# Villada v. Grand Canyon Diner

> District Court, E.D. New York · August 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10659291

## Case

- **Court:** District Court, E.D. New York
- **Decided:** August 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------X

MARIA TERESA MARTINEZ VILLADA, on
behalf of herself and others
similarly situated in the proposed
FLSA Collective Action,

Plaintiff,
MEMORANDUM & ORDER

- against – 22-CV-2782 (KAM)(RML)

GRAND CANYON DINER, GRAND CANYON
BISTRO, GRAND CANYON RESTAURANT,
HAPPY ONE RESTAURANT, INC., ROBERT
OJEDA, BERNARDO MARTINEZ, CESAR
RENDON, GONZALO CARRETO, ALFREDO
TAPIA, MARINELLA RENDON, and ANDREA
CARRETO,

Defendants.

-----------------------------------X

KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Maria Teresa Martinez Villada (“Villada” or the
“Plaintiff”), who worked exclusively at Grand Canyon Diner,
brought this action against Defendants Grand Canyon Diner, Grand
Canyon Bistro, Grand Canyon Restaurant, and Happy One Restaurant,
Inc., d/b/a Mex Carroll’s Diner (collectively, the “Corporate
Defendants”), Robert Ojeda (“Ojeda”), Bernardo Martinez
(“Martinez”), Cesar Rendon (“C. Rendon”), Gonzalo Carreto (“G.
Carreto”), Alfredo Tapia (“Tapia”), Andrea Carreto (“A. Carreto”),
and Marinella Rendon (“M. Rendon”) (collectively, the “Individual
Defendants”). (See generally ECF No. 33, Second Amended Complaint
(“SAC”).) Plaintiff brings claims under (1) Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”); (2)
the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §

290 et seq.; (3) the New York City Human Rights Law (“NYCHRL”),
New York City Administrative Code § 8–101 et seq.; (4) the Fair
Labor Standards Act (“FLSA”), 29 U.S.C § 201 et seq.; (5) the New
York State Labor Law (“NYLL”) § 190 et seq.; and (6) state common
law. (Id.)
Plaintiff now moves for partial summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure as to Plaintiff's
claims of (1) FLSA and NYLL overtime violations; (2) Title VII,
NYSHRL, and NYCHRL hostile work environment; and (3) NYLL wage
notice claims. (ECF No. 43-1, Plaintiff’s Memorandum of Law in
Support (“Pl. Mem.”), at 2.) For the reasons stated herein,
Plaintiff’s motion for partial summary judgment is respectfully

denied.
BACKGROUND
I. Factual Background
The following facts are taken from the parties’ Local Rule
56.1 statements and counter-statements, as well as from documents
and transcripts cited in the parties’ Local Rule 56.1 statements.
(See ECF No. 43-4, Plaintiff’s Statement of Undisputed Material
Facts (“Pl. 56.1”); ECF No. 43-7, Defendants’ Rule 56.1 Counter-
Statement (“Def. Counter 56.1”); ECF No. 43-5, Defendants’ Rule
56.1 Statement (“Def. 56.1”); ECF No. 43-6, Plaintiff’s Reply to
Defendant’s Rule 56.1 Statement (“Pl. Reply 56.1”).) Except as
otherwise indicated, the facts set forth below from the parties’

Local Rule 56.1 statements are undisputed. The court summarizes
only those facts that are relevant and material to the adjudication
of the instant motion and notes any material facts in dispute.
Plaintiff was employed at the Grand Canyon Diner from late
August 2019 through June 6, 2021. (Pl. 56.1 ¶ 6; Def. 56.1 ¶ 3.)
The Grand Canyon Diner, located at 179 7th Ave. in Brooklyn, is
owned by Defendants G. Carreto and M. Rendon1, and is the location
where Plaintiff worked and where her alleged claims arose. (Def.
56.1 ¶ 1; ECF No. 47-1, Deposition of Gonzalo Carreto (“G. Carreto
Dep.”), at 14.) It is undisputed that Plaintiff only worked for
the Grand Canyon Diner and did not work at any of the other
restaurants owned by G. Carreto. (Pl. 56.1 ¶ 6.) G. Carreto

testified at his deposition that he and M. Rendon had been partners
and co-owners of the Diner since it opened in 2013, and there had
been no other partners in the business enterprise since that time.
(G. Carreto Dep. at 11.) M. Rendon testified at her deposition
that three cooks, four dish washers, and four waiters were employed
at the Grand Canyon Diner. (ECF No. 48-2, Deposition of Marinella
Rendon (“M. Rendon Dep.”), at 10-11.) Defendant A. Carreto, G.

1 M. Rendon explained in her deposition that she was just an owner “on paper”
and that she had never received any profits from the restaurant. (M. Rendon
Dep. at 12-14.)
Carreto’s wife, worked at the Grand Canyon Diner part-time as a
waitress for a limited number of days per week. (ECF No. 48-1,
Deposition of Andrea Carreto (“A. Carreto Dep.”), at 7-9.)

