United States District Court, S.D. New York
CARMELO ROMERO and JUAN ROMERO, individually and on behalf of others similarly situatea Plaintiffs,
ANJDEV ENTERPRISES, INC. d/b/a AMMA, ANJU SHARMA, and DEVENDRA SHARMA, Defendants.
OPINION AND ORDER
ANALISA TORRES United States District Judge.
wage-and-hour action, Plaintiffs, two former employees of the
restaurant known as Amma, allege that Defendants, Anjdev
Enterprises, Inc., Anju Sharma, and Devendra Sharma, violated
the Fair Labor Standards Act of 1938 ("FLSA"), 29
U.S.C. §§ 201-19, and the New York Labor Law
("NYLL"). In particular, Plaintiffs claim that
1. Improperly took a tip credit against Plaintiffs'
2. Failed to pay Plaintiffs for all hours worked, including
3. Failed to pay Plaintiffs a spread-of-hours premium;
4. Misappropriated Plaintiffs' tips; and
5. Failed to provide Plaintiffs written wage notices and
Court held a bench trial on July 27 and 28, 2015. As
witnesses, Plaintiffs called Nelson Murillo and
themselves-Carmelo and Juan Romero. Defendants called Kiran
Shrestha, Jay Perera, Prisuja Rajak, Ricky Phel, and
themselves-Anju and Devendra Sharma. Post-trial memoranda
were fully submitted on October 8, 2015.
accordance with Federal Rule of Civil Procedure 52(a)(1), the
Court will "find the facts specially and state its
conclusions of law separately" and, for the reasons
stated below, enter judgment in favor of Plaintiffs.
an Indian restaurant located at 246 East 51 st Street in
Manhattan, owned and operated by Anjdev Enterprises, Inc.
J.S. § A.3-.4. Anju is Anjdev's sole shareholder.
Id. § A.6. During the period at issue in this
case, the restaurant was open from 11:00 a.m. until 11:00
p.m. each day, Def. Ex. J ("Shrestha Aff.") ¶
4; Def. Ex. M. ("Devendra Aff.") ¶ 2; Def. Ex.
N ("Anju Aff.") ¶ 2, and employed three
delivery workers during those hours, including Plaintiffs,
brothers Carmelo and Juan Romero, Tr. 48:4-8, 115:24-25,
124:19-23, ECF Nos. 86, Prior to trial, the parties
stipulated that the Sharmas "jointly":
1. Determined employees compensation;
2. Determined employees' work hours and schedules;
3. Determined employees' exempt or nonexempt status under
4. Calculated employees' time worked;
5. Prepared the restaurant's payroll;
6. Maintained the restaurant's payroll records;
7. Paid employees; 8. Hired and fired employees; and
9. Managed and supervised employees.
§ A.5. At trial, however, Anju testified that Devendra
alone "was the one who was doing all [the] payroll and
everything, which [Anju] was not doing." Tr. 291:12-14.
Likewise, in her trial affidavit, Anju attested that the
restaurant paid Plaintiffs "a regular rate of $4.65 per
hour" in 2009 and 2010 and $5.00 per hour in 2011 and
2012. Anju Aff. ¶ 8. But at trial she disclaimed her
role in and knowledge of payroll decisionmaking. Tr.
299:7-14. Finally, although Anju stated in her affidavit that
Plaintiffs "sign[ed] an itemized pay receipt every week
[that] outline[d] the salary and Seamless
tips" Plaintiffs received, Anju Aff. ¶ 9,
when shown the pay receipt records at trial and asked if she
was familiar with them, she testified that they were
"made by [her] husband, . . . what is written there, . .
. that's his job . . . because he is the one who is doing
the payroll, " Tr. 299:19-300:7.
Other Amma Employees
Kiran Shrestha and Salvador Reyes
Shrestha is the most senior waiter at Amma, having worked
there since 2003. Tr. 157:25-158:2, 160:6-22; Shrestha Aff.
¶¶ 2-3. As a senior manager, he directly supervises
the delivery workers, which he testified involves observing
when they arrive and leave as well as the tasks they perform.
Tr. 161:4-9. In his affidavit, Shrestha attested that Amma
paid its tipped employees "their full tips, "
Shrestha Aff. ¶ 5, but at trial he admitted that he did
not personally know if employees received their Seamless
tips, because those were handled by the Sharmas, Tr.
