Tenecora v. Ba-Kal Restaurant Corp.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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LINA TENECORA, LENNY ROMERO, DORA

ALICIA GARCIA ASCENIO, JOSE ANTONIO

BARRIENTOS, ESTELA FLORES, ROCIO

GONZALEZ, GLORIA LALVAY, MANUEL ORDER ADOPTING IN

MOROCHO, HERMELINDA RAMOS, and PART REPORT AND

ELISA VARELA, RECOMMENDATION

Plaintiffs,

- against - 2:18-cv-7311 (DRH) (AKT)

BA-KAL RESTAURANT CORP., d/b/a

PRINCESS DINER and/or SOUTHAMPTON

PRINCESS DINER, and RICHARD BIVONA,

Defendants.

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HURLEY, Senior District Judge:

INTRODUCTION

Presently before the Court is the captioned Plaintiffs’ Objection to the

November 30, 2020 Report and Recommendation of Magistrate Judge A. Kathleen

Tomlinson (the “R&R” [DE 49]) recommending the Court grant in part, and deny in

part, their motion for default judgment against the Defendants Ba-Kal Restaurant

Corp., d/b/a Princess Diner and/or Southampton Princess Diner, and Richard Bivona

(collectively “Defendants”). For the reasons stated below, the R&R is ADOPTED IN

PART and Plaintiffs’ motion for default judgment is GRANTED.

BACKGROUND

The Court adopts the R&R’s detailed Background Section, to which no

objection is lodged. (R&R at 2–16). In short, Plaintiffs are “ten Latino and Latina

immigrant low-wage restaurant workers” who have suffered Defendants’ hostile work

environment and discriminatory remarks against their ethnicity, race, national

origin, and/or sex. (Id. at 3; Plaintiffs’ Objection to Report and Recommendation, at

9 (“Pls. Obj.”) [DE 52]). Defendants are also alleged to have unlawfully withheld

Plaintiffs’ wages between August 2016 and December 2016. (Pls. Obj. at 20 (citing

Compl. ¶¶ 17, 46, 152, 176)). Plaintiffs bring three claims: (1) hostile work

environment based on race, ethnicity, and national origin in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”) and New York State

Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), see Compl. ¶¶ 142–46

(Count II), ¶¶ 166–70 (Count VI); (2) sex-based discrimination in violation of Title VII

and the NYSHRL, see Compl. ¶¶ 137–41 (Count I), ¶¶ 161–65 (Count V); and (3) race-

based discrimination in violation of Title VII, the NYSHRL, and the Civil Rights Act

of 1866, 42 U.S.C. § 1981 (“Section 1981”), see Compl. ¶¶ 147–54 (Count III), ¶¶ 155–

60 (Count IV), ¶¶ 171–78 (Count VII).

Plaintiffs obtained a certificate of default on July 22, 2019, [DE 35], and moved

for entry of default judgment on February 14, 2020, [DE 47]. This Court referred

Plaintiffs’ motion to Magistrate Judge Tomlinson, who issued her R&R on November

30, 2020. [DE 49]. The R&R recommended granting Plaintiffs’ motion on their hostile

work environment and sex-discrimination claims. (R&R at 20–29). However, the

R&R recommended denying their motion on the race-based discrimination claims.

(Id. at 29–41).

The R&R determined that Plaintiffs failed to allege facts supporting an

inference that they suffered adverse employment actions based on their race. (R&R

at 31 (quoting Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)). All but one of

Defendants’ alleged employment actions were insufficiently “adverse” because they

did not materially change the terms and conditions of employment. (R&R at 32–37).

Defendants’ withholding Plaintiffs’ wages, while sufficiently adverse, was not alleged

to have occurred “under circumstances [giving] rise to ‘an inference of discriminatory

intent.’” (R&R at 37–41). According to the R&R, Plaintiffs failed to link Defendants’

derogatory remarks “to the decision to withhold wages to an extent that

discriminatory intent may be inferred.” (Id.).