The other Defendants are employed by or related to the Grand
Canyon Diner and its two owners. Defendants Martinez and Ojeda
began employment as cooks at the Grand Canyon Diner in
approximately 2018 and 2020, respectively, and were still employed
at the time of their depositions for the instant case. (Pl. 56.1
¶¶ 2-3.) Defendant C. Rendon is the husband of Defendant M. Rendon
and has worked as a waiter at the Grand Canyon Diner since
approximately 2020. (Id. ¶ 4.)
The Grand Canyon Bistro is a separate restaurant at 300
Schermerhorn St. in Brooklyn which was opened in or around 2019
and is owned by G. Carreto, who holds a majority interest, and C.
Rendon, who is a 20% owner. (G. Carreto Dep. at 12-13.) The Grand

Canyon Restaurant is another restaurant owned by G. Carreto and C.
Rendon, with the same ownership percentages, which was opened in
2018 and is located at 143 Montague Street in Brooklyn. (Id. at
15.) G. Carreto explained in his deposition that he is in charge
of payroll, hiring and firing, setting schedules, and policies at
all three restaurants. (Id. at 15-17.) G. Carreto further
explained that although the same payroll company services all three
restaurants, each location has a separate account with the payroll
company. (Id. at 18-19.) G. Carreto explained that he keeps track
of employees’ hours by writing them down on paper “every day” but
throws those handwritten records away as soon as he does payroll.
(Id. at 22.)

G. Carreto also owns Defendant Happy One Restaurant, Inc.,
which does business as (and is hereafter referred to as) “Mex
Carroll’s Diner” and is located at 192 Columbus Street in Brooklyn.
(Id. at 34.) G. Carreto testified at his deposition that he is
the sole owner of Mex Carroll’s Diner, and that it opened in 2012
or 2013. (Id.) A. Carreto is the manager of Mex Carroll’s Diner.
(A. Carreto Dep. at 7-9.) Defendant Tapia is the brother of A.
Carreto, and is employed as a bar back at the Grand Canyon Bistro.
(ECF No. 47-2, Deposition of Alfredo Tapia (“Tapia Dep.”), at 8-
9, 19-20.) Defendant Tapia denied having any role at the Grand
Canyon Diner at his deposition and explained that he would only
visit the Grand Canyon Diner to see his sister, A. Carreto, when
she was at the restaurant. (Id. at 19-21.)

The previously-stated facts are undisputed. The parties
vigorously dispute the facts that follow relating to Plaintiff’s
central claims against Defendants. Plaintiff stated at her
deposition that she was paid for 40 hours of work each week by
check, and then then was paid for 20 hours extra “on the side in
cash.” (ECF No. 47-6, Deposition of Maria Teresa Martinez Villada
(“Villada Dep.”), at 8-9.) Plaintiff further testified that she
was working Monday through Saturday prior to the COVID-19 pandemic,
but that she only worked three days per week during the pandemic.
(Id. at 9-10, 31-32.) Plaintiff testified that her work schedule
picked back up after the pandemic, and that she was working “from
35 to 45 hours” per week after an unspecified date. (Id. at 10.)

Plaintiff stated that she was paid $15 per hour for all hours
worked, including those she worked in excess of 40 hours per week.
(Id.)
In contrast, G. Carreto testified at his deposition that no
employees, at any of his restaurants, are paid overtime, because
it is policy that they only work 40 hours or less. (G. Carreto
Dep. at 46.) M. Rendon also testified that no employees work over
forty hours at the Grand Canyon Diner. (M. Rendon Dep. at 14.)
G. Carreto testified that, with the exception of Martinez, all
employees are paid their hourly wages by check, and no employees
are paid wages in cash. (G. Carreto Dep. at 47-48.) Defendant

Martinez testified at his deposition that he worked 40 hours per
week “normally” and that he had never worked more than 40 hours in
a single week. (ECF No. 47-3, Deposition of Bernardo Martinez
(“Martinez Dep.”), at 8.) Defendants also produced payroll
reports2 showing that Plaintiff worked 40 hours per week from
August 2019 to March 18, 2020; between 16 and 40 hours per week

2 The payroll records were submitted in connection with the Pre-Motion Conference
held prior to Plaintiff’s filing of the motion for summary judgment, but the
Court was unable to locate the payroll records in Defendants’ submissions in
response to Plaintiff’s Motion for Summary Judgment.
between March 18, 2020, and June 24, 2020; and between 29 and 40
hours per week between July 1, 2020, and December 31, 2020. (ECF
No. 36-4, Payroll Reports.) The record before the Court does not

contain any payroll reports showing Plaintiff’s hours worked
between January 1, 2021, and June 6, 2021.
Plaintiff testified in her deposition that her co-worker
Defendant Ojeda would make “grotesque jokes” about Plaintiff and
other women as well. (Villada Dep. at 28.) Plaintiff testified
that her co-workers would make “bad jokes and other comments” and
that they would be “touching [her] and touching [her] butt.” (Id.
at 37.) Plaintiff also testified that she was subject to a
physical attack on June 6, 2021. (Id. at 28-29.) Plaintiff texted
Tapia about the assault on June 9, 2021, explaining that she could
“no longer go to work because on Sunday Mr. Roberto hit me
physically and verbally.”3 (Tapia Dep. at 62.) Ojeda denied

making inappropriate comments towards Plaintiff or touching her at
his deposition. (ECF No. 47-5, Deposition of Roberto Ojeda (“Ojeda
Dep.”), at 19.) Ojeda also denied physically attacking Plaintiff

