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Rivero v. Umberto's Italian Restaurant, Inc.

United States District Court, D. Maryland

January 23, 2015

HEIDY RIVERO,
v.
UMBERTO'S ITALIAN RESTAURANT, INC., et al.

REPORT AND RECOMMENDATION

JILLYN K. SCHULZE, Magistrate Judge.

This case was referred to me pursuant to 28 U.S.C. § 636(b) and Local Rule 301.6 for review of Plaintiff's Motion for Judgment by Default. ECF Nos. 16, 17. Defendants were properly served, ECF No. 10, failed to plead or otherwise respond to the complaint, and the Clerk of the Court entered default against them. ECF No. 12. For the following reasons, I recommend that Plaintiff's motion be granted in part and denied in part.[1]

1. Background.

On August 15, 2013, Plaintiff Heidy Rivero filed a complaint against all Defendants. ECF No. 1. Count I alleges sexual harassment, Count II alleges constructive discharge, Count III alleges battery, Count IV alleges intentional infliction of emotional harm, Count V alleges negligent hiring and retention, Counts VI and IX allege violations of the Fair Labor Standards Act, (FLSA), Count VII alleges violation of the Maryland Wage and Hour Law (MWHL), and Counts VIII and X allege violation of the Maryland Wage Payment and Collection Law (MWPCL).

The motion for default judgment, ECF No. 16, seeks judgment against all defendants, jointly and severally, as to Counts VI, VII, VIII, IX and X, in readily determinable amounts, and withdraws Count V. A hearing was requested as to damages under the remaining counts and was conducted on November 5, 2014. Plaintiff filed a fee petition on December 22, 2014. ECF No. 28. This Report and Recommendation will recommend that judgment be entered in the amounts explained below.

a. Liability.

In determining whether to award default judgment, the court takes as true the wellpleaded factual allegations in the complaint as to liability. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir. 2001). Where, as here, none of the Defendants has sought to set aside the default as provided by Federal Rule of Civil Procedure 55(c), or suggested in any way that it has a meritorious defense, the standard for default judgment has been satisfied. Fanning v. Hotel Mgmt. Advisors-Troy, LLC, 282 F.R.D. 280, 283 (D.D.C. 2012).

i. Wage claims: Counts VI, VII, VIII, IX, and X.

Plaintiff has pled facts which establish liability as to Defendants Umberto's Italian Restaurant, Santos Medrano, Dionicia Medrano, Medbros Restaurant, Inc., and Angel Medrano under Counts VI, VII, VIII, IX, and X. Section 207(a)(1) of the FLSA and the Maryland Code, Labor and Employment Article, Section 3-413, mandate a minimum hourly wage of $7.25 for each hour worked up to forty hours per week, and time and a half for each additional hour. A tipped employee such as Plaintiff can be paid at lesser hourly rates under both statutes if the employee keeps all of the tips earned. However, the "tip credit" is lost if the employer fails to comply with this condition. Richard, et al. v. Marriott Corp., 549 F.2d 303, 305 (4th Cir. 1977).

The complaint alleges that each of these five Defendants was an "employer" for purposes of wages owed under these statutes, and sets forth facts sufficiently indicating employer or successor status as to each defendant. ECF No. 1 at ¶¶ 17, 195-97. It alleges that Plaintiff worked as a server at Umberto's Restaurant from November 19, 2009, to March 29, 2010, working three days per week until December 2009, and six days per week from December 2009 to March 29, 2010, earning $20 in cash from the employers and approximately $100 in tips each day, but lost 20% of all tips received by credit card payment. It alleges that these payments were below the statutory minimums. ECF No. 1 at ¶¶ 44, 175-89. It also alleges that Plaintiff worked for three days at Umberto's Night Club and was paid nothing for this work. Id. at ¶¶ 36-37, 200-01. Finally, it alleges that defendants failed to keep the statutorily required records of the hours Plaintiff worked. Id. at ¶¶ 193-94.

