a Crew member. Plaintiff was a non-exempt hourly paid employee whose job duties

Transcription

1 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Plaintiff, -against- TEAM LAURINO LLC, d/b/a MCDONALD'S, and ABASCO "DOE, COMPLAINT JURY TRIAL DEMANDED Defendants. X Plaintiff, Jamel Johnson, by his counsel. The Law Firm of Louis Ginsberg, P.O., alleges for his Complaint as follows; NATURE OF ACTION This action seeks to recover damages for violations of New York Labor Law ("NYLL"), New York State Human Rights Law, and New York City Human Rights Law committed by Defendants and their agents against Plaintiff. PARTIES 1. Plaintiff, Jamel Johnson, resides in Queens County, New York. 2. Defendant Team Laurino LLC, d/h/a McDonald's ("McDonald's") employed Plaintiff Defendant McDonald's is located in Queens County, New York. 3. Defendant Abasco "Doe" ("Abasco") was a Manager of Defendant McDonald's. Upon information and belief, Defendant Abasco resides in New York State. FACTS 4. Plaintiff began his employment with Defendant McDonald's in or around July of 2013 as a Crew member. Plaintiff was a non-exempt hourly paid employee whose job duties

2 2 consisted of working on the grill, cooking, and cleaning dishes. At all times relevant herein, Plaintiff performed his job competently. 5. Plaintiff was promised by Mourise "Doe," a Hiring Manager for Defendants, that Defendants were going to pay him an hourly wage of $7.35 for all hours worked. Plaintiff, however, was not paid for all of the hours worked during his employment. 6. Plaintiff was never permitted to punch in or out on the time clock on his own and instead had to rely upon one of Defendant McDonald's Managers, including but not limited to. Defendant Abasco, Justin "Doe," and Gene "Doe" to clock him in and out. 7. Often, these Managers failed to have Plaintiff clocked in for all of the hours he worked. As a resuh. Defendants failed to pay Plaintiff for approximately a half hour of work per week. By way of example, as a result of Defendants' failure to timely clock in Plaintiff for work, Plaintiff was not paid for about a half hour of work performed on the behalf of Defendants during the week of approximately September 22, September 28, Work performed during this half hour of uncompensated work included, but was not limited to, (1) working on the grill; (2) cooking; and (3) cleaning dishes. 8. In addition, during approximately five (5) occasions during in or around November of 2013 and in or around December of 2013, Gene "Doe" came to Plaintiff while Plaintiff was working and told Plaintiff that he clocked Plaintiff out awhile ago. On each occasion, this occurred after Plaintiff had already worked for most of his shift. As a result. Plaintiff was unknowingly required to work for several hours off-the-clock during these shifts. 9. Defendants also failed to pay Plaintiff for work performed during thirty (30) minute uncompensated lunch breaks. By way of example, Plaintiff was required by Defendants to work through his entire lunch break without compensation during one of his shifts in the

3 3 week of approximately October 27, November 2,2013. Work performed during this uncompensated lunch break included, but was not limited to, (1) working on the grill; (2) cooking; and (3) cleaning dishes. 10. In addition. Defendants required Plaintiff to purchase part of his imiform and Defendants required Plaintiff to pay for his uniform to be cleaned, which Plaintiff did approximately three (3) times per week throughout his employment. To date. Plaintiff has never been reimbursed by Defendants for these uniform expenses as required by the New York Labor Law and its supporting regulations. 11. Plaintiff made approximately four (4) complaints to Defendants about Defendants' failure to pay Plaintiff the proper wages that he was owed. For example, in or around September of 2013, Plaintiff complained to Justin "Doe," one of Defendant McDonald's Night Managers that he had not received all of the wages he was owed. When Defendants failed to take any remedial action. Plaintiff made an additional complaint to Justin "Doe" two (2) weeks later. Plaintiffs most recent complaint about Defendants' failure to pay Plaintiff his proper wages was made in or around November of 2013, to another of Defendant McDonald's Night Managers. 12. Plaintiff was diagnosed with a medical condition which caused him to go to the Emergency Room in or around November of As a result. Plaintiff was a "disabled" person because New York's Highest Court has ruled that any "medically diagnosable impairment" is a disability under the New York State Human Rights Law. See Reeves v. Johnson Controls, 140 F3d (1998). and the New York City standard is even broader. Sacay v. Research Found.. 44 F. Supp. 2d (EDNY 1999).

