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Gilbert Carandang and Maria Rosario Carandang v. Robert Shapiro

April 30, 2013

GILBERT CARANDANG AND MARIA ROSARIO CARANDANG, PLAINTIFFS,
v.
ROBERT SHAPIRO, LAURA SHAPIRO, ALEXANDRA SHAPIRO, WHEN IT'S CHILE IT'S HOT, INC. D/B/A FLEX MUSSELS, PEI MUSSEL KITCHEN, LLC D/B/A FLEX MUSSELS, GRAND CENTRAL ZOCALO, LLC D/B/A ZOCALO, CITY OF NEW YORK AND POLICE OFFICER WILLIAM MASSI, DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

DOCUMENT

OPINION & ORDER

This action arises out of an overtime compensation dispute between Plaintiff Gilbert Carandang, a former employee, and Defendants, restaurant owners Robert Shapiro, Laura Shapiro, Alexandra Shapiro, and their restaurants Flex Mussels and Zocalo. Carandang alleges that the Defendants failed to pay him for overtime in violation of the FLSA and New York labor laws. Plaintiff also asserts that he was subjected to a hostile work environment under Title VII arising from Robert Shapiro's inappropriate physical touching and verbal harassment. When Carandang sued to recover his unpaid overtime, he alleges that Defendants immediately retaliated against him by falsely accusing him of stealing restaurant funds.*fn1 Carandang was arrested and spent six days in jail before the charges were finally dismissed seven months later.*fn2

Further, Carandang asserts state law claims of intentional infliction of emotional distress and negligent infliction of emotional distress against the Defendants for their allegedly false and malicious criminal accusations. Mr. Carandang's wife, Maria Rosario Carandang, asserts a negligent infliction of emotional distress claim as well for emotional harm arising out of her husband's arrest and the police's subsequent search of their residence. The Defendants move to dismiss these emotional distress claims for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).*fn3 For the following reasons, the Defendants' motion is denied.

FACTS

Flex Mussels and Zocalo are casual dining restaurants, owned and operated by Robert, Laura and Alexandra Shapiro. (TAC ¶¶ 2, 21-23.)*fn4 Carandang started working at the restaurants on February 17, 2010 as a bookkeeper. (Id. ¶¶ 75, 81.) His responsibilities included data entry, managing online banking, keeping track of credit card and sales receipts and recording cash flow from each restaurant. (Id. ¶¶ 111, 112.) Carandang worked at the uptown FLEX location until approximately May of 2010, when he was transferred to FLEX's downtown location. (Id. ¶ 87.)

Wage and Hour Allegations

Carandang was paid $800 per week from February 25, 2010 through September 13, 2010, which amounted to $20 per hour for a forty-hour work week. (Id. ¶¶ 91-93, 95, 134.) Carandang's pay eventually increased to $1000 per week to reflect increased responsibilities. (Id. ¶ 95.) Carandang regularly worked in excess of 40 hours per week, however, including occasionally on Saturdays and work at home. (Id. ¶¶ 88, 90.) For a three week period in March and April 2010, Carandang worked for 55 to 60 hours per week, between 7:00 a.m. and 8:00 p.m., five days a week. (Id. ¶¶ 92, 93.) From May 2010 through October 2011, Carandang worked between 60 and 65 hours per week, from 8:30a.m. or 9:00 a.m. to approximately 8:00 p.m. (Id. ¶¶ 93, 95) For the additional hours worked, the Shapiros wrote Carandang a monthly check for approximately $1000, which Carandang contends inadequately accounts for overtime and spread-of-hours pay. (Id. ¶¶ 135-137.) Carandang further alleges a common practice at the restaurants of manipulating payroll reports to eliminate those hours worked by employees beyond forty per week. (Id. ¶¶ 117, 118.)

Hostile Work Environment

Mr. Carandang complains of verbal and physical harassment by Robert Shapiro, which began about a month after he was hired. Specifically, Mr. Shapiro ridiculed Carandang for being Catholic, commented that Carandang was "slow" and accustomed to "filth" because he was Filipino, denigrated his appearance by making comments about his face and "big butt," and made it acceptable for co-workers to harass Carandang. (Id. ¶¶ 141-148.) Carandang also contends that Mr. Shapiro touched and grabbed Carandang's bottom when the two were alone. (Id. ¶¶ 149-155.)

Retaliation and the Check Fraud Arrest

On September 26, 2011, Robert Shapiro fired Carandang and threatened to have him jailed if he filed a wage and hour complaint. (Id. ¶ 77.)*fn5 Defendants knew that Carandang previously served approximately two years in jail for embezzlement. (Id. ¶¶ 167-172.) On October 13, 2011, Carandang's attorney contacted Defendants' counsel to inform them of the alleged FLSA violations. (Id. ¶ 161.) Defendants' counsel responded a few days later with news of an investigation into Carandang's signing of checks for significant amounts from client business accounts. (Id. ¶ 163.) Carandang contends that these accusations were false and malicious, and calculated to pressure Plaintiff into withdrawing his FLSA claims, because Defendants authorized each and every check. (Id. ¶¶ 165, 166.) In particular, Robert, Laura, and Alexandra Shaprio routinely used FLEX corporate accounts to pay for personal expenses and costs of their unrelated business. (Id. ¶¶ 56-59, 66-70, 72, 214, 216.) At times, Laura requested that Carandang draw checks to himself from the restaurants, with the funds to be turned over to her in person or deposited into her personal checking account. (Id. ¶ 62.) It was a common practice that Defendants requested Carandang to forge their signatures in their absence. (Id. ¶¶ 207-209.)

On December 9, 2011, Carandang filed a charge with the Equal Employment Opportunity Commission ("EEOC") and a complaint in this Court for unpaid wages. (Id. ¶ 6.) Shortly thereafter, on December 21, 2011, Defendants made good on the prior threats by filing a criminal complaint against Carandang. The complaint was based on Laura's sworn statement and a spreadsheet purportedly showing that Carandang forged signatures on 150 checks totaling $50,000 made payable to himself. (Id. ¶¶ 177; Ex. F.) Carandang contends that at least some of checks were for to compensate him for his work. (Id. ¶ 182.) He used the remainder to pay construction workers, who insisted on cash payments; Ira Garr, a former partner; and the Shapiros, for their personal expenses. (Ex. G; Id. ¶¶ 184, 214, 219, 221.) In all cases, the checks were authorized. (Id. ...


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