acosta v. restaurante & tortilleria la mexicana, inc., et ...€¦ · (hereinafter, tortilleria...

Uocusign trIvelope IU: 1119141313-2B-JU-40A8-A1-4A-191-492I3913U /13Case 6:18-cv-01663-RBD-GJK Document 1 Filed 10/04/18 of 22 PagelD 1

UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION 2018 OCT -14 PM 3: 45CASE NO.:

i;OURT,J1Li TMIRIAM C. ACOSTA, RICOF FLORIDAANDO, FL ORIDA

and other similarly-situated individuals,

Plaintiff (s),v. (c):10C,v' 1(06,-,3—ORL-37-6,11‹RESTAURANTE & TORTILLERIALA MEXICANA, INC.and YEDIC HONORATO,individually

Defendants,

VERIFIED COMPLAINT(OPT-IN PURSUANT TO 29 U.S.0 § 216(b))

COMES NOW the Plaintiff MIRIAM C. ACOSTA, and other similarly-situated

individuals, by and through the undersigned counsel, and hereby sues Defendants

RESTAURANTE & TORTILLERIA LA MEXICANA, INC., and YEDIC HONORATO

individually, and alleges:

1. This is an action to recover money damages for unpaid minimum and overtime

wages, under the laws ofthe United States. This Court has jurisdiction pursuant to

the Fair Labor Standards Act, 29 U.S.C. § 201-219 (Section 216 for jurisdictional

placement) ("the Act")

2. Plaintiff MIRIAM C. ACOSTA is a resident of Orlando, Florida, within the

jurisdiction ofthis Honorable Court. Plaintiff is a covered employee for purposes

of the Act. Plaintiff MIRIAM C. ACOSTA consents to be a party in this action by

signing this verified complaint.

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3. Defendant RESTAURANTE & TORTILLERIA LA MEXICANA, INC.

(hereinafter, TORTILLERIA LA MEXICANA, or Defendant) is a Florida

corporation, having place of business in Orlando, Florida, where Plaintiff worked

for Defendant. At all times material hereto, Defendant was and is engaged in

interstate commerce.

4. The individual Defendant YEDIC HONORATO, was and is now, the

owner/partner or manager, and he directed operations of TORTILLERIA LA

MEXICANA, INC. This individual Defendant was the employer of Plaintiff and

others similarly situated within the meaning of Section 3(d) of the "Fair Labor

•

• Standards Acr [29 U.S.C. § 203(d)].

5. All the action raised in this complaint took place in Miami-Dade County Florida,

within the jurisdiction of this Court.

ALLEGATIONS COMMON TO ALL COUNTS

6. This cause of action is brought by Plaintiff as a collective action to recover from

Defendants overtime compensation, liquidated damages, and the costs and

reasonably attorney's fees under the provisions of Fair Labor Standards Act, as

amended, 29 U.S.C. § 201 et seq (the "FLA or the "ACT") on behalf of Plaintiff

and all other current and former employees similarly situated to Plaintiff ("the

asserted class") and who worked in excess of forty (40) hours during one or more

weeks on or after September 2015, (the "material time") without being properly

compensated.

7. Corporate Defendant TORTILLERIA LA MEXICANA is a retail business

operating as a Mexican restaurant, tortilleria, and minimarket or convenience store.

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uocusign tnvelope lu: 111514131:1-25:3U-4UALS-A1-4A-E91-49419131)(13Case 6:18-cv-01663-RBD-GJK Document 1 Filed 10/04/18 of 22 PagelD 3

The primary function of this restaurant is to sell Mexican food and other Mexican

food items to customers, whether they sit-down, carry out the food, or have it

delivered. Defendants also sells alcoholic beverages. This business was located at

2711 Orlando Dr., Sanford, Florida 32773, where Plaintiffworked.

8. Defendants TORTILLERIA LA MEXICANA and YEDIC HONORATO

employed Plaintiff MIRIAM C. ACOSTA during 2 periods, for a total of 69

relevant weeks.

9. During her two periods of employment with Defendants, Plaintiff was not paid

overtime and minimum wages as established by the Fair Labor Standards Act.

10. Plaintiff worked for Defendants for the time and periods, and wage rates specified

bellow:

11. A.- First period, from approximately September 24, 2015 to March 15, 2016 =

25 relevant weeks

12. In this period Plaintiff worked as cashier and store attendant for TORTILLERIA

LA MEXICANA. Plaintiffwas a non-exempt hourly employee, and her wage rate

was $9.00 an hour.

13. Plaintiffhad a regular schedule and she worked 6 days per week, from 7:00 or 8:00

AM to 5:00 or 6:00 PM, for an average of 10 hours daily, or 60 hours weekly.

Plaintiff was not allowed to take bona-fide lunch breaks.

14. Plaintiff was paid for just 40 hours weekly strictly in cash, without any paystub or

record showing days and hours worked, job classification, employment taxes

withheld etc.

15. Plaintiff clocked in and out in a very irregular way. However, Defendants could

easily track Plaintiff s working hours.

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16. In this period, Defendants failed to pay Plaintiff for 20 overtime hours at the rate

of $13.50 an hour ($9.00 regular rate).