4 4 13. Immediately before going to the emergency room, Plaintiff called Defendant Abasco, notified Defendant Abasco of his medical condition and need to go to the Hospital, and requested the day off of work. Defendant Abasco seemed upset at this request. This request for medical leave constituted a request for a reasonable accommodation that did not cause any undue hardship on Defendants. 14. The following day. Plaintiff called Defendant McDonald's and notified one of Defendant McDonald's Managers that he would be in the Hospital for an additional 2-3 days but wished to return to work immediately thereafter. This request for a continuation of his medical leave constituted a request for a reasonable accommodation that did not cause any undue hardship on Defendants. 15. Approximately two (2) days later, after being released from the Hospital, Plaintiff gave a doctor's note to Justin "Doe." 16. The following day. Plaintiff called Defendant McDonald's and was told that he was not on the schedule. This initial week that Plaintiff was taken off the schedule was only one (1) week after Plaintiffs medical leave of absence and two (2) weeks after Plaintiff complained about Defendants' failure to pay him his proper wages. 17. In total. Plaintiff called Defendants approximately six (6) additional times after new schedules were made to see if he was on the new schedule. Each time Plaintiff was told that he was not on the schedule. 18. Shortly thereafter, on or about December 26, 2013, Defendant Abesco fired Plaintiff. AS AND FOR PLAINTIFF'S FIRST CAUSE OF ACTION AGAINST DEFENDANTS FOR FAILING TO PAY PLAINTIFF A MINIMUM WAGE FOR ALL HOURS WORKED UNDER NEW YORK STATE LABOR LAW 19. Plaintiff incorporates paragraphs 1-18 as if fiiuy revsritten herein

5 5 20. Defendants failed to pay Plaintiff for all of his work per week. As a result. Defendants failed to pay Plaintiff the minimum wages for each hour worked to which he was entitled under the New York Labor Law and the supporting New York State Department of Labor regulations. 21. The minimum wage provisions of Article 19 of the NYLL and the supporting New York State Department of Labor regulations apply to Defendants and protect Plaintiff 22. Defendants were required to pay Plaintiff a minimum wage at a rate of $7.25 per hour for all hours worked under the NYLL 652 and the supporting New York State Department of Labor regulations, including, but not limited to, the regulations in 12 N.Y.C.R.R Defendants were not authorized by Plaintiff to withhold, divert, or deduct any portion of his unpaid wages which are the subject of this lawsuit. 24. By Defendants' knowing or intentional failure to pay Plaintiff minimum hourly wages. Defendants have willfully violated the New York Labor Law 190 et seq., 191,193,198, and New York Labor Law 650 et seq. and the supporting New York State Department of Labor regulations, including but not limited to, the regulations in 12-N.Y.C.R.R Due to Defendants' violations of the NYLL, Plaintiff is entitled to recover from Defendants his unpaid wages, attorneys' fees, costs, liquidated damages, and pre-judgment and post-judgment interest. AS AND FOR PLAINTIFF'S SECOND CAUSE OF ACTION AGAINST DEFENDANTS FOR FAILING TO PAY PLAINTIFF THE AGREED UPON WAGE FOR ALL HOURS WORKED UNDER NEW YORK STATE LABOR LAW 26. Plaintiff incorporates paragraphs 1-25 as if fully rewritten herein. 27. Pursuant to New York Labor Law 190, 191, 193, 198, and 663(1), the Defendants have willfully failed to pay the straight or agreed upon wages due as set forth in the

