Turbi-Garcia v. Electchester Management LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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MICHAEL BELVIN, NERY DUQUE-GARCIA,

ALVARO GREGORY, DANIEL MACHADO,

MICHAEL MAYERS, JORGE RESTREPO, MEMORANDUM & ORDER

MARCELINO REYES, ADRIANO TUBI-

GARCIA, AND MANUEL VERA, 15-cv-04924(KAM)(PK)

individually and in behalf of all

other persons similarly situated,

Plaintiffs,

-against-

ELECTCHESTER MANAGEMENT LLC, FIRST

HOUSING COMPANY, INC., FOURTH

HOUSING COMPANY, INC., SECOND

HOUSING COMPANY, INC., THIRD

HOUSING COMPANY, INC., AND GERALD

FINKEL, jointly and severally,

Defendants.

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MATSUMOTO, United States District Court Judge

Plaintiffs, represented by counsel at the time, commenced

this case on August 21, 2015. (ECF No. 1.) Plaintiffs’ Second

Amended Complaint alleges defendants, who are in the business of

residential real estate, violated the Fair Labor Standards Act, 29

U.S.C. §§ 206, 215(a)(2), the New York Minimum Wage Act, N.Y. Lab.

Law §§ 198(1-a), 663(1), and the New York Wage Theft Prevention Act,

N.Y. Lab. Law § 195(3). (ECF No. 76, Second Amended Complaint

(“SAC”).) Currently before the court is defendants’ motion for

summary judgment against a subset of plaintiffs who are now

proceeding pro se. Defendants filed their answer on March 6, 2017,

and on March 29, 2019, moved for summary judgment. The pro se

plaintiffs oppose defendants’ motion. The Court has considered the

parties’ submissions in support of, and in opposition to

defendants’ motion. (ECF Nos. 155-163, 188.) For the reasons set

forth herein, the court grants defendants’ motion for summary

judgment and dismisses all claims asserted by plaintiffs Michael

Belvin, Nery Duque-Garcia, Alvaro Gregory, Michael Mayers, Jorge

Restrepo, and Marcelino Reyes from this action.1

I. THE PARTIES AND ALLEGATIONS

Defendant Electchester Management LLC (“Electchester

Management”), manages defendants First Housing Company, Inc. (“First

Housing”), Second Housing Company, Inc. (“Second Housing”), Third

Housing Company, Inc. (“Third Housing”), and Fourth Housing Company,

Inc. (“Fourth Housing”), along with non-party Fifth Housing Company,

Inc. (“Fifth Housing,” and collectively, “Electchester”). (ECF No.

155-6, Declaration of Vito V. Mundo in Support of Motion for Summary

Judgment (“Mundo Decl.”) ¶ 1.) Electchester is a limited dividend

non-housing cooperative consisting of 38 buildings in five multi-

building complexes located in Flushing, Queens. (Id. ¶ 4.)

Defendant Gerald Finkel is the principal of defendants’ business,

which is residential real estate. (SAC ¶¶ 29-30.) Plaintiffs

1 Defendants did not move for summary judgment with respect to claims asserted

Michael Belvin, Nery Duque-Garcia, Alvaro Gregory, Michael Mayers,

Jorge Restrepo, and Marcelino Reyes (collectively, “porter

plaintiffs”), are either former or current employees of

Electchester. (SAC ¶¶ 1, 22, 35, 36, 38, 39, 42, 43, 46, 47, 50,

51, 54, 55, 58, 59.)

Plaintiffs claim that defendants violated the Fair Labor

Standards Act (“FLSA”) and New York Labor Law (“NYLL”), including

New York’s Minimum Wage Act and the New York Wage Theft Prevention

Act (“WTPA”). (Id. ¶¶ 1-3, 24.) The SAC alleges that defendants

willfully failed to pay plaintiffs the applicable minimum wage, and

that plaintiffs worked over forty hours each workweek without

appropriate overtime compensation. (Id. ¶¶ 71-72.) Count One of

the SAC asserts a claim under the FLSA for defendants’ alleged

failure to pay the plaintiffs the applicable minimum wage under 29

U.S.C. § 206, by failing to pay plaintiffs at a rate less than one

and one-half times the regular rate of pay for work performed in

excess of forty hours in a workweek in violation of 29 U.S.C. §§ 207

and 215(a)(2). (Id. ¶¶ 77-89.) Count Two, which asserts violations

of New York’s Minimum Wage Act and the WTPA, is largely premised

upon the same conduct. (Id. ¶¶ 90-99.) Count Three alleges

defendants violated the NYLL by paying plaintiffs later than the

regular pay day during many workweeks. (Id. ¶¶ 100-03.) Count Four

asserts that defendants violated the WTPA by failing to furnish with

each wage payment a wage statement that included information

required by the NYLL. (Id. ¶¶ 104-07.) Finally, Count Five of the

SAC seeks declaratory relief based on the conduct alleged in the

SAC. (Id. ¶ 108-13.)

