`
`LEE LITIGATION GROUP, PLLC
`C.K. Lee (CL 4086)
`Anne Seelig (AS 3976)
`148 West 24th Street, Eighth Floor
`New York, NY 10011
`Tel.: 212-465-1180
`Fax: 212-465-1181
`Attorneys for Plaintiff, FLSA Collective
`Plaintiffs and the Class
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`
`
`
`
`
`Case No.:
`
`CLASS AND COLLECTIVE
`ACTION COMPLAINT
`
`Jury Trial Demanded
`
`DANILO MERA, on behalf of himself, FLSA
`Collective Plaintiffs, and the Class,
`
`
`
`
`
`
`
`
`Plaintiff,
`
` v.
`
`
`KYMA HUDSON LLC,
`d/b/a KYMA,
`KYMA NYC LLC,
`d/b/a KYMA,
`OLD NORTHERN BOULEVARD
`RESTAURANT LLC,
`d/b/a KYMA,
`217 W85 LLC,
`d/b/a ELEA,
`MERKOURIOS ANGELIADES,
`and STEVE TENEDIOS,
`
`
`
`
`
`
`
`Defendants.
`
`
`
`
`
`Plaintiff, DANILO MERA (“Plaintiff”), on behalf of himself and others similarly situated,
`
`by and through his undersigned attorney, files this Class and Collective Action Complaint against
`
`KYMA HUDSON LLC, d/b/a KYMA, KYMA NYC LLC, d/b/a KYMA, OLD NORTHERN
`
`BOULEVARD RESTAURANT LLC, d/b/a KYMA, 217 W85 LLC, d/b/a ELEA, (collectively
`
`the "Corporate Defendants"), MERKOURIOS ANGELIADES and STEVE TENEDIOS
`
`(“Individual Defendants,” and together with Corporate Defendants, “Defendants”), and states as
`
`follows:
`
`
`
`
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 2 of 26
`
`INTRODUCTION
`
`1.
`
`Plaintiff alleges, pursuant to the Fair Labor Standards Act, as amended, 29 U.S.C.
`
`§§201 et. seq. (“FLSA”), that he and others similarly situated are entitled to recover from
`
`Defendants: (1) unpaid wages, including overtime, (2) unpaid wages, including overtime, due to
`
`timeshaving, (3) unpaid wages, including overtime, due to invalid tip credit, (4) improperly
`
`deducted meal credits, (5) illegally retaining gratuities, (6) liquidated damages, and (7) attorneys’
`
`fees and costs.
`
`2.
`
`Plaintiff further alleges that, pursuant to the New York Labor Law (“NYLL”), he
`
`and others similarly situated are entitled to recover from Defendants: (1) unpaid wages, including
`
`overtime, (2) unpaid wages, including overtime, due to timeshaving, (3) unpaid wages, including
`
`overtime, due to invalid tip credit, (4) improperly deducted meal credits, (5) illegally retaining
`
`gratuities, (6) statutory penalties, (7) liquidated damages, and (8) attorneys’ fees and costs.
`
`3.
`
`Furthermore, Plaintiff alleges that pursuant to the New York State Human Rights
`
`Law, New York Executive Law §296 (“NYSHRL”), and the New York City Human Rights Law,
`
`Administrative Code of the City of New York § 8-107 (“NYCHRL”), that Plaintiff was deprived
`
`of his statutory rights as a result of Defendants’ discriminatory employment practices based on
`
`Plaintiff’s sexual orientation and seeks to recover (1) economic damages, (2) compensatory
`
`damages, (3) punitive damages, and (4) attorneys’ fees and costs.
`
`JURISDICTION AND VENUE
`
`4.
`
`This Court has jurisdiction over this controversy pursuant to 29 U.S.C. §216(b), 28
`
`U.S.C. §§1331, 1337, and 1343 and has supplemental jurisdiction over Plaintiff’s state law claims
`
`pursuant to 28 U.S.C. §1367.
`
`5.
`
`Venue is proper in the Southern District pursuant to 28 U.S.C. §1391.