6 6 preceding paragraphs of this Complaint to Plaintiff in violation of New York Labor Law 190,191,193, 198, and 663(1). 28. The Defendants were not and are not permitted by law or by order of a court of competent jurisdiction, to withhold or divert any portion of the Plaintiffs wages that concern this lawsuit. 29. The Defendants were not authorized by Plaintiff to withhold, divert, or deduct any portion of his unpaid wages which are the subject of this lawsuit. 30. The Defendants have violated the NYLL by failing to pay Plaintiff for all compensable time and by failing to pay Plaintiff for the straight or agreed upon wages worked at the established rate. 31. Due to Defendants' violations of the NYLL, Plaintiff is entitled to recover from Defendants his unpaid wages, attorneys' fees, costs, liquidated damages, and pre-judgment and post-judgment interest. AS AND FOR PLAINTIFF'S THIRD CAUSE OF ACTION AGAINST DEFENDANTS FOR FAILING TO PROVIDE PLAINTIFF WITH A WAGE NOTICE AND/OR WAGE STATEMENTS AS REQUIRED BY THE NEW YORK STATE LABOR LAW 32. Plaintiff incorporates paragraphs 1-31 as if fully rewritten herein. 33. Defendants have willfully failed to supply Plaintiff with notice, as required by NYLL, Article 6, 195(1), in English or in the language identified by Plaintiff as his primary language, containing Plaintiffs rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; hourly rate or rates of pay and overtime rate or rates of pay if applicable; the regular pay day designated by the employer in accordance with NYLL, Article 6, 191; the name of the employer; any "doing business as"

7 7 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, telephone number of the employer; plus such other information as the commissioner deems material and necessary. 34. Defendants have also willfully failed to supply Plaintiff, as required by NYLL, Article 6, 195(3) with a statement with every payment of wages, listing gross wages, deductions and net wages. 35. Through its knowing or intentional failure to provide Plaintiff with the wage notice and/or statements required by the NYLL, Defendants have willfully violated NYLL, Article 6, 190 etseq., and the supporting New York State Department of Labor Regulations. 36. Due to Defendants' willful violation of NYLL, Article 6, 195(1), Plaintiff is entitled to statutory penalties of fifty dollars for each workweek that Defendants failed to provide Plaintiff with an accurate wage notice, or a total of twenty-five hundred dollars, reasonable attorneys' fees, costs, and injunctive and declaratory relief, as provided by NYLL, Article 6, 198(l-b). 37. Due to Defendants' willful violation of NYLL, Article 6, 195(3), Plaintiff is entitled to statutory penalties of one hundred dollars for each workweek that Defendants failed to provide Plaintiff with an accurate wage statement, or a total of twenty-five hundred dollars, reasonable attorneys' fees, costs, and injunctive and declaratory relief, as provided by NYLL, Article 6, 198(l-d). AS AND FOR PLAINTIFF'S FOURTH CAUSE OF ACTION AGAINST DEFENDANTS FOR FAILING TO REIMBURSE PLAINTIFF FOR PURCHASING HIS UNIFORM AND FOR FAILING TO PAY PLAINTIFF HIS UNIFORM MAINTENANCE PAY 38. Plaintiff incorporates paragraphs 1-37 as if fully rewritten herein. 39. The wage provisions of Article 19 of the New York Labor Law and its supporting

