Stevens v. HMSHost Corporation et al, No. 1:2010cv03571 - Document 201 (E.D.N.Y. 2015)
Court Description: MEMORANDUM & ORDER denying 194 Motion for Summary Judgment. The parties must contact the Court's Case Manager to schedule a final pretrial conference on a mutually agreeable date by no later than 8/19/2015. Ordered by Judge I. Leo Glasser on 8/5/2015. (Carey, Charles)
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Stevens v. HMSHost Corporation et al Doc. 201 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x EASTON STEVENS, Plaintiff, MEMORAN D U M & ORD ER - against 10 -CV-3571 (ILG) (VVP) HMSHOST CORPORATION, et al., Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: Plaintiff Easton Stevens brings this action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 20 1, et seq., against defendants HMSHost Corporation, Host International, Inc., and Host Services of New York. According to plaintiff, although he perform ed prim arily non-m anagerial work for defendants, they used his official job title as an assistant m anager as an excuse to avoid paying him overtim e. Defendants now m ove for sum m ary judgm ent, pursuant to Federal Rule of Civil Procedure 56, claim ing that plaintiff’s actual duties show as a m atter of law that he was exem pt from the FLSA’s overtim e pay requirem ents. For the following reasons, the m otion is DENIED. BACKGROU N D The following facts are undisputed except where otherwise noted. Defendants m anage and operate food and beverage concessions at num erous airports, highway travel facilities, and shopping m alls across the United States. Declaration of Colem an Lauterbach, Defs.’ Ex. A, Dkt. No. 197-1 (hereinafter “Lauterbach Decl.”) ¶ 4. Their locations include a wide variety of offerings, ranging from “grab and go” food outlets to fast food venues, casual sit-down restaurants, bars, wine bars, brew pubs, and fine dining establishm ents. Id. ¶ 6. Between 20 0 8 and 20 10 , plaintiff worked for 1 Dockets.Justia.com defendants as an Assistant Food & Beverage Manager I (“assistant m anager” or “ASM”) at four different concessions defendants m anaged in Term inal 3 of J ohn F. Kennedy International Airport (“J FK”). Deposition of Easton Stevens, Defs.’ Ex. C, Dkt. No. 1973 (hereinafter “Pl. Dep.”) at 51:13-16, 56:18– 57:10 .1 During that tim e period, he worked at least 50 hours every week and was not paid overtim e. See id. at 116:24– 117:9. The precise job duties that defendants assign their assistant m anagers vary greatly depending on factors such as the type or size of facility where the ASMs work, the experience of the junior associates in those facilities, the preferences of the location’s general m anager, and the ASMs’ own capabilities. See Lauterbach Decl. ¶¶ 24-26, 30 . An ASM I (such as plaintiff) is the lowest level of ASM, “and as such m ay not have the ability to solve the types of m anagerial problem s that can be addressed by a m ore experienced [ASM].” See id. ¶ 26. An ASM I typically “support[s] the m anager of a store with low sales volum e and routine operations,” and, in that capacity, “[a]ssigns work responsibilities, prepares schedules, . . . ensures all shifts are covered,” and “[r]esolves routine questions and problem s [while] refer[ring] m ore com plex issues to higher levels.” Pl. Dep., Ex. 19. While defendants crafted the job descriptions for ASMs to track the definitions of overtim e-exem pt em ployees listed in the im plem enting regulations of the FLSA, they were also aware that ASMs, in practice, undertook nonexem pt work at tim es. See Lauterbach Decl. ¶ 21; Deposition of Colem an Lauterbach, Defs.’ Ex. B, Dkt. No. 197-2 (hereinafter “Lauterbach Dep.”) at 59:13-17, 97:8-24. There were at least two other ASMs working with plaintiff at defendant’s concessions in the m ezzanine of Term inal 3 in J FK, along with an unknown num ber of 1 Defendants’ Local Civil Rule 56.1 statem ent of undisputed facts, Dkt. No. 196 (hereinafter “DSOF”), lists only three concessions where plaintiff worked as an ASM, but plaintiff testified that he worked at a fourth concession until it was replaced and also did m inim al work at that replacement concession to cover for another m anager if needed. Com pare DSOF ¶ 11 with Pl. Dep. at 97:21– 98:4, 156:23– 157:11. 