II. STATEMENT OF FACTS

A. Porter Plaintiffs’ Workweek

Based on the record before the court, the following facts

are not disputed unless otherwise noted. Pursuant to a Collective

Bargaining Agreement between the Realty Advisory Board on Labor

Relations Inc. and Service Employees International Union, Local 32BJ

(“CBA”), Electchester Management employs approximately 34 porters to

service the buildings in each complex. (ECF No. 155-7, Defendants’

Statement of Material Facts Pursuant to Rule 56.1 (“SOF”) ¶ 4; see

Mundo Decl. ¶ 7.)2

Defendants’ workweek and corresponding pay period for

porters runs from Saturday to Friday. (SOF ¶ 5.) The porters’

scheduled payday is every Friday. (Id.) Defendants have operated

with the same workweek and payday since January 1, 2009. (See ECF No.

161, Reply Declaration of Vito Mundo (“Mundo Reply Decl.”) ¶ 5.)

According to Vito Mundo, Esq., Electchester’s General Counsel, porters

are paid weekly by direct deposit or by check, depending on each

porter’s personal preference. (Mundo Decl. ¶ 9.) The means of

payment elected by each porter remains in force until the porter

2 The CBA is attached as Exhibit C to the Mundo Declaration. (See ECF No. 155-

elects to change it. (Id.) Plaintiffs Nery Duque-Garcia; Alvaro

Gregory, and Michael Mayers elected to be paid by direct deposit;

Michael Belvin, Jorge Restrepo, and Marcelino Reyes elected to be paid

by check. (Id. ¶ 10.)

B. Porter Plaintiffs’ Pay Schedule

Electchester pays its porters between $18 and $23.05 per

hour pursuant to the CBA. (SOF ¶ 8; Mundo Decl. ¶ 11.) The porters’

regular work schedule is Monday through Friday, from 7 a.m. to 4 p.m.,

with a one hour unpaid meal break from 12 p.m. to 1 p.m., or 1 p.m. to

2 p.m. (“Standard Week”). (SOF ¶ 9; Mundo Decl. ¶ 12.) Approximately

every eleven weeks, on a rotating basis, Electchester schedules all

porters to work both weekend days, with the following Mondays and

Tuesdays off. (SOF ¶ 9; Mundo Decl. ¶ 12.) The weeks when the

porters are scheduled to work both weekend days are referred to as “on

call” periods. (SOF ¶ 10; Mundo Decl. ¶ 12.)

During the Standard Week, a porter reports to work Monday,

Tuesday, Wednesday, Thursday and Friday, for eight hours per day—a

total of forty hours of work during the corresponding pay period.

(SOF ¶ 10; Mundo Decl. ¶ 13.) According to defendants, when porters

are “on call” and scheduled for weekend work, the porter will be given

off from work the following Monday and Tuesday, reporting back to work

Wednesday, Thursday, and Friday. (Mundo Decl. ¶ 13.) This

arrangement results in a forty-hour workweek, as does the Standard

Week, because the pay period begins on Saturday and ends on Friday.

(Id.) The Mundo Declaration provides the following demonstrative for

clarity:

Workweek Sat Sun Mon Tues Wed Thurs Fri Total

Hours 0 0 8 8 8 8 8 40

worked

(Standard

Week)

Hours 0 0 8 8 8 8 8 40

worked

(On call

8 8 0 0 8 8 8 40

week)

(Mundo Decl. ¶ 14; SOF ¶ 12.)

Notably, this suit is not the first time Electchester’s

workweek arrangement has been the subject of complaints. In 2016,

certain porters filed complaints with their union, Service Employees

International Union, Local 32BJ (“32BJ”), seeking overtime pay based

on the same claims asserted here. (SOF ¶ 13; Mundo Decl. ¶ 15.) In

January 2017, 32BJ withdrew the porters’ complaints with prejudice.

(SOF ¶ 14.) In a Memorandum of Agreement (“MOA”), 32BJ acknowledged

that “because [Electchester’s] workweek and corresponding pay period

runs from Saturday to Friday, neither of the employee’s two work weeks

include more than five scheduled work days of 40 hours and therefore

no premium overtime wage rate is paid to the employee for the hours

worked,” and agreed that Electchester “shall continue its long-

standing practice of assigning employees to perform weekend work on a

rotating periodic basis without paying overtime premium pay when the

affected employee is not performing more than five days of work in

each payroll week.” (ECF 155-5, Mundo Decl. at Ex. AA, pp. 102-04.)

