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Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 1 of 12 PageID #: 1
`
`Michael P. Pappas, Esq. (MP 6716)
`MICHAEL P. PAPPAS LAW FIRM, P.C.
`3 Columbus Circle, 15th Floor
`New York, New York 10019
`(646) 770-7890 (phone)
`(646) 417-6688 (fax)
`
`Attorneys for Plaintiff
`
`
`UNITED STATES DISTRICT
`EASTERN DISTRICT OF NEW YORK
`
`KEITH NOBLE,
`
`
`
`Plaintiff,
`
`-against-
`
`THE CHEESECAKE FACTORY INCORPORATED,
`
`
`
`
` No.
`
`
`COMPLAINT
`
`
`DEMAND FOR JURY TRIAL
`
`Defendant.
`
`
`
`
`
`
`
`
`
`Plaintiff Keith Noble, as and for his Complaint against Defendant The Cheesecake
`
`Factory Incorporated, alleges as follows:
`
`JURISDICTION AND VENUE
`
`1.
`
`This Court has original federal question jurisdiction under 28 U.S.C. § 1331
`
`because this case is brought under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq.
`
`(“FLSA”). This Court has supplemental jurisdiction over the New York Labor Law
`
`(“NYLL”) claims under 28 U.S.C. § 1367 because they are so related to the claims in this
`
`action within original jurisdiction that they form part of the same case or controversy under
`
`Article III of the United States Constitution.
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 2 of 12 PageID #: 2
`
`2.
`
`Venue is proper in this District under 28 U.S.C. § 1391 because Plaintiff
`
`resides in this District, Defendant resides and/or conducts business in this District, and the
`
`acts and/or omissions giving rise to the claims herein took place in this District.
`
`THE PARTIES
`
`3.
`
`Defendant The Cheesecake Factory Incorporated (“Cheesecake Factory” or
`
`the “Company”) is a Delaware corporation with its principal place of business at 26901
`
`Malibu Hills Road, Calabasas Hills, California 91301. Cheesecake Factory is a well-known
`
`national restaurant chain that owns and operates at least a dozen restaurants in New York
`
`State, including the Cheesecake Factory restaurant located at Lake Grove, New York,
`
`where Plaintiff was formerly employed. Cheesecake Factory has an annual gross volume
`
`of sales in excess of $500,000 and is engaged in interstate commerce. At all relevant times,
`
`Cheesecake Factory was a covered “employer” within the meaning of the FLSA and
`
`NYLL.
`
`4.
`
`Plaintiff Keith Noble is an adult male individual who resides in the State of
`
`New York, Suffolk County. Mr. Noble was employed by Cheesecake Factory from
`
`approximately 2007 through 2021.
`
`DEFENDANT’S WAGE AND HOUR VIOLATIONS
`
`5.
`
`Keith Noble was a long-time, loyal, highly-performing employee of
`
`Cheesecake Factory. He started with the Company more than 15 years ago, and for the last
`
`9 years of his employment was employed as a so-called “Kitchen Manager” in North
`
`Carolina and New York State.
`
`
`
`2
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 3 of 12 PageID #: 3
`
`6.
`
`Mr. Noble was employed by Cheesecake Factory as a “Kitchen Manager”
`
`in North Carolina from approximately 2012 to April 2021, and as a “Kitchen Manager” in
`
`New York State from approximately April 2021 through December 2021.
`
`7.
`
`Throughout his tenure as a “Kitchen Manager” at Cheesecake Factory, Mr.
`
`Noble was classified as “exempt” and paid a set salary, which was the same regardless of
`
`the number of hours he worked.
`
`8.
`
`Despite Cheesecake Factory’s denomination of Mr. Noble as a “manager,”
`
`he was required to spend a significant portion of his working hours performing non-exempt
`
`staff level work in the kitchen, including, inter alia, preparing food, cleaning, running
`
`orders, and similar manual tasks. Mr. Noble spent the majority of each shift performing
`
`these non-exempt tasks, and only a small minority of the time performed duties that could
`
`properly be classified as managerial in nature. Overall, his primary duty was kitchen work,
`
`not management.