Plaintiffs contend the R&R erred (i) by applying the incorrect race-

discrimination standard, which skewed its analysis of Plaintiffs’ allegations, and

(ii) by failing to draw a nexus between the allegations of discriminatory intent and

Defendants’ adverse employment actions. To the extent the Court sustains Plaintiffs’

objection, Plaintiffs request it “revisit” the R&R’s damages assessment, which would

award nothing on the race-discrimination claims. (Pls. Obj. at 10 n.3).1

DISCUSSION

Federal Rule of Civil Procedure 72(b) provides that when a magistrate judge

issues a report and recommendation on a matter “dispositive of a claim or defense of

a party,” the district court judge shall make a de novo determination of any portion

1 Despite Plaintiffs faulting Magistrate Judge Tomlinson for “misappl[ying] the

McDonnell Douglas framework to [their] . . . direct evidence of discrimination,” the

Court parenthetically notes that Plaintiffs—not Judge Tomlinson—first asserted

that McDonnell Douglas applies here. Pls. Mot. for Default Judgment at 8–9 [DE 47-

2]. Moreover, whereas Plaintiffs’ objection devotes twenty pages to the race-

discrimination claim, their submission to Judge Tomlinson devoted only one cursory

paragraph. Compare id., with Pls. Obj. at 11–30.

of the magistrate judge’s disposition to which specific written objection has been

made. Fed. R. Civ. P. 72(b).

Race-based discrimination2 claims require a plaintiff to “plausibly allege that

(1) the employer took adverse action against him, and (2) his race . . . was a

motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch.

2 The term “race” is used as shorthand for “race, ethnicity and/or national

origin,” which conforms to Plaintiffs’ and the R&R’s usage. Compl. ¶¶ 147–54, 155–

60, 171–78 (Counts III, IV and VII alleging discrimination on the basis of race,

ethnicity and/or national origin); R&R at 25, 29–30.

This understanding aligns with Supreme Court and Second Circuit precedent,

which draws minimal distinction between the three. In St. Francis College v. Al-

Khazraji, the Supreme Court held discrimination based on “ancestry or ethnic

characteristics” is “racial discrimination that Congress intended [Section] 1981 to

forbid, whether or not it would be classified as racial in terms of modern scientific

theory.” 481 U.S. 604, 609–13 (1987). In Village of Freeport v. Barrella, the Second

Circuit held that “discrimination based on ethnicity, including Hispanicity or lack

thereof, constitutes racial discrimination under Title VII” and Section 1981. 814 F.3d

594, 600–07 (2d Cir. 2016). The Second Circuit has also noted that “a claim of

discrimination based on Hispanic ethnicity or lack thereof may also be cognizable

under the rubric of national-origin discrimination, depending on the particular facts

of each case.” Id. (emphasis in original) (citing United States v. Brennan, 650 F.3d

65, 134 (2d Cir. 2011) and Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d

Cir. 1997)).

The Supreme Court and the Second Circuit likewise recognize, in a variety of

contexts, that “treating groups differently based on the members’ alienage [is] akin

to discriminating against a group because of their race or color.” Dandamudi v. Tisch,

686 F.3d 66, 73 (2d Cir. 2012) (describing the Supreme Court’s holding in Takahashi

v. Fish & Game Comm’n, 334 U.S. 410 (1948)); cf. United States v. Brignoni-Ponce,

422 U.S. 873, 886 (1975) (“Even if they saw enough to think that the occupants were

of Mexican descent, this factor alone would [not] justify . . . a reasonable belief that

they were alien . . . .”); Milan-Hernandez v. Barr, 965 F.3d 140, 148 (2d Cir. 2020)

(“We have recognized that, when a law enforcement officer detains and questions an

individual about her immigration status although she is not suspected of a crime,

those circumstances offer a strong suggestion that the search or seizure was

improperly based on race.”); Anderson v. Conboy, 156 F.3d 167, 174 (2d Cir. 1998)

(“The desire to protect Chinese immigrants from discrimination, however, is as

consistent with prohibiting racial discrimination as with prohibiting alienage

discrimination.”).

