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Morales v. Gourmet Heaven, Inc.

United States District Court, D. Connecticut

November 29, 2016

ULBER MORALES, JULIO OLIVAR, HISAI RAMIREZ, ALEJANDRO RODRIGUEZ, CRISTIAN RAMIREZ, and MISAEL MORALES, Plaintiffs,
v.
GOURMET HEAVEN, INC., CHUNG CHO, and YONG CHO Defendants.

          MEMORANDUM OF DECISION

          Hon. Vanessa L. Bryant United States District Judge.

         Plaintiffs 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”).[1] 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.

         Facts

         The following undisputed facts are drawn primarily from Plaintiffs' 56(a)1 Statement.[2] 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).

         I. Defendants

         Gourmet 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].

         Chung 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].

         II. Plaintiffs

         Plaintiffs 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].

         Julio 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].

         Hisai 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].

         Alejandro 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].

         Cristian 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].

         Misael 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].

         III. Connecticut Department of Labor Investigation

         Upon 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 following amounts:

Plaintiff

Wages Due from Audit 1

Ulber Morales

$8, 291.00

Julio Olivar

$7, 136.63

Hisai Ramirez

$12, 024.00

Alejandro Rodriguez

$25, 708.00

Cristian Ramirez

$14, 982.50

Misael Morales

$15, 546.75

See [id.].

         Once 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].

         The 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[3]:

Plaintiff

Wages Due from Audit 2

Ulber Morales

$0.00

Julio Olivar

$2, 152.92

Hisai Ramirez

$144.00

Alejandro Rodriguez

$1, 496.32

Cristian Ramirez

$190.00

Misael Morales

$160.00

[Id.]

         The total amount of unpaid wages Cho owed each Plaintiff was:

Plaintiff

Wages Due (Sum of Audits)

Ulber Morales

$8, 291.00

Julio Olivar

$9, 289.55

Hisai Ramirez

$12, 168.00

Alejandro Rodriguez

$27, 204.32

Cristian Ramirez

$15, 172.50

Misael Morales

$15, 706.75

[Id. ¶ 11].

         As a 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].

         Discussion

         I. Standard of Review

         Summary 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)).

         II. FLSA Claims

         The 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.[4] 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.

         A. Commerce Element

         The 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 ...


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