17. B.- Second period, from approximately October 16, 2017 to August 20, 2018=44 weeks relevant weeks

Within this period Plaintiff had 2 positions with 2 different wage-rate, and 3

different schedules as follows:

18. i.- From October 16, 2017 to January 27, 2018=15 weeks

In this period Plaintiff had the same duties as cashier and store attendant.

19. Plaintiffcontinued the same schedule of6 days with an average of60 hours worked

in every week period. Plaintiff worked 20 overtime hours.

20. Plaintiff wage-rate was $13.00 an hour, Plaintiff was paid with paystubs showing

only 40 hours weekly.

21. Plaintiff clocked in and out in a very irregular way. However, Defendants could

easily track Plaintiff s working hours.

22. In this period, Defendants failed to pay Plaintiff for 20 overtime hours weekly at

the rate of $19.50 an hour ($13.00 regular rate).

23. ii.- From January 29, 2018 to August 20, 2018=29 weeks

In this period, Plaintiff s position changed to waitress, and she became a tipped

employee earning $5.23 an hour plus tips.

24. Plaintiff had an irregular schedule. Plaintiff had alternate AM and PM shifts.

Plaintiffworked one week the AM shift, and the next one, she worked the PM shift.

Consequently, Plaintiffworked 14 weeks ofAM shifts, and 15 weeks ofPM shifts

as follows:

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25. a) Morning or AM shift (14 weeks). - When Plaintiff worked the morning shift,

every day she performed 3 hours of cooking work plus one hour of general

restaurant work. Such duties were not incidental to Plaintiff s position as a waitress.

These 4 hours represented non-tippable activities which were paid at $5.23 an hour.

Thus, every week Plaintiff worked the AM shift, she worked at least 20 hours of

non-tippable activities that were incorrectly paid at the rate of $5.23.

26. Plaintiff is entitled to received full minimum wages for at least 20 hours every for

every week in which she worked AM shifts.

27. While Plaintiffworked in her AM shift, she had a schedule of5 days per week from

7:00 or 8:00 AM to 3:00 or 4:00 PM (8 hours daily) for a total of40 hours or less.

28. b) Afternoon or PM shift (15 weeks). - When Plaintiff worked the PM shift, she

performed every day at least 1 hour ofjanitorial work which was not incidental to

her position as a waitress.

29. Plaintiff worked 5 hours weekly ofnon-tippable janitorial work which was paid at

$5.23 an hour. Thus, every week Plaintiffworked the PM shift, she worked at least

5 hours ofnon-tippable activities that were incorrectly paid at the rate of $5.23.

30. Plaintiff is entitled to received full minimum wages for at least 5 hours for every

week in which she worked PM shifts.

31. While Plaintiffworked in her PM shift, she had a schedule of 5 days per week from

2:00 PM to 10:30 PM (8.5 hours daily) for a total of 42.5 hours weekly. Plaintiff

was unable to take bona-fide lunch hours.

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32. Therefore, Plaintiffworked 15 weeks ofPM shifts, in which she worked 42.5 hours

per week. However, Plaintiff was paid only for only 40 hours. Defendants failed

to pay Plaintiff for overtime hours.

33. In addition, within the months on June and July 2018, (during the

2018 FIFA World Cup), Plaintiff worked 4 weeks of 7 days per week, a double

shift from 8:00 AM to 9:00 PM, or 11 hours daily, resulting in 78 working hours

weekly. This means that in this period Plaintiff worked 4 weeks with 38 overtime

hours each. Plaintiff was not compensated for these O/T hours.

34. Plaintiff clocked in and out in a very irregular way, but Defendants were able to

keep track of hours worked by Plaintiff and other similarly situated individuals.

Plaintiffwas paid weekly with paystubs that not reflected the real number ofhours

worked.

35. During her entire period ofemployment Plaintiffwas not properly compensated for

hours worked and she is owed minimum and overtime wages.

36. Plaintiff MIRIAM C. ACOSTA intends to recover unpaid minimum wages and

overtime hours, liquidated damages, and any other relief as allowable by law.

37. The additional persons who may become Plaintiffs in this action are employees

and/or former employees of Defendants who are and who were subject to the

unlawful payroll practices and procedures ofDefendants and were not paid regular

or overtime wages at the rate of time and one half oftheir regular rate ofpay for all

overtime hours worked in excess of forty.

COUNT I:WAGE AND HOUR FEDERAL STATUTORY VIOLATION of 29 U.S.C. 4 207

(a)(1)FAILURE TO PAY OVERTIME; AGAINST ALL DEFENDANTS

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38. Plaintiff MIRIAM C. ACOSTA re-adopts each and every factual allegation as

stated in paragraphs 1-37 above as if set out in full herein.

39. This action is brought by Plaintiff and those similarly-situated to recover from the

Employers unpaid overtime compensation, as well as an additional amount as

liquidated damages, costs, and reasonable attorney's fees under the provisions of

29 U.S.C. § 201 et seq., and specifically under the provisions of 29 U.S.C. § 207.

29 U.S.C. § 207 (a)(1) states, "No employer shall employ any of his employees...

for a work week longer than 40 hours unless such employee receives compensation

for his employment in excess of the hours above-specified at a rate not less than

one and one half-times the regular rate at which he is employed."