Dist., 801 F.3d 72, 87 (2d Cir. 2015).3 A plaintiff “may do so by alleging facts that

directly show discrimination or facts that indirectly show discrimination by giving

rise to a plausible inference of discrimination.” Id. “[W]hile a discrimination

complaint need not allege facts establishing each element of a prima facie case of

discrimination, . . . it must at a minimum assert nonconclusory factual matter

sufficient to nudge its claims across the line from conceivable to plausible to proceed.”

E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2013) (internal

citations, alterations, and quotation marks omitted).

Understood in context, Plaintiffs’ objection concerns the second prong of the

race-discrimination analysis: whether “wages were withheld under circumstances

which give[] rise to an ‘inference of discriminatory intent.’” R&R at 37; see Vega, 801

F.3d at 88–89 (addressing first whether there was adverse employment action, and

then whether race was a “motivating factor in the employment decisions”). Indeed,

both the R&R and Plaintiffs tacitly agree that the withholding of Plaintiffs’ wages

was an adverse employment action. See Pls. Obj. at 19–29 (“[T]he withholding of

wages clearly meets the standard for adverse action as reflected in Title VII.”); see

generally R&R at 37–40 (analyzing only whether withholding wages could be tied to

discriminatory animus).4

3 “Courts apply the same standard in analyzing Title VII, the NYSHRL, and

Section 1981 race discrimination claims.” R&R at 25 (citing Tolbert v. Smith, 790

F.3d 427, 434 (2d Cir. 2015) (“Although the § 1981 claim is against [the individual

defendant] and the Title VII and NYSHRL claims are against the School District, the

analysis is the same.”)).

4 Plaintiffs say that Defendants’ “actions and the context that they were made,”

“taken together,” materially altered the terms and conditions of their employment.

I. Race as a Motivating Factor to Withholding Plaintiffs’ Wages

Plaintiffs object that the R&R incorrectly deemed their allegations of

discriminatory intent “conclusory” and ignored the “direct evidence of

discrimination.” Pls. Obj. at 11. Plaintiffs contend this error led the R&R to misapply

the McDonnell Douglas framework and to decline to infer discriminatory motivation.

Id. at 19, 21.

Employment discrimination claims can be borne out through direct or indirect

means. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985); Vega, 801

F.3d at 87. “‘Direct’ and ‘indirect’ describe not the quality of the evidence presented,

but the manner in which the plaintiff proves his case.” Tyler v. Bethlehem Steel Corp.,

958 F.2d 1176, 1185 (2d Cir. 1992). “‘Direct evidence’ of discrimination is something

of a misnomer”; it is best understood in contrast with what “makes out a McDonnell

Douglas prima facie case[, which is] evidence from which an inference of

discrimination arises only because ‘it eliminates the most common nondiscriminatory

reasons for the plaintiff’s rejection,’ and which inference is therefore immediately

Pls. Obj. at 19–20. However, for discrimination claims, purportedly adverse

employment actions are analyzed individually and not in the aggregate. Kelly v. N.Y.

State Off. of Mental Health, 200 F. Supp. 3d 378, 397 n.11 (E.D.N.Y. 2016) (holding,

despite being “viewed in the aggregate” in other contexts, “adverse actions in the

discrimination context must be evaluated individually”); Lewis v. Boehringer

Ingelheim Pharm., Inc., 79 F. Supp. 3d 394, 412–13 (D. Conn. 2015); Kaur v. N.Y.C.

Health & Hosps. Corp., 688 F. Supp. 2d 317, 332 (S.D.N.Y. 2010) (“[T]here is no

authority for the proposition that this Court should consider the cumulative effect of

individually alleged adverse employment actions when evaluating Plaintiff’s

discrimination claim.”); Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 356 n.22

(S.D.N.Y. 2006). To the extent Plaintiffs object to this aspect of the R&R’s analysis,

they are overruled.

dispelled once the employer has produced evidence of a nondiscriminatory reason.”

