18-1581-cv
Gomez v. 4 Runners, Inc.
                             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, at 40 Foley Square, in the City of New York, on
the 16th day of April, two thousand nineteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         JOSÉ A. CABRANES,
         SUSAN L. CARNEY,
                     Circuit Judges.
________________________________________________

MARIO HERNANDEZ GOMEZ, individually, and on
behalf of all others similarly situated, MARINA
VELASQUEZ, individually, and on behalf of all others
similarly situated,

                             Plaintiffs-Appellants,

                             v.                                         No. 18-1581-cv

4 RUNNERS, INC., DBA Istanbul Grill, EROL DONER,

                             Defendants-Appellees,

DAYAKLI AZMAN, MURAT ERSEN,

                     Defendants.
____________________________________________

For Plaintiffs-Appellants:              Shawn R. Clark, Michael Faillace & Associates, P.C., New
                                        York, New York.
For Defendants-Appellees:             Yale Pollack, The Law Offices of Yale Pollack, P.C.,
                                      Syosset, New York.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Oetken, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED IN PART and VACATED

IN PART, and that the case is REMANDED for further proceedings consistent with this order.

       Plaintiffs Mario Hernandez Gomez and Marina Velasquez sued defendants 4 Runners,

Inc. and its owner Erol Doner under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-

219, and New York Labor Law, §§ 190 et seq. and 650 et seq., principally claiming that they

worked over forty hours per week without being paid overtime and over ten hours per day

without receiving “spread of hours” wages. Defendants consented to entry of a default judgment

on liability, and the district court referred the case to Magistrate Judge Fox to determine the

appropriate damages award.

       Although a default judgment establishes legal liability, courts must still “ascertain the

amount of damages with reasonable certainty,” Credit Lyonnais Sec. (USA), Inc. v. Alcantara,

183 F.3d 151, 155 (2d Cir. 1999), accepting as true all factual allegations in the complaint except

those relating to damages, Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981).1 To

establish damages under the FLSA, plaintiffs must show that they performed work for which

they were not properly compensated. See Reich v. S. New England Telecomm. Corp., 121 F.3d

58, 66-67 (2d Cir. 1997). Absent employer records, “employees need only . . . produce sufficient

evidence to show the amount and extent of that work as a matter of just and reasonable



1
  Unless otherwise indicated, case quotations omit all internal quotation marks, alterations,
citations, and footnotes.

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inference.” Id. at 69. “[A]n employee’s burden in this regard is not high. . . . [I]t is possible for a

plaintiff to meet this burden through estimates based on his own recollection.” Kuebel v. Black &

Decker Inc., 643 F.3d 352, 362 (2d Cir. 2011). The burden then shifts to the employer “to come

forward with evidence of the precise amount of work performed or with evidence to negative the

reasonableness of the inference to be drawn from the employee’s evidence. Should the employer

fail to produce such evidence, the court may award damages, even though the result is only

approximate.” Reich, 121 F.3d at 69.

        Here, the magistrate judge ordered that plaintiffs file proposed findings of fact and

conclusions of law, along with supporting affidavits and exhibits, and gave defendants an

opportunity to respond. Plaintiffs largely complied with the order, filing their proposed findings

of fact along with a declaration from Velasquez, but not from Hernandez. Plaintiffs’ brief

referenced an “Exhibit A” that was purportedly a “full accounting” of plaintiffs’ damages, App.

at 62, but they did not attach a document with that name. The magistrate judge then ordered them

to file the missing exhibit, which they did.

        Thereafter, the magistrate judge issued a report and recommendation on the papers,

concluding that neither plaintiff had established any damages. As to Hernandez, the magistrate

judge explained that there was no evidence of his losses in the record because Hernandez had

submitted no declarations or exhibits supporting his alleged hours worked, compensation, or

uncompensated expenses. Velasquez, in contrast, did submit such a declaration, but the

magistrate judge found that it was not credible. The district court accepted the magistrate judge’s

recommendations. Plaintiffs now argue that it was an abuse of discretion to deny them a chance

to correct the shortcomings the magistrate judge identified either through a hearing or by

submitting additional documentary evidence.



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I. Plaintiff Hernandez

       As to plaintiff Hernandez, we affirm. The magistrate judge ordered Hernandez to submit

“an inquest memorandum, accompanied by supporting affidavits and exhibits, setting forth proof

of [his] damages.” App. at 44. Hernandez did not do so, instead citing only to the allegations in

the complaint, which are not evidence and are not accepted as true as they relate to damages. See

Au Bon Pain, 653 F.2d at 65. The district court therefore had no basis from which to reasonably

infer Hernandez’s damages and reasonably awarded him none.

       The district court was not required to hold a hearing before reaching this conclusion. The

Federal Rules of Civil Procedure provide that, after the entry of a default judgment against a

defendant, the court “may conduct hearings . . . when, to enter or effectuate judgment, it needs to

. . . determine the amount of damages.” Fed. R. Civ. P. 55(b)(2)(B). “By its terms, 55(b)(2)

leaves the decision of whether a hearing is necessary to the discretion of the district court.”

