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Cucu v. 861 Rest. Inc.

United States District Court, S.D. New York

June 1, 2017

DENISA CUCU, et al., Plaintiffs, [1]
861 REST. INC., et al., Defendants.


          JOHN G. KOELTL, District Judge

         The plaintiffs, Denisa Cucu, Johanna Iniguez, Juan M. Manzanares Manjarrez, and Vasiliki Pantazopouplou, brought this action against their former employer, Park Café, Christos Averkiou[2] and Sofokelis Dertouzos (together, the “defendants”), alleging that the defendants (1) violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 203, and the New York Labor Law (“NYLL”), N.Y. Lab. L. § 652(1), by improperly claiming a tip credit and failing to pay an appropriate minimum wage; (2) violated the NYLL by failing to pay for their uniform maintenance, 12 N.Y.C.R.R. § 146-1.7(b); and (3) violated the Wage Theft Prevention Act (“WTPA”), N.Y. Lab. L. § 195(1)(a). The plaintiffs also argue that they are entitled to liquidated damages under both the FLSA, 29 U.S.C. § 216(b), and the NYLL, N.Y. Lab. L. §§ 198(1-a), 663(1).

         The plaintiffs now move for partial summary judgment, arguing that (1) the defendants are liable for failing to comply with the tip notice provisions of the FLSA and the NYLL; (2) the defendants were legally required to provide uniform maintenance pay but did not; (3) the defendants are liable for violating the WTPA; and (4) the plaintiffs are entitled to liquidated damages under the FLSA and NYLL.


         The following facts are undisputed unless otherwise noted.

         Park Café is a full-service restaurant located in New York City. (56.1 Stmts. ¶ 1.) The plaintiffs are former and current employees of Park Café. Cucu began working as a waitress for Park Café on September 24, 2012 and worked until January 5, 2014. (56.1 Stmts. ¶¶ 3, 4.) Iniguez currently works as a waitress at Park Café, although it remains disputed exactly when she began working there. (56.1 Stmts. ¶¶ 14, 15.)[3] Pantazopoulou worked as a waitress for Park Café from November 21, 2007 until December 13, 2010. (56.1 Stmts. ¶¶ 30, 31.) Manjarrez was a busboy at Park Café, although the timing of his employment remains unclear. (56.1 Stmts. ¶ 28.)

         Throughout the relevant time periods, Park Café paid some of the plaintiffs a fixed hourly wage and also permitted them to take tips. The defendants provided a yearly wage notice and acknowledgement to Cucu and Iniguez on February 7, 2013, although the parties dispute whether Cucu and Iniguez received such notices prior to that date. (56.1 Stmts ¶¶ 6, 16.); (Gurrieri Affirmation in Supp. of Mot. for Partial Summ. J. (“Gurrieri Affirm.”), Ex. 2 at 1, 8); (Gurrieri Affirm., Ex. 1 at 265, 448).

         In addition to the yearly wage notices, Park Café also supplied Cucu and Iniguez with weekly wage statements, but the weekly wage statements did not include hourly rate information until January of 2013. (56.1 Stmts. ¶¶ 9, 10, 26.)

         The parties dispute the extent to which the defendants informed Cucu, Iniguez, and Pantazopouplou about the tip credit provisions of the FLSA and the NYLL. (56.1 Stmts. ¶¶ 7, 17, 36.) The defendants verbally informed the plaintiffs of their hourly rate and that the rate was set by law. Averkiou Dep. 12:11-13:18, 20:3-10, 22:17-22; Dertouzos Dep. 16:25-17:14, 27:11-18, 28:15-17. They also verbally made clear to the plaintiffs that they would be receiving tips and informed them that the bookkeeper made sure they received the appropriate amount of wages. Dertouzos Dep. 17:10-14. Aside from this verbal communication, the defendants claim they had a poster hanging in the café that listed the minimum wage rate. Dertouzos Dep. 15:14-15. The record does not reflect that the defendants informed the plaintiffs of the specific provisions of the FLSA or NYLL dealing with the tip credit.

         Park Café also supplied its employees with required uniforms, which consisted of an apron and a vest with a logo on it. (56.1 Stmts. ¶¶ 12, 21, 40). Each employee was supplied with one or two of each item, and the defendants would occasionally replace these items when they began to appear worn. The defendants did not, however, give their employees uniform maintenance pay. See Averkiou Dep. 12:3-10.


         The standard for granting summary judgment is well established. Summary judgment may not be granted unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). “The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224. The moving party bears the initial burden of “informing the district court of the basis for its motion” and identifying the matter that “it believes demonstrate[s] the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases).



         The FLSA permits an employer to pay tipped employees a fixed hourly rate less than the federal minimum wage as long as the employee's tips raise the employee's effective hourly wage rate above the minimum wage. See 29 U.S.C. § 203(m). But an employer may not claim such a tip credit unless it has informed the employee of the provisions of the section of the FLSA permitting the tip credit. See Inclan v. N.Y. Hosp. Grp., Inc., 95 F.Supp.3d 490, 497 (S.D.N.Y. 2015); see also Copantitla v. Fiskardo Estiatorio, Inc., 788 F.Supp.2d 253, 288 (S.D.N.Y. 2011) (concluding that the notice requirement was not satisfied even after an employer informed employees that compensation would be an hourly rate plus tips and posted notices about minimum wage laws, because employees were not notified specifically that the employer intended to satisfy its minimum wage obligations through the tip credit).

         The employer bears the burden of showing that it satisfied the notice requirement “by, for example, “providing employees with a copy of § 203(m) and informing them that their tips will be used as a credit against the minimum wage as permitted by law.” Id. (internal citation omitted). “If the employer cannot show that it has informed employees that tips are being credited against their wages, then no tip credit can be taken and the employer is liable for the full minimum-wage.” Inclan, 95 F.Supp.3d at 497 (quoting Reich v. Chez Robert, Inc., 28 F.3d 401, 403 (3d Cir. 1994)). “Even if the employee received tips at least equivalent to the minimum wage, ” the notice provision must be satisfied. Chung v. New Silver Palace Rest., Inc., 246 F.Supp.2d 220, 229 (S.D.N.Y. 2002).

         Because the employer has the ultimate burden of proving compliance with the tip credit notice requirement, an employer opposing summary judgment must “do more than point to a dearth of evidence.” Inclan, 95 F.Supp.3d at 498 (quoting Perez v. Lorraine Enters., Inc., 769 F.3d 23, 27 (1st Cir. 2014)); see also Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014) (“[W]here the nonmoving party will bear the burden of proof on an issue at trial, the moving party may satisfy its burden by pointing to an absence of evidence to support an essential element of the nonmoving party's case.” (brackets and internal quotation marks omitted)). Instead, an ...

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