Cartagena v. Ogden Servs. Corp., 995 F. Supp. 459, 462 (S.D.N.Y. 1998) (Sotomayor,

J.) (quoting Texas Dep’t of Comm. Affs. v. Burdine, 450 U.S. 248, 254 (1981)). Simply,

direct evidence exists where “an impermissible criterion,” like race, “was in fact a

‘motivating’ or ‘substantial’ factor in the employment decision.” de la Cruz v. N.Y.C.

Human Res. Admin. Dep’t of Soc. Servs., 82 F.3d 16, 23 (2d Cir. 1996) (emphasis in

original) (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)).

Direct evidence need not be the “proverbial smoking gun, i.e., an unequivocal

statement by an employer that an employee is being terminated for an impermissible

reason.” Ames v. Cartier, Inc., 193 F. Supp. 2d 762, 768–69 (S.D.N.Y. 2002) (citing

Cartagena, 995 F. Supp. at 462). “Rather, direct evidence is evidence ‘directly

reflecting the alleged discriminatory attitude.’” Id. (emphasis in original) (quoting

Lightfoot v. Union Carbide Corp., 110 F.3d 898, 913 (2d Cir. 1997)). It can take the

form of “a workplace policy, practice or decision [that] relies expressly on a protected

characteristic” or “conduct or statements by persons involved in the decisionmaking

process.” Young v. United Parcel Serv., 575 U.S. 206, 135 S.Ct. 1338, 1345 (2015);

Lightfoot, 110 F.3d at 913; Ostrowski v. Atl. Mut. Ins. Cos., 968 F.2d 171, 182 (2d Cir.

1992). A pervasive use of racial slurs and derogatory language can directly evidence

discriminatory animus. E.g., Bonilla v. City of New York, 2019 WL 6050757, at *13–

14 (S.D.N.Y. 2019) (supervisor repeatedly calling plaintiff an alleged racial slur

evidenced “direct discriminatory animus” sufficient to defeat summary judgment);

Azar v. TGI Friday’s, Inc., 945 F. Supp. 485, 498–99 (E.D.N.Y. 1996) (holding a

“pattern of ridicule,” comprised of anti-Iranian slurs, “obscenities[,] and derogatory

terms” used “in a hazing manner[,]” was “direct evidence of discriminatory animus”);

see also, Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861–62 (5th Cir. 1993)

(“Pippen’s routine use of racial slurs constitutes direct evidence that racial animus

was a motivating factor in the contested disciplinary decisions,” not “an innocent

habit. . . . [T]he term [n-----] is a universally recognized opprobrium, stigmatizing

African-Americans because of their race.”).

Here, Plaintiffs plead discrimination “directly” through Defendants’ alleged

statements and acts, which undoubtedly reflect an attitude discriminatory against

Latino/as. Defendants’ regular insults and ethnic slurs, e.g., Compl. ¶¶ 14–15, 37–

38, 64–65, 75–77, 85, 102, 115, 132, created a “climate of disrespect and disdain for

labor contributions compared to non-Latino employees.” Id. ¶ 47; e.g., id. ¶ 71 (if

Plaintiff Barrientos tried to eat “food other than that which was permitted,” his

supervisor would remark, ‘[Y]ou don’t get to eat that food in your country, so why

should you get to eat it here?’”); id. ¶ 72 (“Kalogeras . . . dissuade[d] Latino/a

employees] from reporting Defendants’ abusive and discriminatory behavior by

telling them, ‘if you complain (about my treatment), I will call immigration officials

on you.’”); see also, e.g., id. ¶¶ 5, 74, 92, 101, 112, 115, 132. Many of these statements

do not expressly mention, and therefore are facially unconnected to, Defendants’

withholding of wages – which forestalled the R&R from inferring discriminatory

intent in the wrongful nonpayment. Nevertheless, these statements provide the

backdrop against which the rest of the case is viewed; they are “the relevant

background evidence . . . shedding light on Defendants’ motivation and thus

bolster[ing] [the] claim that Defendants treated [Plaintiffs] differently” on account of

race. Vega, 801 F.3d at 88.