The motion for default judgment contains exhibits, including written statements, documents, and deposition testimony, which corroborate the allegations in the complaint regarding the employer status of each defendant for purposes of the Federal and Maryland wage laws. Ms. Rivero's declaration, ECF No. 16-1, confirms the allegations in the complaint regarding the number of hours she worked per week, the amount she was paid, and defendants' failure to qualify for the "tip credit." These facts establish liability for minimum wages and overtime as to Counts VI, VII and VIII. However, Plaintiff is not entitled to recover twice for a single injury. United States v. Rachel, 289 F.Supp.2d 688, 697 (D. Md. 2003). She will receive the greatest recovery under Count VIII, and thus damages should not be awarded under Counts VI or VII.

Plaintiff also seeks judgment against Defendants Umberto's LLC, Dionicia Medrano, and Santos Medrano, under Counts IX (FLSA) and X (MWPLC) for failure to pay her for the three days she worked at Umberto's Nightclub. The MWPCL requires timely payment for all work performed. Md. Code, Lab. & Empl. Art., Title 3-505. Plaintiff has established that she was not paid for three days' work at Umberto's Nightclub and is entitled to judgment on this basis. Again, she is entitled to recover only once for this violation and I recommend that judgment be awarded under Count X, which provides the greater relief, and denied under Count IX.

ii. Montgomery County Code claims: Sexual Harassment, Constructive Discharge

Plaintiff seeks judgment against Defendants Umberto's Italian Restaurant, Inc., Santos Medrano, and Dionicia Medrano, for sexual harassment (Count I), and constructive discharge (Count II) under Section 27-19(2) of the Montgomery County Code, which provides that an employer "must not because of...sex...fail or refuse to hire, fail to accept the services of, discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment." Maryland law authorizes a person who is subjected to a discriminatory act prohibited by the Montgomery County Code to maintain a civil action for damages, injunctive relief, or other civil relief, and the Montgomery County Code authorizes employees to pursue a civil action under Maryland law. Md. Code Ann., State Government § 20-1202(b); Mont. Co. Code § 27-9; see Edgewood Management Corp. v. Jackson, 212 Md.App. 177 (2013); see also Heilo v. Colombo Sav. Bank, F.S.B., 434 F.3d 249, 262 (4th Cir. 2006); Amirmokri v. Baltimore Gas & Elec. Co., 60 F.3d. 1126, 1132-33 (4th Cir. 1995). However, Maryland law defines an employer as a person who "has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year." Md. Code Ann., State Government § 20-601(d)(1)(i).[2] Maryland law specifically exempts Baltimore County, but not Montgomery County, employees from the 15 employee requirement. Compare Md. Code Ann. State Government § 20-1202(b) with § 20-1203(a) and (b). Because Plaintiff has not alleged or shown that any Defendant had 15 or more employees, no Defendant is an employer under Maryland law and no remedy is available under Maryland Law. Molesworth v. Brandon, 341 Md. 621, 636-37 (1996); see also Adams v. Morris, F.Supp.2d 632, 637 (D. Md. 2010). Judgment should be denied as to Counts I and II.

iii. Common law claims.

Plaintiff seeks judgment against Defendant Santos Medrano for battery (Count III) and intentional infliction of emotional harm (Count IV). To prove a battery, Plaintiff must show that the defendant's conduct was intended to bring about harmful or offensive conduct or the apprehension thereof. Nelson v. Carroll, 355 Md. 593, 601 (1999). To prove intentional infliction of emotional distress, Plaintiff must show that the conduct was intentional or reckless, was extreme and outrageous, and that the conduct caused her to suffer severe emotional distress. Hamilton v. Ford Motor Credit Co., 66 Md.App. 46 (1986). She must show the nature, intensity, and duration of the distress with reasonable certainty, Manikhi v. Mass. Transit Admin., 360 Md. 333 (2000), and either a substantial physical injury or a resultant pathological physical or mental state. Caldor, Inc. v. Bowden, 330 Md. 632 (1993). ...


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