3 Plaintiff has provided screenshots of the text messages, which are in Spanish,
but has not provided a certified translation. (ECF 43-9, Screenshots of
Plaintiff’s Text Messages with Defendant Tapia.) The Court may not rely on
untranslated documents. See Nam v. Permanent Mission of Republic of Korea to
United Nations, 657 F. Supp. 3d 382, 407 (S.D.N.Y. 2023) (“[untranslated]
documents are therefore inadmissible under the well-established rule that a
document in a foreign language is generally inadmissible unless accompanied by
a certified English translation.”) (internal quotation marks omitted)
(collecting cases). Instead, the Court will reference the text messages only
to the extent they were read into the record by a translator at Defendant
Tapia’s deposition.
on June 6, 2021, in his deposition testimony. (Id. at 19-20.)
Martinez similarly denied hearing Ojeda make inappropriate
comments to Plaintiff and denied making jokes about Plaintiff with

Ojeda. (Martinez Dep. at 21-22.) Plaintiff subsequently filed a
police report alleging that Ojeda had assaulted her on June 10,
2021, at 7:40pm. (ECF No. 44-17, Exhibit A to the Perlman
Declaration, at 3-4.) The police report notes in the narrative
section that Plaintiff explained that Ojeda shoved and grabbed her
by the head, but that no injury was sustained to Plaintiff. (Id.
at 4.)
Plaintiff testified at her deposition that she told Tapia
about her complaints of harassment. (Villada Dep. at 11-12.)
Plaintiff testified that she complained about the harassment to
Tapia on the phone in March of 2021, explaining that she told Tapia
“they had been drunk, and they were trying to kiss me and touch me
and hug me.” (Id. at 18.) Plaintiff also made reference to her

earlier complaints to Tapia in her June 9, 2021, text message,
noting that “Bernard and Mr. Roberto” said that she was a “gossiper
because of what [she had] accused.” (Tapia Dep. at 62.) Tapia
denied that Plaintiff ever spoke to him about any sexual harassment
prior to the June 9, 2021, text message. (Id. at 63.) After
receiving the text message from Plaintiff, Tapia explained that he
showed it to his sister, A. Carreto, and her husband, G. Carreto.
(Id. at 64.) Tapia explained that he did not know what actions G.
Carreto and A. Carreto took subsequently. (Id.)
During their deposition, G. Carreto and A. Carreto did not

recall having any discussion with Tapia about Plaintiff’s text
messages. (G. Carreto Dep. at 53; A. Carreto Dep. at 49.) G.
Carreto explained that when he received notice of Plaintiff’s
claims against Ojeda and Martinez, he asked the two cooks about
the claims, but they said they didn’t know anything. (G. Carreto
Dep. at 53-54.) Neither Ojeda nor Martinez were ever disciplined
following Plaintiff’s complaint. (Pl. 56.1 ¶¶ 62-63.)
II. Procedural Background
Plaintiff filed a complaint with the EEOC, and subsequently
received a Right to Sue letter dated February 18, 2022. (SAC ¶
66.) Plaintiff commenced this action against a majority of the
Defendants4 on May 12, 2022. (See generally ECF No. 1, Complaint.)
Defendants Martinez, Ojeda, C. Rendon, and Tapia failed to appear

or otherwise answer the original complaint, and Plaintiff
subsequently moved for default judgment against that subset of
Defendants on February 7, 2023. (ECF No. 16, Motion for Default
Judgment.) Plaintiff also moved to amend the complaint on March
2, 2023, and leave to amend was granted by Magistrate Judge Levy
on March 16, 2023. (Docket Order dated March 16, 2023.)

4 Excluding Mex Carroll’s Diner, M. Rendon, and A Carreto. (See generally ECF
No. 1, Complaint.)
Plaintiff’s First Amended Complaint included the originally-named
Defendants along with additional Defendants Mex Carroll’s Diner,
A. Carreto, and M. Rendon. (ECF No. 21, First Amended Complaint

(“FAC”).) The newly-added Defendants waived service, and the same
counsel appeared on behalf of all Defendants in answering the FAC
on March 31, 2023. (ECF Nos. 22-28.) The Court subsequently
denied Plaintiff’s motion for default judgment without prejudice
on May 1, 2023. (Docket Order dated May 1, 2023.)
After the resolution of various discovery disputes, the
parties certified the close of discovery on June 13, 2023, with
the exception of medical records, which had been requested.
(Minute Entry dated June 13, 2023.) On consent, Plaintiff filed
the SAC on June 19, 2023. (See generally SAC.) Plaintiff’s SAC
did not add any new Defendants and contained factual allegations
identical to the FAC, but did add a tenth cause of action arising
under the NYCHRL which had not previously been included. (Id.)