Understood in this setting, one of Defendants’ statements displays, if not a

“smoking gun,” then a “thick cloud of smoke” of direct evidence that Defendants

withheld Plaintiffs’ wages with discriminatory intent. Tyler, 958 F.2d at 1187. At

Paragraph 104, Plaintiffs allege:

Defendants began to withhold Plaintiff Lalvay’s wages in August 2016.

After not being paid for several weeks, she notified [her supervisor John]

Kalogeras that she was going to call the New York State Department of

Labor to recover her wages. Kalogeras responded by telling her that she

would be the one to “get in trouble” and referenced immigration

authorities. Plaintiff Lalvay felt intimidated by his threat to retaliate

against her if she spoke out.

Compl. ¶ 104.5

It is possible that Supervisor Kalogeras’s6 statement exemplifies a “stray

remark[]” rather than reflects discriminatory bias. To determine which it better

5 The R&R states that while “Kalogeras made a slew of ethnically and racially

degrading and discriminatory remarks to them in the course of their employment,

[Plaintiffs] do not assert that Kalogeras was involved in the decision to withhold their

wages.” R&R at 38. The Court respectfully disagrees. While Plaintiffs do not

explicitly so state, the facts as alleged make it reasonable to so infer. “Plaintiffs

worked under Kalogeras, the main supervisor” and self-described “king of the castle.”

Compl. ¶¶ 4, 23, 36, 42, 54, 76, 112. Plaintiffs went to Kalogeras, as well as Bivona,

to dispute the wrongful nonpayment. Id. ¶ 104.

6 There is no objection to the R&R’s determination that the corporate defendant

Ba-Kal Restaurant could be liable under Title VII, NYSHRL, and Section 1981, and

that individual defendant Bivona could be held liable the NYSHRL and Section 1981.

Further, there is no objection that the NYSHRL enables the Court to hold individuals,

like Defendant Bivona here, liable for discriminatory conduct perpetrated by others

under his direct supervision, like Kalogeras. R&R at 24 n.4, 26, 29 n.5; Pls. Obj. at

12 n.5.

illustrates, the statement must be analyzed through four factors: “(1) who made the

remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the

remark was made in relation to the employment decision at issue; (3) the content of

the remark (i.e., whether a reasonable juror could view the remark as

discriminatory); and (4) the context in which the remark was made (i.e., whether it

was related to the decision-making process).” Henry v. Wyeth Pharm., Inc., 616 F.3d

134, 149–50 (2d Cir. 2010). Applied here: (1) the Plaintiffs’ supervisor, (2) at the

outset of the period in which Defendants withheld Plaintiffs’ wages (August 2016

through December 2016), (3) chilled, deterred, and threatened Plaintiff Lalvay with

language rooted in racism,7 (4) were she to report Defendants for wrongful

nonpayment. See id. ¶¶ 104, 176.8

Even if one refuses, absent more proof, to construe threats to Latino/a

employees of “trouble” from “immigration authorities” as reflecting racism,

Defendants’ use of similar phrasing exposes its invidious nature. E.g., id. ¶¶ 5, 64

(“Plaintiffs would likely be ‘swept up’ in an immigration raid”); ¶ 72 (“[I]f you

complain (about my treatment), I will call immigration officials on you.”), ¶ 75

(“Kalogeras said on more than one occasion that he hoped immigration authorities . . .

would come and take [racial slur for Latinos/as].”), ¶ 77, ¶ 101 (“When local police

7 As explained in note 2, “racism” here is construed broadly to include prejudice

towards ethnicity and national origin, as well as race. See supra note 2.

8 Paragraph 104 is but one specific example of (1) Plaintiffs’ immediate

supervisor or the restaurant owner (2) on a daily basis (3) making facially racist

comments (4) on all aspects of Plaintiffs’ employments. E.g., Compl. ¶¶ 5, 71, 72, 74,

92, 101, 112, 115, 132.

officers would come into the restaurant as customers, Kalogeras would tell Plaintiff

Lalvay in front of her co-workers and clients, ‘immigration [authorities] are here.’”).

