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Romero v. Anjedev Enterprises, Inc.

United States District Court, S.D. New York

February 10, 2017

CARMELO ROMERO and JUAN ROMERO, individually and on behalf of others similarly situatea Plaintiffs,


          ANALISA TORRES United States District Judge.

         In this 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 Defendants:

1. Improperly took a tip credit against Plaintiffs' wages;
2. Failed to pay Plaintiffs for all hours worked, including overtime;
3. Failed to pay Plaintiffs a spread-of-hours premium;
4. Misappropriated Plaintiffs' tips; and
5. Failed to provide Plaintiffs written wage notices and statements.

         The 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.

         In 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.


         I. Defendants

         Amma is an Indian restaurant located at 246 East 51 st Street in Manhattan, owned and operated by Anjdev Enterprises, Inc. J.S. § A.3-.4.[1] 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 the FLSA;
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.

         J.S. § 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"[2] 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.

         II. Other Amma Employees

         A. Kiran Shrestha and Salvador Reyes

         Kiran 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.

         Shrestha 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).

         B. Jay Perera

         Jay 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.

         In his 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 notices.

         C. Prisuja Rajak

         Prisuja 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.

         D. Ricky Phel

         Ricky 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.

         III. Plaintiffs

         As noted above, Amma employed three delivery workers, including Plaintiffs, Carmelo and Juan Romero. Carmelo worked at Amma from July 15, 2008[3] through November 30, 2013.[4]Juan worked there from November 1, 2008[5] through October 28, 2012.[6]

         A. Duties

         Amma's 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.

         When 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.

         The 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.

         B. Hours and Shifts Worked

         Plaintiffs 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 ...

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