Defendants did not answer or otherwise reply to the SAC separate
from their answers to the FAC.
Plaintiff moved for a pre-motion conference in anticipation
of filing a motion for summary judgment on August 4, 2023, and the
conference was held on October 26, 2023. (Minute Entry dated
October 26, 2023.) The Court set a briefing schedule on November
22, 2023, after belatedly receiving a Rule 56.1 Counter Statement
from Defendants. (Docket Order dated November 22, 2023.)
Plaintiff filed the fully-briefed motion for partial summary
judgment on February 15, 2024. (ECF Nos. 43-45.) The Court
subsequently requested full copies of all deposition transcripts

be filed on the docket, and Plaintiff complied with the Court’s
order by filing the transcripts on July 31 and August 1, 2024.
(ECF Nos. 47-48.)
LEGAL STANDARD
Plaintiff moves for partial summary judgment pursuant to
Federal Rule of Civil Procedure 56, which provides that “[t]he
court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed R. Civ. P. 56(a).
“[T]he mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986) (emphasis in original). A fact is material if it
“might affect the outcome of the suit under the governing law,”
and a dispute is genuine “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Id. at 248.
For a genuine issue of material fact to exist, there must be
“sufficient evidence favoring the nonmoving party for a jury to
return a verdict for that party. If the evidence is merely
colorable, or is not significantly probative, summary judgment may
be granted.” Id. at 249-50 (citations omitted).
In reviewing a motion for summary judgment, the court “is not

to weigh the evidence but is instead required to view the evidence
in the light most favorable to the party opposing summary judgment,
to draw all reasonable inferences in favor of that party, and to
eschew credibility assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst,
101 F.3d 845, 854 (2d. Cir. 1996)); accord Tolan v. Cotton, 572
U.S. 650, 651 (2014) (“[I]n ruling on a motion for summary
judgment, ‘[t]he evidence of the nonmovant is to be believed, and
all justifiable inferences are to be drawn in his favor.’”
(alteration in original) (quoting Anderson, 477 U.S. at 255)).
The moving party has the burden of establishing the absence
of a genuine dispute as to any material fact, and in opposing

summary judgment, the nonmoving party “need only present evidence
from which a jury might return a verdict in his favor” to defeat
a motion for summary judgment. Anderson, 477 U.S. at 256-57. To
meet this burden, however, a party opposing summary judgment must
“come forward with specific facts showing that there is a genuine
issue for trial,” not merely “show that there is some metaphysical
doubt as to the material facts.” Caldarola v. Calabrese, 298 F.3d
156, 160 (2d Cir. 2002) (emphasis in original) (quoting Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-
87 (1986)).
It is “beyond cavil that summary judgment may be appropriate
even in the fact-intensive context of discrimination cases.” Abdu-
Brisson v. Delta Air Lines, 239 F.3d 456, 466 (2d Cir. 2001).

Nonetheless, the Second Circuit has “emphasized that trial courts
must be especially chary in handing out summary judgment in
discrimination cases, because in such cases the employer's intent
is ordinarily at issue.” Chertkova v. Conn. Gen. Life Ins. Co.,
92 F.3d 81, 87 (2d Cir. 1996); see also Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 71 (2d Cir. 2000).
DISCUSSION
Plaintiff seeks summary judgment as to her claims of (1) FLSA
and NYLL overtime violations; (2) Title VII, NYSHRL, and NYCHRL
hostile work environment; and (3) NYLL wage notice claims. (Pl.
Mem. at 2.) Defendants argue in response that there are “many

issues of fact at issue” which would preclude summary judgment.
(ECF No. 44-16, Declaration of David Perlman (“Perlman Decl.”), ¶
4.) Plaintiff argues in reply that the Defendants’ opposition, a
declaration by Defendants’ counsel, does not comply with the Local
Civil Rules, and that Defendants have repeatedly flouted the Local
Civil Rules throughout the course of this litigation. (ECF No.
45, Plaintiff’s Reply in Further Support (“Pl. Reply”), at 4-6.)
The Court agrees with Plaintiff that Defendants’ opposition
fails to comply with both the Federal Rules of Civil Procedure and
the Local Civil Rules. See Local Civil Rule 7.1 (providing that

legal argument is to be set forth in a memorandum of law, while
factual affirmations are to be set forth in affidavits). The
Declaration of Defendants’ counsel makes legal arguments, attaches
documents, fails to cite admissible evidence, and is not based on
personal knowledge. (See generally Perlman Decl.)
Notwithstanding Defendants’ failures, even a failure to oppose a
motion for summary judgment, as Plaintiff acknowledges, “does not
justify the granting of summary judgment" on its own. Vermont
Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004). Rather, the Court must independently determine whether
there is a material issue of fact, and whether judgment is
warranted as a matter of law based on the undisputed evidence.
Id. Viewing the evidence in the light most favorable to the non-

moving party, the Court finds that summary judgment in favor of
Plaintiff is not appropriate on any of Plaintiff’s claims.
I. FLSA/NYLL Overtime Claims
Plaintiff claims that she was paid $15 per hour for the first
forty hours of work each week, and was paid at the same rate for
overtime worked in excess of forty hours, in violation of the NYLL
and FLSA’s requirements that overtime be paid at one and one-half
time the normal rate of pay. (Pl. Mem. at 15.) Defendants oppose
Plaintiff’s claim that she worked in excess of 40 hours per week,
and argue that she was not entitled to overtime, as a result.
(Perlman Decl. ¶ 8.) The Court concludes that summary judgment is