`
`
`
`2
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 3 of 26
`
`PARTIES
`
`Plaintiff MERA is a resident of Essex County, New Jersey.
`
`Defendants collectively own and operate four (4) Greek taverna inspired restaurants
`
`6.
`
`7.
`
`in New York located at:
`
`a) Kyma Flatiron: 15 W 18th Street, New York, NY 10011;
`
`b) Kyma Hudson Yards: 445 W, 35th Street, New York, NY 10001;
`
`c) Kyma Roslyn: 1446 Old Northern Blvd, Roslyn, NY 11576; and
`
`d) Elea: 217 W 85th St, New York, NY 10024 (collectively, the “Restaurants”)
`
`8.
`
`Defendants operate the Restaurants as a single integrated enterprise under the
`
`common control of Defendants. All the Restaurants are engaged in related activities, share
`
`common ownership, and have a common business purpose.
`
`a) Specifically, Individual Defendant MERKOURIOS ANGELIADES owns and
`
`operates all the Restaurants as it is asserted on Defendants registrations, licenses,
`
`public reports, and news articles. See Exhibit A.
`
`b) Similarly, all the Restaurants are held out to the public as “sibling” or “sister”
`
`entities. See Exhibit B.
`
`c) The Restaurants all serve Greek and Mediterranean cuisines, have similar menus,
`
`serve similar goods, and have the same suppliers. Exhibit C.
`
`d) Likewise, all the Restaurants share and utilize similar décor and ambience inspired
`
`by traditional Greek taverna restaurants. See Exhibit D.
`
`e) All the Restaurants have a centralized Human Resources that deals with hiring,
`
`firing, and administering all the Restaurants’ work force.
`
`
`
`3
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 4 of 26
`
`f) Moreover, Defendants’ employees are exchanged, rotated, and required to work at
`
`each Restaurant location on an as needed basis.
`
`9.
`
`Corporate Defendant KYMA HUDSON LLC., d/b/a KYMA is a domestic business
`
`corporation organized under the laws of the State of New York, with a principal place of business
`
`located at 445 West 35th Street, New York, NY 10001, and an address for service of process
`
`located at 315 Madison Avenue, 15th Floor, New York, NY 10017.
`
`10.
`
`Corporate Defendant KYMA NYC LLC., d/b/a KYMA is a domestic business
`
`corporation organized under the laws of the State of New York, with a principal place of business
`
`and an address for service of process located at 15 West 18th Street, New York, NY 10011.
`
`11.
`
`Corporate Defendant OLD NORTHERN BOULEVARD RESTAURANT LLC.,
`
`d/b/a KYMA is a domestic business corporation organized under the laws of the State of New
`
`York, with a principal place of business and an address for service of process located at 1446 Old
`
`Northern Blvd, Roslyn, NY 11576.
`
`12.
`
`Corporate Defendant 217 W85 LLC, d/b/a ELEA is a domestic business
`
`corporation organized under the laws of the State of New York, with a principal place of business
`
`located at 217 West 85th St, New York, NY 10024 and an address for service of process located
`
`at 5-44 47th Ave, Third Floor, Long Island City, NY 11101.
`
`13.
`
`Individual Defendant MERKOURIOS ANGELIADES is the owner and principal
`
`of Corporate Defendant. MERKOURIOS ANGELIADES exercises operational as it relates to all
`
`employees
`
`including Plaintiff, FLSA Collective Plaintiffs, and
`
`the Class. Defendant
`
`MERKOURIOS ANGELIADES exercises the power to (and also delegates to managers and
`
`supervisors the power to) fire and hire employees, supervise and control employee work schedules
`
`and conditions of employment, and determine the rate and method of compensation of employees
`
`
`
`4
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 5 of 26
`
`including those of Plaintiff, FLSA Collective Plaintiffs and the Class. At all times, employees
`
`could complain to Defendant MERKOURIOS ANGELIADES directly regarding the terms of
`
`employment.
`
`14.
