United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
LAURA TAYLOR SWAIN, District Judge.
Donald Williams ("Plaintiff") brings this action for unpaid overtime and minimum wages against Bier International, LLC ("Bier"), Ousmane Keita ("Keita"), and Christopher Pollok ("Pollok"; collectively, "Defendants") under the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"). The Court has jurisdiction of this case pursuant to 28 U.S.C. §§ 1331, 1367. Plaintiff has moved for partial summary judgment. After carefully considering the parties' submissions, that motion is denied.
The parties agree that Plaintiff worked at Defendants' restaurant (the "Restaurant") from August 2010 until December 31, 2013. (Defs. 56.1 Stmt. ¶¶ 1, 15, Docket Entry No. 26.) Defendants Keita and Pollok are the co-owners of Bier, through which they own the Restaurant. (Compl. ¶¶ 10-11, 14, Docket Entry No. 1.)
Plaintiff claims he worked "in excess of forty hours per week from August 2010 through March 17, 2013." (Pl. 56.1 Stmt. ¶ 4, Docket Entry No. 22.) Although Defendants admit that they did not record Plaintiff's hours worked (Defs. 56.1 Stmt. ¶ 10), they dispute, based on the deposition testimony of Keita and Pollok, that Plaintiff worked over forty hours every week. (Id. ¶¶ 4, 21-24, 41-43.) Defendants also point to Plaintiff's admissions in his deposition that he took a ten-day vacation each October (id. ¶ 4), and one to two days off from work in various other instances (id. ¶¶ 21-24), as evidence that he did not work over forty hours every week.
The parties agree that, between August 2010 and January 2011, Defendants paid Plaintiff a flat sum of $300 each week. (Id. ¶ 5.) Plaintiff claims he earned $400 per week beginning sometime in 2011. (Pl. 56.1 Stmt. ¶ 6.) Defendants assert that, based on their payroll records, there were twenty-one weeks during which Plaintiff received more than $455 per week, and an additional week in which he earned $600. (Defs. 56.1 Stmt. ¶¶ 46-47.)
Defendants assert that Plaintiff was "in charge of running the [R]estaurant, " which meant "supervising the staff, doing inventory, getting change, instructing staff as to what was going on a particular day, handling closing duties." (Id. ¶ 16.) Plaintiff's input to Keita and Pollok became "more and more valuable" over time, and he would suggest employees for Keita and Pollok to hire. (Id. ¶ 19.)
Plaintiff moves for summary judgment on two issues: (1) whether Defendants are liable under the FLSA and the NYLL for failure to pay Plaintiff overtime wages; and (2) whether Plaintiff can recover liquidated damages under both the FLSA and the NYLL.
Summary judgment is appropriate where "the movant shows 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). In making this determination, courts view all facts in the light most favorable to the nonmovant. Matthews v. City of New York, 779 F.3d 167, 171 (2d Cir. 2015).
The FLSA and the NYLL require employers to pay employees one and one-half times their regular wage for any hours worked over forty in a week. 29 U.S.C.S. § 207(a)(1) (LexisNexis 2015); 12 N.Y. Comp. Codes R. & Regs. tit. 12 § 142-2.2. "To establish liability under the FLSA on a claim for unpaid overtime, a plaintiff must prove that he performed work for which he was not properly compensated." Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011). A plaintiff must "produce sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.'" Id . (quoting Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946)). A plaintiff can meet this burden through "estimates based on his own recollection." Id. at 362. "The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence." Id . (internal quotation marks omitted).
Here, the number of hours Plaintiff worked is genuinely disputed. Defendants did not keep time records. Plaintiff asserts that he worked over forty hours each week during the specified period. The Restaurant's co-owners, Pollok and Keita, stated in their depositions, however, that Plaintiff did not work over forty hours every week. Defendants also point to Plaintiff's admissions at his deposition that he took a ten-day vacation every year and other miscellaneous days off throughout the time period as evidence of the implausibility of his assertion. Where there is such "conflicting testimony, " courts have found that "how many hours Plaintiff worked... is essentially [a question] of credibility" and thus inappropriate for resolution on summary judgment. Paguay v. Buona Fortuna, Inc., No. 11 CIV. 6266 LTS, 2013 WL 3941088, at *3-4 (S.D.N.Y. July 31, 2013); see also, e.g., Pik Quan Leong v. 127 Glen Head Inc., No. 13-CV-5528 ADS AKT, 2015 WL 2036694, at *4 (E.D.N.Y. May 4, 2015) (conflicting testimony on hours worked precluded granting summary judgment for employee). "Ultimately, the dispute as to the precise amount of [Plaintiff's] work is one of fact for trial." Kuebel, 643 F.3d at 364.
Defendants argue that there is also a genuine issue of material fact as to whether Plaintiff even ...