40. Defendant TORTILLERIA LA MEXICANA was and is engaged in interstate

commerce as defined in §§ 3 (r) and 3(s) of the Act, 29 U.S.C. § 203(r) and

203(s)(1)(A). Defendant is a retail business operating as Mexican restaurant,

tortilleria, and minimarket. Defendant had more than two employees recurrently

engaged in commerce or in the production ofgoods for commerce by regularly and

recurrently using the instrumentalities of interstate commerce to accept and solicit

funds from non-Florida sources; by using electronic devices to authorize credit card

transactions by ordering product and supplies produced out of State. Upon

information and belief, the annual gross revenue ofthe Employer/Defendant was at

all times material hereto in excess of$500,000 per annum. Therefore, there is FLSA

enterprise coverage.

41. The Plaintiff was employed by an enterprise engaged in interstate commerce, and

the Plaintiff s work for the Defendant likewise affects interstate commerce.

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uocubign tnvelope lu: 111914b1:1-21:33(14UAS-A1-4A-E91-49Z139131.) (ESCase 6:18-cv-01663-RBD-GJK Document 1 Filed 10/04/18 of 22 PagelD 8

Plaintiff was a cashier, shop attendant, and waitress. Plaintiff through her daily

• activities, regularly completed credit card transactions. Plaintiff handled, or

otherwise worked on goods and/or materials that have been moved across State

lines at any time in the course of business. Therefore, there is FLSA individual

coverage.

42. By reason of the foregoing, Defendant TORT1LLERIA LA MEXICANA. was

required to comply with the mandates of the FLSA, as it applied to Plaintiff and

other similarly situated individuals.

43. Defendant TORTILLERIA LA MEXICANA employed Plaintiff MIRIAM C.

ACOSTA as a restaurant worker during two periods, as detailed bellow:

44. A.- First period, from approximately September 24, 2015 to March 15, 2016 =

25 relevant weeks

In this period Plaintiff worked as cashier and store attendant for TORTILLERIA

LA MEXICANA. Plaintiffwas a non-exempt hourly employee, and her wage rate

was $9.00 an hour.

45. Plaintiff had a regular schedule and she worked 6 days per week, an average of 10

hours daily, or 60 hours weekly. Plaintiff was not allowed to take bona-fide lunch

breaks.

46. Plaintiff was paid for just 40 hours weekly strictly in cash, without any paystub or

record showing days and hours worked, job classification, employment taxes

withheld etc.

47. Plaintiff sometimes clocked in and out in a very irregular way. However,Plaintiff,could easily track Plaintiff s working hours.

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48. In this period, Defendants failed to pay Plaintiff for 20 overtime hours at the rate

of $13.50 an hour ($9.00 regular rate).

49. B.- Second period, from approximately October 16, 2017 to August 15, 2018=44 relevant weeks

50. Within this period Plaintiff had 2 positions with 2 different wage-rate, and 2

different schedules as follows:


52. In this period Plaintiff had the same duties as cashier and store attendant.

53. Plaintiff continued the same schedule of6 days with an average of60 hours worked

in every week period. Plaintiff worked 20 overtime hours.

54. Plaintiffwage-rate was $13.00 an hour, Plaintiff overtime rate should be $19.50 an

hour.

55. Plaintiff was paid with paystubs showing only 40 hours weekly.

56. Plaintiff sometimes clocked in and out in a very irregular way. However, Plaintiff

could easily track Plaintiffs working hours.

57. In this period, Defendants failed to pay Plaintiff for 20 overtime hours weekly at

the rate of $19.50 an hour ($13.00 regular rate).


59. In this period, Plaintiff s position changed to waitress, and she became a tipped


60. Plaintiff had an irregular schedule. Plaintiff had alternate AM and PMshifts...Plaintiffworked one week the AM shift, and the next one she worked the PM shift.

61. Consequently, Plaintiffworked 14 weeks ofAM shifts, and 15 weeks ofPM shifts.

62. Overtime hours during PM shifts:

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uocusign trivelovoi6i:irereittm 4.42sutu-usnk Document 1 Filed 10/04/18 of 22 PagelD 10

While Plaintiff worked in her PM shifts, she had a schedule of 5 days per week

from 2:00 PM to 10:30 PM (8.5 hours daily) for a total of 42.5 hours weekly.

Plaintiffwas unable to take bona-fide lunch hours.

63. In addition, within the months on June and July 2018, (during the

2018 FIFA World Cup), Plaintiff worked 4 weeks of 7 days per week, a double

shift from 8:00 AM to 9:00 PM, or 11 hours daily, resulting in 78 working hours

weekly. This means that in this period Plaintiffworked 4 weeks with 38 overtime

hours each. Plaintiff was not compensated for these 0/T hours.

64. Summarizing, from January 29, 2018 to August 20, 2018, Plaintiff worked 11

weeks with 42.5 working hours each, and 4 weeks with 77 working hours each.

