United States District Court, E.D. New York
MEMORANDUM AND ORDER
POLLAK, United States Magistrate Judge.
October 2, 2013, plaintiffs Vijay Bedasie, Ruddy Diaz, and
Jose Rosario (collectively, “plaintiffs”)
commenced this action against defendants Mr. Z Towing, Inc.
(“Mr. Z”), Frank Andreopolos,  and Hellen
(collectively, “defendants”), seeking unpaid
overtime wages, minimum wages, and spread-of-hours pay,
pursuant to the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
and New York Labor Law (“NYLL”) § 650. In
addition, plaintiffs seek damages stemming from
defendants' alleged failure to comply with the notice and
record keeping requirements of the NYLL, liquidated damages
under both the NYLL and FLSA, and prejudgment interest under
the NYLL. After settlement discussions proved unsuccessful,
the parties consented to proceed before the undersigned for
trial and entry of judgment.
case proceeded to a bench trial, which was held before this
Court from May 2, 2016 to May 5, 2016. Plaintiffs'
case-in-chief consisted primarily of the testimony of
plaintiffs Bedasie, Diaz, and Rosario, along with various
documentary evidence offered in support of plaintiffs'
testimony. Defendants' case-in-chief consisted of the
testimony of defendants Andreopolos and Mustakas, as well as
the testimony of Frank Evangelista, Mohammad Ali, Marshal
Alejandro Finardo,  and Marshal Gary Rose.
reasons set forth below, the Court finds that defendants Mr.
Z Towing and Frank Andreopolos have violated certain
provisions of the FLSA and the NYLL, and awards plaintiffs
damages in the amount of $119, 655.11.
many of the critical facts surrounding plaintiffs'
employment are disputed, the parties appear to be in
agreement about certain facts, and the Court outlines them
briefly to provide a chronological context for the evidence
presented at trial.
Mr. Z Towing is a towing service that, in relevant part,
contracts with the New York City Marshal's Office (the
“Marshal's Office”) to locate and tow away
vehicles with outstanding tickets. (Am. Compl. ¶¶ 12, 27;
JPTO at 5).
Defendant Andreopolos is a 50% owner and vice president of
Mr. Z, and defendant Mustakas is an employee of Mr. Z. (JPTO
at 5). Plaintiffs Bedasie and Diaz worked as
“taggers” or “scouts” for Mr. Z, in
which capacity they were responsible for running the license
plates of cars parked in a defined geographic area through a
system designed to check for any outstanding tickets.
(Id.; Tr. at 20, 104). Plaintiff Rosario worked as a
“stager” for Mr. Z, in which capacity he
functioned as a security guard for the lot in which all towed
cars were kept. (Tr. at 188).
there is some dispute as to whether plaintiff Bedasie took
extended leave during certain periods over the course of his
employment, the parties agree that Bedasie began working for
Mr. Z at some point in January 2007 and ended his employment
in June 2013. (JPTO at 5). Plaintiff Diaz worked for Mr. Z as
a tagger from January 2009 to May 2013. (Id.) The
parties also agree that plaintiff Rosario was employed by Mr.
Z from “some time in 2008” to June 2013.
(Id.) The parties further stipulated that
“[p]laintiffs' regular schedules were Monday
through Thursday, and every other Friday for the years 2012
and 2013.” (Id.) Defendants conceded that they
did not require the plaintiffs to clock in or out to keep
track of shifts, and maintained no other records as to the
hours worked by any of the plaintiffs. (Id. at 5-6).
However, defendants contend that plaintiff Rosario was a
minimum wage employee who received both minimum wages in the
amount of $7.25 per hour and overtime wages in the amount of
$10.88 per hour for the time he worked in excess of 40 hours,
which, they allege, is reflected in his paychecks.
(Id. at 3).
Vijay Bedasie's Testimony
trial, plaintiff Bedasie testified that he worked for Mr. Z
from 2007 until the summer of 2013. (Tr. at 35). He
originally testified that other than vacations, he worked
continuously for Mr. Z during this period. (Id. at
35). Bedasie testified that when he was hired, defendant
Mustakas told him that he would be paid $15 per car, plus $50
per day. (Id. at 19, 37-38). On cross-examination,
he indicated that if he worked four days per week, he was
paid $200, plus $15 per car; if he worked five days that
week, he would be paid $250, plus $15 per car. (Id.
at 38). He also testified that although he was promised money
for gas and he asked for it on several occasions, defendants
never paid him for gas. (Id. at 38).
denied that he was ever paid on an hourly basis, denied that
he was asked to check in or out, and testified that there was
never a clock-in or clock-out machine. (Id. at
19-20). He did explain, however, that there was a basic
schedule of when the scouts were to start and when they could
leave, and that “every week is . . . basically the same
schedule.” (Id. at 21). According to Bedasie,
when he worked four days a week, he worked approximately 50
hours per week and when he worked five days a week, he worked
between 59 and 60 hours a week. (Id. at 50).
Although he testified on cross-examination that he had no
records, he reiterated that every week, the scouts would
start and end at the same times depending on the day, and
that the schedule was the same. (Id.)
to Bedasie, on Sunday nights at 11:30 p.m., he would go to
the yard to pick up the disk for his computer and the sheet
prepared by Mustakas that showed the locations where he was
to go to that day. (Id. at 22). He testified that
after picking up the envelope with the computer disk, he
would return to his car, upload the disk onto the computer,
and proceed to his assigned area. (Id.) From then
until 3:00 p.m., he would tag cars for a total of 15.5 hours.
Tuesdays, his shift began at midnight and he would work until
3:00 p.m, for a total of 15 hours. (Id. at 22).
Bedasie testified that on Wednesdays and Thursdays, he would
arrive at 2:00 p.m. and work until midnight, for a total of
10 hours each day. (Id.) When he worked on Fridays,
which was twice a month, he worked from 2:00 p.m. until 11:00
p.m. (Id. at 22, 92-93). However, he explained that
even though the marshals would call the end of the shift on
Fridays at 11:00 p.m., by the time the scouts got back to the
yard, and reviewed the list of cars towed that week with the
marshal's list, it would be closer to 12:00 or 12:30.
(Id. at 22-23, 93). In addition, he testified that
if he worked on a Thursday and not on a Friday, he would have
to return to the yard to return the computer chip he used to
determine the assigned area each week. (Id. at 23).
On cross-examination, Bedasie testified that from 2007 to
July of 2009, he worked on average approximately 50 hours per
week, broken down as follows: 15.5 hours on Monday, 15 hours
on Tuesday, 10 hours on Wednesday, and 10.5 hours on
Thursday. (Id. at 41). Although he testified that
his schedule remained the same for the entire time he worked
for Mr. Z, he conceded that he did not start working Fridays
until some time in 2009. (Id. at 24).
asked how he could have put in close to 50 hours per week
working only four days per week, while the marshal only put
in 42 hours, Bedasie explained that even though the marshals
would start at 3:00 p.m. on Mondays and Tuesdays, the scouts
were told to go out three hours earlier so that cars would be
ready for towing when the marshals started. (Id. at
25). On the other days, the scouts would only start an hour
earlier because it was “daytime. . .like a high traffic
area, ” and if they tagged cars three hours earlier,
the cars would be gone by the time the marshal arrived.
denied being given or taking meal breaks, testifying that he
would have food in the car and would eat while scanning
license plates. (Id. at 25-26). He did concede that
there were days when he would be off due to a storm or
blizzard, estimating that it was “[m]aybe three, four
days” per year. (Id. at 26). He also testified
that Mr. Z was closed for a week or a week and a half after
Hurricane Sandy (id. at 27), and that there were
days when the computers went down while the scouts were in
the middle of checking plates. (Id. at 27).
According to Bedasie, the scouts were told to keep working
and they would be notified when the computers were back
online. (Id.) On those occasions, the scouts would
write down the plate numbers and then check the plate numbers
when the computers were back online. (Id. at 86).
There were, however, days when the computers would be down
all day and then the scouts were told not to work.
(Id. at 55). Bedasie also conceded that they did not
work on federal holidays, such as Thanksgiving or Christmas;
when the holiday fell on a Monday, he stated that they would
work on Friday to make up for it. (Id. at 28). When
asked how many vacation days he took every year, Bedasie
testified that he took “a week or two” and he
called in sick on average three days per year. (Id.
testified that there were times when the marshal would tell
them to leave early but this happened “rarely.”
(Id. at 29). He denied that he ever left work on his
own early because he got paid “basically on cars. So if
I left early, it would effect me at the end of the
week.” (Id.) On cross-examination, he was
asked if he was involved in an accident and out for an
extended period of time, but he claimed he could not recall.
