Opinion
20 Civ. 4174 (ALC) (GWG)
09-16-2022
THELMA GOMEZ, Plaintiff, v. NYHS DESIGN INC. d/b/a CLEO NICCI, EYEWEAR NEW YORK, Defendant.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Thelma Gomez brought this action against defendant NYHS Design Inc. d/b/a Cleo Nicci Eyewear New York (“NYHS”), seeking unpaid wages under the New York Labor Law §§ 190 et seq. (“NYLL”) and the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), emotional distress damages under the FLSA and NYLL, and back pay under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”), the New York State Human Rights Law, N.Y. State Exec. Law, §§ 296 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107(1), et seq. (“NYCHRL”). See Complaint, filed June 1, 2020 (Docket # 1) (“Comp.”). A default has been entered against NYHS. Gomez now seeks damages pursuant to the default.
See Plaintiff's Proposed Findings of Fact and Memorandum of Law, filed Jan. 28, 2022 (Docket # 32) (“Proposed Findings”); Declaration of Shawn Clark, filed Jan. 28, 2022 (Docket # 33) (“Clark Decl.”); Affidavit of Thelma Gomez, filed Mar. 22, 2022 (Docket # 35-1) (“Gomez Aff.”).
I. BACKGROUND
A. Procedural Background
Gomez filed the original complaint in this action on June 6, 2020. See Comp. She filed a proposed certificate of default for NYHS on September 9, 2020 (Docket # 11). On December 11, 2020, Gomez filed a motion for default judgment against NYHS (Docket # 18). On April 20, 2021, Judge Carter issued an Order to Show Cause, directing NYHS to explain why default judgment should not be entered (Docket # 22). NYHS did not respond, and Judge Carter granted Gomez's motion for default judgment on September 30, 2021 (Docket # 24). On December 10, 2021, Judge Carter referred this matter to the undersigned for an inquest on damages (Docket # 26). This Court then issued a scheduling order directing Gomez to file proposed findings of fact and conclusions of law. See Scheduling Order, filed Dec. 10, 2021 (Docket # 27) (“Scheduling Order”). Gomez filed proposed findings of fact and conclusions of law on January 28, 2022. See Proposed Findings. NYHS has not responded to any of the filings.
In light of NYHS's default, Gomez's properly pleaded allegations in the complaint, except those related to damages, are accepted as true. See, e.g., City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ancient common law axiom that a defendant who defaults thereby admits all well-pleaded factual allegations contained in the complaint.” (punctuation omitted)); Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (“In light of [defendant's] default, a court is required to accept all . . . factual allegations as true and draw all reasonable inferences in [plaintiff's] favor.”). As to damages, “[t]he district court must instead conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Credit Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). This inquiry requires the district court to: (1) “determin[e] the proper rule for calculating damages on . . . a claim” and (2) “assess[] plaintiff's evidence supporting the damages to be determined under this rule.” Id.
Gomez bears the burden of establishing her entitlement to the amount sought. See Trs. of Local 813 Ins. Tr. Fund v. Rogan Bros. Sanitation Inc., 2018 WL 1587058, at *5 (S.D.N.Y. Mar. 28, 2018). In the case of a default where the defendant has never appeared, “a court may base its determination of damages solely on the plaintiff's submissions.” Id. (citing Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989)). While a court must “take the necessary steps to establish damages with reasonable certainty,” Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997), a court need not hold a hearing “as long as it ensure[s] that there [is] a basis for the damages specified in a default judgment,” Fustok, 873 F.2d at 40.
Here, the Court's Scheduling Order notified the parties that the Court may conduct the inquest into damages based upon the written submissions of the parties, but that a party may seek an evidentiary hearing. See Scheduling Order ¶ 3. No party has requested an evidentiary hearing. Moreover, because Gomez's submissions provide a basis for an award of damages, no hearing is required.
B. Relevant Facts
Gomez was employed as an “Optic Sales Associate” and later a “Store Manager” at NYHS. See Comp. ¶ 27. From April 2018 until May 19, 2018, Gomez generally worked 8 hours per day, 5 days a week. Gomez Aff. ¶ 3. During this time, Gomez was paid a fixed salary of $160 per day, which equates to $20.00 per hour. See id. ¶ 7. From May 20, 2018 through June 24, 2018, Gomez typically worked 10 hours per day, 5 to 6 days per week. Id. ¶ 4. From June 25, 2018 through September 2018, Gomez generally worked 10 to 12 hours per day, 6 to 7 days a week. Id. ¶ 5. From October 2018 until her termination on November 15, 2018, Gomez typically worked 9 hours per day, 5 days per week. See id. ¶¶ 6, 33-34. From May 20, 2018 until September 2018, Gomez was promised that she would be paid $20.00 an hour, plus commissions. Id. ¶ 9. However, Gomez “did not receive regular wages” during this period. Id. From October 2018 until her termination on November 15, 2018, Gomez was promised that she would be paid $22.50 an hour. Id. ¶¶ 10, 33-34. Again, Gomez “did not receive regular wages” during this period. Id. ¶ 10. Instead, between June 25, 2018 and November 2018, Gomez received only “a few partial payments” totaling $3,664.00. Id. ¶ 8. Gomez was never “paid at an overtime rate for any of [her] hours worked over forty” in a given week. Id. ¶ 12.