65. During the relevant period of employment, Plaintiff worked more than 40 hours

every week, but she was not compensated adequately for overtime hours. Plaintiff

was paid for just 40 regular hours.

66. Therefore, Defendant failed to pay Plaintiff for overtime hours at the rate of time

and one-half his regular rate for every hour that he worked in excess of forty (40),

in violation of Section 7 (a) of the Fair Labor Standards Act of 1938 (29 U.S.C.

207(a)(1).

67. Plaintiff clocked in and out in a very irregular way, but Defendants were able to

keep track of hours worked by Plaintiff and other similarly situated individuals.

Plaintiff was paid weekly with paystubs that not reflected the real number ofhours

worked.

68. The records, if any, conceming the number of hours actually worked by Plaintiff

MIRIAM C. ACOSTA, and all other similarly- situated employees, and the

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Case 6:18-cv-01663-RBD-GJK Document 1 Filed 10/04/18 of 22 PagelD 11

compensation actually paid to such employees should be in the possession and

custody of Defendant. However, upon information and belief, Defendant did not

maintain accurate and complete time records ofhours worked by Plaintiffand other

employees in the asserted class.

69. Defendant violated the record keeping requirements of FLSA, 29 CFR Part 516.

70. Prior to the completion ofdiscovery and to the best ofPlaintiff s knowledge, at the

time of the filing of this complaint, Plaintiffs good faith estimate ofunpaid wages

are as follows:

*Please note that these amounts are based on a preliminary calculation and thatthese figures could be subject to modification as discovery could dictate.*Florida minimum wage rate is higher than Federal minimum wage. As per FLSA

regulations the higher minimum wage applies.

a. Total amount of alleged unpaid wages:

Thirteen Thousand Four Hundred Twenty Dollars and 88/100 ($13,420.88)

b. Calculation of such wages:

Total weeks of employment: more than 69 weeksTotal relevant weeks of employment: 55 weeks

1.- (A) Overtime First Period from approximately August 15, 2015 to

March 15, 2016 (30 weeks)/ Relevant weeks = 25 weeks

Total number of relevant weeks: 25 weeksTotal number ofhours worked weekly: 60 hoursTotal number of overtime hours: 20 0/T hoursTotal number of unpaid 0/T hours: 20 0/T hours

Regular rate: $9.00 x 1.5 = $13.50 0/T rate

0/T rate: $13.50

0/T rate $13.50 x 20 O/T hours=$270.00 weekly x 20 weeks-15,400.00

2.- (B) Overtime Second Period from approximately from October 16,2017 to January 27, 2018=15 weeks

Total number of relevant weeks: 15 weeks

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Total number of hours worked weekly: 60 hoursTotal number of overtime hours: 20 0/T hoursTotal number of unpaid 0/T hours: 20 0/T hoursRegular rate: $13.00 x 1.5 = $19.50 0/T rate0/T rate: $19.50

0/T rate $19.50 x 20 0/T hours=$390.00 weekly x 15 weeks=$5,850.00

3.- Overtime from approximately January 29, 2018 to August 20,2018=15 weeks with PM shifts with overtime

Total number of relevant weeks: 11 weeksTotal number ofhours worked weekly: 42.5 hoursTotal number of overtime hours: 2.5 0/T hoursTotal number ofunpaid 0/T hours: 2.5 0/T hoursRegular rate: $5.23Florida minimum wage 2018: $8.25 x 1.5=$12.370/T rate: $12.37

0/T rate $12.37 x 2.5 0/T hours=$30.92 weekly x 11 weeks=$340.12

4.- Overtime from June to July 2018= 4 weeks.

Total number ofrelevant weeks: 4 weeksTotal number of hours worked weekly: 77 hoursTotal number of overtime hours: 37 0/T hoursTotal number ofunpaid 0/T hours: 37 0/T hours

Regular rate: $5.23Florida minimum wage 2018: $8.25 x 1.5=$12.370/T rate: $12.37

0/T rate $12.37 x 37 0/T hours---$457.69 weekly x 4 weeks=$1,830.76

Total 1, 2, 3 and 4: $13,420.88

c. Nature ofwages (e.g. overtime or straight time):

This amount represents the unpaid overtime hours.

71. At all times material hereto, the Employers/Defendants TORTILLERIA LA

MEXICANA and YEDIC HONORATO failed to comply with Title 29 U.S.C. §§

201-219 and 29 C.F.R. § 516.2 and § 516.4 et seq. In that Plaintiff and those

similarly-situated performed services and worked in excess ofthe maximum hours

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provided by the Act, but no provision was made by the Defendant to properly pay

them at the rate of time and one half for all hours worked in excess of forty hours

(40) per workweek as provided in said Act.


TORTILLERIA LA MEXICANA knew and/or showed reckless disregard of the

provisions ofthe Act concerning the payment ofovertime wages as required by the

Fair Labor Standards Act and remains owing Plaintiff and those similarly-situated

these overtime wages since the commencement of Plaintiff's employment with

Defendant as set forth above, and Plaintiff and those similarly-situated are entitled

to recover double damages.

