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Perez v. G&P Auto Wash Inc.

United States District Court, E.D. New York

March 13, 2013

ENRIQUE PEREZ, GEOVANY ANTONIO ALBARADO, JAVIER CRUZ PEREZ, and PETER REYES on their own behalf and on the behalf of others similarly situated, Plaintiffs, -
v.
- G& P AUTO WASH INC. and GREG STAR, an individual, Defendants

Page 424

For Plaintiffs: Helen F. Dalton, Esq., Roman M. Avshalumov, Esq., HELEN F. DALTON & ASSOCIATES PC, Forest Hills, New York.

For Defendants: Jeltje deJong, Esq., Joshua S. Shteierman, Esq., DEVITT SPELLMAN BARRETT, LLP, Smithtown, New York.

OPINION

Page 425

Denis R. Hurley, Senior United States District Judge.

MEMORANDUM AND ORDER

Plaintiffs commenced this action against defendants G& P Auto Wash Inc. (" G& P" ) and Greg Star (" Star" ) (collectively, " defendants" ) in September 2010. Three plaintiffs, Enrique Perez (" Enrique" ), Geovany Antonio Albarado (" Albarado" ), and Javier Cruz Perez (" Javier" ), allege that defendants violated the minimum wage and overtime payment requirements set forth in the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (" FLSA" ) and the New York Labor Law (" NYLL" ). The fourth plaintiff, Peter Reyes (" Reyes" ), alleges that defendants terminated his employment in retaliation for his refusal to clean rat droppings on the work premises.

Presently before the Court are (1) defendants' motion, made pursuant to Federal Rule of Civil Procedure (" Rule" ) 56, seeking summary judgment, and (2) defendants' separate motion, made pursuant to Rule 11, seeking sanctions against plaintiffs and their counsel. For the reasons set forth below, defendants' motion for summary judgment is granted in part and denied in part, and defendants' motion for sanctions is denied.

BACKGROUND

The following facts are undisputed unless otherwise noted.[1]

G& P is a car wash located at 4935 Nesconset Highway, Port Jefferson Station, New York. Star is the owner and

Page 426

operator of G& P. Enrique, Albarado, and Javier worked at G& P as car wash attendants. Reyes worked as the manager of G& P between 2004 and his termination on June 22, 2010.

Plaintiffs Javier, Enrique, and Albarado

Javier was hired by G& P as a car wash attendant in May 2009 (Javier Dep. at 7), Enrique was hired by G& P as a car wash attendant in July 2009 (Defs.' 56.1 ¶ 12; Compl. ¶ 11), and Albarado[2] was hired by G& P as a car wash attendant in March or April 2009 (Albarado Dep. at 6).[3] It appears from the record that none of these plaintiffs remain employed by G& P. During their respective employment periods, each plaintiff's weekly work hours were recorded on " sign-in and sign-out" sheets, which were periodically submitted to G& P's payroll processing company. That company would then " tally up the wages" and issue paychecks to the employees. ( See Reyes Dep. at 36.)

During his deposition, Enrique was shown " payroll sign-in sheets and earning statements" for the period of his employment. (Enrique Dep. at 53-54.) Plaintiffs' counsel stipulated on the record that " although [Enrique] doesn't have any independent recollection of the exact hours he worked for these weeks," he had " no reason to doubt" the accuracy of those records. ( Id.) Plaintiffs' counsel made a similar stipulation during Albarado's deposition when shown his payroll records for the term of his employment. (Albarado Dep. at 27 (stipulation by counsel that Albarado had " signed each payroll document" and that " [h]e has no particular independent recollection of particular weeks and how many weeks he worked . . . and tips he received in those particular weeks, but he has no reason to doubt the accuracy of these records" ).) Javier testified during his deposition that he did not believe the work hours reflected in his payroll records were incorrect. (Javier Dep. at 39.) With respect to the payroll records reflecting the amount of tips he earned, however, Javier testified: " I don't know how they can get these numbers, if nobody kept track of any of these tips except us." ( Id.) Javier further testified that he did not have any records of his own that would reflect the amount of tips he earned during his employment at G& P. ( Id. at 40.)

Plaintiff Reyes

Reyes began working as a manager of G& P in October 2004. Beginning in late 2005, Reyes became responsible for " payroll," which included the responsibility to record the start and end times for each employee's work day and to upload the daily payroll records to the appropriate payroll service company. (Defs.' 56.1 ¶ 4; Pls.' 56.1 ¶ 4; Reyes Dep.[4] at 22.)