Gomez also received an unspecified additional amount in commissions. See id.
Additionally, defendants did not provide Gomez with wage statements, and did not at the time of her hiring give Gomez any notice of her rate of pay, her employer's regular pay day, and such other information as required by N.Y. Lab. Law § 195(1). See Comp. ¶¶ 39-40.
In October 2018, NYHS began renovations at the store in which Gomez worked. Id. ¶ 41. Despite the renovations, Gomez was required to work lengthy shifts. Id. ¶ 43. Gomez experienced nausea and dizziness, and she “became extremely sick.” Id. ¶¶ 42, 44. Gomez's supervisor, Harry Young, “insisted that [Gomez] continue to work, despite the toxic fumes coming from the renovations.” Id. ¶ 46. Later that week, Gomez complained to Young that she was feeling ill; specifically, that her tongue was numb and she felt dizzy. Id. ¶ 47. Gomez was subsequently diagnosed with “reactive airway disease.” Id. ¶ 51. Gomez asked Young for “a few days to a week of time off to recover from her ailments.” Id. ¶ 56. Less than two weeks later, Gomez was fired. Id. ¶ 58-60. Gomez was informed that her termination was “because [NYHS was] closing the Midtown location” at which Gomez worked. Id. ¶ 60. Gomez represents that notwithstanding this assertion, “the Midtown location remined open under the ownership of [NYHS].” Id. ¶ 61. Gomez “was unable to find and start a new job until October 2020.” Gomez Aff. ¶ 38.
Gomez's proposed findings indicate she seeks the following: $39,359.75 in unpaid minimum wages and overtime wages, see Proposed Findings ¶ 32; $39,359.75 in liquidated damages, see id. ¶ 35; $10,000.00 for notice violations under the NYLL, see id. ¶ 38; $75,000.00 in emotional distress damages, see id. ¶ 41; $105,806.25 in back pay, see id. ¶ 37; prejudgment interest, see id. ¶ 42; and $11,252.50 in attorney's fees and $400.00 in costs, see id. ¶ 50, 55.
II. DISCUSSION
Gomez brought suit under both the NYLL and the FLSA. It is settled that while
a plaintiff may be entitled to recover unpaid minimum wages and overtime pay under both the FLSA and the NYLL, he or she may not recover twice. Instead, where a plaintiff is entitled to damages under both federal and state wage law, a plaintiff may recover under the statute which provides the greatest amount of damages.Ergin v. 8th Hill Inc., 2022 WL 1037655, at *3 (S.D.N.Y. Apr. 6, 2022), adopted, 2022 WL 1256996 (S.D.N.Y. Apr. 26, 2022) (internal citations omitted). Because the NYLL provides for the greater recovery in Gomez's case, we address only the provisions of the NYLL.
A. Unpaid Minimum Wage
Gomez has pled that NYHS has “fifteen or more employees,” Comp. ¶ 11, which is in excess of the minimum number necessary for it to be considered a “large employer,” see N.Y. Lab. Law § 652(1)(a)(i); N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.2(a)(1)(i)(a). Accordingly, Gomez may be compensated at the rate for large employers in New York City which, for the duration of Gomez's employment, was $13.00 per hour. See N.Y. Lab. Law § 652(1)(a)(i).
From April 18 to May 19, 2018, Gomez was paid an hourly rate of $20.00, in excess of the applicable minimum wage. See id.; Gomez Aff. ¶ 7. Although she was promised an hourly rate of $20.00, Gomez was not paid between May 20 and June 24, 2018. See Gomez Aff. ¶ 9. However, from June 25, 2018 to November 15, 2018, while Gomez was promised to be paid a rate in excess of the minimum wage, Gomez was paid only $3,664.00. See id. ¶ 8-10. In total, Gomez worked 1,036 non-overtime hours for which she was insufficiently compensated.
While the calculations offered by plaintiff seek wages at her promised hourly rate, see Damages Calculations, annexed as Ex. C to Clark Decl. (Docket # 33-3) (“Damages Calculations”), at 1, Gomez is entitled under the NYLL to recover based on the minimum wage rate, not her regular rate. See Savor Health, LLC v. Day, 2022 WL 912236, at *7 (S.D.N.Y. Mar. 29, 2022).
