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holding that since "[p]laintiffs [could] collect a higher sum under the CMWA" than under the FLSA and the court would not award liquidated damages under both statutory schemes, the court would award plaintiffs "damages under [the state] provision," as courts may award the greater of the two liquidated damages awards when they are both available to a plaintiff and both serve the same purpose
Summary of this case from Velasquez v. U.S. 1 Farm Mkt., Inc.Opinion
No. 3:08cv479 (SRU)
03-26-2012
Maricarmen Andrade, et al., Plaintiffs, v. Jennifer Kwon, et al., Defendants.
RULING AND ORDER ON MOTION FOR DEFAULT JUDGMENT
The facts of this case concern the underpayment and mistreatment of the employees of two nail salons located in New Canaan and Darien, Connecticut. On April 1, 2008, plaintiffs Maricarmen Andrade, Juana Torres, and Irma Vivar brought suit against their former employers Jennifer Kwon, Young Soo Kwon, and Renaissance Nail Corp., d/b/a Renaissance Nail Salons ("the Kwon defendants"). The complaint alleged violations of federal and state minimum wage laws, statutory theft, illegal imposition of kickbacks, and unjust enrichment. On May 27, 2008, the plaintiffs amended their complaint (doc. # 14). The amended complaint added defendant Renaissance Nail Salon (Darien). The complaint was again amended on December 9, 2008 (doc. # 50) (hereinafter "Second Amended Complaint"). The Second Amended Complaint added as defendants Boram Oh and Chez Chelsea, Inc., and added as plaintiffs Natalie Zavala Hernandez, Leticia Flores, and Gloria Mastranzo. In addition to the claims raised in the initial two complaints, the Second Amended Complaint alleged claims of race and ethnicity discrimination and fraudulent conveyance. A Third Amended Complaint was filed on December 7, 2009 (doc. # 105) raising the additional claim of sexual harassment and hostile work environment.
On January 6, 2011, plaintiffs moved for entry of default pursuant to Rule 55(a) of the Federal Rules of Civil Procedure against defendants Jennifer Kwon, Young Soo Kwon, and Renaissance Nail Corp. The motion was granted (doc. # 183) and plaintiffs were directed to file a motion for default judgment pursuant to Fed. R. Civ. P. 55(b). Plaintiffs moved for default judgment (doc. # 189) and I ordered the parties to appear for a hearing on July 16, 2010 and show cause why a default judgment should or should not be entered against the Kwons and Renaissance Nail Corp. Defendants did not appear and therefore default judgment is granted in favor of plaintiffs; damages are calculated below.
Plaintiffs have since withdrawn their claims against Boram Oh, Renaissance Nail & Spa, Inc., and Chez Chelsea, Inc (f/k/a Chez Moi, Inc.). See doc. # 194.
I. Background
Examination of the second and third amended complaint and the plaintiffs' papers in support of their motion for entry of default judgment discloses the following undisputed facts.
Plaintiffs served the Third Amended Complaint on defendant Renaissance Nail Corp, but plaintiffs were unable to serve the Third Amended Complaint on Young Soo Kwon and Jennifer Kwon. (doc. #173). Plaintiffs have therefore moved for default judgment on the Second Amended Complaint with respect to the individual defendants, and for default judgment on the Third Amended Complaint with respect to the corporate defendant. The two complaints are the same save for an additional claim of sexual harassment in the Third Amended Complaint. Thus, the only practical consequence of entering default judgment with respect to two different complaints is that the individual defendants are not liable for sexual harassment.
The six plaintiffs, Maricarmen Andrade, Irma Karina Vivar, Juana Torres, Natalie Zavala Hernandez, Gloria Mastranzo, and Leticia Flores, worked at nail salons in New Canaan and Darien, Connecticut for different periods between July 1999 and August 2008. See doc. # 105 at ¶¶ 8-13, 16, 19, 22, 25). Renaissance Nail Salon was owned and operated by the Kwons. Id. at ¶¶ 16, 26, 27. Young Soo Kwon managed the salon and Jennifer Kwon participated in its operations and management. Id. at ¶¶ 31, 32; see also Andrade Aff., Ex. B, ¶ 6; Vivar Aff., Ex. C, ¶ 7; Torres Aff., Ex. D, ¶ 7; Zavala Aff., Ex. E, ¶ 6; Mastranzo Aff., Ex. F, ¶ 6; Flores Aff., Ex. G, ¶ 7. The Kwons hired the plaintiffs and controlled all aspects of their work including plaintiffs' schedules, duties, and pay. Andrade Aff., Ex. B, ¶¶ 2, 6, 9; Vivar Aff., Ex. C, ¶¶ 2, 7, 9; Torres Aff., Ex. D, ¶¶ 2, 7, 8; Zavala Aff., Ex. E., ¶¶ 2, 6, 9; Mastranzo Aff., Ex. F.. ¶¶ 2, 5, 6; Flores Aff., Ex. G., ¶¶ 7, 16.