8 8 regulations, including the New York Hospitality Industry Wage Order, 12 N.Y.C.R.R. Part 46, applies to Defendants and establishes payment floors to protect Plaintiff. 40. Pursuant to 12 N.Y.C.R.R , Defendants were required to reimburse Plaintiff for all costs of purchasing his required uniform, no later than the next payday. Defendants, however, have failed to reimburse Plaintiff for the cost of purchasing his required uniform, and as such have violated 12 N.Y.C.R.R Pursuant to 12 N.Y.C.R.R , Defendants were also required to make Uniform Maintenance payments to Plaintiff as a result of their requirement that Plaintiff clean his uniform at his own expense. Defendants, however, have failed to make any Uniform Maintenance payments to Plaintiff, and as such have violated 12 N.Y.C.R.R Defendants' failure to reimburse Plaintiff for all costs of purchasing his uniform as required by 12 N.Y.C.R.R and Defendants' failure to pay Plaintiff the Uniform Maintenance payments as required by 12 N.Y.C.R.R , notwithstanding Defendants' clear failure to satisfy any exceptions to the requirement to provide such pay under the regulation, was and is not in good faith within the meaning of New York Labor Law Due to Defendants' violations of the NYLL, Plaintiff is entitled to be reimbursed for the cost of purchasing his uniform, and is entitled to recover from Defendants' his unpaid Uniform Maintenance pay, together with liquidated damages, interest, and reasonable attorneys' fees and costs of the action. AS AND FOR PLAINTIFF'S FIFTH CAUSE OF ACTION AGAINST DEFENDANTS FOR RETALIATION UNDER NEW YORK STATE LABOR LAW. 44. Plaintiff incorporates paragraphs 1-43 as if fully rewritten herein.

9 9 45. By and through their course of conduct. Defendants and their agents violated the New York State Labor Law, 215 et seq. by retaliating against Plaintiff and terminating his employment due to the multiple complaints made by Plaintiff to Defendants concerning the Defendants' failure to pay Plaintiff all of his wages owed. AS AND FOR PLAINTIFF'S SIXTH CAUSE OF ACTION AGAINST DEFENDANTS FOR MEDICAL DISABILITY DISCRIMINATION UNDER NEW YORK STATE HUMAN RIGHTS LAW 46. Plaintiff incorporates paragraphs 1-45 as if fully rewritten herein. 47. By and through their course of conduct. Defendants and their agents violated the New York State Human Rights Law, 296 et seq. of the New York State Executive Law, by denying Plaintiffs reasonable accommodations based on his medical disabilities even though it did not cause Defendants undue hardship and by firing Plaintiff because of his medical disability, and need for medical leave. AS AND FOR PLAINTIFF'S SEVENTH CAUSE OF ACTION AGAEVST DEFENDANTS FOR MEDICAL DISABILITY DISCRIMINATION UNDER NEW YORK CITY HUMAN RIGHTS LAW 48. Plaintiff incorporates paragraphs 1-47 as if fully rewritten herein, 49. By and through their course of conduct. Defendants and their agents violated the New York City Human Rights Law, et seq. of the New York City Administrative Code by denying Plaintiffs reasonable accommodations based on his medical disabilities even though it did not cause Defendants undue hardship and by firing Plaintiff because of his medical disability, and need for medical leave.

10 10 AS AND FOR PLAINTIFF'S EIGHTH CAUSE OF ACTION AGAINST DEFENDANTS FOR AIDING AND ABETTING MEDICAL DISABILITY DISCRIMINATION IN VIOLATION OF NEW YORK STATE HUMAN RIGHTS LAW 50. Plaintiff incorporates paragraphs 1-49 as if fully rewritten herein. 51. By and through their course of conduct, Defendants and their agents violated the New York State Human Rights Law 296 et seq. by aiding, abetting, condomng and/or acquiescing in the denial of reasonable accommodations and medical disability discrimination and firing of Plaintiff based on his medical disability and need for medical leave. AS AND FOR PLAINTIFF'S NINTH CAUSE OF ACTION AGAINST DEFENDANTS FOR AIDING AND ABETTING MEDICAL DISABILITY DISCRIMINATION IN VIOLATION OF NEW YORK CITY HUMAN RIGHTS LAW 52. Plaintiff incorporates paragraphs 1-51 as if fully rewritten herein. 53. By and through their course of conduct. Defendants and their agents violated the New York City Human Rights Law, et seq. of the New York City Administrative Code by aiding, abetting, condoning and/or acquiescing in the denial of reasonable accommodations and medical disability discrimination and firing of Plaintiff based on his medical disability and need for medical leave. 54. As required by New York State Labor Law 215 e/ seq., notice hereof has been served upon the Attorney General of the State of New York. 55. Pursuant to and as required by et seq. of the New York City Human Rights Law, Plaintiff has also served a copy of this complaint upon the City Commission on Human Rights and Corporation Counsel of the City of New York.