We note that plaintiff's calculations fail to credit the entirety of the pay Gomez represents she received, compare Damages Calculations at 1, with Gomez Aff. ¶¶ 7-8, and also contain a duplicative entry for the timeframe of September 6 to November 4, 2018, see Damages Calculations at 2.
Accordingly, as reflected on the “Minimum Wage & Overtime Chart,” annexed as Exhibit A, Gomez should be awarded $9,804.00 for unpaid minimum wages.
B. Unpaid Overtime Wages
NYLL requires an employer to pay “an employee for overtime at a wage rate of 11/2 times the employee's regular rate for hours worked in excess of 40 hours in one workweek.” N.Y. Comp. Codes R. & Regs. tit. 12, § 146-1.4. From April 18 to September 2018, Gomez's regular rate was $20.00 per hour, and from October to November 15, 2018, Gomez's regular rate was $22.50 per hour. See Gomez Aff ¶¶ 7, 9-10. The applicable overtime rates are thus $30.00 for the former period and $33.75 for the latter period. Between April 18, 2018 and November 15, 2018, Gomez worked 525.79 overtime hours for which she insufficiently compensated. Accordingly, as reflected on the “Minimum Wage & Overtime Chart,” annexed as Exhibit A, Gomez is entitled to $16,186.20 in unpaid overtime.
C. Liquidated Damages
Gomez seeks liquidated damages for 100% of her unpaid wages. See Proposed Findings ¶¶ 33-35. “The NYLL provides for a liquidated damages award equal to 100 percent of the plaintiff's actual damages, ‘unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law.'” Callender v. Panabori Food Corp., 2018 WL 4565876, at *13 (S.D.N.Y. July 11, 2018) (quoting N.Y. Lab. Law §§ 198(1)(a), 663(1)), adopted, 2018 WL 3728931 (S.D.N.Y. Aug. 6, 2018). NYHS has defaulted and therefore has not provided any evidence to suggest it had a good faith basis to believe its underpayment complied with the law. Accordingly, Gomez should be awarded 100% of her “unpaid wages, which includes unpaid minimum wage, unpaid overtime, and unpaid spread-of-hours.” Villanueva v. 179 Third Ave. Rest. Inc., 500 F.Supp.3d 219, 239 (S.D.N.Y. 2020). This amounts to $25,990.20.
D. Failure to Provide Notices and Wage Statements under NYLL
N.Y. Lab. Law § 195(1) requires that, at the time of hiring, an employer “provide his or her employees, in writing in English and in the language identified by each employee as [their] primary language,” notice of
the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging allowances; . . . the regular pay day designated by the
employer in accordance with section one hundred ninety-one of this article; the name of the employer; any “doing business as” names used by the employer; the physical address of the employer's main office or principal place of business, and a mailing address if different; the telephone number of the employer; plus such other information as the commissioner deems material and necessary.Id. § 195(1)(a); accord Maria v. Rouge Tomate Chelsea LLC, 2020 WL 6049893, at *5 (S.D.N.Y. Oct. 14, 2020).
The notice must also state an employee's regular hourly rate and overtime rate of pay. N.Y. Lab. Law § 195(1)(a). Since February 25, 2015, the statutory damages for violating the notice requirement has been up to $50 per workday for a maximum of $5,000.00. N.Y. Lab. Law § 198(1)(b). Gomez has represented that NYHS did not provide her with the notice required by N.Y. Lab. Law § 195(1). See Comp. ¶ 40. Given the length of Gomez's employment with defendants, Gomez is eligible for up to $5,000.00 in statutory damages, see N.Y. Lab. Law § 198(1)(b). The award for a violation of section 195(1) is permissive, not mandatory. See Pugh v. Meric, 2019 WL 2568581, at *2 (S.D.N.Y. June 20, 2019) (“The use of the word ‘may' in NYLL § 198(1-b) indicates that recovery of damages under this sub-section is not automatic, particularly in light of the contrasting use of ‘shall' in Section 198(1-d).”). Nonetheless, in light of NYHS' default, and the complete failure to provide any explanation for its violation of the statute, the maximum of $5,000.000 should be awarded.
Furthermore, since April 9, 2011, NYLL has required employers to “furnish each employee with a statement with every payment of wages,” which must include, inter alia, the rate of payment, the gross wages provided, and the applicable overtime rate. N.Y. Lab. Law § 195(3). As reflected in the complaint, Gomez has alleged that NYHS did not provide her with an accurate statement of wages as required by N.Y. Lab. Law § 195(3), see Comp. ¶ 39, and she has therefore established that NYHS violated N.Y. Lab. Law § 195(3). Since February 27, 2015, the statute provides for a penalty of $250 for each workday that the violations occurred, not to exceed $5,000.00. See N.Y. Labor Law § 198(1)(d). This penalty is “mandatory.” Pugh, 2019 WL 2568581, at *2. Gomez experienced more than 20 paydays without such statements and therefore should be awarded $5,000.00 in statutory damages for the wage statement violations.
