15‐3142‐cv

Chowdhury v. Hamza Express Food Corp. et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

1 

2 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.   

3 CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS

4 PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

5 PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.    WHEN CITING A

6 SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

7 MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC

8 DATABASE (WITH THE NOTATION “SUMMARY ORDER”).    A PARTY CITING

9 TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT

10 REPRESENTED BY COUNSEL.   

11 

12 At a stated term of the United States Court of Appeals for the Second Circuit, held

13 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New

York, on the 7 14 th day of December, two thousand sixteen.

15 

16 PRESENT: PIERRE N. LEVAL,

17 RAYMOND J. LOHIER, JR.,

18 Circuit Judges,

19 EDWARD R. KORMAN,

20      District Judge.*

21   ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

22 MUHAMMED CHOWDHURY,

23 

24 Plaintiff‐Appellant,

25 

26 v.      No. 15‐3142‐cv

27 

28 HAMZA EXPRESS FOOD CORP.,   

29 ALMONTAZER FADEL AKA AL,   

30 JOHN DOES 1–5,   

31 

32      Defendants‐Appellees.

33   ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 

34 

 

* Judge Edward R. Korman, of the United States District Court for the Eastern

District of New York, sitting by designation.
2 

1 FOR APPELLANT:     Michael S. Kimm (Adam Garcia, on

2 the brief), Kimm Law Firm,

3 Englewood Cliffs, NJ.    

4 

5 Appeal from a judgment of the United States District Court for the Eastern

6 District of New York (Jack B. Weinstein, Judge, Roanne L. Mann, Magistrate Judge).

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

8 ADJUDGED, AND DECREED that the judgment of the District Court is

9 AFFIRMED.   

10 Plaintiff‐appellant Muhammed Chowdhury appeals from a judgment of

11 the District Court (Weinstein, J.) adopting in toto the Report and

12 Recommendation of the Magistrate Judge (Mann, M.J.), which awarded

13 Chowdhury compensatory and liquidated damages, attorney’s fees, and costs for

14 defendants’ violations of the Fair Labor Standards Act of 1938 (the “FLSA”), 29

15 U.S.C. § 201 et seq., and the New York Labor Law (the “NYLL”), NYLL §§ 190 et

16 seq. & 650 et seq.    We assume the parties’ familiarity with the facts and record of

17 the prior proceedings, to which we refer only as necessary to explain our decision

18 to affirm.

19 Defendants defaulted before the District Court, did not meaningfully

20 participate in the Magistrate Judge’s evidentiary hearing on damages, and have
3 

1 not appeared before this Court.    The Magistrate Judge recommended that

2 Chowdhury receive an award of $21,498.75 in unpaid overtime wages, and the

3 same amount in liquidated damages.    The District Court adopted the

4 recommendation in full.    On appeal, Chowdhury raises various challenges to the

5 Magistrate Judge’s calculation of overtime wages, liquidated damages, and

6 attorney’s fees, as well as the Magistrate Judge’s denial of compensatory and

7 punitive damages for an allegedly retaliatory termination.

8 1. Liquidated Damages

9 Chowdhury sought two discrete liquidated damages awards: one under

10 the FLSA and one under the NYLL.    Noting a split among district courts as to

11 whether such “cumulative” or “stacked” liquidated damages awards are

12 available, the Magistrate Judge recommended denial of a cumulative award,

13 concluding that it would constitute a double recovery, and the District Court

14 adopted the Magistrate Judge’s recommended ruling.    We affirm as we conclude

15 that New York’s law does not call for an award of New York liquidated damages

16 over and above a like award of FLSA liquidated damages.

17 Under the FLSA, an employer who underpays an employee is liable “in the

18 amount” of those unpaid wages “and in an additional equal amount as liquidated
4 

1 damages.”    29 U.S.C. § 216(b).    Courts may reduce or withhold liquidated

2 damages “if the employer shows to the satisfaction of the court” that its behavior

3 giving rise to the FLSA violation “was in good faith” and that it had “reasonable

4 grounds” for believing it was not in violation of the FLSA.    Id. § 260.