`
`Individual Defendant STEVE TENEDIOS is the owner and principal of Corporate
`
`Defendant. STEVE TENEDIOS exercises operational as it relates to all employees including
`
`Plaintiff, FLSA Collective Plaintiffs, and the Class. Defendant STEVE TENEDIOS exercises the
`
`power to (and also delegates to managers and supervisors the power to) fire and hire employees,
`
`supervise and control employee work schedules and conditions of employment, and determine the
`
`rate and method of compensation of employees including those of Plaintiff, FLSA Collective
`
`Plaintiffs and the Class. At all times, employees could complain to Defendant STEVE TENEDIOS
`
`directly regarding the terms of employment.
`
`15.
`
`At all relevant times, Corporate Defendants were and continue to be an “enterprise
`
`engaged in commerce” within the meaning of the FLSA, NYLL, and regulations thereunder.
`
`FLSA COLLECTIVE ACTION ALLEGATIONS
`
`16.
`
`Plaintiff brings claims for relief as a collective action pursuant to FLSA §16(b), 29
`
`U.S.C. § 216(b), on behalf of all current and former non-exempt employees (including, but not
`
`limited to, cooks, food preparers, dishwashers, porters, hostesses, bussers, food runners,
`
`bartenders, barbacks, and waiters) employed by Defendants on or after the date that is six (6) years
`
`before the filing of the Complaint (“FLSA Collective Plaintiffs”).
`
`17.
`
`At all relevant times, Plaintiff and other FLSA Collective Plaintiffs have been
`
`similarly situated, have had substantially similar job requirements and pay provisions, and have
`
`been and continue to be subjected to Defendants’ decisions, policies, plans, programs, practices,
`
`procedures, protocols, routines, and rules, all of which have culminated in a willful failure and
`
`
`
`5
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 6 of 26
`
`refusal to pay Plaintiff MERA and FLSA Collective Plaintiffs (i) their proper wages, including
`
`overtime, (ii) their proper wages, including overtime, due to timeshaving and (iii) their proper
`
`wages due to improperly deducted meal credit. The claims of Plaintiff stated herein are essentially
`
`the same as those of other FLSA Collective Plaintiffs. A subclass of FLSA Collective Plaintiffs
`
`has a claim for (i) unpaid wages, including overtime, due to an invalid tip credit and (ii) illegally
`
`retained gratuities. The claims of Plaintiff MERA stated herein are essentially the same as those
`
`of the other FLSA Collective Plaintiffs.
`
`18.
`
`The claims for relief are properly brought under and maintained as an opt-in
`
`collective action pursuant to §16(b) of the FLSA, 29 U.S.C. 216(b). The FLSA Collective Plaintiffs
`
`are readily ascertainable. For purposes of notice and other purposes related to this action, their
`
`names and addresses are readily available from the Defendants. Notice can be provided to FLSA
`
`Collective Plaintiffs via first class mail to the last address known to Defendants.
`
`RULE 23 CLASS ALLEGATIONS – NEW YORK
`
`19.
`
`Plaintiff brings claims for relief pursuant to the Federal Rules of Civil Procedure
`
`(“F.R.C.P.”) Rule 23, on behalf of all current and former non-exempt employees (including, but
`
`not limited to, cooks, food preparers, dishwashers, porters, hostesses, bussers, food runners,
`
`bartenders, barbacks, and waiters) employed by Defendants on or after the date that is six (6) years
`
`before the filing of the Complaint in this case as defined herein (the “Class Members").
`
`20.
`
`The Class members are readily ascertainable. The number and identity of the Class
`
`members are determinable from the records of Defendants. The hours assigned and worked, the
`
`position held, and rates of pay for each Class member are also determinable from Defendants’
`
`records. For purposes of notice and other purposes related to this action, their names and addresses
`
`
`
`6
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 7 of 26
`
`are readily available from Defendants. Notice can be provided by means permissible under
`
`F.R.C.P. 23.
`
`21.
`
`The proposed Class is so numerous that a joinder of all members is impracticable,
`
`and the disposition of their claims as a class will benefit the parties and the Court. Although the
`
`precise number of such persons is unknown, the facts on which the calculation of that number are
`
`presently within the sole control of Defendants, there is no doubt that there are more than forty
`
`(40) members of the Class. The Class further includes a subclass of tipped employees (“Tipped
`
`Subclass”) who also number more than forty (40). Plaintiff MERA is a member of the Class and
`
`the Tipped Subclass
`
`22.