In total, Gomez should be awarded $10,000.00 in statutory damages under the NYLL.
E. Emotional Distress Damages
Gomez seeks $75,000.00 in emotional distress damages under the NYLL and FLSA. See Proposed Findings ¶¶ 39-41. “[T]he FLSA and NYLL retaliation provisions are nearly identical.” Perez v. Jasper Trading, Inc., 2007 WL 4441062, at *7 (E.D.N.Y. Dec. 17, 2007). Under either provision, a plaintiff may obtain damages for emotional distress. See Belizaire v. RAV Investigative & Sec. Servs. Ltd., 61 F.Supp.3d 336, 366-67 (S.D.N.Y. 2014) (NYLL); Greathouse v. JHS Sec. Inc., 2015 WL 7142850, at *3-4 (S.D.N.Y. Nov. 13, 2015) (FLSA). In the Second Circuit, emotional distress awards “can generally be grouped into three categories of claims: ‘garden-variety, ‘significant[,]' and ‘egregious.'” Pelgrift v. 355 W. 41st Tavern, Inc., 2018 WL 4735705, at *6 (S.D.N.Y. Sept. 30, 2018).
“Garden-variety claims involve evidence that is ‘generally limited to the testimony of the plaintiff, who describes his or her injury in vague or conclusory terms, without relating either the severity or the consequences of the injury.'” Id. (quoting Khan v. Hip Centralized Lab. Servs., Inc., 2008 WL 4283348, at *11 (E.D.N.Y. Sept. 17, 2008)). “[I]n the employment context[, courts] have commonly approved of [garden-variety] awards in the range of $5,000 to $30,000. Greathouse, 2015 WL 7142850, at *4 (citing cases). In Greathouse, a plaintiff who was threatened with a gun by his supervisor was awarded $10,000 based on his sworn statement that he became “withdrawn,” “anxious,” and “nervous” after the incident. Id. at *4-5.
Here, Gomez's affidavit offers literally nothing that describes emotional distress. See Gomez Aff.. Indeed, Gomez does not even state that she suffered any emotional distress. Thus, there is no factual basis for the assertion in the Proposed Findings that Gomez is entitled to emotional distress damages, let alone “significant” damages. Proposed Findings ¶ 39. As a result, Gomez is not entitled to emotional distress damages under the NYLL or FLSA.
Gomez's affidavit gives some description of physical consequences relating to the working conditions, Gomez Aff. ¶¶ 36-37, but nothing relating to emotional distress.
F. Back Pay
Gomez also seeks back pay under the ADA, the NYSHRL, and the NYCHRL. See Proposed Findings ¶¶ 36-37.
“The ADA provides that a successful plaintiff shall have available the same remedies that would be available to a plaintiff pursuant to Title VII.” Rosso v. PI Mgmt. Assocs., L.L.C., 2005 WL 3535060, at *15 (S.D.N.Y. Dec. 23, 2005) (citing 42 U.S.C. § 12117(a)); accord Tse v. N.Y. Univ., 190 F.Supp.3d 366, 371 (S.D.N.Y. 2016). Thus, “back pay [is] available in disability discrimination cases.” Tse, 190 F.Supp.3d at 371. “The purpose of back pay is to make a plaintiff whole, that is, to ‘completely redress the economic injury the plaintiff has suffered as a result of discrimination.'” Id. (quoting Saulpaugh v. Monroe Cmty. Hosp., 4 F.3d 134, 145 (2d Cir. 1993)). “This award should therefore consist of lost salary, including anticipated raises, and fringe benefits.” Saulpaugh, 4 F.3d at 145.
To obtain back pay, Gomez's allegations must be sufficient to support a disability retaliation claim. “[T]he standards for evaluating retaliation claims are identical under the NYSHRL [and the] ADA.” Sivio v. Vill. Care Max, 436 F.Supp.3d 778, 800 (S.D.N.Y. 2020) (punctuation omitted). The NYCHRL contains a more forgiving standard, see id.; however, as Gomez's allegations satisfy the stricter requirements of the NYSHRL and ADA, we do not independently analyze the NYCHRL claim.
To establish a prima facie claim for retaliation on the basis of disability, a plaintiff must show “(1) participation in a protected activity; (2) that [her employer] knew of the protected activity; (3) an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse employment action.” Littlejohn v. City of New York, 795 F.3d 297, 315-16 (2d Cir. 2015) (citation omitted).
