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Damian Maslowski, Artur Dabek, Stanislaw Paduch and On Behalf of All Other v. Crimson

February 26, 2013

DAMIAN MASLOWSKI, ARTUR DABEK, STANISLAW PADUCH AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED WHO WERE EMPLOYED BY CRIMSON CONSTRUCTION CORP., SKYNEAR SERVICES, LLC, BEN CONSTRUCTION CONSULTING, INC., CHRISTOPHER CIELEPAK AND LUKE CZACHOR, PLAINTIFFS,
v.
CRIMSON CONSTRUCTION CORP., SKYNEAR SERVICES, LLC, BEN CONSTRUCTION CONSULTING, INC., CHRISTOPHER CIELEPAK AND LUKE CZACHOR DEFENDANTS.



The opinion of the court was delivered by: VIKTOR V. Pohorelsky United States Magistrate Judge

MEMORANDUM AND ORDER

The plaintiffs Damian Maslowski, Artur Dabek, and Stanislaw Paduch are laborers of Polish descent who bring this action against the defaulting defendants Crimson Construction Corp., ("Crimson"), Skynear Services, LLC, ("Skynear"), Ben Construction Consulting, Inc., ("Ben"), Christopher Cielepak ("Cielepak"), and Luke Czachor ("Czachor") asserting causes of action under 42 U.S.C. § 1981, 42 U.S.C. § 2000e ("Title VII"), the New York State Human Rights Law, Executive Law § 290, the Fair Labor Standards Act (hereinafter "FLSA") and related claims under provisions of the New York Labor Law (hereinafter "the NYLL"). See Complaint ¶¶ 1-2. The plaintiffs seek to recover unpaid wages, unpaid overtime, and liquidated damages. Id. ¶ 2.

I. ENTRY OF DEFAULT JUDGMENT

"It is well established that a party is not entitled to a default judgment as a matter of right; rather the entry of a default judgment is entrusted to the sound judicial discretion of the court."

Cablevision of Southern Connecticut v. Smith, 141 F. Supp. 2d 277, 281 (D. Conn. 2001), quoting Shah v. N.Y. State Department of Civil Services, 168 F.3d 610, 615 (2d Cir. 1999) (internal quotations omitted). When deciding whether to enter default the court considers various factors, including (1) the amount of money involved; (2) whether issues of fact or of substantial public importance are at stake; (3) whether the default is largely technical; (4) whether the plaintiff has been substantially prejudiced by the delay; (5) whether the grounds for default are clearly established; (6) whether the default was caused by a good-faith mistake or excusable neglect; (7) how harsh an effect default would have; and (8) whether the court believes it later would be obligated to set aside the default on defendant's motion. Cablevision of Southern Connecticut v. Smith, 141 F. Supp. 2d at 281, citing Moore's Federal Practice § 55.20 {2}{b} (3d ed. 1999). In civil actions, when a party fails to appear after being given notice, the court normally has justification for entering default. Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984).

The plaintiff has filed affidavits of licensed process servers attesting to service of the summons and complaint in this action upon the defendants. The defendants Skynear, Crimson and Ben were served by delivering copies of the summons and complaint to the New York Secretary of State in accordance with the provisions of Section 303 of the Limited Liability Law, and Section 306 of the Business Corporation Law. The defendant Czachor was served by personal delivery of the summons and complaint pursuant to Section 308 (1) of the New York Civil Practice Laws and Rules ("CPLR"). The defendant Cielepak was served by "nail and mail" pursuant to Section 308 (4) of the CPLR. Each method of service is authorized by Rule 4 (c)(1) of the Federal Rules of Civil Procedure. The defendants have failed to interpose an answer, or otherwise respond to the complaint. Nor have the defendants responded to the plaintiffs' application for default. The grounds for default are therefore clearly established, and there are no grounds for believing the defaults are based on a good-faith mistake or technicality. See Cablevision Systems New York City Corporation v. Leach, No. 01 Civ. 9515, 2002 WL 1751343, at *2 (S.D.N.Y. July 26, 2002) (default willful where defendant never responded to complaint, appeared or explained default). Finally, based on the defendants' inaction, it is unlikely that the court will be compelled at some future date to enter an order vacating the default judgment. Judgment by default will therefore be granted so long as liability and damages are appropriately established.

II. LIABILITY

By virtue of the defendants' defaults, the well-pleaded allegations of the Complaint are deemed admitted, except as to the amount of the plaintiffs' damages. See, e.g., Greyhound Exhibitgroup v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992), cert. denied, 113 S. Ct. 1049 (1993); Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). Thus, in examining the defendants' liability on each of the plaintiffs' claims below, the court deems the facts alleged in the complaint to be proved and sets those facts forth below as they relate to the various claims.