In general, the plaintiffs were responsible for performing manicures, pedicures, waxing, and massages. Plaintiffs also cleaned the salon and reviewed inventory. See Third Am. Compl. ¶¶ 8-13; Andrade Aff., Ex. B, ¶ 7; Vivar Aff., Ex. C, ¶ 8; Torres Aff., Ex. D, ¶ 6; Zavala Aff., Ex. E, ¶ 8; Mastranzo Aff., Ex. F, ¶ 4; Flores Aff., Ex. G, ¶ 6. The plaintiffs worked three to six days a week from about 9:30 a.m. to 7:00 p.m; they were paid between $30 and $80 per day. Andrade Aff., Ex. B, ¶ 10; Vivar Aff., Ex. C, ¶¶ 11-12; Torres Aff., Ex. D, ¶¶ 9-12; Zavala Aff., Ex. E, ¶¶ 10-17; Mastranzo Aff., Ex. F, ¶¶ 11-14; Flores Aff., Ex. G, ¶ 3. Customers often gave plaintiffs tips, and some of this tip income, namely tips paid for with credit cards, was withheld by the Kwons. Andrade Aff., Ex. B, ¶¶ 16-17; Vivar Aff., Ex. C, ¶¶ 21-22; Torres Aff., Ex. D, ¶¶ 19-20. Upon being hired, Andrade, Vivar, and Torres were required to pay a "deposit" of approximately $80 each for the privilege of working. Andrade Aff., Ex. B at ¶ 9; Vivar Aff., Ex. C at ¶ 10; Torres Aff., Ex. D at ¶ 8.
Defendants employed only Latina and Asian immigrant women. Andrade Aff., Ex. B, ¶ 4; Vivar Aff., Ex. C, ¶ 5; Torres Aff., Ex. D, ¶ 4; Zavala Aff., Ex. E, ¶ 4; Mastranzo Aff., Ex. F, ¶ 7; Flores Aff., Ex. G, ¶ 9. Defendants treated their Latina employees differently from their Asian employees. Specifically, Latina employees were paid lower wages for similar work, assigned cleaning duties, denied restroom breaks and mealtimes, and subjected to yelling and racial slurs. Andrade Aff., Ex. B ¶¶ 14-30; Vivar Aff., Ex. C, ¶¶ 18-20, ¶¶ 24-30; Torres Aff., Ex. D, ¶¶ 22-31; Zavala Aff., Ex. E, ¶¶ 20-29; Mastranzo Aff., Ex. F, ¶¶ 16-26; Flores Aff., Ex. G, ¶¶ 9-19.
In addition, Young Soo Kwon subjected Andrade, Torres, and Vivar to unwanted touching on a regular basis, and forced them to give him massages several times a week. Andrade Aff., Ex. B, ¶¶ 38-43; Vivar Aff., Ex. C, ¶¶ 33-38; Torres Aff., Ex. D, ¶¶ 34-42. Young Soo Kwon told Andrade that he enjoyed touching women sexually and opined that Mexican women in particular liked hearing this kind of talk. Andrade Aff., Ex. B, ¶ 39. He also routinely referred to Latina workers using gendered expletives like "bitch." Vivar Aff., Ex. C, ¶ 28. Kwon was also physically abusive: He slapped Latina workers on the arm when they made mistakes and when he did not like their work. Torres Aff., Ex. D, ¶¶ 35. Andrade, Torres, and Vivar all requested that Young Soo Kwon stop touching them, and told Kwon that his sexual commentary made them uncomfortable. Andrade Aff., Ex. B, ¶¶ 38-43; Vivar Aff., Ex. C, ¶¶ 33-38; Torres Aff., Ex. D, ¶¶ 34-42.
Andrade, Torres, and Vivar were terminated from and/or quit employment with the Kwons in 2007. Andrade Aff., Ex. B, ¶ 49; Vivar Aff., Ex. C, ¶ 40; Torres Aff., Ex. D, ¶ 47. Zavala Hernandez and Mastranzo continued working through the transfer of the salon to another owner.
II. Discussion
Upon entry of a default judgment for "failure to plead or otherwise defend" against a complaint, a defendant admits every "well-pleaded allegation" of the complaint except those relating to damages. See Trans World Airlines, Inc. v. Hughes, 449 F.2d 51, 63 (2d Cir. 1971), rev'd on other grounds, 409 U.S. 363 (1973); Flaks v. Koegel, 504 F.2d 702, 704 (2d Cir. 1974) ("While a default judgment constitutes an admission of liability, the quantum of damages remains to be established unless the amount of damages is liquidated or susceptible of mathematical computation"); see also Time Warner Cable of New York City v. Barnes, 13 F. Supp. 2d 543, 547 (S.D.N.Y. 1998). All reasonable inferences should be drawn in favor of the prevailing party. Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981). Accordingly, the factual allegations of the complaint, as set forth above, except those relating to the amount of damages, must be taken as true. Id.; see also 10A Federal Practice § 2688 (3d ed. 1998); Fed. R. Civ. P. 8(d).
