United States District Court, D. Connecticut
ULBER MORALES, JULIO OLIVAR, HISAI RAMIREZ, ALEJANDRO RODRIGUEZ, CRISTIAN RAMIREZ, and MISAEL MORALES, Plaintiffs,
GOURMET HEAVEN, INC., CHUNG CHO, and YONG CHO Defendants.
MEMORANDUM OF DECISION
Vanessa L. Bryant United States District Judge.
Ulber Morales, Julio Olivar, Hisai Ramirez, Alejandro
Rodriguez, Cristian Ramirez, and Misael Morales
(collectively, “Plaintiffs”) brought claims for
minimum wage and overtime violations under the Fair Labor
Standards Act of 1938 (“FLSA”), 29 U.S.C. §
201, et. seq., and the Connecticut Minimum Wage Act
(“CMWA”), Conn. Gen. Stat. § 31-58, et.
seq., against Defendants Gourmet Heaven, Inc. and Chung
Cho (collectively, “Defendants”). Plaintiffs now move for
partial summary judgment against Defendants on these claims.
The Court also sua sponte addresses Plaintiffs'
wage payment claim under Conn. Gen. Stat. §§ 31-71
and 31-72 because it relates to the award of actual and
liquidated damages for which the Plaintiffs seek judgment.
For the following reasons, the Court GRANTS Plaintiffs'
motion for partial summary judgment and awards damages in the
amount of $175, 664.24.
following undisputed facts are drawn primarily from
Plaintiffs' 56(a)1 Statement. As the Defendants did not oppose the
Plaintiffs' Motion for Summary Judgment, the Court also
considers all facts from the Amended Complaint to be
undisputed where they are either admitted by the Defendants
or supported by evidence. See Fed.R.Civ.P. 56(e).
Heaven, Inc. (“Gourmet Heaven”) is a Connecticut
corporation that operated at the relevant time two grocery
stores in New Haven, CT. [Dkt. 64 ¶¶ 11-12; Dkt. 85
¶¶ 11-12; Dkt. 93, Ex. 10 ¶ 3]. Gourmet Heaven
purchased food and other products originating outside
Connecticut, generating more than $500, 000 in annual
revenue. [Dkt. 64 ¶¶ 13-14; Dkt. 85
¶¶13-14]. The company also hired, paid, supervised
and scheduled the work performed by the Plaintiffs. [Dkt. 64
¶15; Dkt. 85 ¶15].
Cho (“Cho”) is the President and sole owner of
Gourmet Heaven. [Dkt. 64 ¶¶16-17; Dkt. 85
¶¶16-17]. He is personally primarily responsible
for all operations of the business, including hiring and
firing employees, wage payments, and maintaining records.
[Dkt. 93, Ex. 10 ¶ 5; see also Dkt. 93, Ex. 8
¶ 9 (Cho claimed to conduct “day to day
affairs” of Gourmet Heaven as his “own
business” in an unrelated civil case filed in the
District of Connecticut)]. Cho paid all his employees,
including the Plaintiffs in this case, in cash and did not
post legally-required notices of wage and hour rights or
otherwise inform his employees of their said rights. [Dkt.
93, Ex. 10 ¶ 7].
are six individuals who worked for Gourmet Heaven and Cho in
one or both of the New Haven grocery stores. See
[id. at ¶ 7]. Ulber Morales (“U.
Morales”) worked for Defendants making deli sandwiches
from July 2011 until January 2012. [Dkt. 93. Ex. 7 ¶ 2].
U. Morales saw Cho almost every week at the grocery store.
[Id. at ¶ 4]. Cho determined U. Morales's
pay, including a salary raise. [Id. at ¶ 6].
Defendants did not keep an accurate record of Morales's
hours or pay. [Dkt. 64 ¶ 43; see Dkt. 93, Ex.
10 ¶ 11].
Olivar (“Olivar”) worked for Defendants from June
4, 2006, until December 21, 2013. [Dkt. 93. Ex. 6 ¶ 2].