73. Defendant never posted any notice, as required by the Fair Labor Standards Act to

inform employees oftheir federal rights to overtime and minimum wage payments.

Defendant violated the Posting requirements of 29 U.S.C. § 516.4.

74. At the times mentioned, individual Defendant YEDIC HONORATO was

owner/partner/manager, and he directed operations of TORTILLERIA LA

MEXICANA. Defendant YEDIC HONORATO was the employer of Plaintiff and

others similarly situated individuals within the meaning ofSection 3(d) ofthe "Fair

Labor Standards Act" [29 U.S.C. § 203(d)]. In that, this individual Defendant acted

directly in the interests of TORTILLERIA LA MEXICANA in relation to its

employees, including Plaintiff and others similarly situated. Defendant YEDIC

HONORATO had financial and operational control of the business, provided

Plaintiff with her work schedule, determined Plaintiff s terms and conditions of

employment, and he is jointly liable for Plaintiff s damages.

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75. Defendants TORTILLERIA LA MEXICANA, and YEDIC HONORATO willfully

and intentionally refused to pay Plaintiff overtime wages as required by the law of

the United States as set forth above and remain owing Plaintiff these overtime

wages since the commencement ofPlaintiff s employment with Defendant.

76. Plaintiff has retained the law offices of the undersigned attorney to represent her in

this action and is obligated to pay a reasonable attorneysfee.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff MIRIAM C. ACOSTA and those similarly-situated individuals

respectfully request that this Honorable Court:

A. Enter judgment for PlaintiffMIRIAM C. ACOSTA and other similarly-situated

and against the Defendants TORTILLERIA LA MEXICANA, and YEDIC

HONORATO on the basis of Defendants' willful violations of the Fair Labor

Standards Act, 29 U.S.C. § 201 et seq.; and

B. Award Plaintiff actual damages in the amount shown to be due for unpaid

overtime compensation for hours worked in excess of forty weekly, with

interest; and

C. Award Plaintiff an equal amount in double damages/liquidated damages; and

D. Award Plaintiff reasonable attorneys' fees and costs of suit; and

E. Grant such other and further relief as this Court deems equitable and just and/or

available pursuant to Federal Law.

JURY DEMAND

Plaintiff MIRIAM C. ACOSTA and those similarly-situated demand trial by jury of all

issues triable as of right by jury.

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COUNTF.L.S.A. WAGE AND HOUR FEDERAL STATUTORY VIOLATION:

FAILURE TO PAY MINIMUM WAGE; AGAINST ALL DEFENDANTS

77. Plaintiff MIRIAM C. ACOSTA re-adopts each and every factual allegation as

stated in paragraphs 1-41 of this complaint as if set out in full herein.

78. Defendant TORTILLERIA LA MEXICANA was and is engaged in interstate

commerce as defined in §§ 3 (r) and 3(s) of the Act, 29 U.S.C. § 203(r) and

203(s)(1)(A). Defendant is a retail business operating as Mexican restaurant,

tortilleria, and minimarket. Defendant had more than two employees recurrently

engaged in commerce or in the production ofgoods for commerce by regularly and

recurrently using the instrumentalities of interstate commerce to accept and solicit

funds from non-Florida sources; by using electronic devices to authorize credit card

transactions by ordering product and supplies produced out of State. Upon

information and belief, the annual gross revenue of the Employer/Defendant was at

all times material hereto in excess of$500,000 per annum. Therefore, there is FLSA

enterprise coverage.

79. The Plaintiff was employed by an enterprise engaged in interstate commerce, and

the Plaintiff s work for the Defendant likewise affects interstate commerce.

Plaintiff was a cashier, shop attendant, and waitress. Plaintiff through her daily

activities, regularly completed credit card transactions. Additionally, Plaintiff

handled, or otherwise worked on goods and/or materials that have been moved

across State lines at any time in the course of business. Therefore, there is FLSA

individual coverage.

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80. This action is brought by Plaintiff MIRIAM C. ACOSTA and those similarly-

situated to recover from the Employer unpaid minimum wages, as well as an

additional amount as liquidated damages, costs, and reasonable attorney's fees

under the provisions of 29 U.S.C. § 201 et seq., and specifically under the

provisions of29 U.S.C. §206. U.S.C. §206 (a) states "Every employer shall pay to

each of his employees who in any workweek is engaged in commerce or in the

production of goods for commerce, or is employed in an enterprise engaged in

commerce or in the production of goods for commerce, wages at the following

rates:

(1) except as otherwise provided in this section, not less than—

(A) $5.85 an hour, beginning on the 60th day after May 25, 2008;

(B) $6.55 an hour, beginning 12 months after that 60th day; and

(C) $7.25 an hour, beginning 24 months after that 60th day.

81. Defendant TORTILLERIA LA MEXICANA employed Plaintiff MIRIAM C.

ACOSTA as a restaurant worker during two periods.

82. In the first period, Plaintiff worked as cashier and store attendant from September

24, 2015 to March 15, 2016, or 25 weeks. In the second period, Plaintiffworked

from approximately October 16, 2017 to August 20, 2018, or 44 weeks.

