Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 1 of 10
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`STILLMAN LEGAL PC
`42 Broadway, 12th Floor
`New York, New York 10004
`Telephone: (800) 933-5620
`www.247EmploymentLawyer.com
`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`OLGA RODRIGUEZ PASTOR
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`Plaintiff,
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`-against-
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`COMPLAINT
`under 29 U.S.C. § 216(b)
`ECF Case
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`HARLEM 421 FOOD CORP. (DBA
`KEYFOOD SUPERMARKET) And
`ROBERTO ESPINAL
`Defendant.
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`-------------------------------------------------------X
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`OLGA RODRIGUEZ PASTOR, (“Plaintiff”), individually by and through her attorneys, Stillman
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`Legal, P.C., upon their knowledge and belief, and as against HARLEM 421 FOOD CORP. (DBA
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`KEYFOOD SUPERMARKET) and ROBERTO ESPINAL (each an “Individual Defendant” and
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`collectively with “Defendant Corporation”, “Defendant”), allege as follows:
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`NATURE OF THE ACTION
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`1.
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`Plaintiff is an employee of Defendant, employed to work at the produce section in
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`a Supermarket known as Key Food in the Harlem section of New York.
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`2.
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`The defendant owns, operates, and/or controlled a Supermarket located at 421 West
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`125th Street, New York NY 10027.
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`3.
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`Plaintiff was employed by Defendant to work in the produce section of the
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`supermarket, making salads and cutting fruit.
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`1
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`STILLMAN LEGAL PC
`42 Broadway, 12th Floor
`New York, New York 10004
`Telephone: (800) 933-5620
`www.247EmploymentLawyer.com
`Attorneys for Plaintiff
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`OLGA RODRIGUEZ PASTOR
`
`
`
`
`Plaintiff,
`
`
`
`
`
`-against-
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`COMPLAINT
`under 29 U.S.C. § 216(b)
`ECF Case
`
`HARLEM 421 FOOD CORP. (DBA
`KEYFOOD SUPERMARKET) And
`ROBERTO ESPINAL
`Defendant.
`
`
`
`
`-------------------------------------------------------X
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`OLGA RODRIGUEZ PASTOR, (“Plaintiff”), individually by and through her attorneys, Stillman
`
`Legal, P.C., upon their knowledge and belief, and as against HARLEM 421 FOOD CORP. (DBA
`
`KEYFOOD SUPERMARKET) and ROBERTO ESPINAL (each an “Individual Defendant” and
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`collectively with “Defendant Corporation”, “Defendant”), allege as follows:
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`NATURE OF THE ACTION
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`1.
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`Plaintiff is an employee of Defendant, employed to work at the produce section in
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`a Supermarket known as Key Food in the Harlem section of New York.
`
`2.
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`The defendant owns, operates, and/or controlled a Supermarket located at 421 West
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`125th Street, New York NY 10027.
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`3.
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`Plaintiff was employed by Defendant to work in the produce section of the
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`supermarket, making salads and cutting fruit.
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`1
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`Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 2 of 10
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`4.
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`At all times relevant to this complaint, Plaintiff worked for Defendant in excess of
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`40 hours per week, without appropriate compensation for the hours over 40 per week that he
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`worked. Rather, Defendant failed to pay Plaintiff appropriately for any hours worked over 40,
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`either at the straight rate of pay or for any additional overtime premium.
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`5.
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`Plaintiff now brings this action, for unpaid minimum wages and overtime wages
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`pursuant to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (“FLSA”), and for
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`violations of the N.Y. Lab. Law §§ 190 et seq. and 650 et seq. (the “NYLL”), and the “spread of
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`hours” and overtime wage orders of the New York Commission of Labor codified at N.Y. COMP.
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`CODES R. & REGS. tit. 12, § 137-1.7 (2006) including applicable liquidated damages, interest,
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`attorneys’ fees, and costs.
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`JURISDICTION AND VENUE
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`6.
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`This Court has subject matter jurisdiction pursuant to 29 U.S.C. § 216(b) (FLSA),
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`28 U.S.C. § 1337 (interstate commerce), and 28 U.S.C. § 1331 (federal question). Supplemental
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`jurisdiction over Plaintiff’s state law claims is conferred by 28 U.S.C. § 1367(a).
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`7.