According to the well-pleaded allegations of the complaint, the plaintiffs Maslowski, Dabek, and Paduch were employed by the defendants Crimson, Ben, and Skynear ("the defendant companies") as laborers and bricklayers in the construction industry. See Complaint ¶¶ 2, 9 at page 4, 16.*fn1 The plaintiffs are all of Polish national origin. Id. ¶¶ 10-12 at page 4. The defendants Czachor and Cielepak are owners, principal shareholders, and or directors of the defendant companies. Id. ¶¶ 12-13 at page 4. Czachor and Cielepak controlled the day-to-day operations of the defendant companies, made major personnel decisions such as hiring and firing workers, as well as supervising and setting employee work schedules and conditions of employment. Id. ¶¶ 36-41.

In May 2007, Maslowski was hired as a laborer by Crimson, and paid at a rate of $30.00 per hour. Id ¶ 17. Crimson employed approximately one hundred laborers at each job site, of which about fifteen to twenty were of Polish descent. Id. However, in July 2007, Maslowski was informed that he would now be working for Skynear and his pay was reduced by the defendants to $20.00 per hour. Id. ¶ 18. In July 2008, the Polish workers were informed that they were now employed by Ben although none of their job descriptions, duties, or job sites changed. Id. ¶ 20. Later, in February 2009, Maslowski was instructed to begin transporting other workers to and from a job site in Pennsylvania, but was not compensated for the hours he spent performing this task. Id. ¶¶ 20-21. In February 2010, Maslowski and other Polish workers were terminated when they refused to take a further pay cut to $15.00 in order to retain their employment. Id. ¶ 23.

The well-pleaded complaint further establishes that the plaintiff Dabek began working for the defendant Skynear as a bricklayer in May 2007, and was paid $28.00. Id. ¶ 24. Dabek worked on a crew with all Polish workers. Id. Like Maslowski, Dabek and the other Polish workers in his crew were informed in July 2008 that they were now employed by Ben. Id. ¶ 25. Dabek earned $30.00 per hour while working for Ben. Id. However, Dabek and the other Polish workers were terminated in March 2010 when they refused to take a pay cut to $20.00 per hour. Id. ¶ 26.

Paduch, like Dabek, was first hired to work as a bricklayer for Skynear and was paid $22.00 per hour while working with an all Polish crew. Id. ¶ 27. In July 2008, Paduch and his crew also began working for Ben, and he was paid $26.00 per hour. Id. ¶ 28. However, in June 2010, Paduch suffered the same fate as his co-plaintiffs as he and the Polish members of his crew were terminated after not accepting a reduction in salary to $20.00 per hour. Id. ¶ 29. At the time of his firing, Paduch was owed back wages for approximately 139 hours of work that he had performed. Id. ¶ 30.

The allegations of the complaint establish that Polish workers in general were paid much less than American workers. Id. ¶ 31. For instance, on job sites where Paduch was compensated at $22.00 per hour and Dabek $28.00, the non-Polish workers were earning $48.00 per hour. Id. Similarly, when Maslowski's pay was reduced from $30 to $20 per hour, only he and his fellow Polish laborers suffered the pay cut; the other laborers did not. Id. ¶¶ 18-19. Further, the plaintiffs typically worked five or six days per week, normally in excess of eight hours per day, and usually in excess of 40 hours per week. Id. ¶¶ 32-34. In addition, the plaintiffs and other Polish workers were not paid the required 1.5 times the regular pay for hours worked in excess of 40 per week. Id. ¶ 34.

As noted above, the plaintiffs seek to recover back pay, overtime pay, and liquidated damages. Although the plaintiffs assert a number of causes of action seeking the relief requested, only certain claims are viable, and the plaintiffs fall short of establishing that they are entitled to all of the damages sought.

A. Section 1981

The plaintiffs' Section 1981 claim fails as matter of law. The plaintiffs assert that they were discriminated against because they are Polish, that is, because of their national origin. It is well-established, however, that Section 1981 was enacted to combat racial discrimination, see Saint Joseph's College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct 2022, 2028, 95 L.Ed.2d 582 (1987), and does not cover discrimination based on national origin. See Lee v. Sony BMG Music Entertainment Inc., 557 F. Supp.2d 418, 424 (S.D.N.Y. May 15, 2008) quoting Saint Joseph's College, 481 U.S. at 613. The claims brought here under Section 1981 therefore must be dismissed with prejudice.

B. Title VII

The plaintiffs also claim the defendants have engaged in discrimination that violated Title

VII. Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C. §§ 2000e et seq., provides that, (a) It shall be an unlawful employment practice for an employer-

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a)(1).

Before commencing an action in federal court under Title VII, a claimant must first file a claim with the EEOC. Title VII requires that charges brought under it must be filed with the EEOC within at most 300 days after the alleged unlawful employment practice occurred in order for it to be timely. If the plaintiff does not file the charge with the EEOC, the plaintiff loses the ability to recover for it. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109--10 (2002); 42 U.S.C. ยงยง 2000e--5(e)(1), 2000e--5(f)(1). If ...


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