(Id. at 55-56). After being shown a document, he
admitted that he was in an accident but he did not recall
when it was. (Id. at 57). He admitted that he had
been involved in a medical malpractice lawsuit, but he
insisted that he did not miss work during that period.
(Id. at 58).
testified that he got paid on a weekly basis, either on
Thursday night or Friday. (Id. at 30). He and
Mustakas would compare the list of cars he tagged each day
during the week with the list that the marshal prepared and
she would then calculate the amount to be received and she
would write the checks. (Id. at 31). However, he
testified that Mustakas would not sign the checks; those were
signed by defendant Andreopolos. (Id. at 31, 51).
Although Bedasie never received pay stubs or pay records, he
did identify certain paychecks he received from Mr. Z.
(Id. at 32). Bedasie testified that the paychecks
entered into evidence as Plaintiffs' Exhibit 1 correctly
reflected the gross amount of pay earned during the period
reflected on the check. (Id. at 33-34). When shown
Plaintiffs' Exhibit 2, Bedasie testified that they
appeared to be pay stubs, but he testified that the first
time he had ever seen these documents was in his lawyer's
office. (Id. at 34). Nevertheless, he testified that
they appeared to be accurate. (Id.)
cross-examination, Bedasie was shown checks for the weeks of
January 6, January 20 and January 27, 2012. (Id. at
43). The checks were each for $200. (Id., Tr.
Ex. 1). When
asked to explain how he could have accepted a paycheck for
only $200 if he was working 50 hours that week, Bedasie could
not respond. (Id. at 42). As counsel noted, if
Bedasie was supposed to be paid $50 a day, as he testified,
and he tagged even 10 cars, that would be an additional $150
that he was owed for each of these weeks if he worked 4 days
a week during that period. (Id. at 44). When shown a
check for the week of September 21, 2012, Bedasie stated he
could not explain how he could have been paid $1, 010 that
week. (Id.) He also could not explain how his gross
pay of $1, 005 for the week of March 11, 2011, as reflected
on the Exhibit, was calculated. (Id. at 45).
Defendants, however, provided no explanation either.
Ruddy Diaz's Testimony
Diaz testified that he began working for Mr. Z in 2008, and
was originally hired as a stager. (Id. at 101-02).
According to Diaz, he was told by defendant Mustakas that he
would be paid $10.00 an hour. (Id. at 102). In the
winter of 2009, Diaz was hired as a tagger or scout.
(Id. at 103). Diaz testified that at that time,
Mustakas told him that they needed more spotters for cars
because they were not getting enough cars. (Id. at
103). When Diaz became a scout, his job was to identify cars
that had unpaid tickets, run the plates, and identify the
location of the car. (Id. at 104). He also testified
that when he became a scout, his rate of pay changed to $20
per car. (Id. at 104, 126). He testified that he was
supposed to be paid for gas, but never received gas money.
(Id. at 126). He never had to punch in or out, or
sign in or out; he was never asked to keep track of his time.
(Id. at 104). He never checked in when he started
his schedule, but he would notify the marshal by radio when
he ended a work shift. (Id. at 105).
testified that, like Bedasie, he had a regular schedule.
(Id.) He testified that on Sundays, he would head to
the yard at 11:30 p.m. to pick up the chip, upload the
computer and then travel to his assigned location.
(Id.) He would then work until 3:00 p.m. Monday; on
Tuesday, he worked from midnight until 3:00 p.m.
(Id. at 106). On Wednesdays, Thursdays, and Fridays,
he worked from 2:00 p.m. until 12:00 p.m. (Id.) On
Fridays, after he finished his shift at 11:00 p.m., he would
return to the yard and give back the computer. (Id.
at 107). At the end of a workweek, he would also count the
cars that were towed and give the list to Mustakas.
(Id.) He explained that he worked two Fridays a
month the entire time that he was working as a scout.
(Id.) He confirmed Bedasie's testimony that the
scouts began working at midnight, before the marshal got
there at 3:00 a.m., because they wanted to get cars ready for
the marshal to tow. (Id. at 108). He did not think
there were any days when the marshal ended a shift more than
a half hour early, and he denied leaving work early on any
Bedasie, Diaz testified that he took no meal breaks, ate
lunch in the car, and did not work due to bad weather
approximately two times a year. (Id. at 109). He
also testified that he missed 7 to 10 days after Hurricane
Sandy. (Id. at 109-10). According to Diaz, if the
computer system went down, Diaz would continue listing cars
and running plates. (Id. at 110). He testified that
they were off for Thanksgiving and Christmas and that he took
a week or two off for vacation for only one year in 2011 when
he suffered a family emergency. (Id. at 113-14).
Diaz testified that he did not take off for vacation for any
year other than 2011. (Id.)
identified certain checks that showed his gross wages, and he
verified that the amounts were what had been paid to him.
(Id. at 116). When asked to verify certain other
documents, he claimed he had not received copies of these
documents which appeared to be pay stubs. (Id. at
117, Tr. Ex. 5).
to Diaz, he stopped working at Mr. Z in the summer of 2013.
(Id. at 118). He denied that he ever took an
extended period of time off from work. (Id.) When
asked if he cut his shift short to go to car auctions with
his father, Mr. Diaz denied that he ever left work early.
(Id. at 121). He denied that he was ever paid $50 a
day. (Id. at 126-27). He testified that nothing was
ever put in writing; everything was agreed to orally between
him and Mustakas. (Id. at 127). He testified that he
was always paid by car, never by the number of hours he
worked. (Id. at 128). He testified that on one
occasion, he tagged 50 or 60 cars but was only paid half of
what he was owed. (Id. at 129). When he complained,
he was promised that they would help him “next
time.” (Id.) He complained only once but
testified that he was afraid of losing his job. (Id.
at 129-30). He denied ever receiving $25 per hour in pay.
(Id. at 142).
cross-examination, Diaz admitted that there came a time in
2013 when Marshal Finardo suspended him because he was not in
the proper section and he had not asked permission from the
marshal to go to another section. (Id. at 163, 165).
He explained that he was there because his “area was
slow.” (Id. at 164). He testified that he
never got hired back after that. (Id.) Also on
cross-examination, he testified that he did not work on Labor
Day or Memorial Day. (Id. at 176). He also testified
that if there was a federal holiday that fell on a Monday, he
would still work that Friday to make up for the Monday off.
(Id. at 174). He testified that he called in sick on
average two to three days per year, and that he lost four
days when his brother died in 2011. (Id. at 179).
Jose Rosario's Testimony
Rosario testified that he began working as a stager for Mr. Z
in January 2008 and worked there until June 2013.
(Id. at 188). His typical workday began at 3:00 a.m.
when he would pick up the forms at Mr. Z's lot that he
needed for the cars. (Id. at 189). On the form, he
would enter the model of the car, color, year, and any
information about what was inside the car. (Id. at
190). At the end of the day, one copy of the form would go to
Mustakas or Andreopolos and the other copy would be taken to
the precinct. (Id. at 191). On Mondays and Tuesdays,
he would usually go to two precincts; on the other days, he
would go to “a couple of precincts.”
(Id.) He testified that in the beginning, he was
paid $10 an hour for about a year; in the middle of 2009, his
pay increased to $11 per hour. (Id. at 192, 208-09).
Rosario testified that his pay went up to $12 in 2012
(id. at 192), but also testified that he was told
“in the beginning of 2013” that his pay would
increase to $12. (Id. at 193).
testified that in 2008, he worked Mondays through Thursdays
and then after 2009, he started working every other Friday.
(Id. at 194). He also testified that throughout the
period, his schedule stayed generally the same: he would
start on Mondays and Tuesdays at 3:00 a.m. and work until
6:00 p.m. (Id. at 195). On Wednesdays, he would
start at 3:00 p.m. and work until 2:00 a.m. when he would go
to the yard. (Id. at 196). He would then give the
information forms to Mustakas or Andreopolos and then go to
the precinct, maybe at the latest, 3:00 a.m. (Id.)