On or about April 2, 2010, Star asked Reyes to clean rat droppings at the car wash premises. (Reyes Dep. at 11, 46, 49.) During his deposition, Reyes testified that he initially refused to comply with this

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request, asserting that he was " not trained" and did not have appropriate " protective gear." ( Id. at 50.) Reyes told Star that his children were " highly allergic" to animal hair, and that he did not want to risk them having allergic reactions if he accidentally carried home a dropping. ( Id.) Reyes ultimately relented, however, and spent 15 to 20 minutes cleaning rat droppings. ( Id. at 54.) Reyes testified during his deposition that he never reported the incident to OSHA or any other state or federal agency. ( Id. at 55.)

According to Reyes, after this incident on April 2, 2010, all of his conversations with Star were " quite short and to the point." ( Id. at 55.) For example, on June 1, 2010, Star asked Reyes to collect each employee's " employment [ ] files" and complete certain work on them. ( Id. at 56.) Reyes told Star that this task could be completed by June 15th. ( Id.) According to Reyes, Star responded " that if on June 16th it was not complete, I guess you would not have a job." ( Id.) Reyes further testified that Star spoke to him (and other staff members) in a " demean[ing]" manner, and would not let car wash employees stand inside to either warm up during cold weather or cool down during hot weather. ( Id. at 56-57.)

Reyes's employment was terminated on June 22, 2010. In their summary judgment papers, defendants assert that Reyes " was terminated . . . for stealing cleaning chemicals from defendants," but they do not cite to any admissible evidence in support of that statement. ( See Defs.' 56.1 ¶ 10.) The portions of Reyes's deposition transcript submitted to the Court by the parties do not include any testimony from Reyes as to the reason for his termination. In an affidavit signed by Reyes and dated March 6, 2012 (" Reyes Affidavit" ), Reyes asserts that due to the " hostile environment" created by defendants, his " work performance decreased which eventually led to [his] termination." (Reyes Aff. ¶ 7.)

On May 17, 2011, Reyes entered a plea of guilty to disorderly conduct in New York State District Court, Suffolk County. (Shteierman Decl., Ex. E.) In connection with that guilty plea, Reyes allocuted under oath that between June 1 and June 14, 2010, he took car wash chemicals that belonged to Star without permission and used those chemicals for his personal use. ( Id. at 4-5.)

At some point, Reyes created a company called P& E Maintenance Services, Inc., which provided bus cleaning services.[5] (Defs.' 56.1 ¶ 8; Pls.' 56.1 ¶ 8.) P& E Maintenance Services, Inc. had approximately eight employees, including Javier, Enrique, and Albarado. (Defs.' 56.1 ¶ 9; Pls.' 56.1 ¶ 9.) During his deposition, Reyes testified that he did not use any chemicals taken from G& P while cleaning buses with his new company. (Reyes Dep. at 66.)

The Complaint

Javier, Enrique, and Albarado allege that defendants violated the FLSA and NYLL by failing to pay them statutorily mandated minimum wages and overtime compensation. They also allege that defendants violated the NYLL by failing to pay them the required spread of hours compensation. Although the caption indicates that plaintiffs are suing defendants on behalf of themselves and others similarly situated, plaintiffs have not asserted a cause of action under 29 U.S.C. § 216(b) seeking a collective action, and do not seek to bring a class action pursuant to Rule 23.

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Reyes alleges that his employment was terminated " in retaliation for his refusal to violate federal laws and OSHA regulations," in violation of the FLSA and NYLL. ( See Compl. ¶ 99.)

DISCUSSION

I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; " only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. See Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).

When determining whether a genuinely disputed factual issue exists, " a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability," or " the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 254-55. The court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-moving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). A district court considering a summary judgment motion must also be " mindful [ ] of the underlying standards and burdens of proof," Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide the district court in its determination of a summary judgment motion. See Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. See id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer " persuasive evidence that [her] claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).

II. Javier, Enrique, and Albarado's Wage and Hour Claims

A. Overtime Pay Claims Under the FLSA and NYLL

Under both the FLSA and NYLL, an employee must receive one and one-half times his regular rate of pay for any hours worked over forty in a given workweek. See 29 U.S.C. § 207(a)(1); N.Y. Lab. Law § 160; 12 N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2; see also Noble v. 93 Univ. Place Corp., 303 F.Supp.2d 365, 376 (S.D.N.Y. 2003) (noting that both statutes " entitle employees to time-and-a-half overtime for hours worked in excess of forty hours per week" ).

Defendants assert that their payroll records, submitted in connection with the present motion, ...


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