Plaintiffs' claims under federal and Connecticut wage-and-hour laws, and state statutory and common law claims are susceptible to mathematical computation. Generally, "damages, which are neither susceptible of mathematical computation nor liquidated as of the default, usually must be established by the plaintiff in an evidentiary proceeding . . ." Greyhound Exhibitgroup, Inc. v. E.L. U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). A court may forgo an evidentiary hearing "as long as [it] ensure[s] that there [is] a basis for the damages specified." Fustok v. ContiCommodity Services Inc., 973 F.2d 38, 40 (2d Cir. 1993). Here, plaintiffs' affidavits are sufficient to award garden-variety damages on their section 1981 and sexual harassment/hostile work environment claims. See id. at 40; see also Perez v. Jasper Trading, Inc., 2007 WL 4441062 at *5 (E.D.N.Y. 2007) ("Where an employer . . . fails to contest the assertions made by the plaintiff, the recollections of the employees are presumed to be accurate.").
A. Minimum Wage Violations (Counts 1 & 2)
Both federal and state laws require employers to pay workers a minimum wage for every hour worked. 29 U.S.C. § 206; Conn. Gen. Stat. § 31-60.
1. Federal Liability (Plaintiffs Andrade, Torres, Zavala Hernandez, and Matrazano)
Plaintiffs Flores and Andrade withdrew their minimum wage claims against the Kwons and Renaissance Nail Corp. See doc. # 189.
Under the Fair Labor Standards Act ("FLSA"), plaintiffs must prove that the defendants employed plaintiffs and paid them less than the minimum wage. 29 U.S.C. § 206. The statute defines an "employee" as "any individual employed by an employer," 29 U.S.C. § 203(e)(1), and defines "employ" as "to suffer or permit to work." 29 U.S.C. § 203(g). The Second Circuit has interpreted these provisions to require that a defendant controlled a plaintiff's conditions of employment. See Zheng v. Liberty Apparel Co., 355 F.3d 61, 69 (2d Cir. 2003) (outlining factors for whether a defendant qualified as an employer, including hiring authority, supervisory responsibility, and control over wages and records). The FLSA has a three-year statute of limitations for willful violations of the law. 29 U.S.C. § 255(a).
Plaintiffs have pled sufficient facts to establish a minimum wage violation under federal law. According to plaintiffs' affidavits, the Kwons controlled plaintiffs' hours, supervised their work, and determined their pay. Plaintiffs submitted evidence that the Kwons paid them at an hourly rate lower than the federal minimum wage. The Kwons did so willfully-- they knew enough about the minimum wage to post a notice concerning labor laws in one of their salons, but did not follow their own advice. Thus, defendants are liable for underpaying plaintiffs.
2. State Liability (Plaintiffs Andrade, Torres, Zavala Hernandez, and Matrazano)
The Connecticut Minimum Wage Act ("CMWA") liability standard mirrors the FLSA's with two exceptions. The CMWA's definition of an "employer" is narrower than the FLSA's; the act covers "individual[s] who possesses the ultimate authority and control . . . to set the [employee's] hours . . . and pay wages and is . . . the specific cause" of a wage violation. Butler v. Hartford Technical Inst, 243 Conn. 454, 462 n.8 (Conn. 1997). And the CMWA has a two year statute of limitations for any violation, including a reckless or willful disregard for the law. Conn. Gen. Stat. § 52-596.
Plaintiffs have also pled sufficient facts to establish a minimum wage violation under the CMWA. Plaintiffs allege that the Kwons paid plaintiffs at an hourly rate below the state minimum wage. The Kwons were the sole managers of Renaissance Nail Corporation, and had sole authority over plaintiffs' wages. Thus, defendants are liable for any wage violation under state law.