`
`9.
`
`Throughout his employment at Cheesecake Factory, Mr. Noble worked
`
`long hours and was extremely productive for the Company. As a so-called “Kitchen
`
`Manager,” he typically worked 10-hour scheduled shifts, five days a week, and also
`
`performed work before and after his scheduled hours. On average, and based on Mr.
`
`Noble’s best recollection, he worked 50-60 hours per week, which equates to 10-20 hours
`
`of overtime per week (or 15 hours of overtime per week on average).
`
`10.
`
`There were many specific weeks during the limitations period(s) applicable
`
`to this action when Mr. Noble worked in excess of 40 hours, and he was not paid overtime
`
`in any of those weeks.
`
`
`
`3
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 4 of 12 PageID #: 4
`
`11.
`
`Despite the fact that the vast majority of Mr. Noble’s time was spent
`
`performing non-exempt tasks as his primary duty, Cheesecake Factory erroneously
`
`classified him as an “exempt” executive employee under the FLSA and NYLL, and did not
`
`pay him any overtime for the extensive hours he worked in excess of 40 per week.
`
`12.
`
`Because Mr. Noble did not fall within any applicable overtime exemption,
`
`Cheesecake Factory unlawfully failed to pay him overtime for all hours he worked in
`
`excess of 40 per week during the applicable limitations period(s).
`
`13.
`
`Under the FLSA, in cases of misclassification where the employee was paid
`
`a set salary, the overtime rate is determined by dividing the employee’s weekly salary by
`
`the total number of hours he actually worked that week. That number constitutes the
`
`employee’s “regular rate” per hour, and the overtime rate is 1.5 times the regular rate. The
`
`“time-and-a-half” overtime rate is then multiplied by the number of overtime hours the
`
`employee worked that week, i.e., the number of hours in excess of 40.
`
`14.
`
`Under the NYLL, in cases of misclassification where the employee was paid
`
`a set salary, the overtime rate for hospitality industry employees is determined by dividing
`
`the employee’s weekly salary by 40 hours. See N.Y.C.R.R. § 146-3.5 (Hospitality Industry
`
`Wage Order). That number constitutes the employee’s “regular rate” per hour, and
`
`overtime is 1.5 times the regular rate.
`
`15.
`
`Here, at all relevant times, Mr. Noble was paid an annual salary of
`
`approximately $60,000.00, and his weekly wage equated to approximately $1,154.00.
`
`16.
`
`Applying the above methods of calculation, and estimating that Mr. Noble
`
`worked an average of 15 hours of overtime per week each week during the applicable
`
`limitations periods, Cheesecake Factory owes Mr. Noble unpaid overtime in an amount to
`
`
`
`4
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 5 of 12 PageID #: 5
`
`be determined at trial but believed to exceed $70,000.00, not including liquidated damages,
`
`costs, and attorneys’ fees.
`
`17.
`
`In addition to unpaid overtime, Cheesecake Factory’s misclassification of
`
`Mr. Noble resulted in other violations of the NYLL that entitle him to additional damages.
`
`18.
`
`Employers in New York are legally required to provide every employee, at
`
`the start of employment and upon any change in rate or method of compensation, with an
`
`accurate written notice of the employee’s “rate or rates of pay and basis thereof, whether
`
`paid by the hour, shift, day, week, salary, piece, commission, or other; allowances, if any,
`
`claimed as part of the minimum wage, including tip, meal, or lodging allowances; the
`
`regular pay day designated by the employer in accordance with section one hundred ninety-
`
`one of this article; the name of the employer; any ‘doing business as’ names used by the
`
`employer; the physical address of the employer's main office or principal place of business,
`
`and a mailing address if different; the telephone number of the employer,” and, for all
`
`employees who are not exempt from overtime compensation, “the regular hourly rate and
`
`overtime rate of pay.” See NYLL § 195; 12 N.Y.C.R.R. § 146-2.2. The mandatory penalty
`
`for failing to provide proper wage notices is $50.00 per day up to a maximum of $5,000.00.