83. During her second period of employment Plaintiff had 2 positions with 2 different

wage-rate, and 2 different schedules as follows:


85. Plaintiff worked 15 weeks as a cashier and store attendant and she was paid at the

rate of $13.00 an hour.

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87. In this period, Plaintiff s position changed to waitress, and she became a tipped


88. While working as a waitress during the second period, Defendant failed to pay

Plaintiff full minimum wages for hours worked that were not incidental to

Plaintiff s position as a waitress.

89. Plaintiff had an irregular schedule. Plaintiff had alternate AM and PM shifts.

Plaintiff worked one week the AM shift, and the next one, she worked the PM shift.

Consequently, Plaintiff worked 14 weeks of AM shifts, and 15 weeks ofPM shifts

as follows:

90. a) Morning or AM shift (14 weeks). - When Plaintiff worked the morning shift,

every day she performed 3 hours of cooking work plus one hour of general

restaurant work which was not incidental to her position as a waitress. These 4

hours represented non-tippable activities which were paid at $5.23 an hour. Thus,

every week Plaintiff worked the AM shift, she worked at least 20 hours of non-

tippable activities that were incorrectly paid at the rate of $5.23.

91. Plaintiff is entitled to received full minimum wages for at least 20 hours every for

every week in which she worked AM shifts.

92. While Plaintiffworked in her AM shift, she had a schedule of 5 days per week from

7:00 or 8:00 AM to 3:00 or 4:00 PM (8 hours daily) for a total of 40 hours or less

weekly.

•

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93. b) Afternoon or PM shift (15 weeks). - When Plaintiff worked the PM shift, she

performed every day at least 1 hour ofjanitorial work which was not incidental to

her position as a waitress.

94. Plaintiff worked 5 hours weekly of non-tippable janitorial work which was paid at

$5.23 an hour. Thus, every week Plaintiffworked the PM shift, she worked at least

5 hours ofnon-tippable activities that were incorrectly paid at the rate of$5.23.

95. Plaintiff is entitled to received full minimum wages for at least 5 hours for every

week in which she worked PM shifts.

96. While Plaintiffworked in her PM shift, she had a schedule of 5 days per week from

2:00 PM to 10:30 PM (8.5 hours daily) for a total of 42.5 hours weekly. Plaintiff

was unable to take bona-fide lunch hours.

97. Therefore, Defendants failed to pay Plaintiff minimum wages, in violation of the

*Fair Labor Standards Act of 1938 (29 U.S.C. §206 (a)).•

98. The records, if any, concerning the number of hours actually worked by Plaintiff

and all other employees, and the compensation actually paid to such employees

should be in the possession and custody ofDefendants. However, upon information

and belief, Defendants did not maintain accurate and complete time records of

hours worked by Plaintiff and other employees in the asserted class, since

management did not keep any time-keeping method.

99. Defendants violated the record keeping requirements of FLSA, 29 CFR Part 516.

100. Upon information and belief, Defendant never posted any notice, as

required by the Fair Labor Standards Act and Federal Law, to inform employees of

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their Federal rights to overtime and minimum wage payments. Defendant violated

the Posting requirements of 29 U.S.C. § 516.4.

101. Prior to the completion ofdiscovery and to the best ofPlaintiff s knowledge,

at the time of the filing of this complaint, Plaintiff s good faith estimate of unpaid

Wages are as follows:

*Please note that these amounts are based on a preliminary calculation and that thesefigures could be subject to modification as discovery could dictate.*Florida minimum wage is $8.25, which is higher than Federal minimum wage.As per FLSA regulations the higher minimum wage applies

a. Total amount of alleged unpaid minimum wages:

One Thousand Seventy-Two Dollars and 10/100 ($1,072.10)•

b. Calculation of such wages:Total relevant weeks: 29 weeks

i.- Minimum wages during AM shifts = 14 weeks

Total number ofweeks: 14 weeksTotal number ofhours paid at the incorrect rate: 20 hours weeklyRate paid: $5.23Florida Minimum Wage 2018: $8.25-$5.23 rate paid=$3.02 difference

$3.02 Min. wage difference x 20 hours = $60.40 weekly x 14 weeks =

$845.60

ii.- Minimum wages during PM shifts = 15 weeks

Total number of weeks: 15 weeksTotal number of hours paid at the incorrect rate: 5 hours weeklyRate paid: $5.23Florida Minimum Wage 2018: $8.25-$5.23 rate paid=$3.02 difference

$3.02 Min. wage difference x 5 hours = $15.10 weekly x 15 weeks =

$226.50

c. Nature ofwages (e.g. overtime or straight time):

This amount represents unpaid minimum wages at Florida minimum wage-rate.

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102. Plaintiffwas not paid full minimum wages for a substantial number ofhours

during the relevant period. Therefore, Defendants unlawfully failed to pay

minimum wages to Plaintiff.

103. Defendants knew and/or showed reckless disregard of the provisions of the

Act concerning the payment of minimum wages as required by the Fair Labor

Standards Act and remain owing Plaintiff and those similarly-situated these

minimum wages since the commencement of Plaintiff and those similarly-situated

employee's employment with Defendants as set forth above, and Plaintiff and those

similarly-situated are entitled to recover double damages.