3. Back Pay for Minimum Wage Violations
Plaintiffs can recover back pay under either the FLSA or the CMWA. 29 U.S.C. § 216(b) (allowing recovery of "payment of wages lost"); Conn. Gen. Stat. § 31-72 (granting recovery of unpaid wages). Connecticut's minimum wage was higher than the federal minimum wage during the time that plaintiffs worked for the Kwon defendants. Under the FLSA, where both state and federal law apply, and the state minimum wage is higher than the federal minimum wage, the federal wage rate is calculated based on the higher state rate. See 29 C.F.R. § 778.5 (stating that the "regular rate at which [a worker] is employed . . . cannot be lower than such applicable [state] minimum"). I have therefore calculated back pay based on the Connecticut minimum wage:
The federal minimum wage was $5.15 per hour between September 1, 1997 and July 23, 2007, $5.85 between July 24, 2007 and July 23, 2008, $6.55 per hour between July 24, 2008 and July 23, 2009, and $7.25 per hour since July 24, 2009. 29 U.S.C. § 206(a)(1). The state minimum wage was $7.40 between January 1, 2006 and December 31, 2006, and $7.65 between January 1, 2007 and December 31, 2008. Conn. Gen. Stat. § 31-58.
| Maricarmen Andrade | $ 1,938.45 |
| Juana Torres | $ 6,140.28 |
| $ 13,108.27 | |
| $ 4,949.59 | |
|---|---|
| Total | $26,146.59 |
Zavala Hernandez filed her complaint on December 9, 2008, so her unpaid wage claims from April 2, 2006 to December 8, 2006 fall outside Connecticut's statute of limitations. I therefore calculated back pay for that time period based on the federal minimum wage, $5.15 per hour, rather than the Connecticut minimum wage.
Mastranzo filed her complaint on December 9, 2008, so her unpaid wages from April 2, 2006 to December 8, 2006 fall outside Connecticut's statute of limitations. I therefore calculated back pay for that time period based on the federal minimum wage, $5.15 per hour, rather than the Connecticut minimum wage.
B. Overtime Violations (Counts 3 & 4) (Plaintiffs Vivar, Torres, Zavala Hernandez, and Mastrazano)
Both federal and state law entitle workers to at least one and one-half times their regular pay for each hour worked over 40 per week. 29 U.S.C. § 207; Conn. Gen. Stat. § 31-76(c).
1. Federal Liability (Plaintiffs Vivar, Torres, Zavala Hernandez, and Mastrazano)
As stated above, plaintiffs have pled sufficient facts to establish that the Kwon defendants qualified as employers under the FLSA, and that the Kwon defendants willfully violated federal labor law. Plaintiffs have submitted evidence that the Kwons did not pay plaintiffs at a higher rate for hours worked in excess of 40 per week. Thus, defendants are liable for underpaying plaintiffs.
2. State Liability (Plaintiffs Torres and Zavala Hernandez)
As stated above, plaintiffs have pled sufficient facts to establish that the Kwons qualified as employers under the CMWA. Plaintiffs have submitted evidence that the Kwons did not pay plaintiffs at a higher rate for hours worked in excess of 40 per week. See Ex. A. Thus, defendants are liable for underpaying plaintiffs.
3. Back Pay for Overtime Violations
As with their minimum wage claims, plaintiffs can recover damages for their overtime violations under either the FLSA or the CMWA. I have calculated damages using Connecticut's higher minimum wage.
| Irma Vivar | $ 3,118.31 |
| Juana Torres | $ 2,970.47 |
| $ 8,898.58 | |
| $ 651.49 | |
|---|---|
| Total | $ 15,638.85 |
Zavala Hernandez's overtime claims for the period between April 2, 2006 and December 8, 2006 fall outside Connecticut's statute of limitations. See supra n.5.
Mastranzo's overtime claims for the period between April 2, 2006 and December 8, 2006 fall outside Connecticut's statute of limitations. See supra n. 6.
C. Liquidated Damages Under the FLSA and the CMWA
Plaintiffs seek recovery of liquidated damages under both federal and state law for their minimum wage and overtime claims. Under the FLSA, successful plaintiffs can collect "the payment of wages lost and an additional equal amount as liquidated damages." 29 U.S.C. § 216(b). The CMWA also awards double damages; workers receive "twice the full amount of [withheld] wages." Conn. Gen. Stat. § 31-72. Some Connecticut and New York courts have allowed prevailing parties to collect liquidated damages under both federal and state labor laws when those laws "serve fundamentally different purposes." See, e.g., Morales v. Charlie's Cancun, No. 07-1836, 2010 U.S. Dist. LEXIS 125516 at *27 (D. Conn. Nov. 23, 2010) (awarding damages under both FLSA and the CMWA because "FLSA damages are compensatory," and "CMWA damages serve a punitive purpose"); Ke v. Saigon Grill, 595 F. Supp. 2d 240, 262 (S.D.N.Y. 2008) (reasoning that the FLSA's damages "serve as form of prejudgment interest" while New York damages for unpaid work "are punitive in nature").
At issue in this case is whether liquidated damages under the FLSA and the CMWA "serve fundamentally different purposes." Federal courts have described the FLSA's liquidated damages provision as "compensatory rather than punitive in nature." Reich v. S. New England Telecomm. Corp., 121 F.3d 58, 71 (2d Cir. 1997). State courts have characterized the CMWA's damage award as "provid[ing] penalties . . . to deter employers" from underpaying workers. Shortt v. New Milford Police Dep't, 212 Conn. 294, 309 (1989). Plaintiffs rely on this distinction, between a "compensatory" award for workers and a "penalty" for employers, to argue that the statutes compensate workers for different reasons.