not appropriate because a genuine dispute exists regarding whether
Plaintiff worked in excess of 40 hours per week.
Setting aside the issue of whether each of the Defendants in
the instant case constituted Plaintiff’s employer (which is not at
all clear, given Plaintiff brings her claims against all four
restaurants owned in part by G. Carreto as well as A. Carreto, M.
Rendon, C. Rendon, and G. Carreto), the Court will instead focus
only on the issue of the calculation of Plaintiff’s hours worked.
A. Applicable Law
The FLSA requires employers to pay non-exempt employees at a
rate not less than one and one-half times their regular rate of
pay for any hours worked over forty within a workweek. 29 U.S.C.
§ 207(a)(1). The NYLL largely adopts the same standard as the

FLSA with respect to overtime compensation and requires a covered
employee to “be compensated at a rate of no less than one and one-
half times the regular rate of pay for any hours worked in excess
of forty per week.” Nakahata v. New York–Presbyterian Healthcare
Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013) (citing 12 N.Y.C.R.R.
§ 142–2.2). To establish an employer's liability for unpaid
overtime compensation under the FLSA and NYLL, a plaintiff must
prove that she performed work, in excess of 40 hours in a workweek,
for which she was not properly compensated, and that her employer
had actual or constructive knowledge of that work. See Kuebel v.
Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011).
B. Analysis

The evidence that Plaintiff worked more than forty hours per
week consists solely of her testimony. Plaintiff testified at her
deposition that she worked “approximately 60 to 66 hours per week”
from “October 2019 through March of 2020.” (Villada Dep. at 31.)
Plaintiff further testified that she worked “thirty, thirty-five”
hours per week from March 2020 through July 2020 and that she
worked between “35 to 45 hours” per week “[a]fter” the pandemic.
(Id. at 10, 32.)
Defendants’ opposition likewise consists primarily5 of the
Defendants’ own testimony. Defendant G. Carreto testified that no
employees at any of his restaurants, including the Grand Canyon
Diner, are paid overtime, because it is policy that they only work

40 hours or less. (G. Carreto Dep. at 46.) Defendant M. Rendon
also testified that no employees work over forty hours at the Grand
Canyon Diner. (M. Rendon Dep. at 14.) In further support of
Defendants’ contention that this policy existed and was enforced,

5 Defendants also produced payroll records, (see ECF No. 36-4), showing that
Plaintiff worked no more than 40 hours per week from the time of her hiring
through December 31, 2020, but Plaintiff appears to argue that those records
only reflect the regular pay she received via check, and not the overtime hours
she worked and was paid in cash, (Pl. Reply 56.1 ¶ 12). As such, the payroll
records, which only cover a subset of the relevant period, do not alter the
Court’s analysis.
Plaintiff’s co-worker, Defendant Martinez testified at his
deposition that he had never worked more than 40 hours in a single
week. (Martinez Dep. at 8.) Defendant A. Carreto, who worked

part-time at the Grand Canyon Diner, similarly testified that there
were no employees at the Grand Canyon Diner who worked over forty
hours in a week, although she does not specify the basis for her
testimony. (A. Carreto Dep. at 27.)
Plaintiff argues that the admission by Defendants that they
did not pay Plaintiff any overtime is sufficient on its own to
support a judgment in favor of Plaintiff on this claim. (Pl. Reply
at 10.) Plaintiff misstates the law, as the Court cannot conclude
that Defendants have violated the FLSA and NYLL merely because the
lack of any overtime wages makes it obvious that she would not
have been compensated for any overtime she might have worked.
Rather, to establish liability on an overtime claim, Plaintiff
must prove that she actually worked in excess of forty hours in a
given work week. See, e.g., Lundy v. Catholic Health Sys. of Long

Island, 711 F.3d 106, 113-14 (2d Cir. 2013).
Plaintiff has failed to show that there is no genuine dispute
of material fact regarding whether she worked in excess of 40 hours
per week. To the contrary, the conflicting testimony of Plaintiff
on the one hand, and Defendants G. Carreto, A. Carreto, M. Rendon,
and Martinez on the other, is more than sufficient to create a
genuine dispute of material fact as to whether Plaintiff ever
worked more than forty hours in a week. See, e.g., Severino v.
436 W. L.L.C., No. 13-CV-3096 (VSB), 2015 WL 12559893, at *7
(S.D.N.Y. Mar. 19, 2015) (finding conflicting testimony sufficient

to create a genuine dispute of material fact as to whether
plaintiff worked more than forty hours in a week); Francois v.
Mazer, No. 09-CV-3275, 2012 WL 653886, at *5 (S.D.N.Y. Feb. 28,
2012) (same). Because there is a genuine dispute of material fact
as to whether Plaintiff worked overtime, Plaintiff's motion for
summary judgment is denied on her overtime claim under the FLSA
and NYLL.
II. Title VII, NYSHRL, and NYCHRL Hostile Work Environment
Claims
As mentioned above, Plaintiff also seeks summary judgment on
her Title VII, NYSHRL, and NYCHRL claims that she was subjected to
a hostile work environment based on her sexual harassment by her
coworkers, including Defendants Ojeda and Martinez. (Pl. Mem. at
15-19.)
Title VII prohibits employers from discriminating against any
individual “with respect to his compensation, terms, conditions or
privileges of employment, because of such individual's race,
color, religion, sex or national origin.” 42 U.S.C. § 2000e–
2(a)(1). For purposes of Title VII, the term “employer” means “a

person engaged in an industry affecting commerce who has fifteen
or more employees for each working day in each of twenty or more
calendar weeks in the current or preceding year, and any agent of
such person.” 42 U.S.C. § 2000e(b).
As a threshold matter, the undisputed evidence shows that the

