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Jose Amaya On Behalf of Himself and Others Similarly Situated v. Superior Tile and Granite Corp. and Samuel Ramsammy

January 17, 2012

JOSE AMAYA ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
SUPERIOR TILE AND GRANITE CORP. AND SAMUEL RAMSAMMY, DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:

ECF

MEMORANDUM OPINION & ORDER

This is an action for overtime wages under the Fair Labor Standards Act ("FLSA") and the New York Labor Law. Defendants Superior Tile and Granite Corp. ("Superior") and Samuel Ramsammy sell granite, marble, tiles, limestone, ceramics, glass, and accessories. (Tr. 208-09) Plaintiffs Jose Amaya, a tile and granite salesperson, and Felipe Ramirez, a granite fabricator and installer, allege that they were employed by Defendants and were not paid overtime compensation as required by the FLSA and the Labor Law. They seek unpaid overtime wages, liquidated damages, pre-judgment interest, and attorneys' fees and costs.

A bench trial was conducted on July 12 and 13, 2011. This opinion sets forth the Court's findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a).

FINDINGS OF FACT

I.THE PARTIES

1. Defendant Samuel Ramsammy is the sole owner of Defendant Superior, a retail store in the Bronx that sells granite, marble, quartz, ceramic tiles, and similar products to the general public and contractors in the construction industry. (Tr. 3-4, 53) Superior is a successor to Peniel Tile. (Tr. 33, 204)

2. Ramsammy and Superior employed Plaintiff Jose Amaya as a salesperson, and Plaintiff Felipe Ramirez as a granite countertop fabricator and installer. (Tr. 4-5, 90, 91-93, 140, 246)

3. At all relevant times, the store hours of Superior were Mondays, Tuesdays, Wednesdays and Fridays 8:00 a.m. through 5:30 p.m, Thursdays 8:00 a.m. through 7:00 p.m., and Saturdays 8:00 a.m. through 3:00 p.m. (Tr. 141-42)

II.PLAINTIFF JOSE AMAYA

A.Dates and Hours of Employment

4. Amaya worked at Superior from January 15, 2005 through May 10, 2010. (Tr. 140, 5, 48) Amaya was hired by Superior store manager Samuel Berko. (Tr. 54)

5. Amaya worked continuously for Superior and its owner, Ramsammy, without any vacations or other leave, throughout his employment. (Tr. 140, 145) According to Ramsammy, Amaya worked a fixed weekly schedule, 8:00 a.m. to 5:30 p.m. on Mondays, Tuesdays, Wednesdays and Fridays (9 1/2 hours daily); Thursdays 8:00 a.m. to 7:00 p.m. (11 hours); and Saturdays 8:00 a.m. to 3:00 p.m. (7 hours), for atotal of 56 hours per week. (Tr. 6-7) Ramsammy testified that Amaya took thirty minutes for lunch daily (Tr. 40), and never worked more than 53 hours per week. (Tr. 6-8, 42-44)

6. Amaya testified that his actual work hours were longer than the store hours. (Tr. 141) Amaya estimated that he worked, on average, six additional hours per week above the 56 hours that the store was open to the public. (Tr. 141-42) Amaya testified that there was no break for lunch. (Tr. 142-43, 174-75)

7. The Court finds that Amaya, on average, worked 59 hours per week.

B.Rate of Pay

8. The testimony at trial concerning Amaya's hourly rate was not clear.

9. Amaya was paid $720.00 per week. (Tr. 8-9, 143) Payment was in the form of cash and checks, which varied week-to-week. (Pltf. Trial Ex. 17, 18) Taking Amaya's weekly pay, $720.00, and dividing that by 53 hours (the number of hours Ramsammy testified that Amaya was assigned to work each week), yields an hourly rate of approximately $13.58 per hour.

10. Ramsammy's interrogatory responses with regard to this issue were consistent: "Amaya was paid an hourly wage of $13.50 per hour." (Tr. 15; Pltf. Trial Ex. 2)

11. Amaya testified that if he left work early, his pay was reduced at a rate of $13.00 or $13.50 per hour. (Tr. 8-9, 144, 164, 195-96) Ramsammy did not recall what hourly rate he used to reduce Amaya's pay when he left early. (Tr. 8-9) When Amaya worked late, he did not receive overtime pay. (Tr. 143)

12. Amaya did not generally receive a payroll wage statement detailing his hours, pay, hourly rate, or any deductions. (Tr. 49-51, 153) Indeed, there is no evidence as to what taxes or other deductions were made from Amaya's pay on a weekly basis. (Tr. 62) Amaya was paid partly "on the books" and partly "off the books."

13. The store manager, Samuel Berko, confirmed that Amaya often worked longer than the required business hours, and was not paid overtime:

Q: If there were customers in the store, you didn't close?

A: No.

Q: That was because you would like to make the sale, right?

A: That's correct.

Q : . Did you have a policy regarding overtime?

A: Well, like I said, initially I told him that everybody has to make sacrifices because at the time when Mr. Amaya came in, I wasn't taking salary either. I had to forego salary because we wanted to pay back whatever money that was coming in into the business. So I told him that we have to make sacrifices now. When we start getting money, all those things will be taken care of.

Q: So when you were there, no overtime was paid, is that correct?

A: The only overtime that was paid was on Thursdays, on Thursdays, because it was a set time. We closed late, so he was paying them that extra hours after 5:00 on Thursdays.

Q: But it was just his regular rate of pay, whatever that was, right?

A: Yeah, mm-mm.

Q: It wasn't time and a ...


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