104. At the times mentioned, individual Defendant YEDIC HONORATO was

owner/partner/manager, and he directed operations of TORTILLERIA LA

MEXICANA. Defendant YEDIC HONORATO was the employer of Plaintiff and

others similarly situated individuals within the meaning of Section 3(d) ofthe "Fair

Labor Standards Act" [29 U.S.C. § 203(d)]. In that, this individual Defendant acted

directly in the interests of TORTILLERIA LA MEXICANA in relation to its

employees, including Plaintiff and others similarly situated. Defendant YEDIC

HONORATO had financial and operational control of the business, provided

Plaintiff with her work schedule, determined Plaintiff s terms and conditions of

employment, and he is jointly liable for Plaintiff s damages.


willfully and intentionally refused to pay Plaintiff MIRIAM C. ACOSTA and all

other similarly situated employees, minimum wages as required by the law of the

United States and remain owing Plaintiff and those similarly situated these

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minimum wages since the commencement of Plaintiff s employment with

Defendants as set forth above.

106. Plaintiff, and other similarly situated employees, seeks to recover for

minimum wage violations accumulated for the relevant time of employment.

Plaintiff has.retained the law offices of the undersigned attorney to represent her in

this action and is obligated to pay reasonable attorneysfees.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff MIRIAM C. ACOSTA and those similarly-situated respectfully

request that this Honorable Court:

A. Enter judgment for Plaintiff MIRIAM C. ACOSTA and other similarly-

situated and against the Defendants TORTILLERIA LA MEXICANA and

YEDIC HONORATO on the basis ofDefendants' willful violations ofthe Fair

Labor Standards Act, 29 U.S.C. § 201 et seq. and other Federal Regulations;

and

B. Award Plaintiff MIRIAM C. ACOSTA actual damages in the amount shown

to be due for unpaid minimum wages.

C. Award Plaintiff an equal amount in double damages/liquidated damages; and

D. Award Plaintiff reasonable attorneys' fees and costs of suit; and

E. Grant such other and further reliefas this Court deems equitable andjust and/or

available pursuant to Federal Law.

JURY DEMAND

PlaintiffMIRIAM C. ACOSTA demands trial by jury ofall issues triable as of right by jury.

Dated: October 3, 2018

Page 21 of 23

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Respectfully submitted,

By: /s/ Zandro E. PalmaZANDRO E. PALMA, P.A.Florida Bar No.: 00240319100 S. Dadeland Blvd.Suite 1500Miami, FL 33156Telephone: (305) 446-1500Facsimile: (305) [email protected] Plaintiff

Page 22 of 23

uocusign tnveioryaCaSe VntOttYttttVittittV Document 1-1 Filed 10/04/18 Page 1 of 1 PagelD 23

UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISIONCASE NO.:

MIRIAM C. ACOSTA,and other similarly-situated individuals,

Plaintiff (s),v.

RESTAURANTE & TORTILLERIALA MEXICANA, INC.and YEDIC HONORATO,individually

Defendants,

VERIFICATION OF COMPLAINT

The undersigned, for herself declares:

I am the Plaintiff in the above-styled action. I have read the forgoing complaint consisting

of (22) pages and know the contents thereof. With respect to the causes of action alleged

by me, the same is true by my own knowledge, except as to those matters which are therein

stated on information and belief, and, as to those matters, I believe them to be true. I have

reviewed this document and have had it translated to me from English to Spanish.

Pursuant to 28 U.S.C. Section 1746, I declare under penalty of perjury that the

forgoing is true and correct.

10/3/2018Date: ,—DocuSIgned by:

,•14ravrgr,801(1Facrt

MIRIAM C. ACOSTA

of 23

.IS 44 (Rev. 11/15}Case 6:18-cv-01663-RBE**c-WeettriegaiTFiled 10/04/18 Page 1 of 1 PagelD 24

The JS 44 civil cover sheet and the information contained herein neither replace nor supplefnent the fliing and service ofpleadins or other papers as required by law, except asprovided bv local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for thepurpose oeinitiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTSMIRIAM C. ACOSTA RESTAURANTE & TORTILLERIA

LA MEXICANA, INC.ET AL.

(b) County of Residence of First Listed Plaintiff• • • County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CISES) (IN US. PLAINTIFF CASES ONLY)NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF

THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Mane. Addres.y, and Telephone Number) Attorneys (IfKnown)Zandro E. Palma, P.A.9100 South Dadeland Blvd., Suite 1500Miami, FL 33156

II. BASIS OF JURISDICTION (Placean "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an "X- in one Box.lar Plaintiff(For Diversity Cases Only) and OneBox Ihr Depindant)

I 1 U.S. Government /3 Federal Question PTF DEF PTF DEFPlaintiff (U.S Government No( a Party) Citizen of This State CI 1 0 1 Incorporated or Principal Place ci 4 CI 4

of Business In This State

3 2 U.S. Government 0 4 Diversity Citizen of Another Suite 0 2 0 2 Incorporated and Principal Place 0 5 0 5Defendant (Indicate Citizenship ofParties in Item (II) of Business In Another State

