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Case 3:15-cv-01194-M Document 16 Filed 06/22/15

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION MOBARAK MOHAMMAD, Plaintiff, v. CAFE ISTANBUL, INC., NEW CAFE ISTANBUL INC & EROL GIRGIN, Defendants.

Civil Action No. 3:15-CV-1194-M JURY TRIAL DEMANDED

PLAINTIFF’S SECOND AMENDED COMPLAINT Plaintiff Mobarak Mohammad files this Second Amended Complaint, and in support shows the Court the following: I. 1.

SUMMARY

This is a lawsuit brought pursuant to the Fair Labor Standards Act, 29 U.S.C. §§

201, et seq. Plaintiff worked for Defendants as a cook at Cafe Istanbul Inc. and New Cafe Istanbul Inc’s (collectively, “Café Istanbul”) location on Lovers’ Lane in Dallas, Texas. Plaintiff routinely worked in excess of 40 hours per week, but was not paid proper minimum wage or overtime for any of the hours he worked in excess of 40. Defendants’ actions in failing to pay Plaintiff overtime and minimum wage in violation of the FLSA were “willful.” II.

PARTIES

Plaintiff Mobarak Mohammad is an individual residing in Dallas County, Texas.

Defendant Cafe Istanbul, Inc. is a Texas corporation that can be served with

process through its registered agent, Erol Girgin, 5450 W. Lovers Lane, Suite 222, Dallas, TX 75209. 3.

Defendant New Cafe Istanbul Istanul Inc is a Texas corporation that can be served

with process through its registered agent, Erol Girgin, 2833 Fondren, Dallas, TX 75205. PLAINTIFF’S SECOND AMENDED COM PLAINT

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On information and belief, Defendant Erol Girgin is the manager, president and/or

owner of Cafe Istanbul that ran and continues to run the significant day-to-day operations of Cafe Istanbul’s two locations during the relevant time period. Erol Girgin may be served at her place of business, 5450 West Lovers Lane, Suite 222, Dallas, TX 75209. III. 1.

JURISDICTION AND VENUE

This Court has jurisdiction over the claim because Plaintiff has asserted a claim

arising under federal law. 2.

Venue is proper in the Northern District of Texas because the events forming the

basis of the suit occurred in this District. IV. 1.

COVERAGE

At all material times, Defendants Cafe Istanbul and Erol Girgin (collectively,

“Defendants”) have acted, directly or indirectly, in the interest of an employer with respect to Plaintiff. 2.

At all times hereinafter mentioned, Defendants have been employers within the

meaning of the Section 3(d) of the FLSA, 29 U.S.C. § 203(d). 3.

At all times hereinafter mentioned, Defendant Café Istanbul has been an

enterprise within the meaning of Section 3(r) of the FLSA, 29 U.S.C. § 203(r). 4.

At all times hereinafter mentioned, Cafe Istanbul has been an enterprise engaged

in commerce or in the production of goods for commerce within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said enterprises have had employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person and in that said enterprise has had and has an annual gross volume of sales made or

PLAINTIFF’S SECOND AMENDED COM PLAINT

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business done of not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated). 5.

At all times hereinafter mentioned, Plaintiff was an individual employee engaged

in commerce or in the production of goods for commerce as required by 29 U.S.C. §§ 206-207. V. 1.

FACTUAL FLSA ALLEGATIONS

Defendants have run and continue to run two restaurants located in Dallas and

Plano, Texas. Cafe Istanbul earns over $500,000.00 per year in gross sales. 2.

Plaintiff Mobarak Mohammad (“Plaintiff”) has worked as a cook for Defendants

within the last two years. 3.

Defendants controlled all aspects of Plaintiff’s work. Defendants assigned

Plaintiff’s jobs and his schedule.

Defendants required Plaintiff to adhere to a schedule

Defendants assigned to him. Defendants also dictated the manner in which Plaintiff performed his job duties and how much Plaintiff was to be paid for performing his duties as a cook at Defendants. 4.

As a cook, Plaintiff’s primary duties included cooking food, baking bread,

stocking food and cleaning kitchen equipment. While a cook, Plaintiff handled food and kitchen equipment in interstate commerce. 5.

Plaintiff routinely worked over 40 hours per week. However, he was not properly

paid minimum wage or overtime for all hours he worked in excess of 40 hours every week in which her worked. Defendants knew that Plaintiff worked in excess of 40 hours per week and it allowed and directed him to do so. 6.

Plaintiff is entitled to minimum wage for all hours worked during each pay period

he worked for Defendant. He did not receive proper minimum wage for the hours he worked in excess of 40 per workweek. PLAINTIFF’S SECOND AMENDED COM PLAINT

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Plaintiff is entitled to receive minimum wage for each hour he worked for

Defendants. Defendants were aware of the FLSA’s minimum wage requirements and chose not to pay Plaintiff minimum wage during pay periods in which his realized hourly rate fell below minimum wage. Defendant instead paid Plaintiff an under-the-table amount in cash and checks for Plaintiff’s hours worked in excess of 40, which fell below the FLSA’s minimum wage and overtime requirements. 8.

