Case 1:16-cv-02194-PKC-RML Document 1 Filed 05/03/16 Page 1 of 18 PageID #: 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------X
DAVID S. JONES,
Case No.
Plaintiff,
16-cv-2194
COMPLAINT
-vJury Trial Demanded
TREVOR TAHIEM SMITH, Jr., (a/k/a Trevor
George Smith, Jr. & Busta Rhymes) &
STARBUS LLC,
Defendants.
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Plaintiff,
David
S.
Jones
(hereinafter
plaintiff),
by
his
undersigned attorneys, James Montgomery, Esq., PLLC, brings this
action against the defendants, Trevor Tahiem Smith, Jr., (a/k/a
Trevor George Smith, Jr. & Busta Rhymes) and Starbus LLC,
for the relief demanded in this complaint and states as follows:
INTRODUCTION
1.
Plaintiff alleges that pursuant to the Fair Labor Standards
Act, as amended, 29 U.S.C. 201, et seq. (FLSA), he is
entitled
to
recover
from
the
defendants:
(i)
unpaid
overtime pay for hours worked in excess of 40 in any given
payweek; (ii) liquidated damages equal to the overtime pay
Case 1:16-cv-02194-PKC-RML Document 1 Filed 05/03/16 Page 2 of 18 PageID #: 2
owed him; (iii) interest as allowed by law; (iv) reasonable
attorneys fees and costs.
2.
Plaintiff further alleges that pursuant to the New York
Labor Law (Labor Law) he is entitled to recover from the
defendants
unpaid
wages
plus
liquidated
damages
in
an
amount equal to his unpaid wages plus reasonable attorneys
fees and costs.
3.
Plaintiff further alleges pursuant to the New York City
Human Rights Law (NYCHRL),
8-107 and 8-102(5), he is
entitled to recover from the defendants: (i) damages for
age discrimination in employment; (ii) punitive damages for
age discrimination in employment; (iii) interest as allowed
by law; (iv) reasonable attorneys fees and costs.
4.
Plaintiff further alleges that pursuant to common law he is
entitled to damages and punitive damages from the defendant
Smith, for an assault committed on February 6, 2016.
5.
Plaintiff further alleges that pursuant to common law he is
entitled to damages and punitive damages from the defendant
Smith, for a battery on February 6, 2016.
JURISDICTION & VENUE
6.
This
Court
pursuant
to
has
28
jurisdiction
U.S.C.
over
1331
plaintiffs
and
has
FLSA
claim
supplemental
jurisdiction over plaintiffs NYCHRL, Labor Law and common
law claims pursuant to 28 U.S.C. 1367.
2
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7.
Venue
is
proper
in
the
Eastern
District
of
New
York
pursuant to 28 U.S.C. 1391(b)(2) because a substantial
part of the events or omissions giving rise to the claims
herein occurred in this judicial district.
PARTIES & FACTUAL ALLEGATIONS
8.
Plaintiff is a resident of Queens County, New York and
works as a chauffeur.
9.
Defendant Trevor Tahiem Smith, Jr., (Smith), better known
by his stage name Busta Rhymes, is a resident of Kings
County, New York.
10.
Smith is a hip-hop recording artist, actor, record producer
and record executive, who at all material times was engaged
in commerce within the United States.
11.
Defendant Starbus LLC (Starbus), is on information and
belief, a limited liability company formed and existing
under the laws of the State of California, with a
registered office address at 10960 Wilshire Boulevard (5th
Floor), Los Angeles, California 90024.
12.
Starbus, on information and belief, provides transportation
for Smith throughout the United States including within
this judicial district and was itself at all material times
engaged in commerce within the United States.
13.
Defendants intentionally violated the FLSA by failing to
pay plaintiff overtime pay as required in any payweek in
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which he worked more than 40 hours and as follows
hereunder.
14.
Plaintiff was employed by defendants, within the meaning of
29 U.S.C. 203(a) and 29 U.S.C.(e)(1) (FLSA), and
Regulations promulgated thereunder, 29 C.F.R. 791.2, and
was an employee within the meaning of the Labor Law and the
defendants are jointly and severally liable with one
another.