2 hourly-wage em ployees. See id. at 65:8-19. Plaintiff was “certified” to work at Burger King restaurants, but was, in practice, required to divide his tim e between the Burger King and two other concessions in the m ezzanine for 70 to 75% of his ten-hour shift (which was initially eight hours long but expanded to ten shortly after he began working there). See id. at 65:4-7, 93:20 – 96:13, 10 1:14– 10 2:16. While defendants describe plaintiff’s responsibilities in m oving between the stores as providing “oversight” to junior em ployees, see DSOF ¶ 12, plaintiff testified that the work involved “m ak[ing] sandwiches, . . . do[ing] sodas[, or] be[ing] the second cashier if you only have one” in an attem pt to “get the custom ers in and out.” See Pl. Dep. at 10 2:2-11. For the rem aining 25 to 30 % of plaintiff’s shift, he was “receiving banks,2 just m aking sure the units are clean, talking to custom ers,” and otherwise m onitoring inventory or com pleting paperwork. See Pl. Dep. 10 3:11-14, 20 3:20 – 20 4:4. Plaintiff testified that, on at least one occasion, he unilaterally decided how best to distribute staff am ong the concessions depending on em ployee availability,3 but also claim ed that he was required to follow his superiors’ directives on m atters such as whether overtim e pay should be authorized. Com pare id. at 188:12– 189:5 with 195:22– 197:20 . While plaintiff had the authority to issue disciplinary warnings to junior em ployees, these warnings were, according to him , issued pursuant to requests from plaintiff’s superiors rather than on his own initiative. See id. at 227:10 – 231:4. Plaintiff 2 Although the parties do not define the term “bank” as plaintiff uses it, they indicate that it refers to “bank paperwork” that needed to be filled out for other em ployees. See DSOF ¶ 35. 3 Plaintiff’s attem pt to classify this decision as a “recom m endation” is not credible, even drawing all reasonable influences in his favor. Several other em ails between plaintiff and his superiors on the subject of staffing and/ or overtime do feature plaintiff apparently seeking guidance or approval of his proposed course of action, but this particular em ail does not: it states that plaintiff will close one store until lunch and distribute staff accordingly. Com pare Pl. Dep., Ex. 12 with Exs. 20 & 22. 3 had no authority to hire or fire subordinates and did not participate in their training. See id. at 217:22– 218:3, 245:21-24. Plaintiff’s m ovem ent between concessions was directed by his supervisors, who would “call and say [‘]I need you to be in that store.[’]” Id. at 10 3:3-5. When asked whether he “m ight have to jum p in” to do work such as m aking and serving food at a particular concession, plaintiff responded “[i]t’s not if. I have to. It’s part of the requirem ent, that your supervisor tells you that you have to be in the units working.” Id. at 114:8-17. While in any particular “unit,” plaintiff noted, he was “just [in] one place doing one thing.” Id. at 42:11-15. Plaintiff filed this action on August 2, 20 10 , purporting to proceed on behalf of him self and others sim ilarly situated. See Com pl. (Dkt. No. 1). An “opt-in” class of sim ilarly-situated individuals was conditionally certified by the Honorable Viktor V. Pohorelsky, U.S.M.J ., on J une 15, 20 12, in an Order that was upheld by this Court on appeal on October 10 , 20 12. See Dkt. Nos. 51 & 56. Following extensive discovery, the parties cross-m oved for either final certification or decertification of the class, as well as for sum m ary judgm ent on certain class-wide claim s, and this Court decertified the class on August 27, 20 14, rendering the sum m ary judgm ent m otions m oot. See Dkt. No. 174. The Second Circuit dism issed plaintiff’s interlocutory appeal of that decision pursuant to the collateral order doctrine for lack of jurisdiction on J anuary 26, 20 15, and this Court denied plaintiff’s m otion to certify the order for an interlocutory appeal taken pursuant to 28 U.S.C. § 1292(b) on March 4, 20 15. See Dkt. Nos. 190 & 194. Defendants filed this m otion on May 26, 20 15, plaintiff opposed it on J une 24, 20 15, and the Court heard oral argum ent on J uly 8, 20 15. See Dkt. Nos. 190 -20 1. LEGAL STAN D ARD 4 Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non[-]m oving party. . . . A fact is m aterial if it m ight affect the outcom e of the suit under the governing law.” Fincher v. Depository Tr. & Clearing Corp., 60 4 F.3d 712, 720 (2d Cir. 20 10 ) (internal quotation m arks and citation omitted). The party m oving for sum m ary judgm ent bears the burden of establishing the absence of any genuine issue of m aterial fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding the m otion, the Court m ust “construe the facts in the light m ost favorable to the non-m oving party and m ust resolve all am biguities and draw all reasonable inferences against the m ovant.” Brod v. Om ya, Inc., 653 F.3d 156, 164 (2d Cir. 20 11) (internal citation om itted). D ISCU SSION The FLSA requires employers to pay em ployees who engage in com m erce or are “em ployed in an enterprise engaged in com m erce or in the production of goods for com m erce” overtim e pay for any tim e they are required to work beyond a workweek of forty hours “at a rate not less than one and one-half tim es the regular rate at which [they are] em ployed.” 