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December 22, 2005.

REMEDY ROSSO, Plaintiff,

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge


In this action, plaintiff Remedy Rosso ("Rosso") alleges violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Rosso contends that the defendant, Pi Management Associates, L.L.C. ("Pi Management"), refused improperly to pay him overtime during the period of his employment and terminated his employment because of his disability and race. Rosso seeks to recover from the defendant $237,353.92 in damages, plus interest, reasonable attorney's fees and costs.

Pursuant to 28 U.S.C. § 636(c), the parties consented to having the non-jury trial of this action presided over by a United States magistrate judge. That trial has been completed. The following are the Court's findings of fact and conclusions of law, made pursuant to Rule 52 of the Federal Rules of Civil Procedure. I. FINDINGS OF FACT

  Rosso was born on September 8, 1948, in the Dominican Republic. He lives in the Bronx, New York. Pi Management is a corporation organized and existing under the laws of the state of New York with its principal place of business at 57-08 39th Avenue, Woodside, New York. Pi Management manages the building located at 339 Fifth Avenue, New York, New York ("Building").

  On September 16, 1997, the Building was purchased by JPK Associates, L.L.C. ("JPK"). Rosso had been employed by the seller, The Simon's Co., prior to the purchase of the Building and was kept on by JPK as a building superintendent. Initially, the Building was managed by Best Color Payroll Service, which paid Rosso's salary. In January 1998, Best Color Payroll Service changed its name to Pi Management. Thereafter, Pi Management paid Rosso's salary. During the time that Rosso worked for Pi Management, from September 1997 to November 1999, he was supervised by Property Coordinator Vera Penn ("Penn").

  Pay Rate and Hours Worked

  At trial, Rosso testified concerning the circumstances of his employment with Pi Management. Rosso stated that when he was hired by Pi Management, in September 1997, he had already worked at the Building for about two years. Rosso stated that he believed that his experience at the Building, his previous training and his knowledge of electrical systems and building maintenance, made him a valuable employee to Pi Management. Rosso explained that when he needed to make reports about problems at the Building, he would direct them to Penn.

  According to Rosso, when he was employed by The Simon's Co., he worked 40 hours per week and earned $550. Rosso stated that when he began working for Pi Management the terms of his employment were the same, that is, he worked from 7:00 a.m. until 4:00 p.m., with one hour off for lunch, and earned $550 per week. After he had been working for Pi Management for one week, however, he was told that his hours had changed and that he would be working from 8:00 a.m. until 5:00 p.m. Rosso was then told that he was required to begin work at 7:00 a.m., as before, so that he could be at the Building when the garbage was collected. Furthermore, Rosso explained, when he worked for The Simon's Co., he was given an hour off for lunch and was permitted to leave the Building during that time. However, after he was hired by Pi Management, he was instructed by Penn to remain in the Building during his lunch hour; from then on, Rosso always ate his lunch at his desk in the lobby.

  Rosso also testified that he regularly worked more than 50 hours per week because of problems at the Building, such as the timing of garbage collection, and because he was required to perform the duties of a doorman for the Building as well as those of a superintendent. Rosso testified that he was paid overtime only once, that he often complained to Penn that he was owed overtime and that Penn promised "many times" that he would be compensated for his extra hours of work. Rosso stated that Penn had told him that the reason he had not been paid overtime was that Pi Management was renovating the Building and did not have any tenants.

  Penn also testified at trial. She stated that Pi Management was a real estate management company responsible for twelve commercial buildings and that James Pi, the owner of Pi Management, also owned a photo business, a cruise business and a retail business. According to Penn, all of James Pi's businesses were located at 57-08 39th Avenue in Woodside, New York, and shared certain administrative services, such as payroll. Penn stated that, as Property Coordinator for the company, she handled landlord/tenant matters and also supervised the company's building superintendents and doormen. Penn confirmed that plaintiff was a superintendent and doorman at the Building, that he worked Monday through Friday from 7:00 a.m. until 5:00 p.m., and that she was his supervisor. Penn acknowledged that the plaintiff was a "pretty good worker."