169:4-170:9. Likewise, although he attested in his affidavit
that Plaintiffs signed "an itemized pay receipt every
week, outlining the salary and Seamless tips they received,
" Shrestha Aff. ¶ 5, he admitted at trial that he
did not review these receipts or see Plaintiffs sign them;
rather, he "just kn[e]w" that employees had to sign
a receipt in order to receive their pay, Tr. 170:10-172:7.
testified that he works at Amma five days per week and has
closed and locked up the restaurant on most nights for the
past eight or nine years, with an employee identified as
Salvador Reyes closing the restaurant in his absence.
Id. 167:4-8, 168:16-19. Plaintiffs, however,
testified that Shrestha only occasionally closed-about once
or twice per week-and that Reyes usually closed the
restaurant. Id., 88:17-19, 116:22-117:13, 119:7-9.
Given Shrestha's demonstrated willingness to attest to
purported facts outside his personal knowledge, as well as
the inconsistencies raised by his trial testimony, the Court
instead credits Plaintiffs' consistent accounts that
Reyes-not Shrestha-regularly closed the restaurant and
observed the time at which Plaintiffs finished their shifts.
See Fed. R. Evid. 602; Salinas v. Starjem Rest.
Corp., 123 F.Supp.3d 442, 463 n.15 (S.D.N.Y. 2015);
He v. Home on 8th Corp., No. 09 Civ. 5630, 2014 WL
3974670, at *4 n.12 (S.D.N.Y. Aug. 13, 2014).
Perera is the second-most senior waiter at Amma after
Shrestha, having been employed there since 2010. Tr.
141:11-14, 143:3-6, 160:19-22; Def. Ex. I ("Perera
Aff") ¶¶ 2-3. Perera considers the Sharmas
both his employers and his close friends. Tr. 141:15-18.
affidavit, Perera attested that delivery workers never spent
more than ten percent of their shift on cleaning duties and
that all employees had to leave the restaurant at 11:00 p.m.
each night. Perera Aff. ¶¶ 7-8. At trial, however,
Perera admitted that supervising delivery workers is not part
of his job and that his personal knowledge of delivery
workers' shift lengths is limited to Tuesday nights, when
he closes the restaurant. Tr. 143:17-20, 145:6-21, 146:14-18.
Likewise, although Perera stated that Amma paid employees
"their full tips, " and that Plaintiffs signed
"an itemized pay receipt every week, outlining the
salary and Seamless tips they received, " Perera Aff.
¶ 5, he admitted at trial that he never actually saw
Plaintiffs' pay receipts, Tr. 153:13-25. He testified
that he would see Plaintiffs sign the receipts "every
now and then, " id. 154:9-13, but he did not
personally know whether they received Seamless tips,
id. 155:15-18. Given these inconsistencies and
Perera's willingness to testify to purported facts
outside his personal knowledge, the Court does not credit his
testimony regarding the time at which Plaintiffs' shifts
ended, the extent of their cleaning duties, and whether they
received Seamless tips, wage statements, or other required
Rajak works as the cashier and bookkeeper at Amma, having
been employed there since 2008. Tr. 181:8-10, 183:3-5; Def.
Ex. L ("Rajak Aff.") ¶¶ 2-3. Among her
duties, Rajak helps the Sharmas track tips paid by customers
for delivery orders. Tr. 183:3-7. Although she attested by
affidavit that Amma paid employees "their full tips,
" and that Plaintiffs signed "an itemized pay
receipt every week, outlining the salary and Seamless tips
they received, " Rajak Aff. ¶ 4, at trial she
admitted that she did not personally know whether delivery
workers received Seamless tips or wage statements, Tr.
182:16-183:12. Accordingly, the Court does not credit
Rajak's testimony on these matters.
Phel has worked at Amma for seven years and maintained the
restaurant's time records. See generally Id.
188-89, 271-75. Phel initially testified that he wrote down
the time when employees left the restaurant at the end of
their shift. Id. 272:3-6. The restaurant's time
sheets, however, largely do not reflect employees'
clock-out times. See Def. Ex. A. Upon being
presented with these records, Phel then disclaimed this
responsibility, stating that Shrestha had this
responsibility. See generally Tr. 284-86.
noted above, Amma employed three delivery workers, including
Plaintiffs, Carmelo and Juan Romero. Carmelo worked at Amma
from July 15, 2008 through November 30, 2013.Juan worked there
from November 1, 2008 through October 28, 2012.
three delivery workers each performed at least 25 to 30
deliveries per day, for a total of roughly 90 deliveries. Tr.
51:7-11, 96:16-19; see also Id. 16:18-25. For almost
every trip, a worker would make multiple deliveries.