Olivar saw Cho almost every week at Gourmet Heaven, and Cho
personally interviewed him, hired him, set his hours, and
approved of any requested changes in his schedule.
[Id. at ¶ 6]. Cho also personally paid Olivar
multiple times, and they negotiated Olivar's salary.
[Id. at ¶ 7]. Cho gave Olivar direction on
flower and produce arrangements. [Id. at ¶ 8].
Defendants did not keep an accurate record of Olivar's
hours or pay. [Dkt. 64 ¶ 38; Dkt. 93, Ex. 10 ¶ 11].
Ramirez (“H. Ramirez”) worked for Defendants in
the kitchen from January 2012 until December 2013. [Dkt. 93,
Ex. 4 ¶ 2]. Cho personally paid H. Ramirez in cash on
many occasions, and H. Ramirez signed a record of the
payment. [Id. ¶ 5]. Defendants did not keep an
accurate record of H. Ramirez's hours or pay. [Dkt. 64
¶ 48; see Dkt. 93, Ex. 10 ¶ 11].
Rodriguez (“Rodriguez”) has worked for Defendants
since March 2003. [Dkt. 64 ¶ 49; Dkt. 93, Ex. 11 ¶
5]. From 2003 until 2014, he typically worked at least 72
hours per week. [Id. at ¶ 6]. Defendants did
not keep an accurate record of Rodriguez's hours or pay.
[Dkt. 64 ¶ 53; see Dkt. 93, Ex. 10 ¶ 11].
Ramirez (“C. Ramirez”) worked for Defendants in
the front of the store from September 2010 until December
2013. [Dkt. 93, Ex. 3 ¶ 2]. Cho had control over his
schedule; for example, one time Cho refused to allow Ramirez
to reduce his schedule to five days a week. [Id. at
¶ 5]. Cho also often personally paid C. Ramirez in cash.
[Id. at ¶ 6]. Defendants did not keep an
accurate record of C. Ramirez's hours or pay. [Dkt. 64
¶ 58; see Dkt. 93, Ex. 10 ¶ 11].
Morales (“M. Morales”) worked for Defendants in
the kitchen from June 2009 until December 2013. [Dkt. 93, Ex.
5 ¶ 2]. Morales observed Cho at the store almost every
week, where he worked in his office “all the time,
” monitoring the employees on computer screens
connected to cameras. [Id. at ¶ 4]. One time,
M. Morales burned himself, and Cho told him that he would be
fired if he missed more than three days of work.
[Id. at ¶ 5]. Cho oversaw the kitchen
workers' hours and determined the types of foods they
cooked on any given day. [Id. at ¶¶ 6-7].
Defendants did not keep an accurate record of Morales's
hours or pay. [Dkt. 64 ¶ 63; see Dkt. 93, Ex.
10 ¶ 11].
Connecticut Department of Labor Investigation
receiving a complaint by U. Morales, the Connecticut
Department of Labor (“CT-DOL”) initiated an
investigation on June 24, 2013, regarding Gourmet
Heaven's potential violations of Connecticut's wage
and hour and wage payment laws. See [Dkt. 93, Ex. 7
¶ 9, Ex. 10 ¶ 4]. The audit period spanned from
June 19, 2011 through August 2, 2013. [Dkt. 93, Ex. 10 ¶
11]. With respect to the Plaintiffs, the investigator
concluded that Cho owed them overtime compensation in the
Wages Due from Audit 1
the investigation commenced, Cho told his employees he
intended to pay them partly under the table and warned them
not to speak to the CT-DOL about their wages. [Dkt. 93, Ex. 4
¶ 7]. He told the employees to punch in only 40 hours on
their timesheets and that he would pay the rest of their
earnings in cash, but he never paid the overtime as promised.
[Dkt. 93, Ex. 3 ¶ 10]. Several Gourmet Heaven employees,
including M. Morales, lived in an apartment owned by Cho.