Kalogeras’s remark, made in an environment rife with anti-Latino/a

sentiment, demonstrates that race was a motivating factor in withholding, and

continuing to withhold, Plaintiffs’ wages. Despite Kalogeras threatening only

Plaintiff Lalvay, Kalogeras’s remark reveals discriminatory animus common to all

Plaintiffs – their Latino/a race. See Compl. ¶ 17 (“Plaintiffs stopped receiving regular

wages . . . along with other Latino/a employees. Upon information and belief, white

employees’ wages were not withheld by Defendants.”); ¶ 94 (alleging “openly violent

threats by Bivona to dissuade Plaintiff Gonzalez and other Latino/a workers from

demanding their due wages”); see also, id. ¶¶ 46, 54, 144, 157, 158.

The nexus between the nonpayment of Plaintiffs’ wages and race-based

discrimination is further bolstered by the allegation that Defendants duly and timely

paid their non-Latino/a employees. Compl. ¶¶ 17, 46, 152, 176. While the R&R

highlights these allegations as pled “upon information and belief,” the Court declines

to adopt the R&R to the extent it faults Plaintiffs for doing so. R&R at 4 n.2, 40.

“Pleading on the basis of information and belief is generally appropriate” where

information is particularly within a defendant’s “knowledge and control.” Boykin v.

KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (Sotomayor, J.).

The Boykin plaintiff brought a race-discrimination claim alleging that, “upon

information and belief,” discriminatory animus motivated a bank’s home equity loan

application practices. Id. at 204, 214. Specifically, the complaint stated,

Upon information and belief, persons who were not members of the

protected classes received loans and were more favorably treated in the

loan application process than [plaintiff] with regard to the same or

similar types of properties.

Id. at 206 (quoting Boykin complaint paragraph 12). The Second Circuit held “the

names and records, if any, of persons who were not members of the protected classes

and were more favorably treated in the loan application process [was] information

particularly within [the bank’s] knowledge and control,” and therefore permissibly

alleged “upon information and belief.” Id. at 215. This constituted “a plausible

allegation of disparate treatment” justifying vacatur of the district court’s dismissal

order. Id. at 216. The Court discerns no compelling difference between Boykin’s

“information and belief” allegations and those here.9 Plaintiffs have therefore

adequately pled discrimination based on race in violation of Title VII, NYSHRL, and

Section 1981.

II. Damages

Despite Plaintiffs’ correct objection that Defendants impermissibly

discriminated on the basis of race, Plaintiffs offer no explanation as to how damages

should be “revisited” or revised. Pls. Obj. at 10 n.3. As the R&R correctly noted,

Plaintiffs bear the burden, even on a motion for default judgment, to prove damages.

R&R at 42 (citing Cement & Concrete Workers Dist. Council Welfare Fund v. Metro

9 The Boykin plaintiff’s pro se status is not a basis to “materially distinguish”

the Second Circuit’s holding. Meyer v. N.Y. Off. of Mental Health, 2014 WL 1767818,

at *5 n.8 (E.D.N.Y. May 2, 2014); Ritterband v. Hempstead Union Free Sch. Dist.,

2008 WL 3887605, at *8 n.3 (E.D.N.Y. Aug. 20, 2008).

Found. Contrs. Inc., 699 F.3d 230, 234 (2d Cir. 2012)). The R&R awarded

compensatory damages, punitive damages, attorneys’ fees, and costs.

A. Compensatory Damages

Plaintiffs fail to contest the R&R’s compensatory damages analysis, which

addressed their emotional harm. R&R at 46–58. Following thorough review of the

Plaintiffs’ submissions, the R&R refused to recommend the amount each requested

because no Plaintiff supplied “evidence of any medical or mental health treatment,”

“medical documentation,” or “evidence as to the onset and duration of [the] emotional

distress.” R&R at 47 (Tenecora), 49 (Romero), 50–51 (Flores), 52 (Barrientos),

53 (Varela), 54 (Ramos), 55 (Morocho), 56 (Lalvey), 57 (Ascenio), 58 (Gonzalez).

Plaintiffs have not remedied this deficiency; their objection does not include any

evidence as to medical treatment or other indicia of emotional harm. The Court

therefore adopts the R&R’s recommendation on compensatory damages.

