of Plaintiffs' and Defendants' testimony as to the substance of the conversation; however, it is unclear at times and difficult to decipher. It is clear from the Court's review of the recording that there were substantial language barriers throughout the conversation. This is consistent with Toxqui's testimony that she recorded the conversation because Defendants only spoke English and the candy packers only spoke Spanish. (Toxqui Tr. 17:8-12.)
The New York State Department of Labor (NYSDOL) later conducted an investigation and determined that Defendant H2CN owed back wages to five current and four former employees, including Plaintiffs, and failed to keep proper business records. (Al-Assaf Tr. 51:21-52:4.)
Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Benn v. Kissane, 510 F. App'x 34, 36 (2d Cir. 2013).
A court should grant summary judgment when a party who bears the burden of proof at trial "fails to make a showing sufficient to establish the existence of an element essential to that party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323 (internal quotation marks omitted).
In deciding a motion for summary judgment, the Court must "constru[e] the evidence in the light most favorable to the non-moving party and draw[ ] all reasonable inferences in its favor." Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (internal quotation marks omitted). However, the nonmoving party "may not rely on conclusory allegations or unsubstantiated speculation." FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010) (internal citation and quotation marks omitted). Further, "[s]tatements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999); see Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008) ().
"In cases based on allegations of discriminatory retaliation, courts must use 'an extra measure of caution' in determining whether to grant summary judgment 'because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence.' Thompson v. Morris Heights Health Ctr., 2012 WL 1145964, at *4 (S.D.N.Y. Apr. 6, 2012) (quoting Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir.2006) (citation omitted)).
Title VII provides that an employer cannot discriminate against "any individual" based on his or her "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). "The ultimate issue in any employment discrimination case is whether the plaintiff has met her burden of proving that the adverse employment action was motivated, as least in part, by an impermissible reason, i.e., that there was discriminatory intent." Baffa v. STAT Health Immediate Medical Care, P.C., 2013 WL 5234231, at *7 (E.D.N.Y. Sept. 17, 2013) (...
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