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`The venue is proper in this District under 28 U.S.C. § 391(b) and (c) because all or
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`a substantial part of the events or omissions giving rise to the claims occurred in this district,
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`Defendant operates their businesses in this district, and Plaintiff was employed by Defendant in
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`this district.
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`THE PARTIES
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`Plaintiff
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`8.
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`Olga Rodriguez Pastor (“Plaintiff Rodriguez Pastor”) is an adult individual residing
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`in Manhattan, New York.
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`2
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`Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 3 of 10
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`9.
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`Plaintiff was employed by Defendant from 2017 and continues to work for
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`Defendant as of the writing of this Compliant (December 28, 2021).
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`10.
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`Plaintiff was hired to work in the produce section of a busy supermarket preparing
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`salads and fruits from Monday through Sunday for on or about 45-48 hours per week.
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`11.
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`Plaintiff earned $10 per hour from 2017 until 2019. In 2019 her salary was raised
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`to $15 but Defendant failed to pay her the overtime required by the FLSA and NYLL.
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`Defendant
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`12.
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`At all times, relevant to this complaint, Defendant owned, operated a supermarket
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`known as KeyFood Fresh Supermarket.
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`13.
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`Defendant Roberto Espinal is an individual engaging (or who was engaged) in
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`business in this judicial district during the relevant time period.
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`14.
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`Defendant Roberto Espinal is sued in his individual capacity as, on information and
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`belief, he is an owner, officer, and/or agent of Defendant Corporation.
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`15.
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`Upon information and belief, Defendant Roberto Espinal possesses or possessed
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`operational control over Defendant Corporation, possesses or possessed an ownership interest in
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`Defendant Corporation, and controls or controlled significant functions of Defendant Corporation.
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`16.
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`Defendant Roberto Espinal determined the wages and compensation of the
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`employees of Defendant, including Plaintiff, and established the schedules of the employees,
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`maintained employees’ records, and had the authority to hire and fire employees.
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`FACTUAL ALLEGATIONS
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`Defendant Constitute Joint Employers
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`17.
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`Defendant owned, operated, and/or controlled a supermarket named KeyFood in
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`the Harlem neighborhood of New York City/Manhattan.
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`3
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`Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 4 of 10
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`18.
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`Upon information and belief, individual Defendant Roberto Espinal had operational
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`control over the Defendant Corporation, possessed an ownership interest in Defendant
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`Corporation, and controlled significant functions of Defendant Corporation.
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`19.
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`Defendants are associated and joint employers, act in the interest of each other with
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`respect to employees, pay employees by the same method, and share control over the employees.
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`20.
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`Defendant possessed substantial control over Plaintiff (and other similarly situated
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`employees) working conditions, and over the policies and practices with respect to the employment
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`and compensation of Plaintiff, and all similarly situated individuals, referred to herein.
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`21.
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`Defendant jointly employed Plaintiff, and all similarly situated individuals and is
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`her (and all similarly situated individuals’) employee within the meaning of 29 U.S.C. 201 et seq.
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`and the NYLL.
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`22.
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`In the alternative, Defendant constitutes a single employer of Plaintiff and/or
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`similarly situated individuals.
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`23.
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`At all relevant times, Defendant was Plaintiff’s employer within the meaning of the
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`FLSA and New York Labor Law. The defendant had the power to hire and fire Plaintiff, control
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`the terms and conditions of employment, and determine the rate and method of compensation in
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`exchange for their services.
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`24.
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`In each year from 2016 to the present, Defendant, both separately and jointly, had
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`a gross annual volume of sales of not less than $500,000 (exclusive of excise taxes at the retail
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`level that are separately stated).
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`Plaintiff Olga Rodriguez Pastor
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`25.
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`Plaintiff Rodriguez Pastor has been employed by Defendants from on or about June
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`2017 until the present time.
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`4
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`Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 5 of 10
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`26.
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`Plaintiff was hired to work at the produce section of the supermarket making salads
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`and cutting fruit.
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`27.
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`Plaintiff worked Monday through Sunday from 9:00 am until 4:00 or 4:30 pm daily
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`with a break that was deducted but that she rarely took because of the amount of work she was
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`given. She complained various times about not having a break.
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`28.
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`29.
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`Defendants kept track of her time as Plaintiff had to punch in and out daily.
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`Plaintiff Rodriguez Pastor’s work duties required neither discretion nor
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`independent judgment.