`
`Plaintiff’s claims are typical of those claims which could be alleged by any member
`
`of the Class, and the relief sought is typical of the relief which would be sought by each member
`
`of the Class in separate actions. All the Class members were subject to the same corporate practices
`
`of Defendants, as alleged herein, of (i) failing to pay proper wages, including overtime, (ii) failing
`
`to pay proper wages, including overtime, due to timeshaving, (iii) failing to pay proper wages due
`
`to improperly deducted meal credits, (iv) failing to provide Class Members with proper wage
`
`statements, and (v) failing to provide Class members with notice of wage rate upon hiring and as
`
`required thereafter pursuant to the New York Labor Law.
`
`23. With regard to the Tipped Subclass, Defendants also failed to pay the proper
`
`minimum wage because Defendants were not entitled to claim any tip credit as they failed to meet
`
`the statutory requirements under the NYLL. Plaintiff MERA and the other members of the Tipped
`
`Subclass suffered from Defendants’ utilization of an invalid tip credit because Defendants: (i)
`
`failed to properly provide written tip credit notice at hiring; (ii) claimed tip credit for all hours
`
`worked despite having caused tipped employees to engage in non-tipped duties for hours
`
`
`
`7
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 8 of 26
`
`exceeding twenty percent (20%) of the total hours worked during a given shift each workweek;
`
`(iii) implemented an invalid tip pooling scheme whereby managers and non-tipped employees
`
`participated; (iv) illegally retained tips; (v) failed to accurately keep track of daily tips earned and
`
`maintain records thereof; and (vi) failed to provide proper wage statements clearly indicating tip
`
`credit allowance for each payment period.
`
`24.
`
`Defendants’ corporate-wide policies and practices affected all Class members
`
`similarly, and Defendants benefited from the same type of unfair and/or wrongful acts as to each
`
`Class member. Plaintiff and other Class members sustained similar losses, injuries, and damages
`
`arising from the same unlawful policies, practices, and procedures by Defendants.
`
`25.
`
`Plaintiff is able to fairly and adequately protect the interests of the Class and has no
`
`interests antagonistic to the Class. Plaintiff is represented by attorneys who are experienced and
`
`competent in both class action litigation and employment litigation, and who have previously
`
`represented Plaintiffs in wage and hour cases.
`
`26.
`
`A class action is superior to other available methods for the fair and efficient
`
`adjudication of the controversy – particularly in the context of the wage and hour litigation where
`
`individual class members lack the financial resources to vigorously prosecute a lawsuit against
`
`corporate defendants. Class action treatment will permit a large number of similarly situated
`
`persons to prosecute common claims in a single forum simultaneously, efficiently, and without the
`
`unnecessary duplication of efforts and expense that numerous individual actions engender.
`
`Because of losses, injuries, and damages suffered by each individual Class members are small, in
`
`the sense pertinent to a class action analysis, the expenses and burden of individual litigation would
`
`make it extremely difficult or impossible for the individual Class members to redress their wrongs.
`
`Important public interests will be served by addressing the matter as a class action. The
`
`
`
`8
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 9 of 26
`
`adjudication of individual litigation claims would result in a great expenditure of Court and public
`
`resources; however, treating the claims as a class action would result in a significant saving of
`
`these costs. The prosecution of separate actions by individual members of the Class would create
`
`a risk of inconsistent and varying adjudications with respect to individual Class members,
`
`establishing incompatible standards of conduct for Defendant, resulting in the impairment of Class
`
`members’ rights and the disposition of their interests through actions to which they were not
`
`parties. The issues in this action can be decided by means of common, class-wide proof. In
`
`addition, if appropriate, the Court can, and is empowered to, fashion methods to efficiently manage
`
`this action as a class action.
`
`27.