If the plaintiff establishes a prima facie case, a presumption of discrimination or retaliation is created and the burden shifts to the employer to articulate a “legitimate, nondiscriminatory reason” for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); accord St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993); Chen v. City Univ. of N.Y., 805 F.3d 59, 70 (2d Cir. 2015). If the employer articulates a non-retaliatory explanation for its conduct, the presumption of retaliation is eliminated, and the plaintiff must meet her ultimate burden of proving “that the desire to retaliate was the but-for cause of the challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013); accord Chen, 805 F.3d at 70. “This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.” Nassar, 570 U.S. at 360; accord Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90-91 (2d Cir. 2015). This proof can include “weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate, nonretaliatory reasons for its actions,” such that “a reasonable juror could conclude that the explanations were a pretext for a prohibited reason.” Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013).
We first consider whether Gomez has pled a prima facie case of retaliation. As to the first element, Gomez has shown that she engaged in protected activity. “[R]equests for accommodation constitute protected activity under the ADA.” Pacheco v. Park S. Hotel, LLC, 2014 WL 292348, at *4 (S.D.N.Y. Jan. 27, 2014); accord Sivio, 436 F.Supp.3d at 801. Under 29 C.F.R. 1630.2(o)(2)(ii), a “[r]easonable accommodation may include . . . part-time or modified work schedules,” which is exactly what Gomez sought when she informed NYHS of her diagnosis of reactive airway disease and requested “a few days to a week of time off to recover.” Comp. ¶ 56. Gomez's request for a modified work schedule was directed specifically to Young. See id. ¶¶ 55-57. Thus, NYHS was aware of Gomez's protected activity.
Turning to the final two elements, “[t]ermination . . . is obviously an adverse employment action.” Sivio, 436 F.Supp.3d at 801. And a prima facie showing of causal connection may be made by establishing “that the protected activity was followed closely by discriminatory treatment.” Id. at 779 (quoting Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). Here, within two weeks of her accommodation request, Gomez was fired “at the direction of . . . YOUNG and WARNER,” purportedly “because [NYHS was] closing the Midtown Location” - yet the location remained open, Comp. ¶¶ 60-61, which allows the inference that this justification was pretextual.
Because defendants have not appeared, they have not articulated a legitimate, non-retaliatory reasons for her discharge and thus Gomez is entitled to damages. See, e.g., Manswell v. Heavenly Miracle Academy Servs., Inc., 2017 WL 9487194, at *11 (E.D.N.Y. Aug. 23, 2017).
As to damages, Gomez has submitted evidence that, had her employment continued, she would have worked 3,920 non-overtime hours and 490 overtime hours. See Gomez Aff. ¶ 6. Gomez's regular rate during this period would have been $22.50, and her overtime rate would have been $33.75. See id. ¶ 10. Gomez requests back pay from the date of her termination, November 15, 2018, until October 2020, when she began her next job. See id. ¶ 38; Proposed Findings ¶ 37. Accordingly, as reflected on the “Minimum Wage & Overtime Chart,” annexed as Exhibit A, Gomez is entitled to $104,737.50 in back pay.
Plaintiff's damages calculations compute back pay starting on November 5, 2018, see Damages Calculations at 1, even though Gomez was not terminated until November 15, 2018, see Comp. ¶¶ 59-60; Gomez Aff. ¶¶ 33-34. Plaintiff's calculations also count the time period between December 31, 2019 and October 1, 2020, as 39 weeks, see Damages Calculations at 1, when in fact that duration was 39 weeks and three days. We have corrected these errors on the “Minimum Wage & Overtime Chart.”
G. Prejudgment Interest
Gomez seeks prejudgment interest. See Proposed Findings ¶ 42. A plaintiff who prevails on a NYLL-wage claim is entitled to prejudgment interest on any “underpayment” of wages. See N.Y. Lab. Law § 198(1)(a); Santana v. Latino Express Rests., Inc., 198 F.Supp.3d 285, 294-95 (S.D.N.Y. 2016); Castillo v. RV Transport, Inc., 2016 WL 1417848, at *3 (S.D.N.Y. Apr. 11, 2016). While “a plaintiff who receives FLSA liquidated damages may not also receive pre-judgment interest[,] . . . . liquidated damages under the NYLL are considered punitive in nature, thus enabling a plaintiff to recover both liquidated damages and pre-judgment interest.” Villanueva, 500 F.Supp.3d at 243. However, “the award of prejudgment interest applies only to the amount of underpayment of wages, not the liquidated damages.” Salustio v. 106 Columbia Deli Corp., 264 F.Supp.3d 540, 557 (S.D.N.Y. 2017). “Prejudgment interest is [also] not available for violations of the wage statement or wage notice provisions.” Rouge Tomate, 2020 WL 6049893, at *6.
