19-2834-cv
Elghourab v. Vista JFK, LLC

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 30th day of June, two thousand twenty.

PRESENT:             RALPH K. WINTER,
                     GUIDO CALABRESI,
                     DENNY CHIN,
                                         Circuit Judges.
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MOHAMED ELGHOURAB,
                Plaintiff-Appellee,

                              -v-                                                  19-2834-cv

VISTA JFK, LLC,
                                        Defendant-Appellant.

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FOR PLAINTIFF-APPELLEE:                                      JUSTIN M. REILLY, Neil H. Greenberg &
                                                             Associates, P.C., Massapequa, New York.
FOR DEFENDANT-APPELLANT:                      CHRISTOPHER A. SEACORD (Alex Dumas,
                                              on the brief), Gordon Rees Scully Mansukhani,
                                              LLP, New York, New York.

               Appeal from the United States District Court for the Eastern District of

New York (Ross, J.).

               ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the amended judgment of the district court

is AFFIRMED.

               Defendant-appellant Vista JFK, LLC ("Vista") appeals from the district

court's amended judgment, entered August 13, 2019, after a bench trial, awarding

Elghourab overtime wages, liquidated damages, and statutory wage notice damages

pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"), and the

New York Labor Law (the "NYLL"), as well as pre-judgment and post-judgment

interest. We assume the parties' familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

               Vista owns and operates a hotel near John F. Kennedy International

Airport. 1 Elghourab worked as a chef in the restaurant in Vista's hotel from September

2011 to September 2016. During his employment, Elghourab did not receive overtime

pay despite working in excess of 40 hours per week and holidays. On February 17,




1       The facts in this section are taken from the findings of fact made by the district court
after the bench trial.
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2017, Elghourab commenced this action against Vista, alleging overtime violations

under the FLSA and NYLL, and a statutory wage notice violation under NYLL § 195(1).

After a bench trial, the district court issued its opinion and order, concluding that Vista

violated the FLSA and NYLL, and that Elghourab did not qualify as an exempt

executive. Accordingly, the district court awarded Elghourab $420,248.36 in unpaid

overtime compensation, $420,248.36 in liquidated damages, $5,000 in statutory wage

notice damages, and pre- and post-judgment interest. Judgment entered June 19, 2019.

              On July 17, 2019, Vista moved to alter or amend the judgment on the

grounds that the damages calculation did not consider Elghourab's vacation and sick

days and there were inconsistencies in Elghourab's testimony regarding the number of

hours worked. By opinion and order entered July 31, 2019, the district court granted

Vista's motion under Federal Rule of Procedure 59(e), in part, agreeing that the

damages calculation failed to exclude time Elghourab had taken off for vacation and

sick leave, but rejecting Vista's argument that further reductions in the damages award

should be made. An amended judgment entered on August 13, 2019, in the amounts of

(1) $411,791.96 in unpaid overtime compensation; (2) $411,791.96 in liquidated damages;

(3) $5,000 in statutory wage notice damages; and (4) $195,683.54 in pre-judgment

interest, totaling $1,024,267.46; and post-judgment interest at the statutory rate

prescribed by 28 U.S.C. § 1961. This appeal followed.




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                                    DISCUSSION

              On appeal, Vista argues that the district court: (1) committed several

evidentiary errors during the bench trial, (2) improperly concluded that Elghourab was

not exempt under the executive exemption of the FLSA and NYLL, and (3) erred in

calculating Elghourab's damages.

I.     Evidentiary Rulings

              We review a district court's evidentiary rulings for abuse of discretion. See

Keepers, Inc. v. City of Milford, 807 F.3d 24, 34 (2d Cir. 2015). On appeal, Vista argues that

the district court abused its discretion in declining to admit a job description,

performance evaluation, and email under the business records exception, and in

prohibiting Vista's counsel from questioning Elghourab. We are not persuaded.

              The district court properly concluded that the job description was

inadmissible because it was not relevant, as it did not accurately reflect Elghourab's job

duties. For instance, the district court did not find Vista's witnesses' testimony credible

with respect to Elghourab's alleged training and scheduling duties, both of which are

listed on the job description. Further, the performance evaluation was inadmissible

because it was not maintained in the regular course of business, as confirmed by Vista's

witness. See Fed. R. Evid. 803(6). The email in dispute was also inadmissible because

Vista's witness did not recognize it and it could not be authenticated otherwise. Finally,

the record shows that the district court did not prohibit Vista's counsel from


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questioning Elghourab, but instead simply asked for clarification due to hearsay

concerns. The record shows that Vista's counsel could have, but apparently chose not

to, continue this line of questioning.