Grand Canyon Diner only employed three cooks, four dish washers,
and four waiters, for a total on 11 employees. (M. Rendon Dep. at
10-11; G. Carreto Dep. at 23-24.) When asked at his deposition if
the Grand Canyon Diner had “ever had more than 11 employees” in
the past six years, Defendant G. Carreto stated that the restaurant
had employed “12 [at] the most.” (G. Carreto Dep. at 24.)
The Second Circuit has instructed that a parent company “may
be considered the employer of its subsidiary's employees” for Title
VII purposes if the two companies are found to represent a “single,
integrated enterprise.” Brown v. Daikin Am. Inc., 756 F.3d 219,
226 (2d Cir. 2014) (internal quotation marks and citation omitted).
The question of whether “employees of different employers may be

aggregated for purposes of satisfying the fifteen-employee minimum
required by Title VII under 42 U.S.C. § 2000e,” however, “has never
been resolved by [the Second Circuit.]” Arculeo v. On-Site Sales
& Mktg., LLC, 425 F.3d 193, 197 (2d Cir. 2005). Even if the Second
Circuit had answered the question of whether it was permissible to
aggregate employees to reach the 15-employee threshold for Title
VII purposes, however, the Court is not persuaded that Plaintiff
has shown the Corporate Defendants to be a “single employer.”
“A ‘single employer’ situation exists where two [or more]
nominally separate entities are actually part of a single
integrated enterprise.” Id. at 198 (internal quotation marks and

citation omitted). “While there are some differences in approach
to the single employer issue, the test in this circuit is whether
all the circumstances of the case tend to show the absence of an
arm's length relationship between two entities.” Westphal v. Catch
Ball Prod. Corp., 953 F. Supp. 475, 478 (S.D.N.Y. 1997) (internal
quotation marks and citation omitted). The Second Circuit has
instructed that pertinent factors to consider include “evidence of
(1) interrelation of operations, (2) centralized control of labor
relations, (3) common management, and (4) common ownership or
financial control.” Cook v. Arrowsmith Shelburne, Inc., 69 F.3d
1235, 1240-41 (2d Cir. 1995).
Here, it is undisputed that G. Carreto has majority ownership

of the four restaurants Plaintiff names as the Corporate
Defendants, and that he, or his wife, directly manages each of the
four restaurants. (G. Carreto Dep. at 11-17.) It is also
undisputed, however, that Plaintiff did not work at any of the
restaurants named as Defendants beyond the Grand Canyon Diner, and
that employees were not “shared” between locations with the
exception of A. Carreto, who worked part time at both Mex Carroll’s
Diner and the Grand Canyon Diner. (Def. 56.1 ¶ 3, 18; A. Carreto
Dep. at 7-8.) Plaintiff testified she considered Defendant Tapia,
who was employed as a bar back at the Grand Canyon Bistro, an
“owner” of the Grand Canyon Diner, (see Villada Dep. at 12), but
this is disputed by Defendants M. Rendon, G. Carreto, and Tapia,

who testified that only M. Rendon and G. Carreto had an ownership
stake in the Grand Canyon Diner, (see M. Rendon Dep. at 13; G.
Carreto Dep. at 10-11; Tapia Dep. at 20-21).
The present case presents striking similarities to that of
Apolinar v. R.J. 49 REST., LLC, No. 15-CV-8655 (KBF), 2016 WL
2903278, at *4 (S.D.N.Y. May 18, 2016), in which the district court
found several restaurants owned by the same family did not
constitute a single enterprise. In Apolinar, the plaintiffs sued
several corporate entities, each of which did business under the
name “Toasties.” Id. at *1. The businesses had seven active
locations, five of which were listed on the same Toasties website
home page which described the business as “a family owned and

operated New York Gourmet Delicatessen.” Id. The plaintiffs
alleged that, although the businesses were conducted under
separate corporate names, all of them operated as a single
enterprise by the same family--two twin brothers and their mother.
Id. at *2. The Apolinar plaintiffs further alleged that the family
members were in charge of all areas of the Toasties deli enterprise
including the hiring and termination of workers, wage
determinations, work schedules, type of work assigned, designated
work load, and employment policy. Id. The court nonetheless found
that those allegations were insufficient to establish that the
separate corporations had “an interrelation of operations or
centralized control of labor relations with plaintiffs’ identified

direct corporate employer” sufficient to hold each of them liable
under the FLSA. Id. at *4. The court concluded that “[a]lthough
plaintiffs ha[d] plausibly alleged, based on their allegations
relating to the content of the Toasties website, that there existed
common ownership and a common purpose,” the plaintiffs had failed
to “allege that the Moving Corporate Defendants had any sort of
direct employer responsibility over them, such as the ability to
hire or fire, or set work hours or job responsibilities.” Id.
So too here, Plaintiff fails to offer any admissible evidence
suggesting that any of the Corporate Defendants, aside from the
Grand Canyon Diner, had any sort of direct employer responsibility
over her. This lack of any direct interaction by Plaintiff with

any of the restaurants beyond the Grand Canyon Diner leads the
Court to conclude that the Corporate Defendants did not constitute
a single integrated enterprise6, and therefore, even if aggregation
were appropriate under Title VII, which is a question the Second
Circuit has yet to answer, it would not be appropriate based on