5 Prior to 2009, by contrast, the liquidated damages provision of the NYLL

6 entitled employees to liquidated damages only in the amount of twenty‐five

7 percent of wages owed, and only if the employee proved that the employer’s

8 violation of the statute was “willful.”    The NYLL was amended in 2009 to make

9 liquidated damages mandatory unless the employer could prove its good faith,

10 and amended again in 2010 to increase the amount of liquidated damages from

11 twenty‐five percent to one‐hundred percent of the total wages due.    See Ryan v.

12 Kellogg Partners Institutional Servs., 19 N.Y.3d 1, 10 n.8 (2012).    As a result, the

13 NYLL now mirrors the FLSA:    It entitles employees to “liquidated damages

14 equal to one hundred percent of the total amount of the wages found to be due,”

15 unless the employer “proves a good faith basis to believe that its underpayment

16 of wages was in compliance with the law.”    NYLL § 198(1‐a); see also id. § 663(1).   

17 The legislative history of the 2009 amendment confirms the New York State

18 legislature’s intent to “conform” the NYLL’s liquidated damages provision to the
5 

1 FLSA’s provision.    See Bill Jacket, 2009 A.B. 6963, ch. 372, at 6 (expressing

2 sponsor’s intent to “conform New York law to the Fair Labor Standards Act”).

3 The NYLL is silent as to whether it provides for liquidated damages in

4 cases where liquidated damages are also awarded under the FLSA.    The question

5 before us is really whether, under those circumstances, the NYLL countenances

6 the recovery of treble damages (up to 200 percent in liquidated damages in

7 addition to any underlying wage liability).    Had the New York State legislature

8 intended to provide a cumulative liquidated damages award under the NYLL, we

9 think it would have done so explicitly in view of the fact that double recovery is

10 generally disfavored where another source of damages already remedies the

11 same injury for the same purpose.    Cf. Brooklyn Sav. Bank v. O’Neil, 324 U.S.

12 697, 715 (1945); Reilly v. Natwest Mkts. Grp. Inc., 181 F.3d 253, 265 (2d Cir. 1999).   

13 The legislative history reinforces our view.    The New York State

14 legislature has now twice amended its liquidated damages statute to conform as

15 closely as possible to the FLSA’s liquidated damages provision.    These

16 amendments suggest “an interest in aligning NYLL liquidated damages with the

17 FLSA and can be read as a practical recognition of the dual punitive and

18 compensatory effects of an award of liquidated damages under the statute.”   
6 

1 Xochimitl v. Pita Grill of Hell’s Kitchen, Inc., No. 14 CV 10234 (JGK) (JLC), 2016

2 WL 4704917, at *17 (S.D.N.Y. Sept. 8, 2016).    So whatever reasons existed to

3 award liquidated damages under the relevant provisions of both the FLSA and

4 the NYLL before 2010, we read the subsequent amendments to the NYLL

5 provision, which brought it into substantial conformity with the FLSA provision,

6 as having eliminated those reasons.    Today the NYLL and FLSA liquidated

7 damages provisions are identical in all material respects, serve the same

8 functions, and redress the same injuries.    In the absence of any indication

9 otherwise, we interpret the New York statute’s provision for liquidated damages

10 as satisfied by a similar award of liquidated damages under the federal statute.   

11 We therefore affirm the District Court’s adoption of the Magistrate Judge’s

12 liquidated damages award.

13 2. Other Damages

14 With respect to Chowdhury’s other challenges to the amount of damages

15 awarded, we affirm for substantially the reasons stated by the Magistrate Judge in

16 her thorough Report and Recommendation.   

17 3. Attorney’s Fees and Sanctions

18 Finally, we conclude that the District Court did not abuse its discretion in
7 

1 adopting the Magistrate Judge’s calculation of attorney’s fees or its denial of

2 Chowdhury’s motion for sanctions.    See Barfield v. N.Y.C. Health & Hosps.

3 Corp., 537 F.3d 132, 151 (2d Cir. 2008) (attorney’s fees); Perez v. Posse Comitatus,

4 373 F.3d 321, 325 (2d Cir. 2004) (sanctions).

5 4. Conclusion

6 We have considered Chowdhury’s remaining arguments and conclude

7 they are without merit.    For the foregoing reasons, we AFFIRM the judgment of

8 the District Court.

9 FOR THE COURT:   

10     Catherine O=Hagan Wolfe, Clerk