11 Other than this lawsuit, there is no other complaint pending with any administrative agency or court regarding these events. WHEREFORE, the Plaintiff prays that this Court: (a) (b) (c) accepts j urisdiction over this matter; impanels and charges a jury with respect to the causes of action; and, awards the following damages jointly and severally against the Defendants: i. On the First, Second, Third, and Fourth Causes of Action, Plaintiff respectfully requests that this Court: a. Enter j udgment against Defendants, j ointly and severally, in the amount of the Plaintiffs unpaid wages, plus pre- and postjudgment interest as allowed by law; b. Award the attorneys' fees, expenses, costs, and expert fees incurred in this litigation; c. Award Plaintiff statutory penalties for each workweek that Defendants failed to provide Plaintiff with a wage notice, or a total of $2,500, as provided by the NYLL; d. Award Plaintiff statutory penalties for each workweek that Defendants failed to provide Plaintiff with a wage statement, or a total of $2,500, as provided by the NYLL; e. Award Plaintiff reimbursement for all costs required to purchase his uniform; f Award Plaintiff all unpaid Uniform Maintenance pay; g. Award Plaintiff liquidated damages; and h. Award Plaintiff such other and further relief as this Court deems just and equitable. ii. On the Fifth Cause of Action, Plaintiff respectfully requests that this Court: a. Award Plaintiff all lost back pay and front pay, and all benefits along with pre and post judgment interest;

12 12 b. Award Plaintiff liquidated and compensatory damages including, but not limited to, damages for pain and suffering, anxiety, humiliation, physical injury, and emotional distress in order to compensate him for the injuries he has suffered and to signal to other employers that retaliation in employment is repulsive to legislative enactments, in the amount of one million dollars ($ 1,000,000.00); c. Award Plaintiff attorney's fees, costs and expenses as provided for by the applicable statutes; and d. Award Plaintiff other relief which this Court deems just and equitable. On the Sixth and Eighth Causes of Action, Plaintiff respectfully requests that this Court: a. Award Plaintiff all lost back pay and front pay, and all benefits along with pre and post judgment interest; b. Award Plaintiff compensatory damages including, but not limited to, damages for pain and suffering, anxiety, humiliation, physical injury and emotional distress in order to compensate him for the injuries he has suffered and to signal to other employers that discrimination in employment is repulsive to legislative enactments in the amount of one million dollars ($1,000,000.00); and c. Award Plaintiff any other relief which this Court deems just and equitable. On the Seventh and Ninth Causes of Action, Plaintiff respectfully requests that this Court: a. Award Plaintiff all lost back pay and front pay, and all benefits along with pre and post judgment interest; b. Award Plaintiff punitive and compensatory damages, including but not limited to, damages for emotional pain and suffering, anxiety, humiliation, physical injury, and emotional distress in order to compensate Plaintiff for the injuries he has suffered and to signal to other employers that discrimination in employment is repulsive to legislative enactments in the amount of one million dollars ($1,000,000.00);

13 13 Dated; May 14, 2014 Roslyn, New York c. Award Plaintiff attorney's fees, costs, and expenses as provided for by the applicable statutes; and d. Award Plaintiff any other relief which this Court deems just and equitable. Respectfully submitted, THE LAW FIRM OF LOUIS GINSBERG, P.C. By: / (Wftz^t i' Matthew Cohen, Esq Northern Boulevard Roslyn, NY (516) Attorneys for Plaintiff