`
`Defendants and other employers throughout the state violate the NYLL. Current
`
`employees are often afraid to assert their rights out of fear of direct or indirect retaliation. Former
`
`employees are fearful of bringing claims because doing so can harm their current employment,
`
`future employment, and future efforts to secure employment. Class actions provide class members
`
`who are not named in the Complaint a degree of anonymity, which allows for the vindication of
`
`their rights while eliminating or reducing these risks.
`
`28.
`
`There are questions of law and fact common to the Class which predominate over
`
`any questions affecting only individual class members, including:
`
`a. Whether Defendants employed Plaintiff and the Class within the meaning of New
`
`York law;
`
`b. What are and were the policies, practices, programs, procedures, protocols and
`
`plans of Defendants regarding the types of work and labor for which Defendants
`
`did not properly pay Plaintiff and the Class member properly;
`
`
`
`9
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 10 of 26
`
`c. At what common rate, or rates subject to common methods of calculation, were and
`
`are Defendants required to pay to Plaintiff and the Class members for their work;
`
`d. Whether Defendants properly notified Plaintiff and the Class of their hourly rates;
`
`e. Whether Defendants operated their business with a policy of failing to pay Plaintiff,
`
`FLSA Collective Plaintiffs, and Class members for all hours worked;
`
`f. Whether Defendants properly provided written notice to all tipped employees, in
`
`their native language, that Defendants were taking a tip credit;
`
`g. Whether Defendants accurately tracked the amounts of tips earned each day and
`
`maintained records thereof;
`
`h. Whether Defendants instituted an improper tip pool whereby managers and non-
`
`tipped employees participated;
`
`i. Whether Defendants caused tipped employees to engage in non-tipped duties
`
`exceeding 20% or two hours of their work shift;
`
`j. Whether Defendants properly satisfied New York State’s nutritional requirements
`
`containing all four (4) food groups for meals provided to employees;
`
`k. Whether the meals provided by Defendants exceed the meals “reasonable cost”;
`
`l. Whether employees actually consumed the credited meals provided by Defendants;
`
`m. Whether Defendants provided proper wage statements informing: (i) tipped
`
`employees of the amount of tip credit allowance for each payment period; and (ii)
`
`all non-exempt employees of information required to be provided on wage
`
`statements as required under the NYLL and applicable state laws;
`
`
`
`10
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 11 of 26
`
`n. Whether Defendants provided proper wage and hour notice, at date of hiring and
`
`annually, to all non-exempt employees, in their native language, per requirements
`
`of the NYLL.
`
`STATEMENT OF FACTS
`
`Wage and Hour Allegations
`
`29.
`
`In or around July 2021, Plaintiff DANILO MERA was hired to work as a Busboy
`
`for Defendants’ “Kyma Hudson Yards” restaurant located at 445 West 35th Street, New York, NY
`
`10001. Around January 2022, Plaintiff’s position was changed to Runner, and he continued
`
`working for Defendants until March 18, 2022.
`
`30.
`
`At the beginning of his employment, Defendants trained Plaintiff at their “Kyma
`
`Flatiron” restaurant located at 15 W 18th Street, New York, NY 10011. It was and is a common
`
`practice that Defendants train new employees at one location and then transfer and direct FLSA
`
`Collective Plaintiffs and Class members to perform work at other Restaurants on an as needed
`
`basis.
`
`31.
`
`Throughout his employment, Defendants compensated Plaintiff at the tipped credit
`
`minimum wage rate of $10 per hour.
`
`32.
`
`Throughout his employment, Plaintiff was scheduled to work five (5) days per week
`
`from 3:00 p.m. to 12:00 a.m. for a total of forty-five (45) hours per week. On occasion, Plaintiff
`
`was required to continue working after his scheduled shift ended. Likewise, FLSA Collective
`
`Plaintiffs and Class members worked similar hours.
`
`33.
`
`Throughout his employment, Plaintiff was not compensated for his meal breaks as
`
`he was required to work through them due to how busy the restaurant was. Similarly, FLSA
`
`
`
`11
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 12 of 26
`
`Collective Plaintiffs and Class Members were similarly required to work through their meal breaks
`
`and not compensated for that time.
`
`34.