Prejudgment interest in New York runs at the rate of nine percent per annum. N.Y. C.P.L.R. § 5004. The starting date from which a court computes this interest is “the earliest ascertainable date the cause of action existed.” Conway v. Icahn & Co., Inc., 16 F.3d 504, 512 (2d Cir. 1994) (quoting N.Y. C.P.L.R. § 5001(b)). However, “[w]here such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.” N.Y. C.P.L.R. § 5001(b); see also Marfia v. T.C. Ziraat Bankasi, 147 F.3d 83, 91 (2d Cir. 1998) (“New York law leaves to the discretion of the court the choice of whether to calculate prejudgment interest based upon the date when damages were incurred or ‘a single reasonable intermediate date,'. . . .”) (citing 155 Henry Owners Corp. v. Lovlyn Realty Co., 231 A.D.2d 559, 560-61 (2d Dep't 1996)).
Here, Gomez's claims for unpaid wages arose on different dates from April 18, 2018 to November 15, 2018. We calculate prejudgment interest from the midpoint date of Gomez's relevant employment period: August 2, 2018. Accordingly, Gomez is entitled to prejudgment interest on her unpaid wages damages of $25,990.20 from August 2, 2018, until the date judgment is entered. This amounts to $6.41 per day ([25,990.20 * .09] / 365 days).
H. Attorneys' Fees
Gomez has prevailed on her NYLL claims and is therefore entitled to an award of reasonable attorneys' fees. See N.Y. Lab. Law § 663(4). As has been frequently stated, in determining a statutory fee award, “[t]he most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 186 (2d Cir. 2008) (punctuation omitted) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)); accord Stanczyk v. City of New York, 752 F.3d 273, 284 (2d Cir. 2014). This calculation yields a “presumptively reasonable fee,” Arbor Hill, 522 F.3d at 183, and is commonly referred to as the “lodestar,” id.; see also Miroglio S.P.A. v. Conway Stores, Inc., 629 F.Supp.2d 307, 312 (S.D.N.Y. 2009). Using the “lodestar” method, Gomez requests $11,252.50 in attorneys' fees. See Proposed Findings ¶ 50.
1. Reasonable Hours
It is well-established that “any attorney . . . who applies for court-ordered compensation in this Circuit . . . must document the application with contemporaneous time records .... specify[ing], for each attorney, the date, the hours expended, and the nature of the work done.” N.Y. State Ass'n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1148 (2d Cir. 1983); accord Ergin v. 8th Hill Inc., 2022 WL 828303, at *6 (S.D.N.Y. Mar. 18, 2022). Here, Shawn Clark, an attorney for plaintiff, has attached time records for all attorneys and paralegals involved in this case, and he has sworn in his declaration that the records are contemporaneous. See Clark Decl. ¶ 5. When reviewing such records, courts must make “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (per curiam). “The critical inquiry is ‘whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.'” Angamarca v. Pita Grill 7 Inc., 2012 WL 3578781, at *12 (S.D.N.Y. Aug. 2, 2012) (quoting Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992)). In addressing this question, courts should not, however, engage in “an ex post facto determination of whether attorney hours were necessary to the relief obtained.” Grant, 973 F.2d at 99.
Additionally, if a court finds that claimed hours are “excessive, redundant, or otherwise unnecessary,” it should exclude those hours from its calculation of the presumptively reasonable fee. Hensley, 461 U.S. at 434; accord Quaratino v. Tiffany & Co., 166 F.3d 422, 426 n.6 (2d Cir. 1999) (citations omitted); Farmer v. Hyde Your Eyes Optical, Inc., 2015 WL 2250592, at *15 (S.D.N.Y. May 13, 2015). However, as the Supreme Court noted in Hensley, “[t]here is no precise rule or formula for making these determinations.” 461 U.S. at 436. Because “it is unrealistic to expect a trial judge to evaluate and rule on every entry in an application,” Carey, 711 F.2d at 1146, “the court has discretion simply to deduct a reasonable percentage of the number of hours claimed ‘as a practical means of trimming fat from a fee application,'” Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998) (quoting Carey, 711 F.2d at 1146). Thus, a district court is not required to “set forth item-by-item findings concerning what may be countless objections to individual billing items.” Lunday, 42 F.3d at 134.
Here, the time records submitted by plaintiff's counsel reflect that two attorneys worked on this case: Shawn Clark, a senior associate, and Brittany Stevens, an associate. See Time Records, annexed as Exhibit D to Clark Decl. (Docket # 33-4) (“Time Records”), at *3-5. Together, they expended 29.35 hours. See id. The time records “provide detailed descriptions of the tasks completed, and the time expended on each task is reasonable.” Poon v. Apple NYC Corp., 2019 WL 75674, at *11 (S.D.N.Y. Jan. 2, 2019). Moreover, the time spent on this case by Clark and Stevens is consistent with the number of hours “routinely awarded in cases in similar postures.” Id. (awarding requested 24.6 hours in similar FLSA and NYLL default case and citing comparable cases). Thus, we view the hours expended by Clark and Stevens as reasonable.