II.       The Exemption for Executives

                On appeal from a bench trial, "we review the district court's findings of

fact for clear error and conclusions of law and mixed questions de novo." Mitchell v.

Garrison Protective Servs., Inc., 819 F.3d 636, 641 (2d Cir. 2016) (quoting Connors v. Conn.

Gen. Life Ins. Co., 272 F.3d 127, 135 (2d Cir. 2001)). "Where there are two permissible

views of the evidence, the factfinder's choice between them cannot be clearly

erroneous." Krist v. Kolombos Rest. Inc., 688 F.3d 89, 95 (2d Cir. 2012) (quoting Anderson

v. City of Bessemer City, 470 U.S. 564, 574 (1985)). The question of whether an employee

falls under the FLSA executive exemption is a mixed question of fact and law -- i.e., how

the employee spent his time working is a question of fact, while whether the employee's

activities exclude him from overtime benefits is a question of law. See Myers v. Hertz

Corp., 624 F.3d 537, 548 (2d Cir. 2010); Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714

(1986).

                Here, after reviewing the admissible evidence and hearing testimony from

multiple witnesses including Elghourab, the district court concluded that Elghourab did

not qualify as an exempt executive under the FLSA or NYLL. The district court's

findings of fact were based on its weighing of relevant evidence and, on appeal, this


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Court may not "second-guess the bench-trial court's credibility assessments." Krist, 688

F.3d at 95. Moreover, the district court's conclusions of law were grounded in its careful

analysis examining the relevant factors defining an "employee employed in a bona fide

executive capacity." 29 C.F.R. § 541.100(a).

              On appeal, Vista principally disputes the district court's weighing of

evidence and credibility assessments. As this Court has explained, however, "as trier of

fact, the judge is entitled, just as a jury would be, to believe some parts and disbelieve

other parts of the testimony of any given witness." Krist, 688 F.3d at 95 (internal

quotation marks and citations omitted). Accordingly, we affirm for substantially the

reasons set forth by the district court in its thorough June 11, 2019 order.

III.   Damages Calculation

              We review a district court's damages calculation for clear error, and

conclusions of law de novo. Rana v. Islam, 887 F.3d 118, 121 (2d Cir. 2018). Under both

the FLSA and NYLL, plaintiffs are entitled to liquidated damages if they have been

denied appropriate minimum wages or overtime. 29 U.S.C. § 216(b), 260; NYLL §

198(1-a), 663(1); see also 29 U.S.C. § 260 (mandating that an employer pay liquidated

damages unless the employer demonstrates that he was acting in "good faith" and "had

reasonable grounds for believing" that he was not acting in violation of the FLSA). We

have "characterized the employer's burden [under § 260] as 'a difficult one,'

emphasizing that 'double damages [are] the norm and single damages the exception.'"


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Barfield v. N.Y.C. Health & Hosps. Corp., 537 F.3d 132, 150 (2d Cir. 2008) (alteration in

original) (quoting Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir. 1999)).

               Here, the district court properly awarded liquidated damages after

concluding that Vista failed to take any "active steps to ascertain the dictates of the

FLSA." Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 71 (2d Cir. 1997). Indeed,

witness testimony confirms that Vista did not consider whether Elghourab's position

was exempt and, instead, labeled him as exempt simply because it was industry norm.

This was insufficient to carry Vista's heavy burden under § 260. See Barfield, 537 F.3d at

150. Finally, the district court calculated Elghourab's overtime wages based on a

conservative approximation of his work hours, and we discern no clear error in these

findings of fact. 2

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2       We also reject Vista's argument challenging the district court's reliance on Elghourab's
damages calculation. After granting in part Vista's motion to amend the judgment, the district
court directed both Vista and Elghourab to submit an amended damages calculation based on
the district court's findings of fact. Vista did not object to the amended damages calculation
below and cannot now challenge the district court's reliance on its joint submission on appeal.
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             We have considered Vista's remaining arguments and conclude they are

without merit. For the foregoing reasons, the amended judgment of the district court is

AFFIRMED.

                                        FOR THE COURT:
                                        Catherine O'Hagan Wolfe, Clerk




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