`
`Throughout Plaintiff’s employment, Defendants improperly deducted a meal credit
`
`from Plaintiff’s wages under FLSA § 203(m) and NYCRR § 146-1.9, without regard to whether
`
`the meal credit deducted exceed the meals “reasonable cost”1, whether the meals provided satisfied
`
`New York State’s nutritional requirements containing all four (4) food groups2, and whether
`
`employees actually consumed the credited meals or not. Defendants’ provided meals consisted
`
`only of chicken and pasta, with no drinks such as coffee, tea, or sodas, and failed to satisfy the
`
`New York State’s nutritional requirements. FLSA Collective Plaintiffs and Class Members
`
`similarly had meal credits improperly deducted from their wages.
`
`35.
`
`Throughout his employment, Plaintiff was subject to an invalid tip pool wherein
`
`managers and non-tipped employees such as hosts participated. The subclass of FLSA Collective
`
`Plaintiffs and the Tipped Subclass similarly suffered from Defendants utilization of an invalid tip
`
`pool wherein managers and non-tipped employees such as hosts participated
`
`36.
`
`Defendants failed to compensate Plaintiff and employees with their proper wages,
`
`including overtime, due to Defendants incorrect method of calculating employees’ hours worked.
`
`Whenever Plaintiff worked longer than ten (10) hours, Defendants failed to compensate Plaintiff
`
`the equivalent of one worked hour, as Defendants improperly paid employees the spread of hours
`
`premium instead of the worked hour plus an additional hour at the minimum wage. As it can be
`
`seen on the paystubs attached hereto as Exhibit E, when Plaintiff worked a shift longer than ten
`
`(10) hours, Defendants compensated Plaintiff with the Spread of Hours premium as a replacement
`
`
`
`1 29 C.F.R. § 531.3
`2 NYCRR § 146-3.7
`
`
`
`
`12
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 13 of 26
`
`for a worked hour, instead of a premium in addition to Plaintiff’s worked hours, as it is supposed
`
`to be. For example, the paystub corresponding to the week of 02/14/2022 – 02/20/2022 shows that
`
`Plaintiff worked that week a total of 51.02 hours with one shift that exceeded ten (10) hours in
`
`duration. Thus, for that week, Plaintiff was supposed to be compensated for 51.02 hours (40 at a
`
`regular wage, 11.02 overtime) plus one instance of spread of hours premium. Instead, Defendants
`
`compensated Plaintiff for 50.02 hours and the spread of hours premium, resulting in an unpaid
`
`overtime hour. Similarly, Class members were not compensated for all their worked hours.
`
`37.
`
`Plaintiff, the subclass of FLSA Collective Plaintiffs, and the Tipped Subclass were
`
`paid below the minimum wage at an invalid "tip credit" minimum wage. With respect to Plaintiff,
`
`the subclass of FLSA Collective Plaintiffs and the Tipped Subclass, Defendants were not entitled
`
`to claim any tip credit allowance under the FLSA and NYLL because Defendants: (i) failed to
`
`properly provide tip credit notice at hiring and annually thereafter; (ii) claimed tip credit for all
`
`hours worked despite having caused tipped employees to engage in non-tipped duties in excess of
`
`two hours or 20% of the total hours worked each shift; (iii) implemented an invalid tip pooling
`
`scheme in which managers and non-tipped employees participated in the tip pool; (iv) failed to
`
`provide proper wage statements clearly indicating tip credit allowance for each payment period;
`
`and (v) failed to accurately keep track of daily tips earned and maintain records thereof.
`
`38.
`
`Specifically, Plaintiff, the subclass of FLSA Collective Plaintiffs, and the Tipped
`
`Subclass were required to engage more than two hours or 20% of his working time performing
`
`non-tipped related activities such as repairing furniture, cleaning and mopping floors, sweeping
`
`the sidewalks, polishing the furniture, organizing plates and silverware, among other duties. Even
`
`though Defendants required Plaintiff, the subclass of FLSA Collective Plaintiffs and the Tipped
`
`Subclass employees to engage in non-tipped activities in excess of two hours or 20% of the total
`
`
`
`13
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 14 of 26
`
`hours worked each shift, Defendants improperly claimed tip credit for all hours worked by tipped
`
`employees.