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`30.
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`31.
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`Plaintiff Rodriguez Pastor regularly worked more than 40 hours per week.
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`Plaintiff was paid $10 per hour cash from the beginning of her employment until
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`January 2019 when she started receiving $15 per hour
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`32.
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`On or about June 20th, 2021, Plaintiff Pastor started receiving pay statements, and
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`at the same time, the amount of time that she worked per week decreased by 10-15 hours per week.
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`(See Exhibit)
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`33.
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`Throughout her employment with Defendant, Plaintiff Rodriguez Pastor was paid
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`by company check. Nothing in her checks indicated hours worked or amount per hour.
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`34.
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`35.
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`Plaintiff was never paid overtime at the required time and a half premium pay.
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`No notification, either in the form of posted notices or other means, was given to
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`Plaintiff Rodriguez Pastor regarding overtime and wages under the FLSA and NYLL.
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`Defendant’ General Employment Practices
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`36.
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`Defendant’s pay practices resulted in Plaintiff not receiving payments for all her
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`hours worked, resulting in Plaintiff’s effective rate of pay falling below the required minimum and
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`overtime wage rate.
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`5
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`Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 6 of 10
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`37.
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`Plaintiff has been a victim of Defendant’s common policy and practices violating
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`their rights under the FLSA and New York Labor Law by not paying them the wages he was owed
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`for the hours he had worked.
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`38.
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`As part of their regular business practice, Defendant intentionally, willfully, and
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`repeatedly harmed Plaintiff by engaging in a pattern, practice, and/or policy of violating the FLSA
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`and the NYLL.
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`39.
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`Defendant failed to provide Plaintiff with statutorily required wage and hour
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`records or statements of her pay received, in part so as to hide Defendant’ violations of the wage
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`and hour laws, and to take advantage of Plaintiff’s relative lack of sophistication in wage and hour
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`laws.
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`40.
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`Defendant willfully disregarded and purposefully evaded
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`recordkeeping
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`requirements of the Fair Labor Standards Act and New York Labor Law by failing to maintain
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`accurate and complete timesheets and payroll records.
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`41.
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`Upon information and belief, this was done to disguise the actual number of hours
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`Plaintiff worked, and to avoid paying Plaintiff properly for (i) her full hours worked, (ii) for
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`overtime due, and (iii) for spread of hours pay.
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`42.
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`Defendant did not provide Plaintiff with any document or other statement
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`accurately accounting for her actual hours worked and setting forth rate of minimum wage and
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`overtime wage.
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`FIRST CAUSE OF ACTION
`(Violation of the Minimum Wage and Overtime Provisions of the FLSA)
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`43.
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`Plaintiff repeats and realleges all paragraphs above as though fully set forth herein.
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`Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 7 of 10
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`44.
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`At all times relevant to this action, Defendant was Plaintiff employers (and
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`employers of the putative FLSA) within the meaning of the Fair Labor Standards Act, 29 U.S.C.
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`§ 203(d).
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`45.
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`The defendant had the power to hire and fire Plaintiff, control her terms and
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`conditions of employment, and determine the rate and method of any compensation.
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`46.
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`At all times relevant to this action, Defendant was engaged in commerce or in an
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`industry or activity affecting commerce.
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`47.
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`Defendant constitutes an enterprise within the meaning of the Fair Labor Standards
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`Act, 29 U.S.C. § 203 (r-s).
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`48.
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`Defendant failed to pay Plaintiff at the applicable minimum hourly rate during the
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`years 2016-2019, in violation of 29 U.S.C. § 206(a).
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`49.
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`Defendant’s failure to pay Plaintiff at the applicable minimum hourly rate was
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`willful within the meaning of 29 U.S.C. § 255(a).
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`50.
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`51.
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`52.
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`Plaintiff was damaged in an amount to be determined at trial.
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`Plaintiff repeats and realleges all paragraphs above as though fully set forth herein.
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`Defendant, in violation of the FLSA, failed to pay Plaintiff overtime compensation
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`at rates of one and one-half times the regular rate of pay for each hour worked in excess of forty
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`hours in a workweek, in violation of 29 U.S.C. § 207 (a)(1).
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`53.
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`Defendant’s failure to pay Plaintiff overtime compensation was willful within the
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`meaning of 29 U.S.C. § 255(a).
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`54.