6 The Court notes that its conclusion that the Corporate Defendants do not
constitute a single integrated enterprise would also apply to Plaintiff’s FLSA
and NYLL claims. The Court declines to make findings regarding which, if any,
of the Defendants employed Plaintiff for purposes of the FLSA and NYLL, but
notes that it is undisputed that Plaintiff only worked for, and was paid by,
the Grand Canyon Diner and did not work at any of the other restaurants owned
by G. Carreto. (Pl. 56.1 ¶ 6; Villada Dep. at 11.)
the facts of this case. See Huer Huang v. Shanghai City Corp.,
459 F. Supp. 3d 580, 587-89 (S.D.N.Y. 2020) (finding the Chinatown
location of the Joe Shanghai restaurant chain was not part of a

single integrated enterprise when the plaintiffs only worked at
the Midtown and Flushing locations, despite shared ownership and
a shared website for all locations).
Because Plaintiff has failed to establish that the Grand
Canyon Diner employed fifteen employees, the threshold number for
application of Title VII, her Title VII claim fails on the merits,
and Plaintiff’s motion for summary judgment is denied as to her
Title VII claim. Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006)
(“the threshold number of employees for application of Title VII
is an element of a plaintiff's claim for relief, not a
jurisdictional issue”). The Court is presented with an awkward
procedural posture, however, in that the Defendants did not move

for summary judgment, or otherwise put Plaintiff on notice that
her Title VII claims should be dismissed on the merits due to the
lack of the requisite number of employees. See Nunez v. Goord,
172 F. Supp. 2d 417, 433 (S.D.N.Y. 2001) (“Regardless of whether
or not Defendants made their motion for summary judgment on this
particular ground, the Court has the power to dismiss a complaint
sua sponte for failure to state a claim . . . [but] the party
defending a sua sponte dismissal ought to have an opportunity to
be heard before issuance of the order.” (citations omitted)).
Accordingly, the Court will issue a subsequent Order to Show Cause
to provide Plaintiff an opportunity to be heard regarding why her
Title VII claims should not be dismissed for failure to state a

claim, and why the Court should not decline to exercise
supplemental jurisdiction over the associated state law claims if
Plaintiff’s Title VII claims are dismissed.
Having found that Plaintiff’s Title VII claim is likely to
fail on the merits, and thus Plaintiff is, at the very least, not
entitled to summary judgment in her favor, the Court finds that
summary judgment is also inappropriate for Plaintiff’s remaining
hostile workplace claims arising under the NYSHRL and NYCHRL. “A
plaintiff claiming a hostile work environment animated by
discrimination in violation of the NYSHRL must show that the
workplace is permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive working
environment.” Reichman v. City of New York, 117 N.Y.S.3d 280, 285
(2d Dep’t 2020) (citation omitted). “To determine whether a
hostile work environment exists, a court must consider all the
circumstances, including the frequency of the discriminatory
conduct, its severity, whether it is physically threatening or
humiliating, or a mere offensive utterance, and whether it
unreasonably interfered with an employee's work performance.” Id.
(citation omitted).
Moreover, “[u]nder the NYCHRL, a plaintiff claiming a hostile
work environment need only demonstrate that he or she was treated
less well than other employees because of the relevant

characteristic.” Id. (internal quotation marks and citation
omitted). “The conduct alleged must, however, exceed what a
reasonable victim of discrimination would consider petty slights
and trivial inconveniences, and mere personality conflicts will
not suffice to establish a hostile work environment.” Id.
(internal quotation marks and citations omitted).
A genuine dispute of material fact is clearly present in the
instant case – the Defendants all flatly denied in their deposition
testimony that Plaintiff was subject to any harassment whatsoever,
and Plaintiff stated the opposite. (Villada Dep. at 28-29, 37;
Martinez Dep. at 21-22; Ojeda Dep. at 19-20.) In the presence of
such a clear dispute about whether the underlying sexual harassment

occurred and given the Court’s inability to make credibility
determinations on a motion for summary judgment, Plaintiff’s
motion for summary judgment is denied on her NYSHRL and NYCHRL
claims. See Jeffreys v. City of New York, 426 F.3d 549, 553 (2d
Cir. 2005) (“Assessments of credibility and choices between
conflicting versions of the events are matters for the jury, not
for the court on summary judgment.”).
III. NYLL Wage Notice Claims
Plaintiff moves for partial summary judgment on her claim
that the Defendants failed to provide her with a wage notice within
ten business days of her hiring, as required by the NYLL. (Pl.