He testified that his schedule on Thursdays was the same as
Wednesdays, and on Fridays, he would start at 2:00 p.m. and
end at 1:00 a.m.
the other plaintiffs, Rosario testified that he did not have
to sign in or out at any time. (Id. at 198). He
conceded that there were times when he left earlier or later
than he estimated, but these estimated times were to the best
of his recollection. (Id.) He also testified that
there were one or two snow days per year when they did not
work, and there were days when the computers were down, but
he still had to guard the cars during the period that the
computers were down. (Id. at 199). He testified that
he believed Mr. Z was closed for a week during Hurricane
Sandy, but that he was required to work, to guard the cars in
the back that were about to be flooded. (Id.) He
claims that he did not get paid for that day that he worked
during the hurricane. (Id. at 247). As for lunch
breaks, he testified that he would get 15 to 20 minutes to go
get food. (Id. at 200).
acknowledged receiving paychecks while working at Mr. Z
(id. at 201-02, Tr. Ex. 7), but he also identified
pay stubs that he claimed he had never seen while actually
working for Mr. Z. (Id. at 202). When asked on cross
examination to explain why he accepted one paycheck
indicating that his gross pay was $571 even though he was
supposed to be paid at the rate of $12 per hour, and he
claimed he was working a minimum of 60 hours, Rosario
testified, “I just accepted it.” (Id. at
221). Counsel for defendants showed Rosario several checks
where he was not paid the full amount he claimed he was owed
even if the rate had been $10 per hour. (Id. at
222). Rosario indicated that he “just trusted”
Mustakas and Andreopolos. (Id.) He also testified
that even though he was paid on an hourly basis, he never
gave Mustakas or Andreopolos input on how many hours he
worked. (Id. at 250).
testified that he worked when there was rain and sleet, but
not if it snowed and the snow made it difficult to see the
license plates. (Id. at 232). He also testified that
he continued to work when the computer went down because he
had cars to watch and he could not leave them alone.
(Id. at 233). He testified that the amount of time
it took for the marshal to arrange to have the truck drivers
pick up the tagged cars varied depending on the number of
cars. (Id.) He admitted that there were times when
he left early - “twice” a year - and he testified
that he had surgery one year that resulted in his being out
for 4 days. (Id. at 234). He also claimed that he
never took vacation in the six years he was working for Mr.
Frank Andreopolos' Testimony
their defense, defendants presented the testimony of the
company's part owner, defendant Frank Andreopolos, as
well as the testimony of defendant Hellen Mustakas, Frank
Evangelista, and Marshal Alejandro Finardo.
Andreopolos testified that he was a 50% owner of Mr. Z.
(Id. at 479). He testified that he is the
vice-president of the company, with the job functions
“to run the business, hire and fire people, drive with
the marshal, do paperwork . . . . I would do office work,
communicate with the marshals, with the scouts, with the
drivers, marshal's office, the DM Vehicles.”
(Id. at 480). For each car towed, Andreopolos
testified that Mr. Z would receive $185 plus tax from the
City. (Id.) He explained that “scouts”
were hired to locate the vehicles, give the information to
the marshal, who would verify the car and plate, and then tow
trucks would pick up the tagged cars. (Id.) The cars
were then towed to a staging area where Rosario would count
the cars that came in. (Id.)
to Andreopolos, he employed between 7 and 14 scouts at any
one time. (Id. at 481). He testified that
“[t]hey all, like, part-time workers and they work on
their own and if they show up, they show up.”
(Id. at 481). He described Mustakas' job as
“all-around, lady all-around.” (Id.)
According to Andreopolos, Mustakas was a manager of Mr. Z
from 2000 until 2003, when she suffered some personal
problems so Andreopolos had to hire other people, such as
Ali, whose role was to manage the scouts, the drivers, the
office work, do the paperwork and work with the marshal - all
things Mustakas had done before 2003. (Id. at
Andreopolos testified that Mustakas played no role in hiring
or firing employees. (Id. at 482). He admitted that
she was present in the trailer when employees were being
interviewed, and she might have given a second opinion, but
the “bottom line it was me [Andreopolos] that decided
if they were going to get the job or not.”
(Id. at 483).
testified that when he hired Bedasie, Bedasie was paid $15
per car. (Id. at 485). Andreopolos testified that
“[w]henever he [Bedasie] decide to come to work, he was
making money. Mr. Bedasie want to work little hours. He had
his own things going on. Whenever he was free, he would come
in.” (Id. at 491). Andreopolos claimed that
Bedasie was “[r]eprimanded constantly” by the
marshals for disappearing, not showing up, giving wrong
locations and disappearing. (Id. at 492). When the
marshal would notify Andreopolos of these issues, Andreopolos
would try to contact Bedasie and then if Bedasie did not
respond, Andreopolos would have to find a replacement.
(Id. at 492).
cross-examination, Mr. Andreopolos admitted that he did not
keep track of the scouts' time at all. (Id. at
522-23). According to Andreopolos, each week, the scouts
would verify the number of cars tagged by comparing the
license plates of the cars they tagged to the marshal's
logs. (Id. at 505). Andreopolos testified that
although Mr. Z kept copies of the logs, which showed the days
worked, the trailer was flooded during Hurricane Sandy and
all of the records got wet. (Id. at
Unfortunately, it was not until the middle of trial that
defendants subpoenaed copies of the marshals' logs, but
because the logs were not produced during discovery and not
listed on the pretrial order, the logs were not admitted into
evidence. (Id. at 505).
asked if he had changed his record-keeping practices after a
former employee, Raphael Rivera, brought a wage and hour
lawsuit in August 2012, before Hurricane Sandy, Andreopolos
explained that the scouts were getting paid by the piece and
he did not track their hours even after the Rivera
lawsuit. (Id. at 540). He conceded that he never
paid Bedasie or Diaz overtime. (Id. at 543).
According to Andreopolos, he would tell the accountant how
many cars each scout had and the accountant would then
calculate the taxes and give Andreopolos the net amount owed.
(Id. at 546-47). The accountant would then indicate
how much to write the checks for. (Id. at 547). He
testified that the pay stubs admitted into evidence were
prepared by the accountant based on information provided by
Andreopolos. (Id. at 550). He claimed that in the
beginning, he started giving the scouts “pay stubs and
stuff” but “[t]hey threw them out.”
asked if there was a period of time that Mr. Bedasie was out
due to an accident, Andreopolos testified that he did not
remember, but when shown some notes,  he claimed that Bedasie
was out from July 2008 until January 2010. (Id. at
494-95). Andreopolos testified that he was “not
sure” how Bedasie came back; “I believe he
rehired, yeah. I'm not sure.” (Id. at
495). Andreopolos never explained what the basis for the
notes were upon which he testified that Bedasie was not
working for a year and a half. He did state that Bedasie had
multiple lawsuits and he “was constantly in and out,
and that's why one of the reasons that they work on
commission is that to have the option to leave and come
whenever they want.” (Id. at 495). He also
claimed that every Thursday night, both Bedasie and Diaz
would come in at 10:00 p.m. and figure out their daily hits.
(Id. at 496). According to Andreopolos, they wanted
to leave early and not go out to get additional cars, and he
testified that they did not want to work on Fridays because
“it's dry, ” meaning there were very few cars
to tag. (Id.) Again, however, he had no records to
corroborate these statements.
his problems remembering dates and times when it came to his
wife's accident and arrest, Andreopolos was adamant that
neither Bedasie or Diaz had “ever work[ed] more than 40
hours a week.” (Id.) He also testified that
from 2007 to 2013, Mr. Z was closed for snow days
“offhand I can say in a year about four, five, six,
maybe more” days. (Id. at 516). Also, he
testified that when there was a computer failure, Mr. Z would
shut down. (Id. at 517). Although he testified that
“I don't know” when asked how many days would
be lost to computer failure, he later stated that it would be
“way more than five” a year. (Id.) He
then testified “at least 10, 20 times” for every
year except 2013 when they got new computers. (Id.)
He also claimed that Mr. Z would close for two weeks during
Christmas, and also for Thanksgiving, July 4th, Martin Luther
King Day and Election Day. (Id. at 518-19). He
denied that if a federal holiday fell on a Monday, they would
then work the Friday before. (Id. at 519). He also
testified that usually when there was a holiday, they would
not work the day before because there was no way to redeem
the vehicles the next day. (Id.)
asked about vacations, Andreopolos testified that Bedasie was
gone about a week to ten days per year; “same
thing” for Diaz and Rosario. (Id. at 520).
According to Andreopolos, Mr. Z was closed for two to three
weeks after Hurricane Sandy. (Id.) He explained that
the scouts were not paid for that period because they were
not towing cars. (Id. at 521).
asked about Diaz, Andreopolos testified that he hired Diaz
because he knew Diaz's father for over 30 years.
(Id. at 483). According to Andreopolos, when he
interviewed Diaz, he had no skills and no prior experience in
the towing industry. (Id.) He could not recall if he
hired Diaz originally to work in the staging area;
“[o]ver the years I have hired hundreds of
people.” (Id. at 484). He did know that when
Diaz was hired as a scout, he was paid a straight commission
of $25 per car towed. (Id. at 484). According to
Andreopolos, every company in New York City that was involved
in the scofflaw program paid by the car. (Id.)
“Why? Because it's people they were making their
own time. They would come in whenever they want, as they
please . . . . they wanted to put hours and get more hours
and that's actually what's happening.”
(Id.) He explained that he paid Diaz $25 a car
because “the kid was just starting out. He couldn't
make money and I gave him the incentive to go and get more
cars and plus I knew his father. . . .” (Id.
at 486). According to Andreopolos, there were problems with
Diaz's job performance; “every day, every marshal .