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`Plaintiff was damaged in an amount to be determined at trial.
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`SECOND CAUSE OF ACTION
`(Violation of the Minimum Wage and Overtime Provisions of the New York Labor Law)
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`55.
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`Plaintiff repeats and reallege all paragraphs above as though fully set forth herein.
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`7
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`Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 8 of 10
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`56.
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`Defendant, in violation of the NYLL § 190 et seq. and associated rules and
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`regulations, failed to pay Plaintiff overtime compensation at rates of one and one-half times the
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`regular rate of pay for each hour worked in excess of forty hours in a workweek.
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`57.
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`Defendant’ failure to pay Plaintiff minimum wage and overtime compensation was
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`willful within the meaning of N.Y. Lab. Law § 663.
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`58.
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`Plaintiff has been damaged in an amount to be determined at trial.
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`THIRD CAUSE OF ACTION
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`(Violation of The Notice and Record-Keeping requirements of the
`The New York Labor Law)
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`Plaintiff repeats and reallege all paragraphs above as though fully set forth herein.
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`Defendant failed to provide Plaintiff with a written notice, in English and in
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`59.
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`60.
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`Spanish (Plaintiff’s primary language), of their rate of pay, regular payday.
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`61.
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`Defendant failed to provide Plaintiff with paychecks detailing her name, number
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`of hours worked, deductions, etc.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff respectfully requests that this Court enter judgment against
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`Defendant:
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`(a)
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`Declaring that Defendant had violated the minimum wage provisions of, and
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`associated rules and regulations under, the FLSA as to Plaintiff;
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`(b)
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`Declaring that Defendant has violated the overtime wage provisions of, and
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`associated rules and regulations under, the FLSA as to Plaintiff;
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`(c)
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`Declaring that Defendant have violated the recordkeeping requirements of, and
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`associated rules and regulations under, the FLSA with respect to Plaintiff ’ compensation, hours,
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`wages, and any deductions or credits taken against wages;
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`(d)
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`Declaring that Defendant’ violation of the provisions of the FLSA was willful as
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`Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 9 of 10
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`to Plaintiff;
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`(e)
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`Awarding Plaintiff damages for the amount of unpaid minimum and overtime
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`wages, and damages for any improper deductions or credits taken against wages under the FLSA
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`as applicable;
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`(f)
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`Awarding Plaintiff liquidated damages in an amount equal to 100% of her
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`damages for the amount of unpaid minimum and overtime wages, and damages for any improper
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`deductions or credits taken against wages under the FLSA as applicable pursuant to 29 U.S.C. §
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`216(b);
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`(g)
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`Declaring that Defendant have violated the minimum wage provisions of, and
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`rules and orders promulgated under, the NYLL as to Plaintiff;
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`(h)
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`Declaring that Defendant have violated the overtime wage provisions of, and rules
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`and orders promulgated under, the NYLL as to Plaintiff;
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`(i)
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`Declaring that Defendant have violated the Spread of Hours Wage Order of the
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`New York Commission of Labor as to Plaintiff;
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`(j)
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`Declaring that Defendant have violated the recordkeeping requirements of the
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`NYLL with respect to Plaintiff’ compensation, hours, wages; and any deductions or credits taken
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`against wages;
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`(k)
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`Declaring that Defendant’ violations of the New York Labor Law and Spread of
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`Hours Wage Order were willful as to Plaintiff;
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`(l)
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`Awarding Plaintiff damages for the amount of unpaid minimum and overtime
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`wages, damages for any improper deductions or credits taken against wages, as well as awarding
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`spread of hours pay under the NYLL as applicable;
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`(m) Awarding Plaintiff liquidated damages in an amount equal to one hundred percent
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`Case 1:21-cv-11120 Document 1 Filed 12/28/21 Page 10 of 10
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`(100%) of the total amount of minimum wage, spread of hours pay, and overtime compensation
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`shown to be owed pursuant to NYLL § 663 as applicable;
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`(n)
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`(o)
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`Awarding Plaintiff pre-judgment and post-judgment interest as applicable;
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`Awarding Plaintiff the expenses incurred in this action, including costs and
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`attorney’s fees; and
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`(p)
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`All such other and further relief as the Court deems just and proper.
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`Dated: New York, New York
`December 28, 2021
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`Lina F. Stillman, Esq.
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`10
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