United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
G. KOELTL, District Judge
plaintiffs, Denisa Cucu, Johanna Iniguez, Juan M. Manzanares
Manjarrez, and Vasiliki Pantazopouplou, brought this action
against their former employer, Park Café, Christos
Averkiou 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).
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.
following facts are undisputed unless otherwise noted.
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,
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.)
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).
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.)
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
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.
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).
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
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).
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).
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