C. Defendants’ Other Pay Practices

Electchester states that it pays overtime at the rate of

time and a half to all porters for all hours worked over forty hours

during each workweek. (Mundo Decl. ¶ 17.) Electchester maintained

payroll registers for all six of the porter plaintiffs. (Mundo Decl.

¶ 18.)3 Electchester also uses Automatic Data Processing, Inc.

(“ADP”) as its payroll vendor. (Mundo Decl. ¶ 19; SOF ¶ 16.) An

exemplar earnings statement provided by the defendants lists the dates

3 Michael Belvin’s payroll registers from January 7, 2011 through December 30,

2016, are attached as Exhibit D to the Mundo Declaration. (See ECF No. 155-4, pp.

1-306.) Nery Duque-Garcia’s payroll registers from January 7, 2011 through October

30, 2015, are attached as Exhibit E to the Mundo Declaration. (See ECF No. 155-4,

pp. 307-459.) Alvaro Gregory’s payroll registers from January 7, 2011 through

December 30, 2016, are attached as Exhibit F to the Mundo Declaration. (See ECF No.

155-4, pp. 460-767.) Michael Mayers’s payroll registers from January 7, 2011

through December 30, 2016, are attached as Exhibit G to the Mundo Declaration. (See

ECF No. 188.) Jorge Restrepo’s payroll registers from January 7, 2011 through

December 23, 2011, are attached as Exhibit H to the Mundo Declaration. (See ECF No.

188-1.) Marcelino Reyes’s payroll registers from January 7, 2011 through December

30, 2011, are attached as Exhibit I to the Mundo Declaration. (See ECF No. 188-2.)

Defendants belatedly filed the payroll information for Mayers, Restrepo, and

Reyes on January 23, 2020, (see ECF No. 188), after neglecting to include these

documents in their original submission. Though defendants inadvertently failed to

serve these documents before Mayers, Restrepo, and Reyes filed their opposition

papers, the court finds that defendants tardy filing was not prejudicial to these

pro se plaintiffs. Based on the pro se plaintiffs’ bare-bones opposition papers,

including their near-wholesale failure to proffer or refute evidence, despite this

court’s explanations at the October 25, 2018 conference, as well as defendants’

service of a Local Civil Rule 56.2 Notice, the court finds timely service of these

records would not have significantly impacted the porter plaintiffs’ submissions or

arguments therein. Moreover, the records for Belvin, Duque-Garcia, and Gregory were

timely submitted, and plaintiffs have not highlighted any deficiencies or

inaccuracies with those records. Finally, defendants’ counsel’s timely-filed

declaration refers to exhibits that purport to be the payroll records for Mayers,

Restrepo, and Reyes. (See ECF No. 155-1, Declaration of Paul F. Millus (“Millus

Decl.”) ¶¶ 9-11.) However, there is no indication that the porter plaintiffs

inquired about the tardily-filed and served records. This bolsters the inference

that the porter plaintiffs would not have relied on these records had they been

of work covered by that payment of wages; name of employee; name of

employer; address and phone number of employer; rate or rates of pay

and basis thereof, whether paid by the hour, shift, day, week, salary,

piece, commission, or other; the regular hourly rate or rates of pay;

the overtime rate or rates of pay; the number of regular hours worked,

and the number of overtime hours worked; gross wages; deductions;

allowances, if any, claimed as part of the minimum wage; and net

wages. (ECF No. 155-5, Mundo Decl. at Ex. J, pp. 1-2; SOF ¶ 16.)

However, defendants represent that ADP does not provide copies of the

earnings statements for each employee to the employer, and thus,

according to defendants, the porter plaintiffs’ earning statements are

not in Electchester’s possession, custody or control. (Mundo Decl. ¶

19.)

III. THE MOTION

Defendants move for summary judgment to dismiss the SAC as

to the porter plaintiffs. Defendants move on the grounds of

purportedly uncontroverted evidence and inherent legal deficiencies in

the SAC. According to defendants, the porter plaintiffs’ claim that

Electchester failed to pay them a minimum wage under federal and New

York law fails because the SAC itself alleges the porter plaintiffs

were paid hourly wages exceeding the federal and New York minimum

wage. (ECF No. 155-8, Defendants’ Memorandum of Law (“Defs.’ Mot.”)