In addition to Clark and Stevens, two paralegals, Samantha Cassinelli and Humberto Alverez, worked a combined 9.8 hours on this matter. See Time Records at *1-2. “[T]asks that are ‘purely clerical,' such as downloading, scanning, or copying documents and organizing files, [are] generally not compensable, whether performed by an attorney or a paralegal.” Siegel v. Bloomberg L.P., 2016 WL 1211849, at *7 (S.D.N.Y. Mar. 22, 2016); accord H.W. v. New York City Dep't of Educ., 2022 WL 541347, at *4 (S.D.N.Y. Feb. 23, 2022); Diaz v. AJE Mgmt. Corp., 2017 WL 746439, at *6 (S.D.N.Y. Jan. 10, 2017). Here, approximately 60% of the paralegals' time was spent on clerical tasks such as scanning, filing, downloading, or transmitting documents. Thus, we decline to award attorneys' fees in connection with Alvarez's sole entry, see Time Records at *1, as well as with regard to the entries for 1/10/21, 3/9/21, 6/1/21, 6/4/21, the second entry for 12/10/21, the second entry for 12/11/21, and both entries for 4/22/21 on Cassanelli's timesheet, see id. at *2. This amounts to 5.8 hours of clerical work. We find the remaining 4 hours to be reasonable and consistent with the number of hours awarded to paralegal staff in similar cases. See Diaz, 2017 WL 746439, at *6 (granting “award of 3.28 hours of paralegal time”).
2. Reasonable Hourly Rate
In determining whether the hourly rate is reasonable, “the burden is on the fee applicant to produce satisfactory evidence . . . that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience[,] and reputation.” Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984); accord Savoie v. Merchants Bank, 166 F.3d 456, 463 (2d Cir. 1999).
To determine an appropriate hourly rate, Arbor Hill directs that a court engage in the following process:
[T]he district court, in exercising its considerable discretion, [is] to bear in mind all of the case-specific variables that we and other courts have identified as relevant to the reasonableness of attorney's fees in setting a reasonable hourly rate. The reasonable hourly rate is the rate a paying client would be willing to pay. In determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively. The district court should also consider that such an individual might be able to negotiate with his or her attorneys, using their desire to obtain the reputational benefits that might accrue from being associated with the case.522 F.3d at 190 (emphasis in original).
The “Johnson factors” are those laid out in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). These are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Arbor Hill, 522 F.3d at 186 n.3 (citing Johnson, 488 F.2d at 717-19).
Arbor Hill specifically identified the following factors to be considered in determining what a reasonable, paying client would be willing to pay:
the complexity and difficulty of the case, the available expertise and capacity of the client's other counsel (if any), the resources required to prosecute the case effectively (taking account of the resources being marshaled on the other side but not endorsing scorched earth tactics), the timing demands of the case, whether an attorney might have an interest (independent of that of his client) in achieving the ends of the litigation or might initiate the representation himself, whether an attorney might have initially acted pro bono (such that a client might be aware that the attorney expected low or non-existent remuneration), and other returns (such as reputation, etc.) that an attorney might expect from the representation.Id. at 184.
Importantly, Arbor Hill held that a court must “step[] into the shoes of the reasonable, paying client, who wishes to pay the least amount necessary to litigate the case effectively.” Id. (emphasis added). “In other words, whether the attorneys on this case properly command the rates they seek in the marketplace is not dispositive of the rate that they are to be awarded. Rather, Arbor Hill demands that we determine the cheapest hourly rate an effective attorney would have charged.” Poon, 2019 WL 75674, at *12.
Here, in addition to the time records, Gomez's attorney has submitted statements attesting to the experience of Clark and Stevens. See Clark Decl. ¶¶ 6-7. After consideration of the Johnson and Arbor Hill factors, we note that this case was not especially complex, did not demand substantial reasons, was not contested in any form, and did not impose substantial timing demands. We recognize, however, that Clark, Stevens, and their law firm practice extensively in the field of labor and employment law, specializing in wage and hour cases. See id.
The requested attorney rates are $350.00 for Shawn Clark, see Proposed Findings ¶¶ 5051, and $300.00, $325.00, and $350.00 for Brittany Stevens, see id. ¶¶ 49 ($300.00), 50 ($350.00), 52 ($325.00); Clark Decl. ¶ 7 ($350.00).
