Acosta v. Restaurante & Tortilleria LA Mexicana, Inc., et ...

Uocusign trIvelope

IU:

1119141313-2B-JU-40A8-A1-4A-191-492I3913U /13

Case 6:18-cv-01663-RBD-GJK

Document 1

Filed 10/04/18

Page

1 of 22

PagelD

1

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

2018 OCT -14 PM 3: 45

ORLANDO DIVISION

CASE NO.:

MIRIAM C. ACOSTA,

and other similarly-situated

i;OURT

,J1Li RICOF

T

FLORIDA

ANDO, FL ORIDA

individuals,

Plaintiff (s),

v.

(c):10C,v'

1(06,-,3¡ªORL-37-6,11?

RESTAURANTE & TORTILLERIA

LA MEXICANA, INC.

and YEDIC HONORATO,

individually

Defendants,

VERIFIED COMPLAINT

(OPT-IN PURSUANT TO 29 U.S.0 ¡ì

COMES NOW the Plaintiff MIRIAM C.

216(b))

ACOSTA, and other similarly-situated

individuals, by and through the undersigned counsel, and hereby

RESTAURANTE & TORTILLERIA LA

sues

Defendants

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 of the United States. This Court has jurisdiction pursuant to

the Fair Labor Standards Act, 29 U.S.C.

¡ì 201-219 (Section 216 for jurisdictional

placement) ("the Act")

2.

resident of Orlando, Florida, within the

Plaintiff MIRIAM C. ACOSTA is

a

jurisdiction of this Honorable Court.

Plaintiff is

a

covered

of the Act. Plaintiff MIRIAM C. ACOSTA consents to be

signing this verified complaint.

Page

1 of 23

employee for purposes

a

party in this action by

uocusign trwelope

iu:

111914rits-am-aum-A1-4A-E91-4m39autts

Case 6:18-cv-01663-RBD-GJK

3.

Defendant

RESTAURANTE

(hereinafter,

Filed 10/04/18

Document 1

&

TORTILLERIA

TORTILLERIA LA

MEXICANA,

or

LA

for Defendant. At all times material hereto, Defendant

4.

The

INC.

is

a

Florida

where Plaintiff worked

and is

was

engaged

in

commerce.

individual

owner/partner

Defendant

or

YEDIC

HONORATO,

manager, and he directed

similarly

situated within the

was

the

the

now,

of TORTILLERIA LA

of Plaintiff and

employer

of Section

meaning

is

and

was

operations

MEXICANA, INC. This individual Defendant

others

2 of 22

MEXICANA,

Defendant)

corporation, having place of business in Orlando, Florida,

interstate

Page

3(d) of the "Fair Labor

?

?

5.

Standards Acr

[29 U.S.C. ¡ì 203(d)].

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

Defendants overtime

reasonably attorney's

brought by Plaintiff as

compensation, liquidated damages,

fees under the

amended, 29 U.S.C. ¡ì 201

et seq

and all other current and former

asserted

weeks

(the

after

provisions

"FLA

or

excess

September 2015, (the

recover

from

and the costs and

of Fair Labor Standards Act,

the

"ACT")

on

employees similarly situated

class") and who worked in

on or

collective action to

a

of forty

"material

behalf of Plaintiff

to

Plaintiff

(40) hours during

time")

as

without

("the

one or more

being properly

compensated.

7.

Corporate

Defendant TORTILLERIA LA MEXICANA is

a

retail business

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

Page 2 of 23

PagelD

2

uocusign tnvelope

lu:

111514131:1-25:3U-4UALS-A1-4A-E91-49419131)(13

The

primary function

Filed 10/04/18

Document 1

Case 6:18-cv-01663-RBD-GJK

Page

3 of 22

of this restaurant is to sell Mexican food and other Mexican

food items to customers, whether

they sit-down,

delivered. Defendants also sells alcoholic

carry out the

beverages.

food,

This business

or

was

have it

located at

2711 Orlando Dr., Sanford, Florida 32773, where Plaintiff worked.

8.