I disagree. Though courts have diverged in how they describe the two provisions, courts have reasoned that the provisions serve the same principal aims. Both statutes were enacted to deter employers from underpaying workers. Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 709 (1945) (noting that section 216(b) is an "enforcement provision" with a "deterrent effect which Congress plainly intended"); Shortt, 212 Conn. at 309 (stating that the CMWA was enacted "to deter employers from deferring wage payments"). And both statutes redress harm caused by the same conduct; the provisions only award liquidated damages for willful violations of the law. 29 U.S.C. § 216(b) (allowing employers to rebut a presumption of double damages by showing that they acted in "good faith"); Conn. Gen. Stat. § 31-72 (requiring plaintiffs to prove employers acted with "bad faith, arbitrariness, or unreasonableness"). Thus, even though federal courts characterize FLSA's liquidated damage clause as "compensatory," and Connecticut courts call the CMWA's clause a "penalty," both provisions serve a similar purpose — they deter employers from ignoring wage and hour laws, and raise the price for willful violations of those laws.
For similar reasons, several New York federal district courts have declined to award liquidated damages under both the FLSA and New York's wage and hour statute. Pineda-Herrara v. Da-Ar-Da, No. 09-5140, 2011 U.S. Dist. LEXIS 57121 at *15 (E.D.N.Y. May 26, 2011) (holding that the FLSA and New York labor law's liquidated damages provisions remedy the same harm and serve the same purpose); Jin v. Pac. Buffet House, No. 06-579, 2009 U.S. Dist. LEXIS at * 24 (E.D.N.Y. Aug. 24, 2009)(same); Chin Jie Yin v. Kim, No. 07-1236, 2008 U.S. Dist LEXIS 118533 at * 25 (E.D.N.Y. March 7, 2008) (same); Chan v. Sung Yue Tung Corp., 03-6048, 2007 U.S. Dist. LEXIS 7770 at *28-29 (S.D.N.Y. Feb. 1, 2007) (calculating liquidated damages only on those state law claims not covered by the FLSA's liquidated damage award).
Some of the confusion over the "punitive" nature of the CMWA may stem from the Connecticut Supreme Court's use of the word "penalties" to describe its liquidated damages clause. In Shortt v. New Milford Police Dep't, the Connecticut Supreme Court held that an employee had to exhaust administrative grievance procedures mandated by a collective bargaining agreement before the employee pursued statutory remedies. 212 Conn. at 310. Because the CMWA only afforded "an additional remedy for wages otherwise determined to be due," the Court reasoned, it did not "create a substantive right to collect wages" independent from the employee's union contract. Id. at 305, 309. In reaching this conclusion, the Court characterized the CMWA as "provid[ing] penalties." Id. at 309. But it did so to distinguish a remedy, double damages, from a right, payment for work. The Court did not use the word "penalties" to equate the CMWA's damages provision with damages awarded to punish wanton behavior at common law. See Harty v. Cantor Fitzgerald & Co., 275 Conn. 72, 93 (2005) (distinguishing the CMWA's double damages award from common law punitive damages).
Since the FLSA and the CMWA's liquidated damages do not "serve fundamentally different purposes," plaintiffs may only recover an award under one of the statutes. Plaintiffs can collect a higher sum under the CMWA, so I award damages under that provision. See Pineda-Herrara, No. 09-5140, 2011 U.S. Dist. LEXIS 57121 at *15 (E.D.N.Y. May 26, 2011) (stating that courts award the greater of the two liquidated damages awards when both are available and both serve the same purpose). Where a statute of limitations bars plaintiffs from recovering double damages under the CMWA, I award liquidated damages under the FLSA:
| Irma Vivar | $ 3,118.31 |
| Maricarmen Andrade | $ 1,938.45 |
| Juana Torres | $ 9,110.75 |
| $ 22,006.85 | |
| $ 5,601.08 | |
|---|---|
| Total | $ 41,775.44 |
Zavala Hernandez's award is limited by Connecticut's statute of limitations. See supra n.5.
Mastranzo's award is limited by Connecticut's statute of limitations. See supra n.6.