1.) Defendants further argue that the porter plaintiffs’ overtime

claims fail because they are erroneously based on hours worked during

a calendar week, rather than a “workweek” as defined under FLSA.

(Id.) The defendants’ motion further argues that summary judgment is

appropriate on the porter plaintiffs’ claim that defendants failed to

timely pay their wages. (Id. 1-2.) Finally, defendants assert that

they are not liable under the WTPA, NYLL § 195(3), because

Electchester furnished appropriate statements with the porter

plaintiffs’ weekly wage payments, and even if they did not,

Electchester’s indisputably paid all wages timely and completely,

which is an affirmative defense to the porter plaintiffs’ claims.

(Id. 2.)

In response, the pro se porter plaintiffs submitted brief

affidavits or letters opposing defendants’ motion.4 The plaintiffs’

arguments present as follows:

Belvin: Mr. Belvin urges the court to deny the motion

because: (1) “granting of a summary judgment motion is a drastic

action,” and plaintiffs should be allowed a “full a complete

4 Though the porter plaintiffs were initially represented by the Law Office of

Justin A. Zeller, P.C. which prepared the SAC, their attorney, Brandon Sherr, Esq.,

was granted leave to withdraw as counsel for all porter plaintiffs except Alvaro

Gregory on May 3, 2018. (ECF No. 108.) On April 19, 2019, Magistrate Judge Kuo

granted Sherr’s motion to withdraw as Mr. Gregory’s counsel. (Order dated Apr. 19,

2019.) Mssrs. Belvin, Reyes, Restrepo, and Gregory all appeared at an in-court pre-

motion conference on October 25, 2018. The minute entry for the conference reflects

that “[t]he court explained the process for summary judgment motion practice to the

appearing pro se plaintiffs and the requirements of Local Rule 56.1, as well as the

requirement to come forward with admissible evidence, such as affidavits, pay stubs,

sign-in sheets, and/or time sheets, that establish the existence of a genuine

dispute of material fact, meaning a fact that would affect the outcome of the

litigation,” and that “the pro se plaintiffs may consider seeking the assistance of

the District Court's pro se attorney or a non-profit legal services organization.”

(Minute entry dated Oct. 25, 2018.) Defendants served the porter plaintiffs with an

appropriate notice pursuant to Local Civil Rule 56.2 on December 19, 2018, (ECF No.

opportunity, via a trial, to present their case;” (2) “[n]one of the

cases cited by Defendants support the motion for summary judgment;”

(3) “[m]uch of the evidence submitted by Defendants is irrelevant and

not supportive of their denial of the claims made in the Complaint;”

(4) defendants “have forced the Plaintiffs to work seven (7) straight

days, several times a year, for several years, without proper

compensation and/or adequate time off;” and (5) defendants have not

met their legal burden. (ECF No. 156, Affidavit in Opposition of

Michael Belvin (“Belvin Aff.”).) Belvin’s affidavit is comprised of

short, conclusory assertions, without legal argument, or citation to

case law or evidence.

Gregory: Mr. Gregory asserts that he worked at Electchester

for 13 years and “every 5 weeks I had to work 7 days straight with 2

days off[.] Thats [sic] a total of 56 hours in a working week[.]”

(ECF No. 157, Affidavit in Opposition of Alvaro Gregory (“Gregory

Aff.”).) Beginning in 2014, Mr. Gregory claims he worked “7 days

straight every 8 weeks with 2 days off,” again, for a total of 56

hours in a workweek. (Id.) Mr. Gregory notes that New York law

requires pay at the rate of one-and-a-half times the regular pay rate

for all hours worked in excess of 40 hours, and notes “our pay roll

was changed few times for the matter,” but does not otherwise state

whether or not defendants underpaid him, much less when, how often, or

by what amount. (Id.) Mr. Gregory’s submission also attaches a

December 16, 2008 letter from Electchester Management to its employees

regarding a change in the payroll schedule (“December 16 Letter”).

(Id. 2.) The December 16 Letter explains that defendants are changing

the payroll schedule from Thursday to Wednesday, to Saturday through

Friday, effective January 1, 2009. (Id. 10.)

Mayers: Mr. Mayers’s submission is a handwritten note

regarding the FLSA and NYLL, and states that “employees may not be

required to work 7 days in a row unless an exception applies,” and

that an employer “may change when their work week starts by the change

cannot be made to avoid paying over time.” (ECF No. 158, Affidavit in

Opposition of Michael Mayers (“Mayers Aff.”) 1.) Mr. Mayers also

states he “work[s] every six weeks.” (Id. 1.) The next ten pages of

Mr. Mayers’s submission include a two-page article from

https://www.replicon.com/overtime-pay-and-wage-theft-the-good-the-bad-

and-the-ugly/ on overtime pay and wage theft; several phone images

that display information about FLSA and NYLL requirements; and the

December 16 Letter from Electchester Management regarding the change

in the payroll schedule. (Id. 3-11.)