Defendants

employed

TORTILLERIA

LA

MEXICANA

Plaintiff MIRIAM C. ACOSTA

and

during

2

YEDIC

periods,

for

HONORATO

a

total of 69

relevant weeks.

9.

her two

During

periods

of

employment

overtime and minimum wages

as

with Defendants, Plaintiff was not

established

by the

10. Plaintiff worked for Defendants for the time and

paid

Fair Labor Standards Act.

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

LA MEXICANA. Plaintiff was

was

$9.00

an

a

cashier and store attendant for TORTILLERIA

non-exempt hourly employee, and her wage rate

hour.

13. Plaintiff had a regular schedule and she worked 6

AM to 5:00

=

or

6:00 PM, for

an

days per week, from 7:00 or 8:00

average of 10 hours

daily,

or

60 hours

weekly.

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

14. Plaintiff was

record

paid

for just 40 hours

showing days

weekly strictly

and hours worked,

in cash, without any

paystub

job classification, employment

or

taxes

withheld etc.

15. Plaintiff clocked in and out in

a

very

irregular

easily track Plaintiff s working hours.

Page

3 of 23

way. However, Defendants could

PagelD

3

uocusign Envelope

IU: 1119141:113-2133U-4UAB-A1-4A-E91-492t:191:5U/13

16. In this

period, Defendants

of $13.50

hour

an

Filed 10/04/18

Document 1

Case 6:18-cv-01663-RBD-GJK

Page

4 of 22

failed to pay Plaintiff for 20 overtime hours at the rate

($9.00 regular rate).

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

44 weeks relevant weeks

Within this

Plaintiff had 2

period

different schedules

as

January 27, 2018=15

period Plaintiff had the

19. Plaintiff continued the

with 2 different wage-rate, and 3

follows:

18. i.- From October 16, 2017 to

In this

positions

same

duties

schedule of 6

same

as

weeks

cashier and store attendant.

days with an average of 60 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

Defendants failed to pay Plaintiff for 20 overtime hours

period,

the rate of $19.50

23. ii.-

From

In this

an

hour

Plaintiff s

employee earning $5.23

24. Plaintiff had

an

Plaintiffworked

one

to

August 20, 2018=29 weeks

position changed

an

irregular

hour plus

to

waitress, and she became

a

tipped

tips.

schedule. Plaintiff had alternate AM and PM shifts.

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

Consequently, Plaintiff worked

as

at

($13.00 regular rate).

January 29, 2018

period,

weekly

14 weeks of AM

follows:

Page 4 of 23

shifts, and

15 weeks of PM shifts

PagelD

4

uocuthgn Envelope

1119141ili-2133U-40Ad-AF4A-t91-49289WW_

Case 6:18-cv-01663-RBD-GJK

25.

a) Morning

every

or

AM shift

Document 1

(14 weeks).

day she performed

Filed 10/04/18

When Plaintiff worked the

-

3 hours of

cooking

work

plus

Page

morning shift,

hour of

one

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

as a

non-tippable activities that were incorrectly paid at the rate

general

waitress.

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

Thus, every week Plaintiff worked the AM shift, she worked

5 of 22

an

hour.

at least 20 hours of

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 Plaintiff worked in her AM shift, she had a schedule of 5

7:00

28.

or

8:00 AM to 3:00

b) Afternoon

or

or

PM shift

4:00 PM

her position

as a

an

-

When Plaintiff worked the PM

1 hour of janitorial work which

was

or

less.

shift, she

not incidental to

waitress.

29. Plaintiff worked 5 hours

$5.23

(8 hours daily) for a total of 40 hours

(15 weeks).

performed every day at least

days per week from

weekly of non-tippable janitorial work which was paid at

hour. Thus, every week Plaintiff worked the PM

5 hours of non-tippable activities that were

shift, she worked at least

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 Plaintiff worked in her PM

2:00 PM to 10:30 PM

was

shift, she had a schedule of 5 days per week from

(8.5 hours daily) for a total of 42.5

unable to take bona-fide lunch hours.

Page

5 of 23

hours

weekly.

Plaintiff

PagelD

5

 ................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download