. . everybody fired him.” (Id.) When asked why
he rehired Diaz, Andreopolos testified that it
“[d]idn't cost me nothing” because they made
their own time and every additional car was more for him.
(Id. at 486-87).
Andreopolos testified that “[f]rom the day he started
to the day that he finish, about two times a week, I'm
not sure if it was Tuesday or Friday, but every day he was -
every day they had auction, he [Diaz] would take off and go
with his father to auctions.” (Id. at 490).
According to Andreopolos, when this happened, Andreopolos
“had to replace him;” whoever was available would
fill in. (Id.)
Frank Evangelista's Testimony
Evangelista testified that he has worked for Mr. Z since 2008
as a tow truck driver and manager. (Id. at 262-63,
282). On cross-examination, he first testified that he worked
daily “Monday through Thursday, ” from 3:00 a.m.
until the last car was brought in, roughly “two, three
o'clock in the afternoon.” (Id. at 283).
He later testified that he only worked that schedule on
Monday and Tuesday, and that on Wednesdays and Thursdays, he
would start work at 3:00 p.m. and work until midnight.
(Id.) On Fridays, he worked from 5:00 or 6:00 a.m.
until 12:00 in the afternoon. (Id.) He testified
that the scouts had no schedule; “they came and went as
they pleased.” (Id. at 285).
testified that he knew both Diaz and Bedasie and that there
were times when he would call them on the radio during the
day and they were not working or they would disappear.
(Id. at 265). He claimed that “maybe like
once, twice a week Diaz wouldn't show up. He'd go to
auctions with his father or he'd go sell cars that he
bought at the auction.” (Id.) Evangelista
stated that it “could have been any day. It was usually
twice a week. . . . no specific days or anything.”
(Id. at 266). He testified that there were days when
Diaz did not come in at all or would “just
disappear.” (Id.) However, he provided no
corroboration for this testimony and could not be more
specific as to when during a shift, Diaz would disappear, or
how often Diaz did not come in at all. Evangelista also
testified that there were times when Diaz was caught sleeping
on the job; it happened on more than one occasion.
(Id. at 268-69). According to Evangelista, Diaz was
terminated from the company because he was not producing.
(Id. at 270-71).
also testified that there were times when Bedasie failed to
show up for work as well. (Id. at 267). He testified
that Bedasie “was involved in lawsuits, so he
wouldn't show up for work due to accidents.”
(Id.) According to Evangelista, Bedasie was out of
work for a year and a half, from July of 2008 to January
2010. (Id. at 267-68). He also testified that on
Mondays, Bedasie and Diaz would come in early at 11:00 a.m.
and leave early even though the shift ended at 3:00 p.m.
(Id. at 272).
cross-examination, Evangelista explained that the marshals
wanted certain scouters terminated because when they came in,
tagged five cars and then left at 9:00 p.m., the marshal
would have nothing to do. (Id. at 286). He testified
that his job was to pick up the cars when the marshal came
in. (Id. at 288). The marshal would tell him where
to go and he would get in his tow truck, pick up the car,
bring it back to the staging area and drop the car off there.
(Id. at 288-89).
also conceded that on one occasion, Marshal Finardo planted
money in a car and accused Evangelista of stealing it.
(Id. at 291). Evangelista claimed that although
Finardo reported it to Andreopolos, Evangelista was never
disciplined for stealing the money, and he denied having
taken it. (Id. at 292, 293).
respect to the periods when the computers shut down,
Evangelista testified that scouters could not check the cars
so they “waited it out until they came up, if they ever
came up.” (Id. at 274). Evangelista testified
that Mr. Z was shut down “for about three weeks”
after Hurricane Sandy. (Id. at 279). He also
testified that “none of the scouters worked 40 hours a
week.” (Id.) On average, he testified that
they worked “maybe eight hours a day, ” and on
Fridays, neither Mr. Diaz or Mr. Bedasie worked.
(Id. at 280).
Mohammad Ali's Testimony
also called Mohammad Ali, who worked as an administrative
manager for Mr. Z beginning in 2003 until mid-2012.
(Id. at 301). Ali testified that one of his main
responsibilities was to speak to the scouts over a Nextel
Direct Connect cell phone. (Id. at 302). According
to Ali, he was the manager during the time that Evangelista
had also testified that he was the manager. (Id. at 301).
According to Ali's testimony, from 2008 until 2013,
Evangelista was “the main tow run manager.”
(Id. at 303).
asked if Bedasie or Diaz worked Fridays, Ali testified that
“[u]sually they didn't.” (Id. at
308). He explained that he knew this because “it was
just recollection; that if we're working on Fridays,
don't expect to see them there.” (Id. at
309). He testified that the company would close on snow days.
(Id. at 311). From 2007 through 2012, he stated that
they would close between 10 and 15 days in January, February,
and December. (Id. at 311-12). When asked if this
was every year, he admitted: “It's difficult to
answer that. Some years there were less.” (Id.
at 312). When asked what happened when the computer system
went down, Ali testified that “it was pretty much extra
free time so they could do whatever they want. They would go
home, they would disappear.” (Id. at 314). He
stated that the system would go down “a couple of times
a month.” (Id.) As for federal holidays, he
testified that Mr. Z was closed on the Fourth of July,
Memorial Day, Veterans Day, Thanksgiving, Christmas, and the
Jewish holidays. (Id. at 314-15). He also denied
that when a federal holiday fell on a Monday, that they would
work on Friday to make up for it. (Id. at 314).
also testified that there were times when the marshals left
early. (Id. at 316). He recalled this because
“I would get happy that, all right, I get to go home
early too, during the evening hours.” (Id.) He
could not be more specific as to when or how often this
testified that the scouts were paid on a commission basis for
each car towed in. (Id. at 317). If no cars were
towed, the scouts would not get paid. (Id.) Ali
testified that at the end of every week, Bedasie and Diaz
would come in with “their own little notebooks”
and write down the cars that they had tagged; “they
kept their own log, basically.” (Id. at 318).
Ali would take their books and compare them to the daily tow
log, and then Ali would give the number of towed cars to
Andreopolos, and he would cut the check. (Id. at
319). According to Ali, Bedasie was paid $15 per car and Diaz
was paid $25 per car. (Id. at 320).
testified that there were times when cars were called in by
Diaz or Bedasie but the car would be gone once the marshal
appeared to tow it, and it was later determined that the
scout had called the same car in the day before.
(Id. at 322-24). He also claimed that Diaz
“would get fired at least, like once every couple of
months.” (Id. at 324). On cross-examination,
Ali conceded that during the period of 2007 to 2008, he was
taking classes three days a week, Tuesday, Wednesday and
Thursday, five hours a day, and only working part time.
(Id. at 333-34). He could not answer counsel's
question as to when Diaz began working at Mr. Z or exactly
what position Diaz was initially hired for, testifying that
Diaz was “initially hired as either the stage person or
working in the yard at the gate or something.”
(Id. at 336). When asked if there were any records,
Ali testified that the “only records that I would know
of would be the pay stubs.” (Id. at 337). Ali
indicated that “[n]obody knew how many hours they
worked, they would come and go as they please.”
(Id. at 338).
Hellen Mustakas' Testimony
Mustakas testified for defendants. She explained that she
used to be the office manager for Mr. Z beginning in 2000,
continuing off and on until 2007 when she had a couple of
miscarriages, and was falsely arrested and out for six
months. (Id. at 346). She also suffered a
“very bad accident” in July 2012 and was out for
eight or nine months. (Id. at 346-47). She testified
that although she was in the office when Diaz was hired, her
was the one who hired him, issued the paychecks, and
determined the salaries. (Id. at 349-50).
testified that Bedasie was paid $15 per car and Diaz was paid
$25 per car; Rosario was paid minimum wage of $7.25 plus
overtime. (Id. at 352). Mustakas testified that when
Diaz and Bedasie were offered their positions, they were
given the option of being paid by the number of cars tagged
or $7.25 an hour plus overtime. (Id. at 377, 463).
She testified that they chose to be paid by commission
because they would make more money. (Id.) She also
denied that Bedasie or Diaz ever worked more than 40 hours a
week, because the marshals would complain that they could not
be found. (Id. at 352-53).
testified that there were times when the office was closed
due to snow days and computer failure. (Id. at 362).
She estimated that in 2011, Mr. Z was shut down for nine or
ten days because of bad weather and that they were closed for
three weeks due to Hurricane Sandy and the flooding that
occurred in the office. (Id. at 362). She also
testified that Marshal Rivera showed her pictures of Diaz
sleeping and disappearing when he was supposed to be working.
(Id. at 371). As a result, Diaz was terminated in
2009, but came back to work “a few days
afterwards.” (Id. at 372). She testified that
although Bedasie was reprimanded, he was not terminated.
