Wuilson Romero v. Floris Construction, Inc.
1:16-cv-04282
E.D.N.YNov 20, 2017Background
- Plaintiff Jorge Wuilson Romero worked for Floris Construction, Inc. from April 2015 to May 2016 as a non‑managerial construction worker (painting/carpentry) and routinely worked 48 hours/week.
- Defendants paid fixed weekly wages ($800/week in 2015; $1,000/week in 2016) and failed to pay overtime or provide required NYLL wage notices and hiring notices.
- Plaintiff complained about unpaid overtime to owner/manager Stamatis Kostikidis multiple times; after an on‑site battery incident in May 2016 that Plaintiff reported to police, Kostikidis terminated him the next day.
- Defendants were properly served but did not answer; the Clerk entered default and Plaintiff moved for default judgment under Fed. R. Civ. P. 55(b)(2).
- The court found Defendants jointly and severally liable under the FLSA and NYLL for unpaid overtime, for violations of NYLL §§ 195(1) and 195(3), and awarded statutory damages, liquidated damages, and prejudgment interest; NYLL retaliatory (§ 740) and § 215 claims were rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were Defendants properly served and default appropriate? | Service was proper; default judgment appropriate after no answer. | (No defense asserted due to default.) | Service was proper; default entered and allegations deemed admitted. |
| Were Defendants employers under the FLSA/NYLL (individual and enterprise)? | Kostikidis exercised hiring/firing, set schedules, controlled payroll; Floris met enterprise coverage and single‑employer factors. | (No opposing factual challenge.) | Kostikidis and Floris are employers; joint and several liability imposed. |
| Are Plaintiff's overtime and NYLL notice claims timely and meritorious? | Worked 48 hrs/wk; unpaid overtime from Apr 2015–May 2016; no hiring/wage notices provided. Claims within statutes of limitations; willful violation extends FLSA to 3 years. | (No contest presented.) | Claims timely; willfulness found; liability for unpaid overtime and statutory NYLL notice violations. |
| Are retaliation claims under NYLL §§ 740 and 215 viable? | Termination after reporting assault to police constituted unlawful retaliation. | (No answer; court evaluates legal sufficiency.) | § 740 failed (no "substantial and specific danger to the public" shown); § 215 relief denied for failure to serve the Attorney General as required. |
Key Cases Cited
- Bermudez v. Reid, 733 F.2d 18 (2d Cir. 1984) (default judgment ordinarily justified where defendant fails to respond)
- City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114 (2d Cir. 2011) (Rule 55(b)(2) permits hearing/referral to determine damages or truth of allegations)
- Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105 (2d Cir. 1997) (well‑pleaded allegations in complaint are deemed admitted on default; courts must still determine damages)
- Finkel v. Romanowicz, 577 F.3d 79 (2d Cir. 2009) (court must determine whether pleaded allegations establish liability as a matter of law on default)
- Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132 (2d Cir. 1999) (multi‑factor test for employer/employee relationship under FLSA)
- Barfield v. New York City Health & Hosp. Corp., 537 F.3d 132 (2d Cir. 2008) (liquidated damages under the FLSA are generally mandatory unless employer shows good faith)
- Kuebel v. Black & Decker, Inc., 643 F.3d 352 (2d Cir. 2011) (FLSA statute of limitations: two years ordinarily, three years for willful violations)