`
`See NYLL § 198(1-b).
`
`19.
`
`In addition, New York employers are required to provide every employee
`
`with an accurate wage statement each time they receive their wages. The wage statement
`
`must contain “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
`
`
`
`5
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 6 of 12 PageID #: 6
`
`net wages.” Also, “[f]or all employees who are not exempt from overtime compensation
`
`…, the 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.” See NYLL § 195; 12 N.Y.C.R.R. § 146-2.3. Again, the mandatory penalty for
`
`failing to provide proper wage notices is $50.00 per day up to a maximum of $5,000.00.
`
`See NYLL § 198(1-b).
`
`20.
`
`Because Cheesecake Factory misclassified Mr. Noble as “exempt” during
`
`his employment in New York State, the Company never provided him with complete and
`
`accurate wage statements or wage notices containing, for example, his hours worked,
`
`regular hourly rate, and overtime rate. Mr. Noble worked approximately 270 days for
`
`Cheesecake Factory in New York State. Therefore, Cheesecake Factory is liable to Mr.
`
`Noble for an additional $10,000.00 in penalties.
`
`21.
`
`The NYLL requires that employees who are “manual workers” must be paid
`
`no less frequently than once a week. See NYLL § 191(1)(a). A manual worker is defined
`
`as someone who spends more than 25% of his time performing physical labor. See N.Y.S.
`
`Dept. of Labor, “Frequency of Pay Frequently Asked Questions” (“It has been the long-
`
`standing interpretation of this Department that individuals who spend more than 25% of
`
`working time engaged in ‘physical labor’ fit within the meaning of the term ‘manual
`
`worker.’”)
`
`22. Mr. Noble spent more than 25% of his time performing manual tasks,
`
`including, inter alia, preparing food, cleaning, running orders, and other manual labor.
`
`Therefore, he was a “manual worker” and was entitled to be paid on a weekly basis while
`
`
`
`6
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 7 of 12 PageID #: 7
`
`employed in New York State. In derogation of the law, Cheesecake Factory paid him on a
`
`bi-weekly basis, rendering half of his pay late under the NYLL.
`
`23.
`
`Under the NYLL, an employee who demonstrates late payment of wages is
`
`entitled to liquidated damages equal to the amount of the late paycheck, even if he
`
`eventually received the paycheck. See, e.g., Art. 6, NYLL §§ 191, 198; Vega v CM &
`
`Assoc. Constr. Mgt., LLC, 175 A.D.3d 1144, 1145-46, 107 N.Y.S.3d 286, 287-89 (1st
`
`Dep’t 2019). Plaintiff estimates these liquidated damages as approximately $20,200.00,
`
`which is based on 50% of Mr. Noble’s base salary during his employment in New York
`
`State.
`
`
`24.
`
`FIRST CLAIM FOR RELIEF
`(FLSA Overtime Wage Claim)
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs as
`
`if they were fully set forth again at length herein.
`
`25.
`
`At all relevant times, Defendant has been, and continues to be, an
`
`“employer” engaged in interstate “commerce” and/or in the production of “goods” for
`
`“commerce,” within the meaning of the FLSA, 29 U.S.C. § 203. At all relevant times,
`
`Defendant has employed “employee[s],” including Plaintiff.
`
`26.
`
`During the statute of limitations period(s) covered by these claims, Plaintiff
`
`regularly worked in excess of forty hours per work week.
`
`27.
`
`At all relevant times, Defendant has operated under a decision, policy and
`
`plan, and under common policies, programs, practices, procedures, protocols, routines, and
`
`rules, of willfully failing and refusing to pay Plaintiff at 1.5 times his regular rate for all
`
`work in excess of forty hours per work week, even though Plaintiff was entitled to such
`
`overtime pay.