Restrepo: Mr. Restrepo submitted a one-page handwritten

letter, which, like Mr. Mayers’s affidavit, states that he worked at

Electchester for 19 years and “every 5 weeks I had to work 7 days

straight with 2 days off. That’s a total of 56 hours in a work week.”

(ECF No. 159, Affidavit in Opposition of Jorge Restrepo (“Restrepo

Aff.”).) Mr. Restrepo also attaches the December 16 Letter to his

affidavit. (Id.)

Reyes: Mr. Reyes’s letter states that he started working for

Electchester Management as a porter in 1992. Mr. Reyes claims that,

at the time, plaintiffs’ typical workweek started on a Thursday and

plaintiffs received their pay on a Wednesday. (ECF No. 160, Affidavit

in Opposition of Marcelino Reyes (“Reyes Aff.”) 1.) According to

Reyes, “we were on a rotating schedule of which each one of us had to

work a weekend, every five (5) weeks, we had off Tuesday and Thursday.

After a few years they changed the starting work day to Saturday and

the payday to Friday, at this time, when we had to work on the

weekend, our off days were changed to Monday and Tuesday, we worked

seven days straight, 56 hours in total.” Reyes concludes that “the

defendant’s attorney statements are incorrect when he states that,

‘Electchester has operated with the same workweek and payday for over

20 years” and that “all porters work both weekend days once every 11

weeks.” (Id. (emphasis in original).)5

LEGAL STANDARD

Summary judgment is appropriate where “the movant shows that

there is no genuine dispute as to any material fact,” Fed. R. Civ. P.

56(a), “and the facts as to which there is no such issue warrant the

entry of judgment for the moving party as a matter of law.” Kaytor v.

Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010); see also

5 Electchester’s General Counsel, Vito Mundo, Esq., concedes that he erroneously

stated that Electchester maintained the same payroll schedule for over 20 years, but

notes that any claim arising from the January 1, 2009 change to defendants’ payroll

schedule is time-barred. (ECF No. 161, Reply Declaration of Vito Mundo (“Mundo

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). “All

ambiguities must be resolved in favor of the non-moving party and all

permissible inferences from the factual record must be drawn in that

party’s favor.” Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d

336, 340 (2d Cir. 2010).

If the moving party can show that “there is no genuine issue

as to any material fact and that it is entitled to judgment as a

matter of law, the nonmoving party must come forward with specific

facts showing that there is a genuine issue for trial.” Peterson v.

Regina, 935 F. Supp. 2d 628, 634 (S.D.N.Y. 2013) (citing Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

“When opposing parties tell two different stories, one of which is

blatantly contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment.” Scott v.

Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).

To defeat a motion for summary judgment, the non-moving

party must identify probative, admissible evidence from which a

reasonable factfinder could find in his favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256-257 (1986). It “requires the nonmoving

party to go beyond the pleadings and by [his or] her own affidavits,

or by the depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine issue

for trial.” 477 U.S. at 261 n.2 (citations omitted). “Only disputes

over facts that might affect the outcome of the suit under the

governing law will properly preclude the entry of summary judgment . .

. . [I]t is the substantive law’s identification of which facts are

critical and which facts are irrelevant that governs.” 477 U.S. at

248. If, as to the issue on which summary judgment is sought, there

is any evidence in the record from any source from which a reasonable

inference could be drawn in favor of the nonmoving party, summary

judgment is improper. Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29,

37 (2d Cir. 1994) (citations omitted).

DISCUSSION

I. Minimum Wage Claims Under FLSA and NYLL

The SAC seeks to prosecute claims accruing six years prior

to the date of commencement of the case, i.e. August 21, 2009. (SAC ¶

24.)6 During the relevant time period, the minimum wage under the

FLSA has been $7.25 per hour. 29 U.S.C. § 206(1)(C). Under the NYLL,

the minimum wage was $7.15 from January 1, 2007 through December 30,

2013, $8.00 from December 31, 2013 through December 30, 2014, $8.75

from December 31, 2014 through December 30, 2015, and $9.00 from

December 31, 2015 through December 30, 2016. N.Y. Lab. Law § 652.

