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Garcia v. Lee

May 26, 2010

JANET GARCIA AND CHRISTOPHER HERB, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
SUK CHAN LEE A/K/A BRUCE LEE AND KWANGOK SUNG A/K/A KAY LEE, D/B/A ONE GREENE JAPANESE RESTAURANT & LOUNGE, 17 GREEN FARM A/K/A 17 GREENE FARM, FRESH GARDEN, SILVER SPOON, AND MIRAI WELLNESS SPA, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge

ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER INCLUDING PRELIMINARY INJUNCTION

Plaintiffs Christopher Herb and Janet Garcia brought this action complaining that defendants Suk Chan Lee and Kwangok Sung failed to pay them minimum, overtime, and spread-of-hours wages and retained their tips, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., Article 19 of the New York Labor Law, and the New York spread-of-hours regulation, N.Y. Comp. Codes R. & Regs. tit. 12, § 137-1.7. They assert these claims on behalf of themselves and others employed by the defendants at several small businesses in Brooklyn, including a sushi restaurant, two grocery stores, a frozen yogurt shop, and a salon. Herb also claims that the defendants retaliated against him for filing a complaint with the New York State Department of Labor, in violation of section 215 of both the New York Labor Law and FLSA.

Herb and Garcia seek a preliminary injunction barring the defendants from retaliating against their employees for bringing or joining this action or asserting a claim under FLSA. They also ask that the defendants be enjoined from taking adverse employment action against their employees for any reason without giving plaintiffs' counsel three days notice, except in certain urgent circumstances.

Although I gave the parties an opportunity to present witnesses at an evidentiary hearing, both declined and consented to my decision of the application on the basis of the pleadings, briefing, and affidavits.

BACKGROUND

Herb began working for the defendants in October of 2009 as a waiter in One Greene Japanese Restaurant & Lounge. On January 6, 2010, he filed a complaint with the New York State Department of Labor, claiming that he was not paid overtime and that he was required to share his tips with management or other non-service employees. According to Herb, when he told Sung in or about February of 2010 that he had filed the complaint, she criticized him for doing so and fired him the same day.

Garcia began working for the defendants in 2003 or 2004 as a cashier at 17 Green Farm, a grocery store, and later as a waitress in the restaurant. On April 12, 2010, she and Herb filed this lawsuit. At the time, she was working 40 hours per week for the defendants, 32 as a cashier at the grocery store and 8 hours per week at the restaurant. According to Garcia, Sung informed her on May 12, 2010 that she was cutting her weekly hours from 40 to 20 because Garcia had filed this suit and cost her "a lot of money for lawyers' fees."

Sung does not deny that she fired Herb in or about February or that she reduced Garcia's hours on May 12, but disputes that she did so in reprisal for their complaints. She claims she dismissed Herb for poor performance and, although her chronology of events is somewhat unclear, she appears to claim that she did so before Herb told her of the complaint he had filed with the state. Sung also claims that she and her husband reduced the hours of all the cashiers at the grocery store, not just Garcia, because of a decline in business, and that they were forced to eliminate Garcia's position as a hostess at the restaurant for the same reason. Sung maintains that she offered to let Garcia stay on at the restaurant as a waitress, but that she refused.

In addition to Sung's affidavit, the defendants also submitted affidavits by two kitchen chefs, two sushi chefs, and a waiter at the restaurant. These employees generally described Herb as lazy and mistake-prone and recalled that he constantly complained about his wages.

DISCUSSION

To win injunctive relief at this stage, the plaintiffs must establish (a) irreparable harm and (b) either (1) a likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in their favor. Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010).

a. Irreparable Harm

"A retaliatory discharge carries with it the distinct risk that other employees may be deterred from protecting their rights . . . or from providing testimony for the plaintiff in her effort to protect her own rights." Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir. 1983); see also Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960) ("[I]t needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions.").These risks, as opposed to the financial and psychological distress that often follows a termination, "may be found to constitute irreparable injury." Holt, 708 F.2dat 90-91; see Barturen v. Wild Edibles, Inc., No. ...


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