`
`
`
`7
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 8 of 12 PageID #: 8
`
`28.
`
`At all relevant times, Defendant willfully, regularly, and repeatedly failed
`
`to pay Plaintiff at the required overtime rate, 1.5 times his regular rate, for hours worked
`
`in excess of forty per work week.
`
`29.
`
`As a result of Defendants’ willful violations of the FLSA, Plaintiff is
`
`entitled to recover from Defendant damages in the amount of his unpaid overtime
`
`compensation, liquidated (double) damages as provided by the FLSA for overtime wage
`
`violations, attorneys’ fees and costs, and such other legal and equitable relief as this Court
`
`deems just and proper.
`
`SECOND CLAIM FOR RELIEF
`(New York State Overtime Claim)
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs as
`
`30.
`
`if they were fully set forth again at length herein.
`
`31.
`
`At all relevant times, Defendant has been, and continues to be, an
`
`“employer” within the meaning of the NYLL, § 190, et seq. At all relevant times,
`
`Defendant has employed “employee[s],” including Plaintiff.
`
`32.
`
`During the statute of limitations period covered by these claims, Plaintiff
`
`regularly worked in excess of forty hours per work week.
`
`33.
`
`It is unlawful under New York law for an employer to suffer or permit a
`
`non-exempt employee to work without paying overtime wages for all hours worked in
`
`excess of forty (40) hours in any work week.
`
`34.
`
`At all relevant times, Defendant willfully, regularly, and repeatedly failed
`
`to pay Plaintiff at the required overtime rate, which is 1.5 times the employee’s regular
`
`rate, for hours worked in excess of forty (40) per work week.
`
`
`
`8
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 9 of 12 PageID #: 9
`
`35.
`
`Defendant’s failure to pay Plaintiff overtime was willful within the meaning
`
`of NYLL § 663.
`
`36.
`
`As a result of Defendant’s willful violations of the NYLL, Plaintiff is
`
`entitled to recover from Defendant his unpaid overtime compensation, liquidated (double)
`
`damages as provided by the NYLL for overtime wage violations, attorneys’ fees and costs,
`
`pre- and post-judgment interest, and such other legal and equitable relief as this Court
`
`deems just and proper.
`
`THIRD CLAIM FOR RELIEF
`(Pay Frequency Violations Under NYLL)
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs as
`
`37.
`
`if they were fully set forth again at length herein.
`
`38.
`
`At all relevant times, Defendant has been, and continues to be, an
`
`“employer” within the meaning of the NYLL, § 190, et seq. At all relevant times,
`
`Defendant has employed “employee[s],” including Plaintiff.
`
`39.
`
`At all relevant times, more than 25% of each of Plaintiff’s work days and
`
`work weeks during his employment by Defendant was spent performing manual tasks;
`
`therefore, Plaintiff was a “manual worker” within the meaning of the NYLL.
`
`40.
`
`Under NYLL § 191(1)(a), manual workers such as Plaintiff are required to
`
`be paid no less frequently than on a weekly basis.
`
`41.
`
`On multiple occasions during the statute of limitations period covered by
`
`these claims, Defendant knowingly failed to timely pay Plaintiff his earned wages on a
`
`weekly basis, resulting in the late payment of wages.
`
`42.
`
`The aforesaid conduct of Defendant was knowing, intentional, and willful.
`
`
`
`9
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 10 of 12 PageID #: 10
`
`43.
`
`By its aforesaid conduct, Defendant willfully violated the provisions of the
`
`NYLL regarding timely payment of wages, NYLL Art. 6 § 191, et seq.
`
`44.
`
`Plaintiff is thereby entitled to recover from Defendants liquidated damages
`
`in the amount of his untimely-paid wages, as provided by the NYLL for wage violations,
`
`as well as interest, attorneys’ fees and costs, and such other legal and equitable relief as
`
`this Court deems just and proper.