6 The statute of limitations for FLSA violations is three years in the case of a

willful violation, 29 U.S.C. § 255, and six years under the NYLL. N.Y. Lab. Law §

198(3). The porter plaintiffs’ minimum wage claims thus run from August 21, 2012,

through August 21, 2015 (the date plaintiffs commenced suit) under the FLSA, and

The complaint unequivocally alleges that the porter

plaintiffs earned hourly wages well in excess of the FLSA minimum

wage. (Compl. ¶¶ 37 (Belvin: “approximately $22.50 per hour”); 41

(Duque-Garcia: “approximately between $18.50 and $20.00 per hour”); 45

(Gregory: “approximately between $18.30 and $23.05 per hour”); 53

(Mayers: “approximately between $19.00 and $22.50 per hour”); 57

(Restrepo: “approximately between $19.50 and $20.21 per hour”); 61

(Reyes: “approximately $20.21 per hour”).) Further, the CBA indicates

that the regular hourly rate for porters from April 21, 2014 through

April 20, 2016 ranged between $21 and $23 per hour. (CBA 135-37.)

Electchester’s payroll registers further corroborate that each porter

plaintiff received wages far in excess of the FLSA minimum wage.

(Mundo Decl. at Exs. D to I.) The porter plaintiffs’ opposition

affidavits do not proffer evidence to the contrary, or credibly claim

that Electchester’s payroll documents are inaccurate or

misrepresentative.

Accordingly, there is no genuine dispute of material fact

that the porter plaintiffs’ wages exceeded the federal and New York

minimum wage.

II. Overtime Claims Under FLSA and NYLL

Section 207(a)(1) of the FLSA provides that:

[N]o employer shall employ any of his employees who in

any workweek is engaged in commerce or in the production of

goods for commerce, or is employed in an enterprise engaged

in commerce or in the production of goods for commerce, for

a workweek longer than forty hours unless such employee

receives compensation for his employment in excess of the

hours above specified at a rate not less than one and one-

half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1). The “regular rate” of pay is “the hourly rate

actually paid the employee for the normal, nonovertime workweek for

which he is employed.” 29 C.F.R. § 778.108. “The ‘regular rate’

under the Act is a rate per hour,” unless an employee’s earnings are

determined on another basis. Id. § 778.109. “If the employee is

employed solely on the basis of a single hourly rate, the hourly rate

is the ‘regular rate.’ For overtime hours of work the employee must

be paid, in addition to the straight time hourly earnings, a sum

determined by multiplying one-half the hourly rate by the number of

hours worked in excess of 40 in the week.” Id. § 778.110(a). The

NYLL likewise provides that “[a]n employer shall pay an employee for

overtime at a wage rate of one and one-half times the employee’s

regular rate in the manner and methods provided in and subject to the

exemptions of [the FLSA] . . . .” 12 N.Y.C.R.R. § 142-2.2.

To establish liability under the FLSA and NYLL on a claim

for unpaid overtime, “a plaintiff must prove that he performed work

for which he was not properly compensated, and that the employer had

actual or constructive knowledge of that work.” Kuebel v. Black &

Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011); see also Tapia v. Blch

3rd Ave. LLC, No. 14 Civ. 8529, 2016 WL 4581341, at *4 (S.D.N.Y. Sept.

1, 2016) (observing that under the FLSA and the NYLL, “[p]laintiffs

bear the burden of proof to establish all claims and damages by a

preponderance of the evidence”). The FLSA and NYLL require employers

to pay overtime to employees who work in excess of forty hours per

workweek. See 29 U.S.C. § 207(a)(1); 12 N.Y.C.R.R. § 142–2.2; Zheng

v. Liberty Apparel Co. Inc., 355 F.3d 61, 78 (2d Cir. 2003) (claim

under 29 U.S.C. § 207 is analogous to a claim under 12 N.Y.C.R.R. §

142–2.2). A “workweek” is defined by the Code of Federal Regulations

as follows: “An employee’s workweek is a fixed and regularly recurring

period of 168 hours—seven consecutive 24–hour periods. It need not

coincide with the calendar week but may begin on any day and at any

hour of the day.” 29 C.F.R. § 778.105. “A standard and repeating

Monday to Friday 40–hour week is not required.” Lopez v. Hollisco

Owners’ Corp., 147 F. Supp. 3d 71, 77 (E.D.N.Y. 2015), aff’d, 669 F.

App’x 590 (2d Cir. 2016) (citing Abshire v. Redland Energy Servs., 695

F.3d 792 (8th Cir. 2012)).

