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Tarazona v. Rotana Cafe & Restaurant Inc.

United States District Court, E.D. New York

May 23, 2017

LUZ TARAZONA, Plaintiff,


          Peggy Kuo, United States Magistrate Judge.

         Plaintiff Luz Tarazona (“Plaintiff”) brought this action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 206, 207, 216(b), the New York Labor Law (“NYLL”) §§ 650 et seq. and 12 N.Y.C.R.R. §§ 142-2.2, 142-2.4 against defendants Rotana Cafe & Restaurant Inc. d/b/a After 8 Café Lounge (“After 8”) and Atef Elakhras (“Elakhras”) for unpaid minimum and overtime wages, and unpaid spread of hours pay. Plaintiff also seeks statutory damages for Defendants' violations of annual wage notice requirements under the NYLL §§ 190 et seq. A bench trial was held on September 23, 2016. (See Dkt. 22.) This Opinion and Order constitutes the Court's findings of fact and conclusions of law.


         I. Findings of Fact[1]

         A. Fact-finding Under the FLSA and NYLL

         An FLSA plaintiff employee “has the burden of proving that he performed work for which he was not properly compensated.” Daniels v. 1710 Realty LLC, No. 10-CV-22 (RER), 2011 WL 3648245, at *4 (E.D.N.Y. Aug. 17, 2011) (quoting Rivera v. Ndola Pharmacy Corp., 497 F.Supp.2d 381, 388 (E.D.N.Y. 2007)). The employee may discharge this burden by obtaining the production of his employer's records, where such records are “proper and accurate.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute on other grounds. Where employer records are “inaccurate or inadequate, ” the employee must prove that “he has in fact performed work for which he was improperly compensated” and produce “sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Id.

         The employee “can rely solely on his or her own recollections to meet this initial burden.” Daniels, 2011 WL 3648245, at *4 (internal citations omitted). Once the plaintiff has met his burden, “[t]he burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence.” Anderson, 328 U.S. at 687-88. Courts may award damages approximating the loss to the employee where the employer does not provide such evidence. Id. at 688.

         B. Undisputed Facts

         After 8 opened in 2010 as a hookah café in the Astoria section of Queens, New York. (See Tr. at 53, 112; Joint Pre-Trial Order (“JPTO”), Dkt. 18 at VII.2.) It later obtained a liquor license and a cabaret license, and began operating as a restaurant with a full kitchen. (See Tr. at 26-27, 53-54, 56, 78, 144-45.) The parties stipulated that After 8 is an enterprise engaged in commerce, with annual gross receipts of not less than $500, 000 at all relevant times, and is thus within the purview of the FLSA, 29 U.S.C. § 203(s). (See JPTO at VII.4.)

         Atef Elakhras is the owner of After 8 and hired Plaintiff as a bartender. (Tr. at 18, 19, 36, 113.) Amal Lazhir (“Lazhir”) is married to Elakhras. (Tr. at 52.) Her duties at After 8 involved managing the work schedules of employees and paying them. (See Tr. at 60, 68, 89-91, 127-28.) Plaintiff worked at After 8 until November 14, 2015.

         C. Plaintiff's Evidence

         Plaintiff contends that she began work on June 6, 2014.[2] (See Tr. at 15, 17.) In support of this date, she introduced a screenshot of “Notes” that she purportedly put into her cell phone, which states, in Spanish, “I started working at After8 on June 6, 2014.” (See Tr. at 15; Trial Ex. P-1 at Pltf's 0001.) In addition, she introduced photographs of her taken at After 8 on June 14, 2014; June 19, 2014; June 27, 2014; and July 19, 2014. (See Tr. at 29-31; Trial Ex. P-2, P-3, P-4, P-5.) She testified that on June 14, 2014, after she had already been working at After 8 for a few weeks, she and some relatives decided to watch Colombia's match in the World Cup on television at After 8 on her day off. (See Tr. at 47-48.) She testified that “Mustafa” was their waiter that day, and that an After 8 employee named “Ismael” took the photographs of Plaintiff. (See Tr. at 29-30, 48.)

         Plaintiff testified that when Elakhras hired her, he told her she would be working as a bartender on Fridays and Saturdays “for now” and that he was waiting to get a cabaret license for After 8. (See Tr. at 19, 26.) When she started working, she worked on Fridays, Saturdays, and Mondays. (See Tr. at 23.) On Fridays and Saturdays, she worked from 4:00 p.m. until 4:00 a.m. as a bartender. (See Tr. at 23, 31.) These shifts never changed. (See Tr. at 31.) On Mondays, she worked as both a waitress and bartender, starting at 4:00 p.m., and would typically be done around 2:00 a.m. or 2:30 a.m. “if it wasn't too busy.” (See Tr. at 23, 24.) About six or seven months after she started working, in approximately January 2015, After 8 obtained a cabaret license and began to present live music. Thereafter, Defendants' business “started doing much better” (see Tr. at 26-27), and Plaintiff picked up a fourth shift on Tuesdays, which was similar to her shift on Mondays, i.e., she would start at 4:00 p.m. and work until approximately 2:00 a.m., as both a waitress and bartender. (See Tr. at 28, 31-32.) Plaintiff testified that she took breaks of “half an hour” or “45 minutes.” (Tr. at 34.)