(Id. at 373).
to Mustakas, Diaz would go on Tuesdays and Fridays with his
father to auction and she knew this because “a couple
times when we call him to see where he was at, he said
‘I'm at the auctions with my dad.'”
(Id. at 373). She also testified that “between
nine, ten or eleven in the morning on Mondays and Tuesdays,
” they could not reach Diaz or Bedasie. (Id.
at 375). Although she agreed with counsel's question that
this “was pretty much a set thing, ” she could
not be more specific as to when either of these things
occurred nor did she specify how often they occurred.
respect to vacations, Mustakas testified that Bedasie would
take two weeks every year. (Id. at 382). She
testified that he had an accident and was out of work from
July 2008 until January 2010. (Id. at 386). She also
claimed that he took off days from work in 2010 to deal with
a malpractice case that he was pursuing; he was not paid
during these time periods. (Id. at 386). She
estimated it was two or three days for a few weeks.
(Id. at 387). As for Diaz, she stated that he took
two vacations in total during the years 2011 and 2012.
(Id. at 385). She also testified that Mr. Z was
closed for two weeks during Christmas. (Id. at 382).
According to Mustakas, Mr. Z was also closed on Columbus Day,
Presidents Day, Labor Day, Memorial Day, Election Day, New
Year's Day, and Thanksgiving. (Id. at 383). She
also claimed that they would not work the prior Friday before
a Monday holiday. (Id. at 384).
cross-examination, she conceded that she did not keep track
of the days that the scouts worked or when they were hired,
fired or stopped working. (Id. at 464). She
testified that she would write down the schedules based on
what the marshal told her, but that she did not prepare the
schedule for Rosario. (Id.) This contradicted
defendants' Responses to Interrogatories, Exhibits 11 and
19, where defendants had identified Mustakas as one of the
people responsible for determining Rosario's schedule.
(Id. at 466; Exs. 11, 19, Question 15). She
testified that Rosario would begin working when the marshal
started and he would end work when the last car was picked
up. (Tr. at 467). She conceded that at times, he would
deliver forms to the precinct. (Id.) She indicated
that when he reported his finishing time, it could be to the
minute - “12:40, 12:41.” (Id. at 468).
She conceded that he might have worked 50 hours a week on
occasion, but stated “I don't think so” when
asked if he ever worked 60 hours or 70 hours in a week.
(Id. at 468-69).
to earlier testimony from Andreopolos, Mustakas initially
responded “yes” when asked if the company began
tracking the times of its employees after Raphael Rivera
brought a lawsuit against Mr. Z in August 2012. (Id.
at 469). Then, after looking at her husband across the
courtroom, she responded, “No” to the repeated
question. (Id. at 469-70). She then admitted that
even though there was a lawsuit pending, the company would
still discard all of its records at the end of the week.
(Id. at 472).
Marshal Alejandro Finardo's Testimony
final witness was Marshal Finardo, who testified that from
2009 to the present, he has worked as a marshal for New York
City. (Id. at 396). In the beginning of his
employment, he worked with Mr. Z two days a week until
gradually, in late 2009, 2010, it became four or five days a
week. (Id. at 396-97). On Mondays and Tuesdays, he
worked the early morning shift, from 3:00 a.m. until 3:00
p.m.; on Wednesdays and Thursdays, he worked late afternoon,
starting at 3:00 p.m. until around midnight. (Id. at
397). He also stated that they would work Fridays,
“sporadically, ” depending on several factors.
(Id. at 398). He testified that if there was a
holiday on a Monday, he may work Friday, depending on how
busy they were. (Id.) Also, if there was bad
weather, they may work Fridays to make up for it.
testified that they would close down for snow days based upon
the decision of the City. (Id. at 398-99). He could
not estimate how many days per year, testifying that
“[e]very year was different.” (Id. at
399). When the computer went down, they would stop all
operations and resume when it came back on. (Id.) He
explained that if the computer broke down near the end of the
day, they “would probably call the day at that
time.” (Id. at 400). He also stated that the
schedule for the entire week was predetermined by the program
marshals and the hours were essentially the same.
(Id. at 401). When asked if a vehicle was reported
and then “GOA, ” meaning “gone on
arrival” or no longer there by the time the marshal
arrived, the marshal would “give the scouts the benefit
of the doubt, ” concluding that the vehicle's owner
had left the scene before the car could be towed.
(Id. at 405). Marshal Finardo did not completely
agree with counsel's contention that if a car was GOA,
and efforts were unsuccessful to contact the scouts, that it
meant the scouts were not working. (Id. at 406).
Instead, he indicated that there may be several possible
reasons why the scouts did not respond, including that the
phone was off, they were away from the phone, using the
bathroom, but if they never called back, “one can
easily derive they're no longer working.”
(Id. at 407).
asked if he had reprimanded Bedasie about leaving early, he
testified that there may have been “one time”
when they had a disagreement about the hours or leaving
early, “maybe once.” (Id. at 408). As
for Diaz, Finardo testified that there were a “couple
of occasions” when he discussed not working in the
proper area, leaving early, or not being out when he was
supposed to be, but the marshal stated that between the two
plaintiffs, “it was less than one handful in the years
that I worked.” (Id.) He also denied ever
suspending Diaz; “I didn't have the authority to
suspend anybody.” (Id.) He also stated that
while he sent Diaz home on occasion, it was no “more
than a handful of occasions.” (Id.)
Finardo testified that he did not know the exact hours that
any of the plaintiffs worked and he denied having any records
because they were not his employees. (Id. at
410-11). When shown his affidavit which stated that Bedasie
and Diaz worked “approximately the same hours as me,
” Finardo confirmed that the information provided in
response was accurate because it was approximate.
(Id. at 413-14). He clarified that he did not know
“exactly what time . . . they [came] in, ” but he
had an idea based on their hits. (Id. at 414). He
conceded that he had no records and could not testify as to
what shifts they had worked on any given day in earlier
years. (Id. at 415).
asked by defense counsel about an affidavit prepared by
defense counsel that he refused to sign, Finardo explained
that “it was full of things I was not aware of. And I
amended it to this form, this affidavit, that I prepared or
assisted in and I signed this and I submitted it to
you.” (Id. at 420).
asked if Diaz took off on Tuesdays or Fridays to go to
auctions with his father, or left work early, Finardo said
that he “wouldn't know for sure, no.”
(Id. at 425). He assumed the scouts were paid by
commission, but did not know for sure; he did not know if
they were entitled to overtime. (Id. at 427). He
also assumed they took time off for lunch, but conceded that
he had no way of knowing whether or not they did.
(Id. at 428).
cross-examination, Finardo declined to estimate the number of
Fridays that they would work in a month, declaring that
“[i]t would be pure speculation . . . .”
(Id. at 433). He did testify that because there were
already hits logged when he started working, he surmised that
the scouts had been out before him. (Id. at 434).
Finardo also testified that “I don't recall any
extended period of time in which [Bedasie] did not work when
I was working with Mr. Bedasie that may have been longer than
a month. I do not recall.” (Id. at 437).
asked if he ever had to reprimand Evangelista, whom he
described as a tow truck driver, Finardo testified that there
had been complaints about things missing from vehicles and he
began an investigation. (Id. at 438). Finardo
consulted with Andreopolos and conducted an “integrity
test.” (Id.) Finardo explained how he had
planted money under the seat of the front passenger vehicle,
told Evangelista that he had left his flashlight inside, and
then later, after Evangelista had looked in the car, Finardo
checked the vehicle only to see that the money was missing.
(Id. at 439). According to Finardo, Mr. Z fired
Evangelista after this, although he was hired back at some
time. (Id. at 442).
Gary Rose's Testimony
Rose was called by defendants. He testified that he had been
a City marshal since 2005, responsible for seizing vehicles
with outstanding tickets. (Id. at 447). He worked
with Mr. Z from April 2006 through December 2007 and only on
Mondays. (Id. at 448). He stated that he would
normally get in at 3:00 a.m. and end work around 3:00 p.m.
(Id. at 449). Prior to 2009, there was no towing on
Fridays. (Id. at 448). He denied knowing Bedasie and
Diaz by these names. (Id. at 451). He testified that
he “wasn't really aware of when scouts showed up or
didn't show up.” (Id. at 452). He
explained that he did not check up on the scouts, did not
have contact with the scouts, and did not know what their
specific arrangements were with respect to pay. (Id.
asked if he ever left early between October 2007 and December
2008, Marshal Rose testified that he could not say, but that
“70 to 75 percent of the time I would end up leaving
before three o'clock.” (Id. at 457).