15.
Plaintiff was suffered or permitted to work for defendants,
as defined in 29 U.S.C. 203 (g), (FLSA).
16.
Plaintiff was employed as aforesaid as a domestic service
employee, specifically as the chauffeur of various
automobiles for Smith and members of his family, driving
Smith and family members to and from his home address
and/or various other locations as directed.
17.
Smith is an owner, officer, director and/or managing agent
of Starbus and participated in the day-to-day management
operations and direction of Starbus.
18.
Defendants acted intentionally and maliciously towards
plaintiff in not paying him overtime pay for hours worked
in excess of 40 in any given payweek and are jointly and
severally liable with one another to plaintiff for his
unpaid overtime, liquidated damages and other remedies as
claimed herein.
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19.
It was orally agreed during September and October 2014
between plaintiff and Smith as follows:
(i) that plaintiff would be employed 7 days a week by
defendants, chauffeuring Smith and other family members
from approximately 2 p.m. each day until approximately 5
a.m. the following day, or as required;
(ii) that plaintiff would be paid an annual salary of
$100,000 for chauffeuring as aforesaid;
(iii) that if plaintiff needed to work shorter hours on any
given day, he could designate an acceptable substitute
chauffeur to cover all or part of the shift in question.
20.
Plaintiff began his duties for defendants as chauffeur on
or about October 23, 2014, as an employee.
21.
On or about October 27, 2014, Smith told plaintiff that he
had to work on a 1099 because, in summary, Smith had no
intention of paying the various employers taxes which
would be required to pay plaintiff on a W2.
22.
Plaintiff, to avoid personal tax irregularities at a later
stage and in order to keep his employment with defendants,
arranged with Smiths accountants that he would be paid via
a corporation plaintiff controlled (plaintiffs
corporation) and would receive a tax form 1099 at the end
of each year.
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23.
Regardless of the arrangement adopted, the economic reality
of the relationship between plaintiff and defendants was
one of employee and employer, respectively.
24.
Plaintiff was employed by defendants as aforesaid until on
or about January 26, 2015, when plaintiff resigned because
Smith would not permit him to go home to his wife and
daughter in the face of a major impending snowstorm and a
New York City-wide traffic ban.
25.
Thereafter, at the request of Smith, Plaintiff resumed his
employment by defendants in the same position with the same
duties on or about May 12, 2015, until he was assaulted,
battered and dismissed by Smith on February 6, 2016.
26.
During his shifts plaintiff was given no designated breaks
and his working day lasted from either 2 p.m. or 2.30 p.m.
until 5 a.m. the following day.
27.
Further, plaintiff was on duty at all times during any
working day which accordingly was as long as 14.5 hours or
15 hours, depending on Smiths requirements.
28.
Plaintiff had no set day of rest and during many weeks
worked the full 7 days.
29.
Plaintiffs payweek ran from Monday to Sunday each week.
30.
On arrival at Smiths home address, plaintiff was required
to obtain the keys (from Smiths apartment building
concierge) for Smiths automobile of choice for that day.
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31.
Plaintiff would obtain the keys for any one of the
following automobiles owned or controlled by Smith: a GMC
Yukon truck-limousine, a Maybach limousine or a Ford
Excursion, and bring the vehicle from the apartment
building garage.
32.
Once plaintiff had obtained the automobile, plaintiff would
alert Smith by text message that he was ready to drive
Smith as ordered.
33.
Plaintiff would thereafter take Smith to different
addresses during the day, wait for Smith, take Smith on to
other locations, often nightclubs or other places of
entertainment and eventually take Smith home at about 5
a.m. the following morning, as aforesaid, or would drive
Smith until relieved by a substitute driver.
34.
In addition to driving the various automobiles, plaintiff
was required to keep them clean and periodically to take
them to mechanics when they needed maintenance or repair.
35.
Plaintiff had none of the duties of an executive,
administrative or professional employee in his employment
by defendants.
36.
Plaintiffs duties did not include office work and were
manual in nature, namely driving as Smiths chauffeur.