Clark is “a Senior Associate at Phillips & Associates.” Clark Decl. ¶ 6. Clark graduated from New York University School of Law in 2010, and then worked in the NYPD's Legal Bureau and the New York City Law Department, before turning to private practice in 2014. See id. Since 2014, Clark has represented plaintiffs in wage-and-hour and discrimination cases. See id. One court has noted that “case law has approved rates of $300 an hour for those with eight or more years' experience” in labor law cases. Hernandez v. JRPAC Inc., 2017 WL 66325, at *3 (S.D.N.Y. Jan. 6, 2017. Clark has been litigating wage-and-hour cases for approximately eight years. Clark has been awarded rates between $225 and $325 per hour in recent years. See Antoine v. Brooklyn Maids 26, Inc., 489 F.Supp.3d 68, 103-04 (E.D.N.Y. 2020) ($325.00); Reyes v. Cafe Cousina Rest. Inc., 2019 WL 5722475, at *14 (S.D.N.Y. Aug. 27, 2019) ($225.00); Ortega v. JR Primos 2 Rest. Corp., 2017 WL 2634172, at *7 (S.D.N.Y. June 16, 2017) ($250.00); Hernandez, 2017 WL 66325, at *3 (same). Given the relative simplicity of this case, we conclude that an appropriate hourly rate for Clark is $300.00.
Stevens graduated from the University of San Francisco School of Law in 2014, see Clark Decl. ¶ 7, “and has 5 years of employment law experience,” Proposed Findings ¶ 52. “FLSA litigators who have more than three years of experience have been awarded rates in excess of $225 per hour.” Zhang v. Lin Kumo Japanese Rest. Inc., 2015 WL 5122530, at *3 (S.D.N.Y. Aug. 31, 2015). The instant case was not particularly complex, and Stevens was not the lead attorney on this matter, working only 4.8 hours in comparison to Clark's 24.55. See Time Records at *3-5. Accordingly, we reduce Stevens's rate to $225.00.
Finally, the requested paralegal rates are $100.00 for Cassinelli and Alvarez. Clark Decl. ¶¶ 8-9. This hourly rate is considered reasonable for paralegals in this district and is regularly awarded in comparable cases. See, e.g., Campos Marin v. J&B 693 Corp., 2022 WL 377974, at *12 (S.D.N.Y. Jan. 21, 2022); Maldonado v. Papadopoulos, 2021 WL 5363016, at *12 (S.D.N.Y. July 17, 2021); Alonso v. New Day Top Trading, Inc., 2020 WL 9815184, at *23 (S.D.N.Y. June 29, 2020); Mercedes v. Tito Transmission Corp., 2019 WL 102007, at *14 (S.D.N.Y. Jan. 4, 2019).
Accordingly, as reflected on the chart below, Gomez is entitled to attorneys' fees in the amount of $8,845.00
Professional
Clark
Stevens
Cassinelli
TOTAL
Hours
24.55
4.8
4
Rate
$300
$225
$100
Amount
$7,365.00
$1,080.00
$400.00
$8845.00
I. Costs
A prevailing plaintiff under NYLL is also entitled to costs, which “include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients.” See LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763 (2d Cir. 1998) (punctuation omitted); accord Febus v. Guardian First Funding Grp., LLC, 870 F.Supp.2d 337, 341 (S.D.N.Y. 2012). Here, Gomez seeks $400.00 in costs consisting of a $400.00 filing fee. See Proposed Findings ¶ 55. Such costs are generally recoverable. See, e.g., Villanueva, 500 F.Supp.3d at 243 (awarding costs for a filing fee and process server fees). Accordingly, Gomez should be awarded $400.00 in costs.
In sum, Gomez should be awarded $9,804.00 in unpaid minimum wages; $16,186.20 in unpaid overtime; $25,990.20 in liquidated damages; $104,737.50 in back pay; $10,000 in statutory damages for notice violations; $8,845.00 in attorneys' fees; and $400.00 in costs, for a total of $175,962.90. Prejudgment interest should awarded at a rate of $6.41 per day from August 2, 2018, and continuing until the date judgment is entered.
Additionally, Gomez requests that the judgment include a provision automatically increasing the judgment by the amount set forth in N.Y. Lab. Law § 198(4). See Proposed Findings ¶ 45. N.Y. Lab. Law § 198(4) provides that:
Any judgment or court order awarding remedies under this section shall provide that if any amounts remain unpaid upon the expiration of ninety days following issuance of judgment, or ninety days after expiration of the time to appeal and no appeal is then pending, whichever is later, the total amount of judgment shall automatically increase by fifteen percent.Accordingly, if any part of the judgment is unpaid at the expiration of such time, and no appeal is pending, the judgment should provide that it is increased by 15 percent.
III. CONCLUSION
Gomez should be awarded a judgment in the amount of $175,962.90 against NYHS Design Inc. d/b/a Cleo Nicci Eyewear New York, plus prejudgment interest calculated from August 2, 2018, to the date judgment is entered at the rate of $6.41 per day.
The text of the judgment should provide that if the judgment is not entirely paid within 90 days of judgment, or 90 days after the expiration of appeal, whichever is later, and no appeal is pending, then the total amount of judgment shall automatically increase by 15 percent.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Carter. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).