Bedasie and Diaz commenced this action on October 2, 2013,
alleging various violations of the FLSA and the NYLL. On
November 20, 2013, plaintiffs filed an Amended Complaint that
included the claims of Rosario. The parties engaged in
pretrial discovery and settlement negotiations were held
before the Honorable Marilyn D. Go. On August 14, 2015, the
Honorable Carol B. Amon granted partial summary judgment to
plaintiffs as to their claims under Section 195(3) of the
NYLL for wage statement violations, leaving only the
following disputed claims: (1) claims for unpaid minimum
wages on behalf of plaintiffs Bedasie and Diaz; (2) claims
for unpaid overtime wages for all three plaintiffs; (3)
claims for unpaid spread-of-hours wages for plaintiffs
Bedasie and Diaz; (4) liquidated damages for all unpaid
wages; (5) prejudgment interest; and (6) attorneys'
January 19, 2016, after numerous attempts to settle the
remaining claims proved fruitless, the parties consented to
proceed before the undersigned for a bench trial, which was
held from May 2, 2016 to May 5, 2016. Following the
conclusion of the trial, the parties submitted post-trial
memoranda summarizing their respective positions on the
their Post-Trial Memorandum of Law, dated June 27, 2016,
plaintiffs argued that: 1) all three plaintiffs were
“employees” for purposes of the FLSA and NYLL
(Pls.' Post Mem. at 15, 17-18); 2) defendants Mr. Z,
Andreopolos, and Mustakas were “employers” as
defined by the FLSA and NYLL (id. at 14, 17); 3)
defendants failed to keep records of plaintiffs' hours
worked and minimum and overtime wages paid (id. at
18, 19); 4) defendants' violations of the FLSA were
willful (id. at 15, 18); 5) plaintiffs Bedasie and
Diaz were not paid proper amounts in minimum, overtime and
spread-of-hours wages (Pls.' Post Stmt.
1-9, 9-16); and 6) plaintiff Rosario was not paid the proper
amounts of overtime wages. (Id. at 17-22).
Plaintiffs argue that defendants should be held liable for
$128, 073.42 in damages as follows:
$ 4, 496.30
$ 1, 195.46
NYLL Liquidated Damages
FLSA Liquidated Damages
$ 7, 770.42
2) For Plaintiff Diaz:
$ 2, 096.16
NYLL Liquidated Damages
$ 9, 542.27
FLSA Liquidated Damages
3) For Plaintiff Rosario:
NYLL Liquidated Damages
$ 7, 013.25
FLSA Liquidated Damages
$ 7, 120.50
$ 3, 818.33
post-trial submission did not address plaintiffs'
proposed damages calculations, arguing instead that because
plaintiffs lacked credibility, their evidence on damages
should be disregarded in its entirety. Defendants contend
that all three defendants “lied about [Mustakas] being
the boss.” (Defs.' Post Mem. at 5, 6-11). In arguing
that Rosario is not entitled to any relief, defendants detail
a number of lies that they contend are sufficient grounds to
disregard his testimony in its entirety: 1) “Lie
I:” “when testifying about his salary at trial he
clearly perjured himself” because his testimony about
when he received certain raises differed from the dates set
forth in the amended complaint (id. at 12-13); 2)
“Lie II:” the evidence of the amount of pay
received does not reflect his testimony regarding salary and
raises; “[i]t is clear after a quick examination of . .
.checks and pay stubs that Mr. Rosario is blatantly
lying” (id. at13-16); 3) “Lie
III:” Rosario is lying when he testifies. . .that he
never gave [his employers] any information to assist in the
calculation of his paycheck” (id. at 16-17);
4) “Lie IV:” “the lies keep rolling in and
they get stupider and stupider” in that Rosario lied
about speaking to his friends about suing (id. at
17-18); 5) “Lie V:” that Andreopolos did not
participate in hiring Rosario; 6) “Lie VI:” that
Rosario was only out of work for a week due to Hurricane
Sandy (id. at 19-20); and 7) “Lie VII:”
Rosario lied about Mustakas being the boss. (Id. at
defendants argue that Bedasie also lied about so many
significant issues that his testimony should be disregarded
in its entirety and that he is not entitled to any relief.
Specifically, defendants claim that Bedasie lied about the
following: 1) “Lie I:” he “fraudulently
misrepresented that he doesn't remember the details of
his accident. . .” (id. at 21-23); 2)
“Lie II:” he lied about Andreopolos having no
role in hiring Bedasie (id. at 23-24); 3) “Lie
III:” he lied about his salary including $50 per day
plus gas (id. at 24-26); 4) “Lie IV:” he
lied when he claimed he worked every other Friday from 2009
to 2013 (id. at 26-27); 5) “Lie V:” he
lied about working more than 40 hours a week and not being
compensated properly (id. at 27-34); 6) “Lie
VI:” he lied about the Rivera lawsuit
(id. at 34-35); 7) “Lie VII:” he lied
about how he decided to sue (id. at 35-36); 8)
“Lie VIII:” he lied about Mustakas being the boss
(id. at 36); and 9) “Lie IX:” he lied
about not knowing that Diaz was suspended. (Id. at
argue that Diaz also lied: 1) about how he got the job
(id. at 38-39); 2) about his memory being better now
than it was at his deposition (id. at 39-40); 3)
about his lunch breaks (id. at 40-41); 4) about the
Rivera lawsuit (id. at 41-41); 5) about not
colluding to hire plaintiffs' attorneys (id. at
42-43); 6) about working more than 40 hours per week and not
being compensated properly (id. at 43-49); 7) about
friends telling him to sue (id. at 49-50); 8) about
time off during Hurricane Sandy (id. at 51-52); 9)
about his car being tagged by Marshal Rivera (id. at
52); and 10) about his salary being $20 per car whereas
defendants claim he was paid $25 per car tagged.
(Id. at 53-54).
argue that defendants' witnesses were more credible than
plaintiffs; that as a result, plaintiffs should not be
awarded any damages; and that Mustakas was not a manager for
purposes of imposing liability upon her as a defendant.
(Id. at 64)
noted above, prior to trial before the undersigned, Judge
Amon granted partial summary judgment to plaintiffs and made
certain findings. Accordingly, the Court first identifies the
findings made by Judge Amon that continue to govern as the
law of the case.
Law of the Case
“law of the case” doctrine stands for the
proposition that “a decision regarding an issue of law
made at one stage of a litigation becomes binding precedent,
to be followed in subsequent stages of the same
litigation.” Firestone v. Berrios, 42
F.Supp.3d 403, 411 (E.D.N.Y. 2013) (quoting Scottish Air
Int'l, Inc. v. British Caledonian Grp., PLC., 152
F.R.D. 18, 24 (S.D.N.Y. 1993)). Thus, absent
“cogent” or “compelling” reasons, a
court should continue to adhere to decisions made previously
in the same case. United States v. Uccio, 940 F.2d
753, 758 (2d Cir. 1991). Such “cogent” or
“compelling” reasons include “an
intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent
manifest injustice.” DiLaura v. Power Auth. of
N.Y., 982 F.2d 73, 76 (2d Cir. 1992) (quoting Virgin
Atl. Airways, Ltd. v. National Mediation Bd., 956 F.2d
1245, 1255 (2d Cir.), cert. denied, 506 U.S. 820
Memorandum and Order granting plaintiffs partial summary
judgment, Judge Amon expressly held that Mr. Z was an
“enterprise engaged in commerce” and thus, was
subject to the minimum wage and overtime provisions of the
FLSA. (See 8/14/15 Order at 2 n.2). Judge Amon also found
that plaintiffs Bedasie and Diaz were paid at least in part
based on the number of cars they tagged each week.
(Id. at 3). Plaintiff Rosario, on the other hand,
was paid by the hour. (Id. at 4). Finally, Judge
Amon found defendants liable for wage statement violations
and accordingly awarded each plaintiff $2, 500 in damages.
(Id. at 8).
review of the record, the Court finds that no new evidence
has been introduced, nor has there been any intervening
change in the law, that would warrant revisiting any of these
findings. Accordingly, the Court treats Judge Amon's
findings as the law of the case for all purposes.
Liability under the FLSA and NYLL
who bring claims under the FLSA must prove that: 1)
defendants are employers subject to the FLSA; 2) plaintiffs
are employees within the meaning of the FLSA; and 3) the
employment relationship is not subject to any of the
exemptions under the FLSA. Drozd v. Vlaval Constr.,
Inc., No. 09 CV 5122, 2011 U.S. Dist. LEXIS 156415, at
*12 (E.D.N.Y. Oct. 18, 2011). Plaintiffs who bring claims
under the NYLL must prove that: 1) plaintiffs were employees
and 2) defendants were employers. Garcia v. Chirping
Chicken NYC. Inc., No. 15 CV 2335, 2016 U.S. Dist. LEXIS
32750 *17-18 (E.D.N.Y. Mar. 31, 2016).