`
`FOURTH CLAIM FOR RELIEF
`(New York State Wage Notice Claim)
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs as
`
`45.
`
`if they were fully set forth again at length herein.
`
`46.
`
`Pursuant to Section 195 of the NYLL, Defendant was required to provide
`
`Plaintiff upon hire, or upon any change in the rate or manner of payment, with written
`
`notice of his “rate or rates of pay and basis thereof, whether paid by the hour, shift, day,
`
`week, salary, piece, commission, or other; allowances, if any, claimed as part of the
`
`minimum wage, including tip, meal, or lodging allowances; the regular pay day designated
`
`by the employer in accordance with section one hundred ninety-one of this article; the name
`
`of the employer; any ‘doing business as’ names used by the employer; the physical address
`
`of the employer's main office or principal place of business, and a mailing address if
`
`different; the telephone number of the employer,” and, for all employees who are not
`
`exempt from overtime compensation, “the regular hourly rate and overtime rate of pay”.
`
`47.
`
`Throughout the statute of limitations period covered by these claims,
`
`Defendant failed to provide Plaintiff with true and accurate wage notices required pursuant
`
`to NYLL § 195, either upon hire or upon changing the rate and method of Plaintiff’s
`
`compensation.
`
`
`
`10
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 11 of 12 PageID #: 11
`
`48.
`
`As a result of Defendant’s willful violations of the NYLL, Plaintiff is
`
`entitled to recover from Defendant a penalty of $50 per day for each violation, not to exceed
`
`$5,000, under NYLL § 198(1-b).
`
`FIFTH CLAIM FOR RELIEF
`(New York State Wage Statement Claim)
`
`Plaintiff realleges and incorporates by reference all preceding paragraphs as
`
`49.
`
`if they were fully set forth again at length herein.
`
`50.
`
`Pursuant to Section 195 of the NYLL, New York employers are required to
`
`provide every employee with a wage statement (commonly referred to as a pay stub) each
`
`time they receive their wages. The wage statement must contain “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.” Also, “[f]or all employees
`
`who are not exempt from overtime compensation …, the 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.”
`
`51.
`
`During the statute of limitations period covered by these claims, Defendant
`
`failed to provide Plaintiff with true and accurate wage statements required pursuant to
`
`NYLL § 195, in that his wage statements did not set forth the number of hours worked, his
`
`hourly rate of pay, or his overtime rate of pay.
`
`52.
`
`As a result of Defendant’s willful violations of the NYLL, Plaintiff is
`
`entitled to recover from Defendant a penalty of $50 per day for each violation, not to exceed
`
`$5,000, under NYLL § 198(1-b).
`
`
`
`11
`
`

`

`Case 2:22-cv-04036 Document 1 Filed 07/11/22 Page 12 of 12 PageID #: 12
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiffs respectfully pray for relief against Defendant as follows:
`
`A.
`
`An award of damages, according to proof, including liquidated damages, to
`
`be paid by Defendant;
`
`Penalties available under applicable laws;
`
`Costs of action incurred herein, including expert fees;
`
`Attorneys’ fees, including fees pursuant to 29 U.S.C. § 216, NYLL § 663,
`
`and other applicable statutes;
`
`Pre-judgment and post-judgment interest, as provided by law; and
`
`Such other and further relief as the Court may deem just, equitable, and
`
`B.
`
`C.
`
`D.
`
`E.
`
`F.
`
`proper.
`
`Dated: July 11, 2022
`
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`By:
`
`
`
`
`
`
`MICHAEL P. PAPPAS LAW FIRM, P.C.
`
`
`
`s/Michael P. Pappas
`
`Michael P. Pappas, Esq. (MP 6716)
`3 Columbus Circle, 15th Floor
`New York, New York 10019
`T: (646) 770-7890
`F: (646) 417-6688
`
`
`
`Attorneys for Plaintiff
`
`
`
`12
`
`

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