`
`39.
`
`Throughout his employment, Plaintiff was subject to an invalid tip pool wherein
`
`managers and non-tipped employees such as hosts participated. The subclass of FLSA Collective
`
`Plaintiffs and the Tipped Subclass similarly suffered from Defendants utilization of an invalid tip
`
`pool wherein managers and non-tipped employees such as hosts participated
`
`40.
`
`In addition, Defendants would frequently fail to provide Plaintiff with any tips. As
`
`it can be seen on Exhibit F, Defendants compensated Plaintiff on a tip credit basis of $10 per hour
`
`and failed to compensate Plaintiff with tips. As an example, on the week of 10/18/2021 – 10/24/21,
`
`Plaintiff worked 15.87 hours on a tip credit basis and Defendants paid Plaintiff no tips. Thus,
`
`during that week, Defendants retained 100% of the tips earned and therefore, Plaintiff’s regular
`
`hourly rate improperly fell below the minimum wage. Defendants similarly kept and failed to
`
`distribute the tips among a subclass of FLSA Collective Plaintiffs and Tipped Subclass members.
`
`41.
`
`Throughout Plaintiff’s employment, Defendants improperly deducted a meal credit
`
`from Plaintiff’s wages under FLSA § 203(m) and NYCRR § 146-1.9 for each shift worked, without
`
`regard to whether the meal credit deducted exceed the meals “reasonable cost”3, whether the meals
`
`provided satisfied New York State’s nutritional requirements containing all four (4) food groups4,
`
`and whether Plaintiff actually consumed the credited meals or not. Defendants’ provided meals
`
`consisted only of chicken and pasta, with no drinks such as coffee, tea, or sodas, and failed to
`
`satisfy the New York State’s nutritional requirements. FLSA Collective Plaintiffs and Class
`
`Members similarly had meal credits improperly deducted from their wages.
`
`
`
`3 29 C.F.R. § 531.3
`4 NYCRR § 146-3.7
`
`
`
`
`14
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 15 of 26
`
`42.
`
`Plaintiff and Class members did not receive wage statements that were in
`
`compliance with the NYLL. Defendants failed to satisfy the requirements under the NYLL because
`
`they failed to provide proper wage statements due to an invalid tip credit, unpaid wages, including
`
`overtime, illegally retained gratuities, and invalid meal credit deductions for each payment period.
`
`In other words, Plaintiff and Class members did not receive proper wage statements, as their
`
`statements failed to accurately reflect the number of hours worked and their proper compensation.
`
`43.
`
`Defendants failed to provide Plaintiff and the Class members with proper wage
`
`notices at hiring and at all changes of payrate thereafter. Plaintiff did not receive proper wage
`
`notices either upon being hired or upon every change of pay rate in violation of the NYLL.
`
`44.
`
`Defendants knowingly and willfully operated their business with a policy of not
`
`paying the FLSA minimum wage or the New York State minimum wage, and the proper overtime
`
`rate thereof for hours worked over forty (40) in a workweek, to Plaintiff, a subclass of FLSA
`
`Collective Plaintiffs and the Tipped Subclass members. Defendants were not entitled to claim any
`
`tip credits under the NYLL.
`
`45.
`
`Defendants knowingly and willfully operated their business with a policy of not
`
`paying Plaintiff, FLSA Collective Plaintiffs and the Class members their proper wages, including
`
`overtime.
`
`46.
`
`Defendants knowingly and willfully operated their business with a policy of not
`
`paying Plaintiff, FLSA Collective Plaintiffs and the Class members their proper wages, including
`
`overtime, due to timeshaving.
`
`47.
`
`Defendants knowingly and willfully operated their business with a policy of
`
`improperly deducting meal credits from Plaintiff, FLSA Collective Plaintiffs and the Class
`
`members, in violation of the FLSA and the NYLL.
`
`
`
`15
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 16 of 26
`
`48.