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37.
Further, regardless of the oral agreement made between
plaintiff and Smith, plaintiff was not in fact paid an
annual salary of $100,000.
38.
Plaintiff was employed by defendants for a total of not
less than 53 weeks and received under $100,000 in salary,
namely $85,753.43.
39.
Plaintiff did not provide any vehicle of his own in which
to drive Smith or members of his family.
40.
Defendants paid for gasoline, toll expenses and all routine
running expenses, cleaning and maintenance associated with
the above-mentioned automobiles.
41.
Plaintiff worked the days and hours as set forth in Ex. 1
attached hereto, made a part hereof by reference.
42.
Per FLSA, all hours worked in excess of 40 in any given
payweek are overtime hours, to be compensated at time and
one half, i.e. the plaintiffs usual hourly rate plus a
fifty percent increment.
43.
During the period plaintiff was employed by defendants,
plaintiff drove a total of 3,958.5 hours, as set forth on
Ex. 1 hereto.
44.
For these hours, plaintiff was actually paid a total of
$85,753.43, as aforesaid.
45.
From his own resources, plaintiff paid relief drivers a
total of $12,000 during his employment by the defendants.
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46.
Plaintiffs usual paycheck was for $4,109, twice per month.
47.
However, defendants failed to pay plaintiff his wages at
all for the second half of November 2014, the second half
of January 2016 and the first week of February 2016, for a
total of $10,272.50 in unpaid wages.
48.
Plaintiffs hourly rate can be expressed thus:
Money paid + money owed payments to relief drivers
Hours worked by plaintiff
49.
Numerically expressed, this is:
85,753.43 + 10,272.50 12,000 = $21.22 per hour.
3,958.5
50.
Accordingly, plaintiffs overtime rate was $21.22 x 1.5 =
$31.83 per hour.
51.
Accordingly, plaintiffs overtime increment was $10.61
per hour.
52.
Plaintiff received no overtime increment for any of the
hours he worked for defendants in excess of 40 in any given
payweek.
53.
Accordingly, plaintiff is entitled to overtime compensation
at the rate of $10.61 per hour for his unpaid overtime
hours as set out on Ex. 1., being 1,909.5 hours, amounting
to a total of $20,259.79, which is plaintiffs unpaid
overtime claim.
54.
None of these hours of overtime has been paid by defendants
and plaintiff makes demand for the same from them and for
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liquidated damages in a sum equal to his unpaid overtime
claim, a further $20,259.79, for a total of $40,519.59.
55.
As aforesaid, defendants willfully failed to pay plaintiff
any wages at all for regular hours worked during the
periods November 15 through November 30, 2015 inclusive,
January 16 through January 31, 2016 inclusive and from
February 1 to February 6, 2016 inclusive.
56.
Defendants owe plaintiff $10,272.50 in unpaid wages for
said periods, liquidated damages in an equal amount for a
total of $20,545, plus reasonable attorneys fees and
costs, all pursuant to the Labor Law.
57.
Further, plaintiff was subjected to intentional age
discrimination by defendants in violation of the NYCHRL as
follows hereunder.
58.
Plaintiff was born on January 28, 1959 and was therefore
over the age of 40 years at all material times.
59.
Smith was born May 20, 1972 and is therefore approximately
13 years younger than plaintiff.
60.
On information and belief, defendants had 4 or more
employees at the material time.
61.
From the outset of plaintiffs employment Smith made
derogatory remarks about the plaintiffs age.
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62.
Smith said: You drive like an old man or you driving
your age I can see that!, when Smith wanted plaintiff to
break the speed limit, or to jump red lights.
63.
If plaintiff could not recall a particular address or
location, Smith remarked: You cant remember? You just
took me there last week! or you cant remember? You act
like an old man!
64.
These remarks were repeated two to three times a week, were
intentionally hurtful, upset the plaintiff and injured his
feelings.
65.
On February 6, 2016, plaintiff reported for work at 2.30
p.m., as directed.
66.
At about 6 p.m. that day, Smith came down from his
apartment and angrily demanded to know why his chosen
automobile of the day (the GMC Yukon) had not been washed.
