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Amparo v. INK Point Tattoo and Body Piercing, Inc.

United States District Court, S.D. New York

January 15, 2015

CLAUDETTE AMPARO, Plaintiff,
v.
INK POINT TATTOO AND BODY PIERCING, INC, et al., Defendants.

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge.

Plaintiff Claudette Amparo brings claims against Defendants Ink Point Tattoo and Body Piercing, Inc., d/b/a Ink Point Studios ("Ink Point") and Peter Santacruz, alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq. and New York law. The parties cross-move for summary judgment on Plaintiff's claims. For the reasons that follow, Defendants' motion is granted, and Plaintiff's motion is denied.

I. FACTS

From April 23, 2010, to July 11, 2013, Plaintiff was employed by Defendants at Ink Point, a tattoo parlor in Manhattan. Plaintiff's job responsibilities included piercing, sales, maintaining and cleaning the store, opening and closing, customer service and management of social media. The parties dispute Plaintiff's income while at Ink Point. At her deposition, Plaintiff testified that she earned $8 per hour and was paid for a forty-hour workweek. In contrast, Defendant Santacruz testified at his deposition that Plaintiff was paid $552 per week, and that the amount was recorded in a notebook on a weekly basis. Plaintiff was paid in cash.

Ink Point did not maintain time cards or a system for tracking the hours Plaintiff worked, and the parties also dispute that number. Plaintiff testified at her deposition that her weekly hours ranged from 70 to 84, and that she worked seven days a week, from approximately 10:30 a.m. to between 1:00 and 3:00 a.m. Santacruz, on the other hand, testified that Plaintiff worked from noon to 9:00 p.m. five days a week.

At her deposition, Plaintiff testified that Santacruz owned a total of six tattoo studios in addition to Ink Point, of which she was able to name four: Piercemania, Studio 316, Kundalink Ink and Tattoo Alley. She was unable to identify the remaining two tattoo studios. Plaintiff visited only one of the other tattoo studios. Defendants have adduced evidence disputing that Santacruz owned any of the tattoo studios identified by Plaintiff, other than Piercemania and Tattoo Alley, which was opened after Plaintiff's employment with Ink Point ceased. That evidence includes a printout from the New York Department of State website listing Alma Chispe as the Chief Executive Office and Principal Executive Officer of Studio 316, and a letter from an individual by the name of Karoline Alburquerque stating that Ms. Alburquerque is the owner and sole proprietor of Kundalin Ink LLC.

Ink Point earned revenue from tattoo artists who worked as independent contractors, with each tattoo artist paying a certain share of the revenue they earned at the tattoo studio. Ink Point's tax returns, which were signed by Santacruz and prepared by an accountant, show that in 2010, Ink Point had gross earnings of $2, 158.00; in 2011, it had gross earnings of $19, 851.00; in 2012, it had gross earnings of $19, 710.00 and in 2013, it had gross earnings of $18, 892.00. Santacruz testified that Plaintiff's wages were not reported on the tax returns. Piercemania's tax returns reflect that its gross earnings in 2010 amounted to $53, 270; in 2011, its gross earnings were $33, 750; in 2012, its gross earnings were $34, 980; and in 2013, its gross earnings were $57, 630.

II. STANDARD

Summary judgment is appropriate where the record before the court establishes that there is no "genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of informing the court of the basis for the summary judgment motion and identifying those portions of the record that demonstrate the absence of a genuine dispute as to any material fact. Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must construe the evidence in the light most favorable to the non-moving party and must draw all reasonable inferences in the nonmoving party's favor. See In re "Agent Orange" Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

If the moving party carries its initial burden, then the non-moving party bears the burden of demonstrating a genuine issue of material fact. See Celotex, 477 U.S. at 322. In satisfying this burden, the non-moving party cannot rely merely on allegations or denials of the factual assertions of the moving party. See Fed.R.Civ.P. 56(c)(1)(A); Celotex, 477 U.S. at 324. Moreover, "conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996). The non-moving party must present specific evidence in support of its contention that there is a genuine dispute as to the material facts. See Celotex, 477 U.S. at 324. Furthermore, to demonstrate a genuine dispute as to the material facts, the non-moving party must come forward with sufficient evidence to permit a reasonable jury to return a verdict in its favor. See Anderson, 477 U.S. at 248.

III. DISCUSSION

A. FLSA

FLSA protects "the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202(a). It requires that employers pay a minimum wage, as well as overtime compensation to employees who work more than forty hours per week if an employee either "is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce." Id . §§ 206(a), 207(a)(1); see also Jacobs v. N.Y. Foundling Hosp., 577 F.3d 93, 96-97 (2d Cir. 2009).

Plaintiff asserts that FLSA is applicable to her case only under the second prong, known as "enterprise coverage." A business qualifies as an "enterprise" under FLSA where it "has employees engaged in commerce or in the production of goods for commerce, or... handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person" and has an "annual gross volume of sales made or business done [that] is not less than $500, 000." 29 U.S.C. § ...


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