Fustok v. ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir. 1989). The district court did not

abuse this discretion by declining to give Hernandez a second chance to submit evidence of his

damages.

II. Plaintiff Velasquez

       However, we find that the district court erred in declining to award plaintiff Velasquez

any damages without giving her an opportunity to address the minor problems in her declaration

that the magistrate judge identified.

       First, we cannot conclude that the district court was correct when it stated that Velasquez

was “given a fair opportunity to correct [her] deficient submission[],” but “failed to provide

sufficient evidence of [her] damages.” App. at 98. The magistrate judge’s November 8, 2017

order provided plaintiffs only with an opportunity to submit Exhibit A, which displays the



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calculations that plaintiffs argued the district court should perform to determine damages. The

order did not identify any other deficiencies or provide Velasquez with an opportunity to submit

any further evidence. Moreover, Velasquez, unlike Hernandez, did submit admissible evidence

of her damages in the form of a declaration dated March 29, 2017, approximating the hours she

worked and how much she was paid. Absent employee records to the contrary, these “estimates

based on [her] own recollection” suffice to establish damages. Kuebel, 643 F.3d at 362.

       Second, although the district court did not address the magistrate judge’s adverse

credibility determination regarding Velasquez, we now conclude that the magistrate judge should

not have made that determination absent a hearing or further proceedings. While we are

generally very deferential to lower courts’ credibility determinations, a district court cannot

“insulate [its] findings from review by denominating them credibility determinations.” Anderson

v. City of Bessemer City, 470 U.S. 564, 575 (1985).

       The magistrate judge’s principal basis for finding that Velasquez’s March 2017

declaration was not credible is that the dates and hours that she says she worked are slightly

inconsistent with those stated in the complaint and in her declaration filed in April 2016 in

opposition to defendants’ motion to dismiss. Namely, the complaint described Velasquez as

working from 2003 to “the present,” App. at 17, which the magistrate judge took to mean

November 12, 2014, the date the complaint was filed. But Velasquez’s March 2017 declaration

stated that she worked until September 2014, two months earlier. In addition, the complaint

alleged, and Velasquez stated in her April 2016 declaration, that she typically worked 60.5 hours

per week through October 2013 and 30.5 hours per week thereafter. But in her March 2017

declaration, Velasquez stated that she typically worked only 56 to 57 hours per week through

October 2013 and 30.5 hours per week thereafter. App. at 64-65.



                                                 5
       Most importantly, defendants admitted in their proposed findings of fact that Velasquez

worked “5 days per work week from 11am until 10pm” from “approximately October 2008 until

on or about October 2013,” App. at 68, conceding that she worked over 10 hours per day and

well over 40 hours per week for five years. Defendants proposed no facts about how much

Velasquez was paid, effectively admitting that her declaration was accurate on this point.

Defendants have thus conceded facts sufficient to establish at least some damages. Moreover,

these are minor inconsistencies, and the law recognizes that employees do not have perfect

memories, permitting “only approximate” damages awards when employers cannot produce

reliable records. Reich, 121 F.3d at 66-67. Furthermore, the declaration the magistrate judge

discredited indicates that Velasquez worked fewer hours per day than she stated earlier, and

plaintiffs do not tend to lie to deflate their damages, and whether Velasquez worked until

September or November 2014 is irrelevant because Velasquez admits she worked fewer than

forty hours per week and ten hours per day after October 2013.

       The magistrate judge was also troubled because the declaration states that Velasquez’s

“primary language” is Spanish, App. at 66, but there is no indication in the record that Velasquez

received a translation of her declaration. Thus, according to the magistrate judge, “it is not clear

. . . that Mariana Velasquez wrote or understood the declaration that she signed.” App. at 87.

While this may raise a question, any suspicion could have been easily confirmed or disproven at

a hearing or with further proceedings.

       The magistrate judge was also concerned that Velasquez twice described her position as a

“dishwasher/general assistant,” App. at 21, 64, but once did not explicitly include dishwasher in

the list of her responsibilities, instead stating that her work “consisted of bussing tables,

restocking merchandise, cleaning, packing orders for delivery, making occasional deliveries,



                                                   6
preparing food, and working as a cashier.” Dist. Ct. Dkt. No. 35 ¶5. We see no inconsistency

here, as “cleaning” reasonably encompasses washing dishes. And even if this were an

inconsistency, it would be both understandable and immaterial. The complaint also named the

plaintiff as “Marina Velasquez,” e.g., App. at 13, but the March 2017 declaration was from

“Mariana Velasquez,” App. at 66. We think this misspelling was trivial—after all, defendants did

not dispute that they employed Velasquez—and the district court should not have dismissed

Velasquez’s sworn statements on that basis.

       For the reasons set forth above, we AFFIRM the judgment as to Hernandez, VACATE

the judgment as to Velasquez, and REMAND the case for the district court to either calculate

and award damages or to give Velasquez an opportunity to address the inconsistencies that the

magistrate judge identified.

                                              FOR THE COURT:
                                              CATHERINE O’HAGAN WOLFE, CLERK




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