67.
As plaintiff tried to explain to Smith, he grew angrier
still and said this is going to cost you 3 or 4 days, wait
til you see your check!
68.
Plaintiff replied I work too hard for you to be taking
money from me.
Defendant Smith replied do what you have
to do, fuck that, you messed up my sons birthday!
Plaintiff answered how did I do that?
69.
Smith then immediately told plaintiff youre fired! Get
the fuck outta here! and shoved plaintiff hard with both
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palms placed on his chest, pushing plaintiff back into the
street a distance of 6-8 feet.
70.
Smith then immediately stared plaintiff in the eye and
clenched his fists, remarking this is where Im at with it
now!
71.
Defendant Smiths acts caused plaintiff reasonably to fear
bodily harm or offensive physical contact by Smith.
72.
Plaintiff did not react but instead walked towards the rear
of the GMC Yukon vehicle to retrieve his personal property,
having been dismissed.
73.
As plaintiff tried to do so, Smith shoulder-barged past him
and positioned himself between plaintiff and the vehicle,
shouting dont touch my truck! Get your old ass outta
here!
74.
Plaintiffs property was then retrieved from the vehicle by
a third party present at the scene and handed to him.
75.
Defendant Smiths assault and battery of plaintiff
humiliated the plaintiff and was harmful to him.
76.
On information and belief, Smith that same day hired one
Jonathan Skinner, an individual under the age of 40, to
replace plaintiff as his full-time chauffeur, Skinner
having been plaintiffs relief driver until that point.
77.
Defendants caused plaintiff to be dismissed from his
employment on account of his age and intentionally
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discriminated against plaintiff on grounds of age by doing
so.
AS A FIRST CAUSE OF ACTION UNPAID OVERTIME CLAIM
PER FLSA AGAINST DEFENDANTS
78.
Plaintiff repeats all the preceding paragraphs of this
complaint as if fully set forth below.
79.
Defendants employed plaintiff as a domestic service worker,
namely a chauffeur for Smith and his family, for the
periods stated as aforesaid.
80.
Plaintiff was entitled to be paid overtime at the rate of
one and a half times his hourly rate for all hours worked
in excess of 40 in any given payweek.
81.
Plaintiffs hourly rate was as aforesaid, $21.22 per hour.
82.
Plaintiffs overtime rate was $31.83 per hour, with an
overtime increment of $10.61 per hour.
83.
Plaintiff worked the overtime hours and regular hours as
set forth on Ex. 1 attached hereto, incorporated by
reference.
84.
Plaintiff is owed $20,259.79 in overtime pay for the
1,909.5 hours of overtime worked for defendants.
85.
In addition to the aforesaid overtime pay owed him by
defendants, plaintiff is statutorily entitled to an award
of liquidated damages in the same amount, namely
$20,259.79, for a total of $40,519.59.
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86.
Plaintiff is further statutorily entitled to an award of
costs, interest as allowed by law and reasonable attorneys
fees in this matter.
AS A SECOND CAUSE OF ACTION CLAIM FOR UNPAID WAGES
PER THE LABOR LAW AGAINST DEFENDANTS
87.
Plaintiff
repeats
all
the
preceding
paragraphs
of
this
complaint as if fully set forth below.
88.
Plaintiff was employed by defendants in the position, for
the dates and on the terms as aforesaid.
89.
Defendants failed to pay plaintiff his earned wages for the
following periods: November 15-30, 2015 inclusive; January
16-31, 2016 inclusive; February 1-6, 2016 inclusive.
90.
Plaintiff is owed a total of $10,272.50 in unpaid wages.
91.
In addition, plaintiff demands liquidated damages of the
defendants in an equal sum, namely $10,272.50 for a total
claim
of
$20,545,
plus
costs
and
reasonable
attorneys
fees.
AS A THIRD CAUSE OF ACTION DAMAGES FOR
AGE DISCRIMINATION PER NYCHRL AGAINST DEFENDANTS
92.
Plaintiff
repeats
all
the
preceding
paragraphs
of
this
about
the
complaint as if fully set forth below.