Mem. at 14.) Plaintiff claims that summary judgment is appropriate
because “Defendant [G.] Carreto testified that he does not provide
the [Grand Canyon] Diner or Grand Canyon Bistro employees with a
formal, written notice of their wage upon hiring.” (Id.)
Defendant G. Carreto did indeed make a statement to that effect in
his deposition, testifying that while he orally explained the wages
that employees would be paid upon their hiring, he did not do so
in writing. (G. Carreto Dep. at 24-25, 29.)
While liability appears to be a fairly straightforward
question on Plaintiff’s NYLL wage notice claim, this Court’s
jurisdiction over the claim is not quite as clear. The Supreme
Court has held that “federal courts have an independent obligation

to ensure that they do not exceed the scope of their jurisdiction,
and therefore they must raise and decide jurisdictional questions
that the parties either overlook or elect not to press.” Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011). The Court
concludes that it lacks subject-matter jurisdiction over
Plaintiff’s wage notice and wage statement claims under the NYLL,
(see SAC ¶¶ 161–163), because Plaintiff has failed to allege facts
in the SAC, and failed to present evidence in support of her motion
for summary judgment, to establish her standing to pursue those
claims in federal court.
Article III of the federal Constitution restricts federal

court power to hearing “cases” and “controversies.” U.S. Const.
art. III, § 2, cl. 1. A “case” or “controversy” cannot exist if
the plaintiff lacks a personal stake, or “standing.” TransUnion
LLC v. Ramirez, 594 U.S. 413, 423 (2021). To have Article III
standing, the plaintiff must have suffered an injury-in-fact
likely caused by the defendant’s allegedly unlawful conduct and
redressable by a favorable court decision. Id. The injury must
be “concrete and particularized,” which means some specific harm
to the plaintiff beyond the defendant’s technical violation of a
statutory mandate. Id. at 440. Standing is not “dispensed in
gross.” Id. at 431. Rather, the plaintiff must show standing
separately for each claim he or she presses. Id.

Here, Plaintiff does not link any legally cognizable injury
that she personally experienced to Defendants’ failure to provide
wage statements and wage notices under the NYLL. Plaintiff instead
merely alleges that the Defendants failed to comply with these
statutory mandates. (See SAC ¶¶ 161–163.) Without some tangible
downstream harm flowing from the statutory violations, Plaintiff
cannot have suffered a concrete injury resulting from Defendants’
violations of the NYLL’s wage statement and wage notice
requirements. Thus, she lacks Article III standing to pursue those
claims in this Court. Multiple courts in this district have
reached similar results after the Supreme Court’s decision in
TransUnion clarified the requirements to establish standing,
beyond bare allegations of statutory violations. See, e.g., Quieju
v. La Jugeria Inc., No. 23-CV-264 (BMC), 2023 WL 3073518, at *2

(E.D.N.Y. Apr. 25, 2023); Guthrie v. Rainbow Fencing Inc.,
No. 21-CV-5929 (KAM), 2023 WL 2206568, at *6 (E.D.N.Y. Feb. 24,
2023); Sevilla v. House of Salads One LLC, 20-CV-6072 (PKC),
2022 WL 954740, at *7 (E.D.N.Y. Mar. 30, 2022).
Nonetheless, the Second Circuit has instructed district
courts to provide an “adversely affected party with notice and an
opportunity to be heard” before dismissing an action sua sponte
for lack of subject matter jurisdiction. McGinty v. New York, 251
F.3d 84, 90 (2d Cir. 2001). As a result, the Court will deny
Plaintiff’s motion for summary judgment on the wage notice claim

and will issue a subsequent Order to Show Cause to provide
Plaintiff an opportunity notice and an opportunity to be heard
regarding the Court’s findings on the lack of subject matter
jurisdiction.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Partial
Summary Judgment is denied in its entirety. Genuine disputes of
material fact prevent the entry of summary judgment in favor of
Plaintiff on the FLSA, NYLL, NYSHRL, and NYCHRL claims; Plaintiff
has failed to offer evidence to show that the Grand Canyon Diner
is an “employer” for purposes of Title VII; and Plaintiff has
failed to show a concrete injury to provide her with Article III
standing for her wage notice and wage statement claims.
The Court will subsequently issue an Order to Show Cause
directing Plaintiff to respond and state why (1) Plaintiff’s Title
VII Claims should not be dismissed on the merits for failing to
establish that the Grand Canyon Diner employed the threshold number
of employees for application of Title VII; (2) the Court should
not decline to exercise supplemental jurisdiction over Plaintiff’s
remaining NYSHRL, NYCHRL and state common law claims in the absence
of Plaintiff’s Title VII claims; (3) Plaintiff’s NYLL Wage Notice
and Wage Statement Claims should not be dismissed for lack of
Article III standing; and (4) why Defendants Ojeda and Martinez
should not be dismissed as parties if the aforementioned state law
claims are dismissed.

SO ORDERED. - “a □□ _—_—
Dated: August 19, 2024 ) oer wt er
Brooklyn, New York
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10659291. Public record. Not legal advice.