D. State Kickback (Plaintiffs Andrade, Vivar, and Torres)
Under Connecticut law, an employer may not "demand . . . any . . . fee, sum of money or contribution from any person . . . upon representation . . . that such fee, sum of money or contribution is necessary to secure employment." Conn. Gen. Stat. § 31-73. According to Plaintiffs' affidavits, the Kwon defendants forced workers to pay an 80-dollar deposit to secure employment. The Kwon defendants never returned that deposit. Plaintiffs have pled sufficient facts to prove a state kickback claim, and I award the following damages:
| Maricarmen Andrade | $ 80 |
| Karina Vivar | $ 80 |
| Juana Torres | $ 80 |
|---|---|
| Total | $ 240 |
E. State Unjust Enrichment and Statutory Theft Claims (Counts 6 & 7) (Plaintiffs Vivar, Andrade, Torres)
Plaintiffs claim defendants stole their tips on a daily basis, and seek damages for their loss. Plaintiffs advance two theories of recovery—statutory theft and unjust enrichment.
1. Statutory Theft
To prove statutory theft, plaintiffs must demonstrate that (1) defendant intentionally deprived plaintiff of property, (2) the property belonged to plaintiff, and (3) the defendant's conduct was unauthorized. Discover Leasing Inc. v. Murphy, 33 Conn. App. 303, 309 (1993). Prevailing plaintiffs can recover treble damages. Conn. Gen. Stat. § 52-564.
Plaintiffs have pled sufficient facts to establish statutory theft. Customers gave plaintiffs tips on a regular basis. When customers paid for tips with credit cards, the Kwon defendants routinely kept portions of those tips for themselves. The plaintiffs never gave the Kwons permission to withhold portions of their tips. Indeed, plaintiffs confronted the Kwons about their stolen tips, and, rather than admit their error, the Kwons denied any wrongdoing and continued to take plaintiffs' money. The Kwon defendants are liable for statutory theft, and plaintiffs can collect treble damages.
2. Unjust Enrichment
To prove unjust enrichment, a plaintiff must show that (1) defendants received something of value, (2) defendants unjustly did not pay the plaintiffs for the benefit, and (3) the failure of payment was to the plaintiffs' detriment. Hartford Whalers Hockey Club v. Uniroyal Goodrich Tire Co., 231 Conn. 276, 283 (1994). Courts award plaintiffs restitution, or, in other words, courts measure damages "not [by] the loss to the plaintiff but [by] the benefit to the defendant." Id. at 285.
Plaintiffs have pled sufficient facts to prove unjust enrichment. The Kwons never compensated plaintiffs for lost tips; defendants never, for example, supplemented plaintiffs' salary at a set rate, or shared a pool of tips among workers. Plaintiffs suffered a financial loss every time the Kwons stole portions of their income. The Kwons have profited unjustly from plaintiffs' loss, and plaintiffs may collect damages equal to the amount defendants were unjustly enriched.
3. Damages for Lost Tips
Plaintiffs seek compensation for their lost tips under two causes of action. But plaintiffs have not offered a reason why they should be compensated twice for the same harm. Unjust enrichment is an equitable remedy that courts invoke when "no [other] remedy is available," and it would be "contrary to equity and good conscience for defendant to retain a benefit which has come to him at the expense of another." Hartford Whalers Hockey Club, 231 Conn. at 282. Here, plaintiffs can recover triple damages from the defendants. This sum both compensates plaintiffs for the value of their lost income, and will also disgorge defendants of any benefit derived from shortchanging plaintiffs of their full tips. I therefore award plaintiffs damages under Conn. Gen. Stat. § 52-564 alone.
| Maricarmen Andrade | $ 1,234.00 |
| Karina Vivar | $ 6,203.00 |
| Juana Torres | $ 3,259.00 |
|---|---|
| Total | $ 10, 697.00 |
F. Federal Discrimination (Count Eight) (All Plaintiffs)
Plaintiffs claim that the Kwon defendants intentionally discriminated against them because of their Latina ethnicity, and in particular, plaintiffs claim that they received lower pay than Asian workers. Under section 1981, a plaintiff can recover damages for discrimination in the "terms and conditions of [their] employment." 41 U.S.C. § 1981(b). To establish a prima facie case of pay discrimination, plaintiffs must show that (1) they belonged to a protected class, (2) they were paid less than members outside of their protected class for similar work, and (3) defendants acted with discriminatory animus. Woodward v. TWC Media Solutions, No. 09-cv-3000, 2011 U.S. Dist. LEXIS 1536, at *37 (S.D.N.Y. 2011). Defendants can then offer a legitimate non-discriminatory reason for their actions, after which plaintiffs can respond with additional evidence that supports a finding of discrimination. Jenkins v. NYC Transit Auth., 201 Fed. Appx. 44, 45-46 (2d Cir. 2006) (stating that Title VII burden-shifting analysis applies to claims of intentional discrimination under section 1981).