“[N]umerous federal and state courts have concluded that an

employer does not violate the FLSA merely because, under a

consistently-designated workweek, its employees earn fewer hours of

overtime than they would if the workweek was more favorably aligned

with their work schedules.” Lopez, 147 F. Supp. 3d at 77 (quoting

Abshire, 695 F.3d at 794). “[T]he FLSA, standing alone, does not

require that the workweek begin on any given day of the week. The Act

only requires that the starting day remain constant and that the

employees not work more than 40 hours within the 168 hour week without

receiving overtime compensation.” Id. at 77-78 (citations omitted,

brackets and emphasis in original).

In Lopez, the plaintiff made similar claims to the pro se

plaintiffs here, under the FLSA and NYLL against the defendant-

employer, for failure to pay overtime based on instances when the

plaintiff worked seven days in a row. Id. at 79. Judge Weinstein

explained that plaintiff’s claim was based on a “misunderstanding of

what his ‘workweek’ was for purposes of federal and state labor laws.”

Id. Judge Weinstein granted summary judgment for defendant because

the instances when plaintiff worked seven consecutive days spanned two

workweeks, and therefore, plaintiff was not entitled to additional

overtime compensation under the FLSA and NYLL. Id.

Here, the porter plaintiffs’ overtime claims under the FLSA

and NYLL are based on the same fundamental misunderstanding of a

workweek as the Lopez plaintiff. It is undisputed that the porter

plaintiffs’ Standard Week during the relevant time period ran from

Saturday through Friday. (Mundo Decl. ¶ 12.)7 Mr. Mundo explained in

his declaration that, even though the porter plaintiffs were

occasionally scheduled for work on seven consecutive days, the seven

days were always allotted over two separate workweeks, such that the

7 Plaintiffs Gregory, Mayers, Restrepo, and Reyes, each note or otherwise

indicate that Electchester changed the porter plaintiffs’ scheduled workweek

beginning on January 1, 2009. (See Gregory, Mayers, Restrepo, and Reyes Affs.)

This fact is immaterial however, as explained above, because any FLSA or NYLL claims

arising from the 2009 change in the porter plaintiffs’ workweek schedule would be

porter plaintiffs were never scheduled for more than 40 hours at a

regular rate in a given workweek. (Mundo Decl. ¶¶ 13-14.) Though the

porter plaintiffs were typically scheduled to work 8 hours per day,

Monday through Friday, on occasions when a porter plaintiff

additionally worked the Saturday and Sunday that followed, resulting

in seven consecutive work days, the porter plaintiff would receive the

following Monday and Tuesday off, resulting in no more than 40

scheduled hours of work in a workweek. The voluminous payroll records

for the porter plaintiffs specify that each workweek ended on a

Friday, and that each porter plaintiff worked no more than 40 hours at

a regular rate. (See Mundo Decl. at Exs. D to I.)

Based on the unchallenged testimony of Mr. Mundo,

corroborated by Electchester’s payroll registers, and the porter

plaintiffs’ failure to proffer evidence supporting their overtime

claims, the court finds there is no dispute of material fact that the

porter plaintiffs were not uncompensated or undercompensated for

overtime in violation of the FLSA or NYLL.

III. Failure to Timely Pay Wages

Section 191(d) of the NYLL provides that “[a] clerical and

other worker shall be paid the wages earned in accordance with the

agreed terms of employment, but not less frequently than semi-monthly,

on regular pay days designated in advance by the employer.” N.Y. Lab.

Law § 191(d). It is undisputed that the porter plaintiffs’ payday was

every Friday. (See Mundo Decl. ¶ 8; see also id. at Exs. D to I.)

The “Pay Date” on each Electchester pay statement for the porter

plaintiffs’ invariably matches “Period Ending” date. (See generally

id.) The porter plaintiffs claim that defendants failed to pay the

porter plaintiffs’ wages “not later than the regular pay day for the

pay period during many workweeks,” (SAC ¶ 101), but neglect to specify

any instances of tardy payment. Neither do the porter plaintiffs’

opposition affidavits. Mr. Mundo attested that all wage payments were

timely made every Friday, and this assertion is supported by the

Electchester’s payroll registers, and undisputed by any evidence.

(Mundo Decl. ¶ 18; id. at Exs. D to I.) This uncontroverted evidence

of timely payment warrants summary judgment in favor of defendants and

dismissal of the porter plaintiffs’ claim for failure to timely pay

wages.

IV. Wage Theft Prevention Act

Plaintiffs seek to recover damages for defendants’ alleged

failure to provide regular wage statements and annual wage notices as

required by New York’s WTPA. (SAC ¶ 105 (citing N.Y. Lab. Law §

195(3) and 12 N.Y.C.C.R.R. § 141-2.2).) The WTPA requires employers

to furnish each employee with a statement with every payment of wages,

listing the following:

the dates of work covered by that payment of wages; name of

employee; name of employer; address and phone number of

employer; rate or rates of pay and basis thereof, whether

paid by the hour, shift, day, week, salary, piece,

commission, or other; gross wages; deductions; allowances,

if any, claimed as part of the minimum wage; and net wages .