  Penn also testified that about eight or nine people worked for Pi Management; however, when she was shown a list of the company's employees for the years 1999 and 2000, she acknowledged that eleven people had been employed by the defendant during that time. Moreover, Penn also acknowledged that at least four people who worked for Pi Management in 1999 and 2000 were excluded from the list. When asked whether Rosso had been told that he was entitled to a 30-minute lunch break, Penn stated that she did not remember, but that "everybody has 30 minutes for lunch." Penn stated that she did not know whether any other employee was ever sent to relieve Rosso when he took his lunch break at the Building and, in any case, she had never directed any employee to perform this task.

  In support of his contentions, the plaintiff submitted time sheets prepared by him during the period of his employment with Pi Management, that is, September 22, 1997, through November 12, 1999. Each time sheet covers a two-week period and contains information provided by the plaintiff, including his name, the beginning and ending dates of the pertinent pay period and, for each day that he worked, his time "in" and "out." In addition, each time sheet contains handwritten notes indicating the number of hours plaintiff worked each day, as well as the total number of hours he worked during each two-week pay period. Plaintiff testified that he did not know who had written the notes. The time sheets show that plaintiff worked between 90 and 108 hours per pay period. The plaintiff also submitted copies of his earnings statements. The statements indicate that plaintiff received gross pay in the amount of $1,100 every two weeks during the period of his employment. The statements also show that he received $30 in overtime pay during the period ending December 11, 1998, and $49.50 in overtime pay during the period ending April 2, 1999.

  Disability Claim

  Rosso also testified concerning his medical condition. He stated that he suffers from Bell's Palsy and is sensitive to sunlight, and that this condition causes his eyes to tear when he is exposed to sunlight. As a result, Rosso is unable to work outside during daylight hours. Rosso testified that he first began to experience this sensitivity and other problems in November 1999. while he was working for Pi Management. On November 5, 1999, plaintiff noticed a strong chemical odor in the Building; afterward he experienced dizziness and felt pain in his face and eye. He went outside to an area at the back of the Building seeking fresh air. However, when he returned to the Building, he again felt pain in his head and around his eye. Rosso attempted to contact Penn but was unable to do so. He then stood in front of a surveillance camera located in the Building in order to demonstrate his condition. When Rosso's shift ended that day, he sought medical care. Rosso was diagnosed with Bell's Palsy and continues to experience symptoms of this condition.

  On November 8, 1999, Rosso returned to work and contacted Penn. He informed her of his condition and asked for a one-week vacation. Penn agreed to the request. Rosso returned to work again on November 16, 1999, for approximately two hours, and then visited his physician, Dr. Albert Comas. Rosso received a medical report from Dr. Comas on that date and sent the report by facsimile to Pi Management. The report stated: "Mr. Remedy Rosso is not able to work at the present time because of his medical condition. Mr. Rosso is under treatment for a left facial palsy and dizziness with some loss of balance. Return to work November 30, 1999 if stable."

  On or about November 23, 1999, Rosso submitted to Pi Management a Notice and Proof of Claim for Disability Benefits, signed by Dr. Comas, indicating that Rosso had received treatment, was unable to work because of his disability and would be able to perform his usual work on November 30, 1999. On or about December 13, 1999, Rosso submitted to Pi Management a letter from Dr. Comas which stated: "Mr. Remedy Rosso is not medically clear to return to work at this time."

  At trial, Rosso testified that he called Penn in March 2000 and told her that he wanted to return to work. He stated: "I tried to return to work by phone call to Vera [Penn] about March. I explained to her, due to my condition, if they can let me do the job — if I can so it will be OK. If I don't come, send me home. I told to her that." Plaintiff testified that he was not offered a position at that time. Plaintiff stated that he then contacted Penn in May or June 2000 and asked if he could return to work. Again, plaintiff testified, he was not offered a position with Pi Management.

  Penn, testifying at trial, acknowledged that she had received medical reports from the plaintiff after he stopped working in November 1999, but asserted that, between November 1999 and July 2000, Rosso never sought to return to work. However, Penn also stated that Rosso had called her in early 2000. On that occasion, according to Penn, Rosso asked her how she was and whether she had any job openings. Penn told him that the job was "already taken." Penn also testified that she had never told Rosso that she would keep his job open for him. When questioned further about the March 2000 telephone conversation with Rosso, Penn testified as follows:
Q. Did you ever have a friendship call with Mr. Rosso in the year 2000 where you told him that something was available with Pi Management?
A: But this position is, the job opening is not for 339 Fifth Avenue.
Q: Ms. Penn, that's not my question. I'm asking you, did you ever have a friendship call with Mr. Rosso in early 2000 where you told him that there was a doorman position open with Pi Management?
A: I did not call him.
  Thereafter, on July 21, 2000, Rosso mailed a certified letter to Pi Management. That letter stated: "Attention Mrs. Vera Penn. Attached is my last medical report. Please let me know your decision by mail only." The medical report mentioned in plaintiff's letter, which was prepared by Dr. Comas for the state of New York Workers' Compensation Board ("WCB"), indicates, inter alia, that plaintiff is disabled, that the disability is "total," and that, beginning in July 2000, plaintiff could do limited work.