B. Punitive Damages

The R&R’s punitive damages recommendation,10 as a “discretionary moral

judgment,” warrants revision in light of Defendants’ race-based discrimination in

violation of Title VII, NYSHRL, and Section 1981. Wiercinski v. Mangia 5, Inc., 787

F.3d 106, 115 (2d Cir. 2015). Title VII and Section 1981 make punitive damages

available, but the NYSHRL does not. 42 U.S.C. § 1981a(b)(1); N.Y. Exec. Law

§ 297(9); Farias v. Instructional Sys., Inc., 259 F.3d 91, 101 (2d Cir. 2001). The R&R

10 The body of R&R recommends awarding Plaintiff Tenecora $10,000.00 in

punitive damages; its conclusion, however, recommends awarding her $15,000.00.

Compare R&R at 65, with id. at 78. The Court adopts the latter recommendation.

deemed that “Kalogeras’ conduct toward Plaintiffs Tenecora, Ramos and Morocho

was egregious enough or sufficiently outrageous to warrant punitive damages based

on comparable caselaw.” R&R at 62–63. This recommendation came without a

finding on liability for race discrimination.

Plaintiffs may obtain punitive damages as their employer “engaged in

intentional discrimination . . . ‘with malice or with reckless indifference to the

federally protected rights of an aggrieved individual[s].’” Kolstad v. Am. Dental Ass’n,

527 U.S. 526, 529–30 (1999) (quoting 42 U.S.C. § 1981a(b)(1)). Both “malice” and

“reckless indifference” require “the employer’s knowledge that it may be acting in

violation of federal law.” Id. at 535. “Egregious” or “outrageous” conduct can give

rise to an inference that the employer acted with this “requisite evil motive.” Id.

(internal quotation marks omitted); Farias, 259 F.3d at 101.

Defendants’ racially discriminatory conduct warrants the imposition of

punitive damages as to all Plaintiffs. The Complaint permits the reasonable

inference that Defendants knew they were violating federal law when they withheld

Plaintiffs’ wages—the adverse employment action taken with discriminatory intent.

For example, in response to Plaintiffs expressed concerns over unpaid wages, “Bivona

responded that he did not care if Plaintiff Gonzalez and her co-workers sued him

because he had been in jail before and that he was part of the mafia.” Compl. ¶ 94.

Kalogeras, for his part, took a less cavalier approach – by threatening retaliation

against Plaintiffs on fundamentally race-based grounds. E.g., id. ¶ 72 (“[I]f you

complain (about my treatment), I will call immigration officials on you.”), ¶ 104

(Plaintiff Lalvay would “get in trouble” with the “immigration authorities” if she

“call[ed] the New York State Department of Labor to recover her wages.”).

Defendants’ withholding of wages was so egregious that, following an investigation

by the New York State Attorney General, Bivona and Kalogeras faced criminal

charges, with Bivona ultimately serving time. New York v. Bivona, No. 01736A-2017

(N.Y. Sup. Ct. - Suffolk Cnty, Crim. Term Dec. 7, 2018) (sentencing Bivona to six

months in jail for scheming to defraud and failing to pay employees). Though each

took a different approach—Bivona more callous and Kalogeras more vindictive—to

potential investigation—which did occur and result in jailtime—each reflects at least

reckless indifference towards their violation of federal law.

Accordingly, the Court awards $10,000.00 in punitive damages to each

Plaintiff arising out of Defendants’ race-based discrimination, in addition to the

punitive damages award recommended by the R&R.11

C. Attorneys’ Fees and Costs

As to costs, the R&R awarded Plaintiffs only $400.00 (the judicially-noticeable

amount of the filing fee) because they failed to adduce proper documentation for any

costs. Plaintiffs have attached to their objection the appropriate documentation for

some, but not all, of their costs. See Decl. of Lissette Amador [DE 52-1] and

accompanying exhibit [DE 52-2]. Specifically, they have provided travel receipts in

11 As the R&R noted, Title VII’s damages cap does not limit the compensatory

and punitive damages otherwise available under the NYSHRL. R&R at 65 n.10.