Citinn or Subject ofa 1 3 cl 3 Foreign Nation 11 6 71 6

IX'_ N TITWE OF SI 'IT •

1 CONTRACT - TORTS EORFLITURE/PENALTY:.::::: :::,:: :. :4::,:BANKRUPTCV OTHERSTATUTES :: I1 110 Insurance PERSONAL INJURY PERSONAL INJURY 11 625 Drug Related Seizure 0 422 Appeal 28 ESC 158 11 375 False Claims ActO 120 Marine 0 310 Airplane CI 365 Pemonal Injury - of Property 21 USC 881 0 423 Withdrawal 0 376 Qui Tam (31 USC1 130 Miller Act 0 315 Airplane Product Product Liability In 690 Other 28 USC 157 3729(a)10 140 Negotiable Instrument Liability 0 367 Health Care/ El 400 State Reapportionment71 150 Recovery of Overpayment 1 320 Assault. Libel & Pharmaceutical PROPE.RTY RIGHTS ri 410 Antitmst

& Enforcement ofitidgment Slander Personal injury 11 820 CopyrighG ri 430 Banks and Banking0 151 Medicare Act 0 330 Federal EmployersProduct Liability CI 830 Patent 0 450 CommerceO 152 Recovery of Defaulted Liability 0 368 Asbestos Personal 71 840 Trademark 0 460 Deportation

Student Loans 1 340 Marine Injury Product CI 470 Racketeer Influenced and(Excludes Veterans) 0 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt Organizations

c.1 153 Recovery of Overpayment Liability PERSONAL PROPERTY ,1,410 I.:lir Labor Standard; El SOI 111A (1395IH 0 480 Consumer Creditof Veteran's Benefits 1 350 Motor Vehicle 11 370 Other Fraud Act 11 962 Black Lung (923) 1 440 Cable/Sat TV

1 160 Stockholdem' Suits 11 355 Motor Vehicle 11 37) Truth in Lending 11 720 Labor:Management 71 963 DIWCIDIWW (405(g)) 1 850 Securities/Commodities/0 190 Other Contract Product Liability ri 380 Other Personal Relations ri 864 SSID Title XVI ExchangeO 195 Contract Product Liability CI 360 Other Personal Property Damage CI 740 Railway Labor Act 11 865 RSI (405(g)) 0 890 Other Statutory Actions1 196 Franchise Injury 71 .385 Property Damage 0 751 Family and Medical 0 891 Agricultural Acts

0 362 Personal Injury.- Product Liability Leave Act 0 893 Environmental MattersMedical Malpractice 0 790 Other Labor Litigation 0 995 Freedom of Information

I REAL PROPERTY CIVIL RIGHTS: PRISONER PETITIONS, 0 791 Employee Rettrement '.4.4TEDERAL TAX SUITS Act

.1 210 Land Condemnation 1 440 Other Civil Rights Habeas Corpus: Income Security Act 11 870 Taxes (U.S. plaintiff ri 896 Arbitration0 220 Foreclosure ' 0 441 Voting 0 463 Alien Detainee or Defendant) 0 899 Administrative Procedure3 230 Rent Lease & Ejectment 0 .442 Employment 0 510 Motions to Vacate :1 871 IRS—Third Party Act/Review or Appeal of1 240 Torts to Land 0 443 Housing/ Sentence 26 USC 7609 Agency Decision1 245 'Tort Product Liability Accommodations 01 530 General 0 950 Constitutionality of1 290 All Other Real Property 1 445 Amer. w/Disabilities - 0 535 Death Penalty IMMIGRATION :: State Statutes

Employment Other: 0 462 Natunalue.alion Application0 446 Amer. w/Disabilities - 0 540 Mandamus & Other 0 .465 Other Immigration

Other 0 550 (:ivil Rights Actions1 448 Education 0 555 Prison Condition

ri 560 Civil Detainee -

Conditions ofConfinement

V. ORIGIN (Place an "X" in One Box Only)

).!el Original n 2 Removed from .71 3 Remanded from 1 4 Reinstated or 1 5 Transferred from C.1 6 MultidistrictProceeding State Court Appellate Court Reopened Another District Lit igation

(YpecilY)Cite the U8. Civil Statute under which you are tiling (Du not citejurisdictional statutes unless diversity):

VI. CAUSE OF ACTION Brief description ofcause:

VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if &man ed in complaint:COMPLAINT: UNDER RULE 23. F.R.Cv.P, JURY DEMAND: Yes ri No

VIII. RELATED CASE(S)IF ANY (See i

JUDGE DOCKET NUMBER

DATE SIGNATURE OF ATTORNEY OF RECORD10/03/2018 Zandro E. PalmaFOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP .RIDGE MAG. JUDGE

ClassAction.orgThis complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: Restaurante & Tortilleria La Mexicana Facing Unpaid OT, Minimum Wage Suit

https://www.classaction.org/news/restaurante-and-tortilleria-la-mexicana-facing-unpaid-ot-minimum-wage-suit

acosta v. restaurante & tortilleria la mexicana, inc., et ...€¦ · (hereinafter, tortilleria...

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