Plaintiff is entitled to receive (1) minimum wage for all hours he worked; and (2)

overtime pay for all the hours worked in excess of 40 per workweek. Defendant was aware of the FLSA’s minimum wage and overtime requirements and chose not to pay Plaintiff’s overtime. Specifically, Defendants’ willfully violated the FLSA because Plaintiff confronted Erol Girgin about the under-the-table cash and check payments that fell below minimum wage or overtime for the hours he worked in excess of 40 hours week prior to his termination. Erol Girgin failed to remedy the overtime or minimum wage violations and instead fired Plaintiff for complaining about his unpaid minimum wage and overtime. VI.

FAIR LABOR STANDARDS ACT RETALIATION ALLEGATIONS

Plaintiff incorporates the above paragraphs as if stated fully herein.

Defendants hired Plaintiff on or about August 2, 2014 as a cook. Plaintiff worked

as a cook for Defendants from August 2, 2014 until Defendants’ wrongful termination on February 5, 2015. At all times during Plaintiffs employment with Defendants, Defendants were Plaintiff’s employer as defined under the FLSA. 3.

On or about February 5, 2015, Plaintiff complained to Defendants about their

failure to properly pay minimum wage or overtime hours for any of the hours he worked in excess of 40 hours within the relevant time period. Specifically, Plaintiff informed Defendants that their under-the-table cash and check payments did not meet the amount due under either the PLAINTIFF’S SECOND AMENDED COM PLAINT

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FLSA’s minimum wage or overtime requirements. Defendants swiftly fired Plaintiff within 24 hours of Plaintiff’s complaint. VII. CAUSE OF ACTION: FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FAIR LABOR STANDARDS ACT 1.

Plaintiff incorporates the above paragraphs as if stated fully herein. During the

relevant period, Defendants have violated and are violating the provisions of Sections 6 and 7 of the FLSA, 29 U.S.C. §§ 206-7, and 215(a)(2), by employing employees in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA as aforesaid, for workweeks longer than 40 hours without compensating such employees for their work in excess of forty hours per week at rates no less than one-and-a-half times the regular rates for which they were employed. Defendants have also failed to pay minimum wages in compliance with the Fair Labor Standards Act by failing to pay the minimum wage of $7.25 for all hours worked. Defendants have acted willfully in failing to pay Plaintiff in accordance with the law. VIII. CAUSE OF ACTION: FAIR LABOR STANDARDS ACT RETALIATION 1.

Plaintiff incorporates all of the above paragraphs as if fully stated herein. At all

relevant times Defendants were Plaintiff’s FLSA employers. Plaintiff’s complaints to Defendants regarding their failure to pay minimum wage and overtime were activities protected by the FLSA. Plaintiff’s termination was the direct and proximate result of his complaints to Defendants regarding FLSA violations, and constitutes retaliation in pursuit of Plaintiff’s rights in violation of 29 U.S.C. § 215(a)(3). Defendant’s wrongful and retaliatory termination of Plaintiff was willful and intentional. VIII. RELIEF SOUGHT

PLAINTIFF’S SECOND AMENDED COM PLAINT

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WHEREFORE, cause having been shown, Plaintiff prays for judgment against

Defendants jointly and severally as follows: A.

FLSA Remedies: Plaintiff requests judgment against Defendants for the following:

Unpaid back wages and equivalent amount of liquidated damaged;

Reasonable Costs and Attorney’s Fees;

Pre-judgment and post-judgment interest at the highest rates allowed by law; and

Such other and further relief as may be necessary and appropriate.

FLSA Retaliation Remedies: Plaintiff requests judgment against Defendants for the following: 1.

Monetary relief in an amount to be proven at trial;

Liquidated and punitive damages;

Reasonable Attorney’s fees and costs;

Prejudgment and postjudgment interest at the highest rates allowed by law; and

Such other and further relief as may be necessary and appropriate. Respectfully submitted, S IEGEL L AW G ROUP _/s/ Jack Siegel___________ JACK SIEGEL Texas Bar No. 24070621 Siegel Law Group PLLC 10440 N. Central Expy. Suite 1040 Dallas, Texas 75231 (214) 706-0834 phone (469) 339-0204 fax www.siegellawgroup.biz ATTORNEY FOR PLAINTIFF

PLAINTIFF’S SECOND AMENDED COM PLAINT

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CERTIFICATE OF SERVICE The undersigned hereby certifies that the foregoing document was filed electronically in compliance with Local Rule CV-5(a) and, to the extent necessary, sent by electronic mail. As such, this Opposition was timely served on Defendant’s counsel by electronic service. Date: June 17, 2015

/s/ Jack Siegel Jack Siegel CERTIFICATE OF CONFERENCE

Plaintiff’s Counsel conferred with Defense Counsel regarding this filing and Defense Counsel has provided written consent allowing Plaintiff to file this Amendment. Date: June 17, 2015

/s/ Jack Siegel Jack Siegel

PLAINTIFF’S SECOND AMENDED COM PLAINT

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