Status as “Employer”
case, Judge Amon found that Mr. Z was an “enterprise
engaged in commerce, ” and therefore an employer who
was subject to the minimum wage and overtime provisions of
the FLSA. (See 8/14/15 Order at 2 n.2). She made no
findings as to the employer status of the individual
order for the individually named defendants, Andreopolos and
Mustakas, to be held liable for violations under the FLSA and
NYLL, they must be considered employers within the meaning of
those statutes. In Herman v. RSR Securities Services,
Ltd., the court held that “the overarching
concern” for determining whether an individual was an
“employer” under the FLSA was whether “the
alleged employer possessed the power to control the worker in
question. . . .” 172 F.3d 132, 139 (2d Cir. 1999).
Under this economic reality test, courts consider whether the
person had the power to: 1) hire and fire employees; 2)
supervise and control work schedules and conditions of
employment; 3) determine the rate and method of pay; and 4)
maintain employment records. See id. Moreover,
courts must examine the totality of circumstances and no
single factor is exclusive or dispositive. Id.
the Second Circuit and the New York Court of Appeals have not
decided whether the tests for “employer” status
are the same under the FLSA and the NYLL, district courts in
this circuit have adopted a similar standard for both
statutes. See Vasto v. Credico (USA) LLC, No. 15 CV
9298, 2016 WL 4147241, at *5 (S.D.N.Y. Aug. 3, 2016) (holding
that “[t]he standard for employer status under the NYLL
appears nearly if not wholly identical to that of the FLSA .
. . . [D]istrict courts in this Circuit have consistently
interpreted the definition of ‘employer' under the
New York Labor Law coextensively with the definition used by
Court finds defendant Andreopolos to be an employer within
the meaning of the FLSA and NYLL. In their Joint Pretrial
Order, the parties stipulated that Andreopolos was the
vice-president and owned 50% of Mr. Z. (JPTO at 5). The
parties also stipulated to the fact that “Andreopolos
supervised plaintiffs, set their wages, and had the authority
to hire and fire them.” (Id.) Andreopolos
himself testified at trial that: “My job function was
to run the business, hire and fire people, drive with the
marshal, do paperwork.” (Tr. at 480). The evidence
clearly indicates that Andreopolos had the power to hire and
fire employees, supervise and control work schedules,
determine rates of pay, and maintain employment records,
making him an employer under the FLSA and NYLL.
the other named defendant, Hellen Mustakas, plaintiffs allege
that Mustakas was an “employer” within the
meaning of the FLSA and the NYLL, while defendants argue that
Mustakas was merely an employee. Specifically, defendants
claim that she was just “a girl Friday, an assistant,
and that she came in many times just to fill in if help was
needed.” (Defs.' Post Mem. at 8). Defendants argue
that Mustakas did not have any involvement in the day-to-day
activities of the company, and was only an assistant who came
in from time to time. (Id. at 8). They contend that
because Mustakas did not receive regular reports on sales or
payroll, did not sign corporate checks, did not hire
employees, and did not supervise employees or determine rates
of pay, she does not qualify as a statutory employer.
(Id. at 9). Defendants also refer to the testimony
of Mohammad Ali, Mr. Z's administrative manager from 2003
to 2007, who testified that Hellen Mustakas did not have the
authority to interview or hire anyone: “She wasn't
the owner, manager, assistant manager. She was never put in
charge of hiring or firing.” (Tr. at 341).
argue that Mustakas was an employer subject to the
requirements of the FLSA and the NYLL based on the testimony
provided by several witnesses at trial. (Pls.' Post Mem.
at 14). First, plaintiffs point to the testimony of Bedasie
who stated that Mustakas conducted his interview, described
the job duties to him, and told him what his pay rate would
be. (Tr. at 18-19). Plaintiff Diaz also testified that
Mustakas was the one who hired him to be a stager and
informed him of his rate of pay. (Id. at 102).
Plaintiff Rosario testified that he met with Mustakas when he
was hired to work for the company and that while her husband
was present, he did not conduct the interview. (Id.
at 191). Plaintiffs argue that defendant Andreopolos himself
testified that Mustakas was a manager at Mr. Z. (Pls.'
Post Mem. at 14 (citing Tr. at 481)). Finally, plaintiffs
refer to the testimony of Marshal Rose, who testified that,
as part of Mustakas' duties, she would “move staff
around depending on what the needs were on a given
day.” (Tr. at 455).
the totality of the testimony and evidence before the Court,
the Court finds that even if Mustakas was present during the
plaintiffs' interviews and may have even conducted the
interviews and described the job responsibilities and pay,
the evidence presented does not support a finding that she
had the power to make the hiring and firing decisions or set
the rates of pay without the input of her husband. Gary Rose,
a City marshal who worked in conjunction with Mr. Z, and who
was a disinterested witness in the case, described the
variety of functions that he had observed Mustakas perform,
including setting up the computers in the morning, making
sure everything was running, and filling in if someone failed
to come in to work. (Tr. at 455). He explained: “like
[if] someone that did the paperwork didn't show up[, ]
she would come in and she'd move staff around depending
on what the needs were on a given day.” (Id.
testimony was corroborated by the testimony of Mohammad Ali,
the manager of Mr. Z from 2003 to 2007, who testified that
part of Mustakas' tasks included helping out with
paperwork, helping out others in the office with errands, and
answering the phones. (Id. at 340). Ali claimed that
Mustakas “couldn't” interview anyone for
employment purposes and he testified that “she was
never put in charge of hiring of firing, ” explaining
that defendant Andreopolos was in charge of hiring or firing.
(Id. at 341). Defendant Andreopolos explained that
while Mustakas may have been present during the job
interviews, “[i]t's a small trailer.
Everybody's next to me. There's not only Hellen,
there's other-Latisha was there, Wendy was there, Felix
Rodriguez was every time there. They [sic]
doesn't mean they have any right to hire and fire.”
(Id. at 482-483).
addition, the testimony of Frank Evangelista, the manager of
Mr. Z from 2008 onwards, further corroborates defendants'
claim that Mustakas did not wield actual authority over
hiring and firing. (Id. at 276-78). Evangelista
testified that during the period he was the manager of Mr. Z,
Mustakas had participated in the act of hiring of firing
certain people and that he had heard her say,
“You're hired” or “You're
fired.” (Id. at 276). However, he also
testified that, “Me, Fotios and Hellen were in the
office and . . . Fotios would talk to them, but Hellen had no
decision on hiring and firing.” (Id. at 277).
The Court interprets Evangelista's testimony to mean that
while Mustakas may have spoken to certain employees regarding
their employment status, she did not wield the actual
authority to determine or alter an employment status.
Evangelista also testified that Mustakas did not sign the
employee's paychecks, stating that: “Hellen has
nothing to do with the checks, the payroll, or
anything.” (Id. at 278).
the evidence suggesting that Mustakas acted as a
“manager, ” defendant Andreopolos specified in
his testimony that Mustakas only served as the manager from
2000 to 2003, well before any of the plaintiffs were employed
at Mr. Z. (Id. at 482). Indeed, Ms. Mustakas
testified that in the years 2003, 2007, and 2012, she
suffered from some personal issues that required her to stop
working at Mr. Z for some period of time during those years.
(Id. at 346). Thereafter, Ali was hired as the
manager in 2003 until 2007, to be followed by Evangelista,
who served as manager during the latter part of
plaintiffs' employment. Thus, even if Ms. Mustakas had
performed as a manager at some point, the testimony was that
she was not serving in that capacity after plaintiffs were
hired by Mr. Z, at a time when others were acting as
managers. Thus, plaintiffs could not have been under her
managerial authority. (Id. at 481).
on the totality of the evidence, the Court finds that
defendant Mustakas was not vested with the power to determine
whether employees could be hired or terminated, nor did she
exercise the authority to make other significant employment
decisions, such as controlling employee pay records, or
setting rates of pay. In summary, the combined testimony of
both interested and disinterested witnesses demonstrates to
the Court that while Mustakas may have wielded some apparent
authority over employment decisions, she did not exercise the
degree of operational control over the employees, their
employment records, their pay rates, or their daily
activities that would make her an “employer” for
purposes of imposing liability under the FLSA. See Kaur
v. Royal Arcadia Palace, Inc., 643 F.Supp.2d 276, 293
(E.D.N.Y. 2007) (citing Herman v. RSR Sec. Serv.,
Ltd., 172 F.3d at 139-140) (holding that “the
court must evaluate the ‘totality of the
circumstances' to determine whether a defendant had
the Court finds that Mustakas does not qualify as an
“employer” under either the FLSA or the NYLL, and
cannot be held liable for any wage and hour violations.