Plaintiffs have offered sufficient facts to prove unlawful discrimination. Plaintiffs are all Latina. The Kwons paid plaintiffs less than Asian workers, allowed plaintiffs fewer breaks than Asian workers, and forced plaintiffs to clean stores while Asian workers had no maintenance duties. The Kwons were motivated by racial animus: they frequently disparaged Latino workers. For example, Young Soo Kwon once told plaintiff Andrade that "Mexicans are stupid and Koreans are smart." Defendants have offered no legitimate non-discriinatory reason for their actions, and, even if they had, plaintiffs' evidence demonstrates that plaintiffs' ethnicity was the sole cause of defendants' discriminatory treatment.
Plaintiffs are entitled to compensatory damages for the difference in their pay and for their emotional distress. See Johnson v. Railway Express Agency, 421 U.S. 454, 460 (1975) (noting that plaintiffs in section 1981 cases are entitled to both equitable and legal relief, including compensatory and, in some cases, punitive damages). Plaintiffs assert that Asian workers were paid about $15 more per day than plaintifffs. There are three levels of damages for emotional distress, and plaintiffs request the lowest grade of compensation, garden-variety damages. Based on plaintiffs' affidavits describing the varying harassment suffered by each individual, I find sufficient basis to award the following amounts:
| Pay Differential | Emotional Suffering | |
|---|---|---|
| Maricarmen Andrade | $ 1,646.00 | $ 4,000.00 |
| Karina Vivar | $ 11,250.00 | $ 6,000.00 |
| Juana Torres | $ 6,137.00 | $ 7,000.00 |
| Natalie Zavala | $ 9,501.00 | $ 5,000.00 |
| Gloria Mastranzo | $ 8,966.00 | $ 7,000.00 |
| Leticia Flores | $ 611.00 | $ 3,000.00 |
| Total | $ 38,109.00 | $ 32,000.00 |
G. State Sexual Harassment and Hostile Work Environment (Count Nine) (Plaintiffs Vivar, Andrade and Torres) (Defendant Renaissance Nail Corp. Only)
Connecticut law bars discrimination on the basis of race and sex in the workplace. Conn. Gen. Stat. § 46a-60. Plaintiffs allege that defendants subjected them to a hostile work environment that violated Connecticut's prohibition on discrimination on the basis of sex and race. To prove that a hostile environment was so extreme as to be discriminatory, plaintiff must show that "(1) her workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of her work . . . and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Buford v. McDonald's Corp., 321 F. Supp. 2d 358, 362 (D. Conn. 2004).
Connecticut's anti-discrimination statute mirrors the language of Title VII and state courts rely on federal precedent to assess claims. Conn. Gen. Stat. § 46a-60; Crane v. Trinity College, 259 Conn. 625, 637 n.6 (2002).
Plaintiffs have pled sufficient facts to establish the first step in a hostile work environment claim. A workplace is "permeated" by animus when "a reasonable person would find the environment abusive," and the plaintiff also "perceive[d] the environment to be abusive so that it actually alter[ed]" her experience at work. Miller v. Praxair, No. 05cv402, 2009 WL 1748026 at *10 (D. Conn. June 18, 2009) (citing Torres v. Pisano, 116 F.3d 625, 632 (2d Cir. 1997)). Any reasonable person would find the Kwons' behavior abusive. Young Soo Kwon touched plaintiffs on their bottoms, waists, arms, and faces on a weekly basis. He forced plaintiffs to give him massages several times a week. He slapped plaintiffs when he was displeased with their work. The Kwons also verbally abused plaintiffs. The Kwons yelled and banged on the bathroom door when plaintiffs used the restroom. Young Soo Kwon often referred to plaintiffs using gendered expletives like "bitch." The Kwons' harassment altered plaintiffs' subjective experience at work; all three said they were afraid to go to work, and often felt too depressed to focus. Finally, plaintiffs must show "animus," and, here, the Kwon's abuse stemmed from a bias against plaintiffs' sex and ethnicity. The Kwons never subjected Asian workers to harassment. Young Soo Kwon told plaintiff Andrade that "all Hispanic women, especially Mexican women, liked to hear" crude coments, and Jennifer Kwon later told Andrade that "all Mexicans are stupid." Thus, plaintiffs have shown that the Kwons subjected them to severe and pervasive harassment at work.
Plaintiffs have also provided a sufficient basis to hold Renaissance Nail Corp. liable for the Kwons' conduct. An employer is presumptively liable for its employees' acts within the scope of their employment, and only avoids liability if it can show that it "exercised reasonable care to prevent and promptly correct any sexual harassment" or that "the employee unreasonably failed to avail herself of any corrective or preventative opportunities." Buford, 321 F. Supp. at 364. Here, Renaissance Nail Corp. has not raised an affirmative defense, nor could it. The Kwons are the sole owners of Renaissance Nail Corp. They did nothing to correct their own actions. They did not provide employees with an avenue to complain, nor did they listen to plaintiffs' frequent requests to alter their behavior. Thus, the court can impute the Kwons' conduct to Renaissance Nail Corp.