. . . [T]he statement shall include the regular hourly rate

or rates of pay; the overtime rate or rates of pay; the

number of regular hours worked, and the number of overtime

hours worked.

N.Y. Lab. Law § 195(3). New York’s Labor Law, however, provides an

affirmative defense for violations of section 195(3) for employers who

made complete and timely payment of wages. Id. § 198(1-d); see Jindan

Wu v. Nat. Tofu Rest. Corp., No. 16-CV-3613-ARR-ST, 2018 WL 1009274,

at *8 (E.D.N.Y. Feb. 20, 2018) (acknowledging that complete and timely

payment of wages establishes affirmative defense to a violation of §

195(3)); see also Guan Ming Lin v. Benihana New York Corp., No. 10

CIV. 1335 RA JCF, 2012 WL 7620734, at *13 (S.D.N.Y. Oct. 23,

2012), report and recommendation adopted, No. 10 CIV. 1335 RA JCF,

2013 WL 829098 (S.D.N.Y. Feb. 27, 2013) (“The statutory language [of

N.Y. Lab. Law §§ 195(3) and 198(1-d)] clearly and unambiguously

explains what the wage statements must contain, what reliefs the

employees may seek for receiving inadequate wage statements, and

what affirmative defenses the employer may raise.”).8

8 Section 198(1-d) of the Labor Law provides, in relevant part:

In any action or administrative proceeding to recover damages for violation of

subdivision three of section one hundred ninety-five of this article, it shall

be an affirmative defense that (i) the employer made complete and timely

payment of all wages due pursuant to this article or articles nineteen or

nineteen-A of this chapter to the employee who was not provided statements as

required by subdivision three of section one hundred ninety-five of this

article or (ii) the employer reasonably believed in good faith that it was not

required to provide the employee with statements pursuant to paragraph (e) of

subdivision one of section one hundred ninety-five of this article.

N.Y. Lab. Law § 198(1-d). Though the relevant affirmative defense was enacted

pursuant to a 2011 amendment, see generally 2010 S.B. 8380, Ch. 564, “the

legislative history of the amendments to the § 198 Affirmative Defense demonstrates

that they are remedial and that that the legislature intended them to have

retroactive effect.” Hicks v. T.L. Cannon Mgmt. Corp., No. 13-CV-06455 EAW, 2018 WL

As evidence of their compliance with section 195(3),

defendants submitted an exemplar wage statement, which defendants

assert was provided to each employee, including the porter plaintiffs.

(ECF No. 155-5, Mundo Decl. at Ex. J.) Though the exemplar statement

is facially compliant with section 195(3), Mr. Mundo represents that

defendants do not possess specific statements for each porter

plaintiff during the relevant time period because Electchester’s

payroll vendor, ADP, does not provide Electchester with copies of each

employee’s statements. (Mundo Decl. ¶ 19.) The porter plaintiffs do

not credibly contest defendants’ assertion of compliance, much less

submit or refer to evidence to the contrary. Further, as established

above, defendants have submitted clear and unrebutted evidence of

complete and timely wage payments for each porter plaintiff, and thus,

can avail themselves of the affirmative defense set forth in section

198(1-d) of the Labor Law.

CONCLUSION

For the foregoing reasons, defendants’ Motion for Summary

Judgment is granted. The court dismisses with prejudice Counts One

through Four of the Second Amended Complaint asserted by plaintiffs

Michael Belvin, Nery Duque-Garcia, Alvaro Gregory, Michael Mayers,

Jorge Restrepo, and Marcelino Reyes. The court also dismisses Count

Five of the Second Amended Complaint as it relates to the pro se

porter plaintiffs, which seeks relief that is duplicative of, and

reliant on, Counts One through Four. Defendants shall promptly serve

the pro se porter plaintiffs with a copy of this Memorandum and Order

and note service on the docket. The Clerk of Court is respectfully

directed to enter partial judgment in favor of defendants, but not to

close the case, and dismiss plaintiffs Michael Belvin, Nery Duque-

Garcia, Alvaro Gregory, Michael Mayers, Jorge Restrepo, and Marcelino

Reyes from this case.

SO ORDERED.

Dated: January 30, 2020

Brooklyn, New York

/s/

Kiyo A. Matsumoto

United States District Judge