`
`Defendants knowingly and willfully operated their business with a policy of not
`
`providing proper wage statements as required under the NYLL.
`
`49.
`
`Defendants knowingly and willfully operated their business with a policy of not
`
`providing proper wage notices to employees, at the beginning of employment and at dates of all
`
`wage changes thereafter, pursuant to the requirements of the NYLL.
`
`Discrimination Allegations
`
`50.
`
`In addition, Plaintiff suffered from Defendants’ discriminatory practices and the
`
`hostile work environment fostered by Defendants, as described below:
`
`a. Plaintiff MERA is a homosexual male;
`
`b. After Plaintiff was transferred to Defendants’ “Kyma Hudson Yards” location,
`
`Plaintiff suffered a constant barrage of discriminatory abuse because of his sexual
`
`orientation;
`
`c. Since Plaintiff DANILO MERA’s first day at “Kyma Hudson Yards”, whenever
`
`Plaintiff entered the kitchen, the Executive Chef George would say aloud “I don’t
`
`want faggots running food in this Restaurant!” and “I don’t want this faggot in my
`
`kitchen!”;
`
`d. Similarly, whenever Plaintiff was in the same room with the Executive Chef, he
`
`would loudly announce to other employees “That guy is a faggot, did you know he
`
`is a faggot?”
`
`e. Sous Chef “Dano” would similarly call Plaintiff “faggot” or “maricon” (which is a
`
`derogatory term for homosexuals in Spanish) anytime he spoke to him.
`
`f. Similarly, the Sous Chef “Dano” would loudly ask “that guy is a faggot right?”
`
`every time Plaintiff walked past him.
`
`
`
`16
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 17 of 26
`
`g. In addition, the Executive Chef encouraged other workers to use homophobic slurs
`
`against Plaintiff. When the Executive Chef called Plaintiff homophobic slurs or
`
`names, other employees felt encourage to verbally abuse Plaintiff;
`
`h. Plaintiff, as a busser and runner, had to constantly get in the kitchen. Every time
`
`that Plaintiff had to perform his job, Plaintiff had to listen the Executive Chef’s and
`
`Sous Chef’s homophobic rants.
`
`i. Plaintiff constantly told Executive Chef George and Sous Chef “Dano” to stop
`
`using such homophobic, bigoted, and offensive language, but nothing would ever
`
`happen as a result of his complaints.
`
`j.
`
`Individual Defendant MERKOURIOS ANGELIADES was aware of this
`
`discriminative and humiliating practice. After the Executive Chef George
`
`complained to Individual Defendant MERKOURIOS ANGELIADES that Plaintiff
`
`is homosexual and he doesn’t want homosexuals in his kitchen, Individual
`
`Defendant answered to the Chef “don’t worry, he is not gay”, to which the
`
`Executive Chef asked Individual Defendant again “are you sure Danilo is not a
`
`faggot? I don’t want faggots working here”.
`
`k. Individual Defendant did not reprimand nor request that the Executive Chef George
`
`and Sous Chef “Dano” stop with the biased and discriminative behavior.
`
`l. Plaintiff was the only homosexual employee at all of Defendants’ location. It is of
`
`Plaintiff’s understanding, based on the Executive Chef’s comments, that
`
`Defendants do not hire homosexual employees based on their sexual orientation.
`
`m. On March 18, 2022, unable to continue working due to the continued harassment
`
`and abuse, Plaintiff was constructively terminated.
`
`
`
`17
`
`
`
`Case 1:22-cv-04114 Document 1 Filed 05/19/22 Page 18 of 26
`
`51.
`
`Defendants have a cruel and biased practice of verbally abusing members of the
`
`LGBTQ community. Because of this biased practice, Plaintiff suffered physical discomfort and
`
`emotional humiliation while working for Defendants. As a result, Plaintiff’s act of quitting was in
`
`fact a constructive termination due to the hostile work environment and discrimination Plaintiff
`
`suffered throughout his employment.
`
`52.
`
`Plaintiff retained Lee Litigation Group, PLLC to represent Plaintiff, FLSA
`
`Collective Plaintiffs and Class members.
`
`STATEME