Accordingly, the Court adopts the R&R’s recommendation regarding the allocation of

damages between the Title VII and NYSHRL claims. Id.

the amounts of $7.50, $22.25, and $114.84, for a total of $144.59; they have provided

business meal receipts in the amounts of $49.00, $44.00, and $43.34, for a total of

$136.34; and service of process receipts in the amounts of $64.45, $27.00, $95.00,

$80.00, and $70.00, for a total of $336.45. The exhibit provides documentation to the

Court’s satisfaction. With the $400.00 recommended by the R&R, Plaintiffs are

awarded a grand total of $1,017.38 for costs. As to the remainder of the requested

fees, Plaintiffs may not recover costs as their “application fails to provide

substantiation for the costs sought.” D’Annunzio v. Ayken, Inc., 2015 WL 5308094,

at *8 (E.D.N.Y. Sept. 10, 2015).

Lastly, because this Court agrees with certain of Plaintiffs’ objections,

Plaintiffs are granted leave to supplement their attorneys’ fees petition with costs

incurred in preparing the objection. Plaintiff shall file this supplement within

fourteen (14) days of this Order. S.J., individually and on behalf of K.H. v. N.Y.C.

Dep’t of Educ., 2021 WL 100501, at *6 (S.D.N.Y. Jan. 12, 2021).

CONCLUSION

For the reasons discussed above, the Court ADOPTS IN PART Magistrate

Tomlinson’s R&R. Plaintiffs’ motion for default judgment is GRANTED. As to

liability and damages:

1. Default judgment is GRANTED with respect to Plaintiffs Tenecora,

Romero, Flores, Lalvay and Ramos’s sex-based discrimination claims

against Defendants in violation of Title VII and the NYSHRL (Counts I

and V);

2. Default judgment is GRANTED with respect to Plaintiffs Tenecora,

Flores, Ascenio, Barrientos, Morocho, Romero, Ramos, Lalvay, Gonzalez

and Varela’s race-based hostile work environment claims against

Defendants in violation of Title VII and the NYSHRL (Counts II and VI);

3. Default judgment is GRANTED with respect to Plaintiffs Tenecora,

Flores, Ascenio, Barrientos, Morocho, Romero, Ramos, Lalvay, Gonzalez

and Varela’s race-based discrimination claims in violation of Title VII,

NYSHRL, and/or Section 1981 (Counts III, IV, and VII);

4. Plaintiffs are awarded compensatory damages in the total amount of

$226,000.00 against Defendants, jointly and severally, apportioned as

follows: Plaintiff Tenecora - $40,000.00; Plaintiff Flores - $40,000.00;

Plaintiff Ascenio - $12,000.00; Plaintiff Barrientos - $35,000.00;

Plaintiff Morocho - $25,000.00; Plaintiff Romero - $30,000.00; Plaintiff

Ramos - $8,000.00; Plaintiff Lalvay - $12,000.00; Plaintiff

Gonzalez - $20,000.00, and Plaintiff Varela - $4,000.00;

5. Plaintiffs are awarded punitive damages in the total amount of

$130,000.00 against Defendant Ba-Kal Restaurant, apportioned as

follows: Plaintiff Tenecora - $25,000.00; Plaintiff Flores - $10,000.00;

Plaintiff Ascenio - $10,000.00; Plaintiff Barrientos - $10,000.00;

Plaintiff Morocho - $15,000.00; Plaintiff Romero - $20,000.00;

Plaintiff Ramos - $10,000.00; Plaintiff Lalvay - $10,000.00;

Plaintiff Gonzalez - $10,000.00; and Plaintiff Varela - $10,000.00;

6. Plaintiffs are awarded attorneys’ fees in the amount of $109,088.10 at this

time, with leave to supplement as to fees incurred in preparing objections to

R&R within fourteen (14) days;

7. Plaintiffs are awarded costs in the amount of $1,017.38.

The Clerk of Court is directed to enter judgment accordingly and terminate the

action.

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

February 8, 2021 Denis R. Hurley

United States District Judge