  In his trial testimony, Rosso explained that he had asked to be informed of Penn's decision "by mail only" because he suspected that something was "going wrong about [his] job position." Rosso stated that he had tried "many time[s] to go back to work" for the defendant when he was able to perform the functions of his superintendent position, but was never given the opportunity. According to Rosso, between December 1999 and July 2000, he called Penn approximately ten times and apprised her of his medical condition. Rosso never worked for Pi Management after November 1999. He was replaced as a superintendent shortly after he sent his first medical report to Penn. According to Rosso, when Pi Management denied him his old position, he briefly obtained similar work as a building superintendent elsewhere but was unable to find a permanent position. Rosso stated that he was currently employed as a parking attendant at an indoor parking garage.

  On January 31, 2002, the WCB issued a reserved decision denying plaintiff's claim for disability benefits, based on its finding that plaintiff's Bell's palsy was not causally related to any incident at work. An administrative decision affirming the disallowance of plaintiff's claim was issued by the WCB on December 11, 2002.

  Race Discrimination Claim

  At trial, Rosso testified that he was born in the Dominican Republic and that he is a Hispanic man with black skin. Rosso also stated that he did not receive health insurance or overtime compensation while he was employed by Pi Management, although he believed other superintendents or doormen received such a benefits. Rosso explained that, when he attempted to return to work in 2000, he learned that he had been replaced by an Asian man.

  Rosso testified that, on several occasions, Penn had visited the Building and had asked him to call her a taxi cab as she was leaving. According to Rosso, on those occasions, he was instructed by Penn not to stop any taxi cabs that were driven by black men. In addition, Rosso stated, Penn refused more than once to get into a taxi cab driven by a black man.

  Penn also testified concerning Rosso's claim of race discrimination. In response to questioning, she stated that, of the doormen who worked for the defendant in 1999 and 2000, only one was Hispanic and black, namely the plaintiff. Penn also stated that her assistant, Ms. Taylor, who had worked for her since 1987, was a black woman.

  Penn stated that, after Rosso became ill, he was replaced by an Asian man who had worked the night shift previously, and that the night shift was then assigned to an individual named Goran Spadina. She also stated that, in March 2000, the defendant hired another Asian man, Mr. Liu, to fill Rosso's position. Penn testified further that, sometime after November 1999, Pi Management hired two Hispanic individuals: Francisco Mendez, who was hired to work as a doorman in a building in Flushing, New York, and Eliezer Lopez, who was hired to work as a part-time doorman at an unspecified location.

  Penn denied that she had ever told Rosso not to call any taxi cabs driven by black men. In addition, Penn stated that she was enrolled in a health insurance plan provided by the defendant but that she did not know whether this benefit was provided to any of the doormen employed at the company.

  Documentary evidence submitted at trial shows that the individuals who replaced plaintiff in the capacity of Building superintendent were Goran Spadina, who is of European ancestry, and Da Wei Yiu, who is Chinese. Da Wei Yiu, who had worked for the defendant on a part-time basis between June 1999 and November 1999, became a full-time employee, replacing the plaintiff, on November 17, 1999. In addition, although the record is not clear on this point, Goran Spadina appears to have been employed part-time by the defendant from March 1999 until June 1999 and again during November and December 1999. Documentary evidence also shows that Eliezer Lopez was hired in August 2002, and that Francisco Mendez was hired in April 2001.

  On September 7, 2000, plaintiff filed a complaint with the New York City Commission on Human Rights charging the defendant and Penn with an unlawful discriminatory practice in violation of the Administrative Code of the City of New York. The Commission determined that there was no probable cause to believe that the defendant or Penn had engaged in or were engaged in the alleged unlawful discriminatory practices. ...

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