[Dkt. 93, Ex. 5 ¶ 8]. Cho threatened the employees that
“the [G]overnment would find [them] in the apartment
and kick [them] out of the country” if they spoke to
the CT-DOL. [Id.] In addition, Cho advised Gourmet
Heaven employees to run out the back door should the CT-DOL
ever arrive on site. [Id. at ¶ 9]. He notified
them they would lose their jobs if they talked to the CT-DOL.
[Dkt. 93, Ex. 3 ¶ 10].
investigation revealed that Cho's records were
“incomplete and out of compliance with state law
standards.” [Dkt. 93, Ex. 10 ¶ 12]. After the
audit concluded, the investigator counseled Cho about proper
compliance with state overtime laws. [Id. ¶
12]. However, Cho continued to violate the record-keeping and
overtime statutes. See [id. at ¶ 15].
The investigator determined that the Plaintiffs were entitled
to additional wages:
Wages Due from Audit 2
total amount of unpaid wages Cho owed each Plaintiff was:
Wages Due (Sum of Audits)
[Id. ¶ 11].
result of his unremitting violations of state wage and hour
laws, Cho was indicted and charged with multiple counts of
criminal wage payment law violations, failure to maintain
wage records, defrauding immigrant workers, and First Degree
Larceny. [Id. at ¶ 18]. Cho entered into an
agreement with the CT-DOL to pay back a portion of the wages
due, and, as a result of a late payment, the CT-DOL submitted
arrest warrants against him. [Dkt. 93, Ex. 13 at 1]. On
November 17, 2014, the state court granted Cho accelerated
rehabilitation on several conditions, including that Cho pay
back all the money he owed as a result of the CT-DOL
investigation. [Id. at 4]. Cho paid all the wages
listed above as of April 2015 and also issued an apology
letter to Plaintiffs. [Dkt. 93, Ex. 10 ¶ 20, Ex. 14].
Standard of Review
judgment should be granted if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). The
moving party bears the burden of proving that no genuine
factual disputes exist. See Vivenzio v. City of
Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). “In
determining whether that burden has been met, the court is
required to resolve all ambiguities and credit all factual
inferences that could be drawn in favor of the party against
whom summary judgment is sought.” Id. (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986); Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986)). Where, as here,
“a motion for summary judgment is unopposed, the
district court is not relieved of its duty to decide whether
the movant is entitled to judgment as a matter of law.”
Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d
241, 242 (2d Cir. 2004). “If the evidence submitted in
support of the summary judgment motion does not meet the
movant's burden of production, then ‘summary
judgment must be denied even if no opposing evidentiary
matter is presented.'” Id. at 244
(emphasis omitted) (quoting Amaker v. Foley, 274
F.3d 677, 681 (2d Cir. 2001)).
FLSA generally requires employers to pay employees the
federal minimum wage for every hour worked and to compensate
employees for hours worked in excess of forty hours at a rate
of one and one-half times the regular rate. 29 U.S.C. §
207(a)(1). A plaintiff claiming unpaid minimum or overtime
wages under the FLSA must show that: (1) the plaintiff
engaged in commerce or is employed by an enterprise engaged
in commerce; (2) the defendant employed the plaintiff; and
(3) the plaintiff performed work for which he was not
properly compensated. See Zhong v. Aug. Aug. Corp.,
498 F.Supp.2d 625, 628 (S.D.N.Y. 2007); see also Morgan
v. Family Dollar Stores, Inc., 551 F.3d 1233, 1277 n.68
(11th Cir. 2008). The Court addresses each element in turn.
FLSA's minimum wage and overtime provisions apply to an
employee who is: (1) “engaged in commerce or in the
production of goods for commerce”; or (2)
“employed in an enterprise engaged in commerce or in
the production of goods for commerce.” 29 U.S.C. §
207(a)(1). “The two categories are commonly referred to
as ‘individual' and ‘enterprise'
coverage, respectively.” Jacobs v. New York
Foundling Hosp., 577 F.3d 93, 96 (2d Cir. 2009). A
plaintiff bears the burden of proving either individual or
enterprise coverage. See Rocha v. Bakhter Afghan Halal