         Plaintiff received only a share of the tips, but no “house pay.” (Tr. at 19.) When she interviewed with Elakhras for the bartender position, he told her that “the house did not pay anything.” (Tr. at 19.) Plaintiff understood that she would be working only for tips, and accepted this arrangement because she “wanted to work.” (Tr. at 19.) At no point did anyone at After 8 ask Plaintiff to present any identification, or even ask Plaintiff what her last name was. (See Tr. at 35.) When she started working, Plaintiff was trained by two co-workers-waiters identified only as “Danny” and “Mustafa” (Tr. at 24)-who told her they also were not getting paid “house pay.” (Tr. at 24-25.)

         Tips collected at After 8 were pooled. (See Tr. at 32.) At the end of each shift, Plaintiff and the waiters would count the total tips, give a percentage of the tips to the busboy, and split the remainder of the tips in equal shares. (See Tr. at 32.) Before After 8 obtained the cabaret license, Plaintiff would receive approximately $300 per week in tips. (See Tr. at 32.) After the cabaret license was obtained, After 8 was busier and she did “much better” in terms of her weekly tips. (See Tr. at 33.)

         Although Plaintiff saw Lazhir at After 8 periodically, they never had any conversations about her work hours or compensation. (See Tr. at 23-24.)

         With regard to the physical layout of the premises, Plaintiff testified that while she was employed there, the stage was moved, but she did not observe any changes in the design or size of the space, or the number of tables. (See Tr. at 45.) She stated that she “never saw construction workers.” (Tr. at 45.)

         D. Defendants' Evidence

         Defendants contend that Plaintiff's employment at After 8 did not begin until late May 2015.

         Elakhras testified that he hired Plaintiff in anticipation of a “grand opening” of After 8, following the completion of a substantial expansion of the space. (See Tr. at 121-22.) That expansion began in December 2013, when he signed a lease for the adjacent retail space next to his. (See Tr. at 113-14.) Until then, After 8 only had room for a few tables. (See Tr. at 54-57, 112.) At trial, Defendant introduced several permits and certificates related to the expansion: a general Work Permit from the New York City Department of Buildings (“DOB”) issued on January 22, 2014 and expiring on August 30, 2014; a DOB Work Permit for plumbing work issued on January 27, 2014 and expiring on January 27, 2015; a Certificate of Occupancy issued on January 13, 2015; and a Place of Assembly Certificate of Operation also issued on January 13, 2015, covering space that could accommodate up to 188 persons, classifying it as an “Eating or Drinking Establishment - Not a cabaret.” (See Tr. at 115; Trial Ex. D-a.)

         According to Elakhras, Defendants' contractor took down the wall separating the two retail spaces in April 2015. (See Tr. at 118-19.) During this time, in April-May 2015, After 8 was closed for a month for safety reasons. (See Tr. 118-19.) The employee schedule for the week of April 13, 2015 includes a handwritten notation, “After 8 will close from 4/20/2015 until 05/18/2015.” (Trial Ex. D-d.)

         Lazhir testified that the wall was removed in January 2015 and that the construction was completed in February 2015. (See Tr. at 56, 57.) However, when shown the notation about the premises being closed from April 20, 2015 to May 18, 2015, she changed her testimony and claimed to be reminded that this was when her “husband and the company put down the wall.” (Tr. at 61.)

         Defendants also introduced in evidence some liquor invoices issued to After 8 dated April 8, 9, 14, 15, 23 and May 1, 15, 27, totaling approximately $8, 000-$9, 000. (See Tr. at 125; Trial Ex. D-c.) Elakhras testified that these reflect purchases to stock the bar for the first time. (See Tr. at 125-26.) Elakhras explained that he waited a few months after After 8 received the Place of Assembly Certificate before stocking and opening the bar because he needed to replenish his cash reserves after the construction expenses. (See Tr. at 126.) Elakhras also testified that there would have been no need to hire Plaintiff as a bartender prior to late May 2015 because the bar was not stocked with liquor until then. (See Tr. at 126.)

         Defendants contend that Plaintiff did receive “house pay.” Elakhras testified that when he hired Plaintiff, he told her she would receive $6.75 per hour in “house pay” as well as a share of the tips received by the waiters. (See Tr. at 127-28.) He arrived at that hourly rate after speaking to another bar owner in New York City, who said that $6.75 per hour is a fair wage for a bartender who also receives tips. (See Tr. at 127.) However, Plaintiff “was never given any documents showing how much her pay was going to be.” (See Tr. at 154.) Elakhras paid Plaintiff in cash for both her Friday night and Saturday night shifts at the end of her Saturday night shift (i.e., early Sunday morning). (See Tr. at 127.)

         Defendants did not keep records of Plaintiff's pay, although they claim that they did have records for all other After 8 employees who were paid in cash. Elakhras testified that there was no record at all that he ever paid her any house pay. (See Tr. at 139.) He also testified that he did not make Plaintiff sign for each payment because “she never give [sic] her ID” and “[s]he gave no information.” (Tr. at 139.) He testified at trial that he did ask Plaintiff to sign a receipt when ...

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