Id. 51:12-23. A worker could make deliveries at any
time between noon and 11:00 p.m. or later. Id.
53:4-9. Although the kitchen closed between 3:00 p.m. and
5:00 p.m., as well as after 11:00 p.m., workers may have had
to make deliveries during those times. Id. 52:10-23,
68:21-69:7. The Court does not credit Devendra's
testimony that Amma stopped accepting delivery orders at 2:45
p.m. and 9:45 p.m. for lunch and dinner, respectively, nor
that he had never seen a delivery worker return later than
10:00 p.m. from their last trip. Id. 258:16-259:18.
Devendra undermined these assertions by testifying that
"90 percent of the time" he left for the night
before Plaintiffs and that he usually did not stay through
closing. Id. 254:5-255:6.
delivery workers were not occupied with delivery trips, they
would do "whatever needed to be done, "
id. 62:10, such as cleaning and preparing food,
id. 58:14-16, 76:2-21; Carmelo Decl. ¶¶
5-8; Juan Decl. ¶¶ 6-11. For example, delivery
workers would clean the basement, refrigerator, freezer, and
offices; take out the garbage; break down boxes; and help the
kitchen prepare sauces, chop vegetables, and peel shrimp. Tr.
58:10-19, 62:4-10, 63:18-22, 69:23-70:11, 71:18-19, 76:4-11,
78:4-83:22, 125:22-126:4, 138:17-23, 139:4-11. The Court does
not credit Devendra's testimony that delivery workers
"are not supposed to be preparing the food" and
that "[i]t's not their job." Id.
260:14-17. Carmelo credibly testified to the contrary; in
particular, he explained that they were taught to make the
green, white, and tamarind sauces that Amma provided with
delivery orders. Id. 78:14-79:3. Although the
delivery workers worked in the kitchen daily, Carmelo could
not say exactly how much of his day was spent on these duties
"because [they] were coming and going."
Id. 60:16-18. For example, "if [he] was cutting
an onion and [he] had to make a delivery, then [he] would
leave to make the delivery." Id. 80:17-20.
Carmelo did recall, however, a particular day on which he
made no deliveries at all because he was covering for the
kitchen assistant. Id. 58:18-19.
delivery workers were tasked with specific cleaning duties
for the hour from their arrivals at 11:00 a.m. until lunch
service began at noon. Id. 64:7-8, 126:5-20,
257:7-15, 295:19- 24. Carmelo cleaned the dining room, and
Juan swept and mopped the bathroom, sidewalk, and corridors.
Id. 63:3-64:8, 121:14-122:21. When lunch service
ended at 3:00 p.m., the delivery workers would repeat these
cleaning tasks-as well as clean the kitchen-until dinner
service began at 5:00 p.m. Id. 65:3-67:2,
68:8-71:12, 121:19-20, 122:6-7, 125:8-21, 257:16-25, 258:1-5,
259:23-260:8. Although Devendra testified that during this
period the delivery workers would also eat their lunch, run
personal errands, or simply rest, id. 259:25-260:8,
Carmelo testified that he did not take any breaks between
3:00 p.m. and 5:00 p.m., id. 68:15-19, and that
delivery workers ate their lunch "any way [they] could,
" id. 109:17-18; see also Id.
137:23-138:2. After the restaurant closed for the night at
11:00 p.m., the delivery workers would once again clean the
kitchen. Id. 116:5-17, 258:6-11. Given
Plaintiffs' credible and consistent testimony concerning
their duties, the Court finds that Plaintiffs were regularly
tasked with non-delivery duties for at least three hours per
shift, including the periods from 11:00 a.m. until noon, from
3:00 p.m. until 5:00 p.m., and after 11:00 p.m.
Hours and Shifts Worked
worked six days per week, Sundays through Fridays, beginning
at approximately 11:00 a.m. and finishing around 11:30 p.m.
or midnight. Id. 54:6-55:19, 81:3-10, 115:1-13,
116:15-17, 118:20-22. Roughly twice per month, though, they
would stay as late as 1:00 a.m. or 2:00 a.m. to perform an
intensive cleaning of the kitchen, including the oven vents
and hoods. Id. 54:16-17, 55:1-9, 84:9-85:20,
119:1-9, 119:22-120:3, 121:5-8; Carmelo Decl. ¶ 12; Juan
Decl. ¶ 13. Plaintiffs' credible testimony regarding
these intensive cleanings is not refuted by Defendants'
proffered receipts from an oil recycling company, which show
only that the company retrieved cooking oil and ...