As with their pay discrimination claim, plaintiffs request garden-variety damages for the distress they suffered in a hostile workplace. In the Second Circuit, emotional distress awards vary greatly. Recent cases have calculated the range of awards to be between $30,000 and $125,000. Wallace v. Suffolk Co. Police Dep't., No. 04cv2599, 2010 U.S. Dist. LEXIS 100796 at *30 (E.D.N.Y. Sept. 24, 2010); Olsen v. County of Nassau, 615 F. Supp. 2d. 35, 46 (E.D.N.Y. 2009). Plaintiffs place their injury in the "mid-range" of that spectrum, and request a "conservative" award. Based on plaintiffs' affidavits describing the varying harassment suffered by each individual, I find sufficient basis to award the following damages:
| Maricarmen Andrade | $ 10,000.00 |
| Karina Vivar | $ 20,000.00 |
| Juana Torres | $ 15,000.00 |
|---|---|
| Total | $ 45,000.00 |
H. Attorneys' Fees
Under both the FLSA and the CMWA, plaintiffs can recover reasonable attorneys' fees. 29 U.S.C. § 216(b); Conn. Gen. Stat. § 31-72. FLSA mandates such an award. Hagelthorn v. Kennecott, 710 F.2d. 76, 86 (2d Cir. 1983). Connecticut only grants an award when an employer demonstrates "bad faith, arbitrariness or unreasonableness." Crowther v. Gerber Garment Technology, 8 Conn. App. 254, 256 (1986). Because fees will be awarded under the FLSA, it is not necessary to decide whether plaintiffs qualify for attorneys' fees under state law.
In the Second Circuit, courts calculate fees based on "what a reasonable, paying client would be willing to pay . . . [in order to] . . . litigate the case effectively." Arbor Hill Concerned Citizens Ass'n v. County of Albany, 493 F.3d 110, 112, 118 (2d Cir. 2007). Courts determine a reasonable hourly rate of pay based on a host of factors, including the complexity of the case, an attorney's experience, and fee awards in similar cases. Id. at 190. Courts then multiply that rate by the number of hours "reasonably required" to perform a task. For this reason, plaintiffs must submit contemporaneous time records so that courts can "determine the nature of the work done, the need for it, and the amount of time . . . required." F.H. Krear & Co. v. Nineteen Named Trustees, 810 F.2d 1250, 1265 (2d Cir. 1987).
Plaintiffs are represented by four attorneys at the Urban Justice Center and local counsel Peter Goselin. The Urban Justice Center requests fees at rates ranging from $200 per hour to $250 per hour depending on an attorney's years of experience. All four of the Center's attorneys have practiced law for less than six years. Based on a review of recent fee awards in Connecticut, the requested rates are at the upper end of the range of prevailing rates in the district. Compare McInnis v. Town of Weston, 458 F. Supp. 2d. 7, 21 (D. Conn. 2006) (approving rate of $200 per hour for junior and mid-level associates) with Drummond American v. Share Corp., No. 08cv1665, 2010 WL 2574096 at * 3 (D. Conn. April 9, 2010) (approving $330 per hour for a senior partner). The Urban Justice Center has submitted time sheets that show its attorneys spent a total of 222 hours on this case. The sum is reasonable given the length of the litigation, number of plaintiffs, and complexity of claims. I therefore award the Urban Justice Center a total of $51,985.00 in fees. The Urban Justice Center also requests reimbursement for the cost of transcription and translation services at two depositions. I award $2,156.68 to reimburse the Center for those expenses.
Attorney Goselin requests a fee award at a rate of $300 per hour for 50.7 hours of work. Attorney Goselin's rate is reasonable—he has practiced employment law in Connecticut for over fifteen years. But he has not submitted any contemporaneous time records, and I cannot assess whether he worked a reasonable number of hours on this case. For that reason, I will deduct thirty percent from his requested fee and award him $10,647.00. See Morales, 2010 U.S. Dist. LEXIS at *28 (deducting thirty percent of a fee award to account for lack of time records). Attorney Goselin also requests reimbursement for the cost of translation services for a hearing, and I award him $539.75 to cover that expense.
III. Conclusion
For the foregoing reasons, the Plaintiffs' Motion for Default Judgment against the Kwon defendants filed April 7, 2011 [doc. #189] is hereby GRANTED with respect to counts one through nine.
Judgment shall enter in favor of plaintiffs Andrade, Flores, Zavala Hernandez, Mastranzo, Torres, and Vivar against the Kwon defendants in the total amount of $209,606.88. The clerk shall enter judgment and close the file.
It is so ordered.
Dated at Bridgeport, Connecticut, this 26th day of March 2012.
/s/ Stefan Underhill
Stefan R. Underhill
United States District Judge