United States District Court, S.D. New York
John K. Idouchi, JOHN K. IDOUCHI, ESQ., Flushing, NY, for Plaintiff.
Christopher E. Chang, LAW OFFICES OF CHRISTOPHER E. CHANG, New York, NY, Peter Hans Cooper, CILENTI & COOPER, P.L.L.C., New York, NY, for Defendant Ariba Discount, Inc.
Peter Hans Cooper, CILENTI & COOPER, P.L.L.C., New York, NY, for Defendant Afsar Khan.
Mamadou Diaman, PRO SE, New York, NY, for Defendant Mamadou Diaman.
OPINION AND ORDER ACCEPTING REPORT AND RECOMMENDATION
DENISE COTE, District Judge.
On October 28, 2014, Magistrate Judge Fox issued a report ("Report") recommending that plaintiff be awarded (a) $29, 747.94 in minimum wage, overtime compensation, and spread of hours damages; (b) $49, 993.41 in liquidated damages; (c) $8, 031.93 in prejudgment interest; and (d) postjudgment interest. No objections to the Report have been filed. For the reasons that follow, the Report is accepted.
Familiarity with the case, as described in the Report, is presumed. Ariba Discount, Inc. ("Ariba Discount") operates a store where, from October 31, 2010 to July 14, 2012, Shamim Ara Begum ("Begum") was employed as a cashier continuously for 107 weeks, without taking any extended leave of absence, vacation, or sick leave. Begum typically worked six days a week, from 9:00am to 10:00pm and was paid six dollars an hour.
On August 29, 2012, Begum commenced this action against Ariba Discount to recover unpaid wages and overtime compensation pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-19, and the New York Labor Law ("NYLL"), §§ 190 to 199-a. On January 17, 2013, the Court approved for distribution a collective action notice. No party plaintiff was joined to the lawsuit as a result of the collective action notice. By August 28, 2013, Begum had amended the complaint to add as defendants Ariba Discount's owner, Afsar Khan, and its manager, Mamadou Diaman. By April 10, 2014, a certificate of default had been entered against all three defendants pursuant to Federal Rule of Civil Procedure 55(a). This action was referred to the Magistrate Judge for a Report respecting the amount due on wage and overtime claims. On September 4, 2014, the Magistrate Judge conducted an evidentiary hearing on the amount due by defendants to Begum.
A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "To accept those portions of a report to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Deng v. 278 Gramercy Park Grp., LLC, No. 12cv7803 (DLC), 2014 WL 4996255, at *3 (S.D.N.Y. Oct. 7, 2014) (citation omitted). Here, on the face of the record there is no clear error in the Magistrate Judge's calculation of minimum wage, overtime compensation, and spread of hours damages; liquidated damages; prejudgment interest; or postjudgment interest.
I. Minimum Wage, Overtime Compensation, and Spread of Hours
Under FLSA § 206, "[e]very employer shall pay to each of his employees who in any workweek 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, ... not less than $7.25 an hour." 29 U.S.C. § 206(a)(1)(C). Pursuant to § 207, "no employer shall employ any of his employees... for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." Id . § 207(a)(1). "Any employer who violates the provisions of section 206 or section 207 of the [FLSA] shall be liable to the employee or the employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation...." Id . § 216(b). The NYLL and associated regulations contain provisions that are materially similar for present purposes. See NYLL § 160(3); N.Y. Comp. Codes R. & Regs. tit. 12, §§ 142-2.1 to -2.2, -2.4, -2.18.
There is nothing clearly erroneous in the way the Magistrate Judge applied these rules to the evidence here. For the eighty-nine weeks for which receipts documenting Begum's hours were presented, the Magistrate Judge calculated overtime hours by subtracting forty from the total number of hours worked in a day and adopted the minimum hourly wage of $7.25 and the overtime hourly wage of $10.88 (or $7.25 times 1.5). And for the eighteen weeks for which no receipts were presented, ...