However, since there appears to be no dispute that Andrepolos
was an “employer, ” under the FLSA and NYLL, the
Court finds that defendants Mr. Z and Andreopolos are
“employers” for purposes of both statutes and are
jointly and severally liable for any violations of the wage
and hour laws.
Status as Employees - Exemption under Section 1(a)(1) of
third element that plaintiffs must establish before liability
can be imposed under the FLSA is demonstrating that the
plaintiffs do not fall within an established exemption. Since
exemptions are considered affirmative defenses, it is the
employer's burden to prove that an employee is exempt
under the FLSA. See, e.g., Bilayou v. Dutchess
Beer Dist., Inc., 300 F.3d 217, 222 (2d Cir. 2002).
Moreover, the case law is clear that the exemptions under the
FLSA are narrowly construed against the employer. See
Karropoulos v. Soup du Jour, Ltd., 128 F.Supp.3d 518,
527 (E.D.N.Y. 2015).
their post-trial memorandum, defendants appear to re-raise an
argument that plaintiffs Bedasie and Diaz were “outside
sales/commission employees, ” who do not qualify for
relief under the FLSA. (Defs.' Post Mem. at 62). This
argument was first raised by defendants after Judge Amon
issued her decision granting plaintiffs' motion for
summary judgment with respect to the NYLL wage statement
claims, finding that there was no issue of disputed fact in
that defendants had failed to “furnish each
with a statement with every payment of wages. . ., ” as
required by Section 195(3) of the NYLL. (Order at 5, 8).
Following that decision, and during the preparation of the
Pretrial Order, defendants moved to amend their Answer to
add, inter alia, a defense that plaintiffs were
exempt from the protections of the FLSA because they were
employed as “outside sales employees.”
(Defs.' 8/2/15 Letter at 1). In an Order dated August 26,
2015, Judge Go denied defendants' motion to amend to add
this defense, finding that it did not apply. (8/26/15
2). In a pretrial Order dated April 29, 2016, this Court
clearly held that defendants were precluded from asserting
any counterclaims or additional defenses not previously
raised in the pleadings. Bedasie v. Mr. Z Towing,
Inc., No. 13 CV 5453, 2016 U.S. Dist. LEXIS 57431, at
*11 (E.D.N.Y. Apr. 29, 2016). Given that the Court denied the
motion to amend, and the exemption was not raised as an
affirmative defense in the initial pleadings, defendants are
now precluded from raising such a defense because affirmative
defenses are required to be asserted in the pleadings or they
are deemed waived. Id.; Satchell v.
Dilworth, 745 F.2d 781, 784 (2d Cir. 1984); Columbia
Artists Mgmt, LLC v. Alvarez, No. 08 CV 11254, 2010 WL
5396097, at *5 (S.D.N.Y. Dec. 23, 2010).
the issue had not been previously considered by Judge Go,
this Court, having considered all of the evidence presented
at trial, concludes that all three plaintiffs were
“employees” under the FLSA and NYLL. None of them
were “sales” employees; there is no dispute that
they were not engaged in selling anything, but rather were
taggers, whose job was simply to identify vehicles for
towing. Christopher v. SmithKline Beecham Corp., 132
S.Ct. 2156, 2162 (2012) (citing 29 C.F.R. §§
541.500-503) (holding that, based on regulations issued by
the Department of Labor, “an outside salesman is any
employee whose primary duty is making any sale, exchange,
contract to sell, consignment for sale, shipment for sale, or
other disposition”). Moreover, plaintiffs were issued
and paid as W-2 employees and defendants withheld employment
taxes from their wages. (Tr. at 546, 550).
the Court rejects defendants' argument that plaintiffs
were exempt sales employees under the FLSA.
The Commission Exemption under the FLSA
this litigation, defendants have argued that plaintiffs
Bedasie and Diaz were exempt from the hourly wage and
overtime wage requirements of the FLSA because they were
commissioned employees. (Defs.' Post Mem. at 2).
Plaintiffs contend that regardless of whether they were paid
by commission or by piece - i.e. by every car that they
tagged - the protections of the FLSA extend beyond employees
who are paid on an hourly basis. (Pls.' Post Mem. at 5).
up to the courts to determine whether non-hourly wage
practices comply with minimum wage and overtime regulations
by determining the hourly equivalents of commissions.
Cruz v. AAA Carting & Rubbish Removal, Inc., 116
F.Supp.3d 232, 242-43 (S.D.N.Y. 2015) (citing Chuchuca v.
Creative Customs Cabinets Inc., No. 13 CV 2506, 2014 WL
6674583, at *9 n. 10 (E.D.N.Y. Nov. 25, 2014) (holding that
“For minimum-wage recovery under the FLSA, the
pertinent question is whether ‘the amount of
compensation received by an employee results in a
straight-time hourly rate that is less than the applicable
federal minimum wage”); Karic v. Major Auto.
Cos., 992 F.Supp.2d 196 (E.D.N.Y. 2014) (holding that
the “NYLL indisputably requires that employers pay
employees minimum wage and overtime on a weekly basis,
regardless of whether those employees earned commission in
the FLSA “does not require employers to compensate
employees on an hourly rate basis, their earnings may be
determined on a piece-rate, salary, commission, or other
basis, but in such case the overtime compensation due to
employees must be computed on the basis of the hourly rate
derived therefrom and, therefore, it is necessary to compute
the regular hourly rate of such employees during each
workweek.” 29 C.F.R. § 778.109. Section 207(a)(1)
of the FLSA requires an employer to pay an employee overtime
pay in the amount of one and one-half times their regular
rate for hours worked in excess of forty hours. 29 U.S.C.
§ 207(a)(1). Under Section 207(i), “No employer
shall be deemed to have violated subsection (a) of this
section by employing any employee of a retail or service
establishment for a workweek in excess of the applicable
workweek specified therein, if (1) the regular rate of pay of
such employee is in excess of one and one-half times the
minimum hourly rate applicable to him under section 206 of
this title,  and (2) more than half his compensation
for a representative period (not less than one month)
represents commissions on goods or services.” 29 U.S.C.
§ 207(i). For commissions paid on a weekly basis,
federal regulations provide that: “[w]hen the
commission is paid on a weekly basis, it is added to the
employee's other earnings for that workweek (except
overtime premiums and other payments excluded as provided in
section 7(e) of the Act),  and the total is divided by the total
number of hours worked in the workweek to obtain the
employee's regular hourly rate for the particular
workweek. The employee must then be paid extra compensation
at one-half of that rate for each hour worked in excess of
the applicable maximum hours standard.” 29 C.F.R.
Andreopolos testified at trial that both Bedasie and Diaz
were paid entirely on commission. (Tr. at 484). Defendants
contend that the commissions paid to those plaintiffs
exceeded the amount they would have received had they been
paid a minimum wage of $7.25 and corresponding overtime rate
of $10.88. (Defs.' Post Mem. at 2). Defendants argue that
plaintiffs Bedasie and Diaz chose to be paid on a
commissioned rather than on a salaried basis, because a
commissioned-based scheme provided them with incentives to
earn a higher amount than they would have earned on minimum
wage. (Id. at 25). In ruling on the defendants'
motion for partial summary judgment, Judge Amon found that
plaintiffs Bedasie and Diaz were paid at least in part based
on the number of cars they tagged each week and that
plaintiff Rosario was paid by the hour. (8/14/15 Order at 3).
contend, and the Court agrees, that in order to determine
whether defendants' commission-based pay scheme complied
with the minimum wage, overtime, and spread-of-hours
requirements of the FLSA and NYLL, the Court must determine
the plaintiffs' regular hourly rate of pay based on their
commissioned work. If that regular hourly rate is higher than
the minimum wage and if plaintiffs were properly paid
overtime based on time and a half for hours over 40 worked in
a week, then defendants would not be liable for wage and hour
order to conduct this comparison, the Court must first
determine the regular hourly rate of plaintiffs'
activities based on the evidence before the Court.
Burden of Proof
the FLSA and the NYLL provide a burden-shifting framework for
proving wage violations. Under the FLSA, an employee may meet
his or her burden of proof by producing “sufficient
evidence from which violations of [the FLSA] and the amount
of an award may be reasonably inferred.” Reich v.
Southern New Eng. Telecomms. Corp., 121 F.3d 58, 66 (2d
Cir. 1997). If an employee offers such evidence, an employer
must then “come forward with evidence of the precise
amount of work performed or with evidence to negate the
reasonableness of the inference to be drawn from the
employee's evidence.” Yu Y. Ho v. Sim Enterps.,
Inc., No. 11 CV 2855, 2014 WL 1998237, at *14 (S.D.N.Y.
May 14, 2014) (citing Anderson v. Mt. Clemens Pottery
Co., 328 U.S. 680, 688-89 (1946)). If an employer fails
to present such evidence, the court ...