93.
Smith
repeatedly
made
derogatory
plaintiffs age as aforesaid.
14
remarks
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94.
These remarks were intentional and injured the feelings of
the plaintiff.
95.
At all material times plaintiff was employed by defendants
pursuant to NYCHRL 8-102(5).
96.
At all material times defendants had four or more
employees.
97.
Smith dismissed plaintiff on February 6, 2016 and in so
doing made further derogatory remarks about his age and
accompanied these acts with threats and acts of violence
towards plaintiff, as aforesaid.
98.
Once plaintiff was dismissed, Smith hired one Jonathan
Skinner, an individual under the age of forty years, to
replace the plaintiff in the same position.
99.
By reason of the matters complained of, plaintiff is
entitled to damages and punitive damages for age
discrimination against defendants, in the sum of not less
than $75,000 to be determined by a jury in due course.
100. Plaintiff is entitled to an award of costs and reasonable
attorneys fees in this matter.
AS A FOURTH CAUSE OF ACTION DAMAGES FOR
ASSAULT BY DEFENDANT SMITH
101. Plaintiff repeats all the preceding paragraphs of this
complaint as if fully set forth below.
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102. Defendant Smith, on or about February 6, 2016,
intentionally caused plaintiff to fear harmful or offensive
physical contact in that Smith pushed and barged plaintiff
as aforesaid and threatened him with physical violence.
103. Defendant Smiths acts caused plaintiff reasonably to
apprehend bodily harm or offensive physical contact.
104. Defendant Smiths actions towards plaintiff were
humiliating and harmed plaintiff.
105. Such acts were without plaintiffs consent.
106. By reason of the conduct complained of plaintiff demands
damages and punitive damages against defendant Smith for
assault, in the sum of not less than $50,000 to be
determined by a jury in due course.
AS A FIFTH CAUSE OF ACTION DAMAGES FOR
BATTERY BY DEFENDANT SMITH
107. Plaintiff repeats all the preceding paragraphs of this
complaint as if fully set forth below.
108. Defendant Smith, on or about February 6, 2016, twice
intentionally pushed and barged plaintiff, without
plaintiffs consent.
109. Such pushing and barging by defendant Smith caused an
offensive bodily contact to plaintiff.
110. Defendant Smiths actions towards plaintiff were
humiliating and harmed plaintiff.
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111. By reason of the conduct complained of plaintiff demands
damages and punitive damages against defendant Smith, in
the sum of not less than $50,000 to be determined by a jury
in due course.
DEMAND FOR JURY TRIAL
112. Plaintiff demands trial by jury on all claims made herein.
WHEREFORE, Plaintiff demands judgment against the
defendants as follows hereunder:
A: Under the First Cause of Action: against both
defendants, the sum of $20,259.79 in unpaid overtime, plus
an equal amount in liquidated damages, pursuant to the
FLSA, for a total of $40,519.59.
B: Under the Second Cause of Action: against both
defendants, the sum of $10,272.50 in unpaid wages, plus an
equal amount in liquidated damages, pursuant to the Labor
Law, for a total of $20,545.
C: Under the Third Cause of Action: against both
defendants, an award of damages and punitive damages for
age discrimination in employment, in a sum not less than
$75,000 to be determined by a jury and pursuant to the
NYCHRL.
D: Under the Fourth Cause of Action: against defendant
Smith, an award of damages and punitive damages for
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assault, in a sum not less than $50,000 to be determined by
a jury.
E: Under the Fifth Cause of Action: against defendant
Smith, an award of damages and punitive damages for
battery, in a sum not less than $50,000 to be determined by
a jury.
F: Further, plaintiff is entitled under all causes of
action to an award of costs and interest as allowed by law
and under the First and Second Causes of action, to an
award of reasonable attorneys fees.
JAMES MONTGOMERY, ESQ., PLLC
_________/S/________________
By: James Montgomery
Attorneys for Plaintiff
267 Fifth Avenue, Ste. SB-100
New York, NY 10016
Tel:212.889.9828/646.509.1852
[email protected]
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