29 U.S.C. § 20 7(a)(1). Em ployees covered by the FLSA m ay sue em ployers who fail to provide overtim e pay to recover “the am ount of . . . their unpaid overtim e com pensation” along with liquidated dam ages, costs, and fees as the circum stances dictate. Id. § 216(b). Several categories of em ployees are exem pt from the FLSA’s overtim e pay requirem ents, however, including those who are em ployed “in a bona fide executive [or] adm inistrative” capacity. Id. § 213(a)(1). Defendants argue that plaintiff is both an executive and adm inistrative em ployee as those term s are 5 defined by the FLSA’s im plem enting regulations, and therefore cannot prevail on his overtim e claim s as a m atter of law. “The exem ption question under the FLSA is a m ixed question of law and fact. The question of how the em ployees spent their working tim e is a question of fact. The question of whether their particular activities excluded them from the overtim e benefits of the FLSA is a question of law.” Pippins v. KPMG, LLP, 759 F.3d 235, 239 (2d Cir. 20 14) (quoting Ram os v. Baldor Specialty Foods, Inc., 687 F.3d 554, 558 (2d Cir. 20 12)). The burden of proving an em ployee exem pt from the FLSA rests on the em ployer. E.g., Reiseck v. Universal Com m c’ns of Miam i, Inc., 591 F.3d 10 1, 10 4 (2d Cir. 20 10 ). Exem ptions are to be “narrowly construed against the em ployers seeking to assert them and their application lim ited to those establishm ents plainly and unm istakably within their term s and spirit.” Bilyou v. Dutchess Beer Distribs., Inc., 30 0 F.3d 217, 222 (2d Cir. 20 0 2) (quoting Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960 )). Using this fram ework to evaluate the evidence the parties have presented, the Court finds that issues of m aterial fact preclude granting sum m ary judgm ent to defendants. I. Exe cu tive Exe m p tio n A worker is em ployed in a “bona fide executive capacity” if he is (1) paid no less than $ 455 per week on a salary basis, (2) engaged in “m anagem ent” as his “prim ary duty,” (3) custom arily and regularly directing the work of two or m ore other em ployees, and (4) capable of hiring or firing other em ployees (or his suggestions on any “change of status of other em ployees” are given “particular weight”). 29 C.F.R. § 541.10 0 (a). While plaintiff concedes he satisfies the first factor of the executive exemption test, he denies that the other three factors apply to him . The Court discusses each in turn. A. Prim ary D u ty 6 In determ ining whether exem pt work is an em ployee’s prim ary duty, the FLSA’s im plem enting regulations urge consideration of such non-exclusive factors as (1) the relative importance of the exem pt duties as com pared with other types of duties, (2) the am ount of tim e spent perform ing exem pt work, (3) the em ployee’s relative freedom from direct supervision, and (4) the relationship between the em ployee’s salary and the wages paid to other em ployees for the kind of nonexem pt work perform ed by the em ployee. See Callari v. Blackm an Plum bing Supply, Inc., 988 F. Supp. 2d 261, 277 (E.D.N.Y. 20 14) (quoting 29 C.F.R. § 541.70 0 (a)). Consideration of these factors is a highly fact-intensive inquiry “to be m ade on a case-by-case basis in light of the totality of the circum stances,” and no one factor is dispositive. E.g., Martinez v. Hilton Hotels Corp., 930 F. Supp. 2d 50 8, 523 (S.D.N.Y. 20 13); J ohnson v. Big Lots Stores, Inc., 60 4 F. Supp. 2d 90 3, 90 8 (E.D. La. 20 0 9); see also 29 C.F.R. § 541.70 0 (c) (noting that assistant m anagers who closely supervise em ployees but nevertheless spend m ore than 50 % of their tim e perform ing nonexem pt tasks such as running the cash register m ay still have exem pt activities as their prim ary duties). Ordinarily, courts consider “a developed trial record” to determ ine an em ployee’s prim ary duty. Clougher v. Hom e Depot U.S.A., Inc., 696 F. Supp. 2d 285, 290 (E.D.N.Y. 20 10 ). Where, as here, however, defendants rely alm ost exclusively on “bits and pieces of [plaintiff’s] em ploym ent history [gleaned] from his deposition[,] . . . [t]he m aterial disputes of fact resulting from the undeveloped sum m ary judgm ent record becom e m anifest in even the m ost cursory prim ary duty analysis.” See id. at 290 -91 (internal quotation m arks om itted). 1. Tim e Sp e n t Pe rfo rm in g N o n e xe m p t W o rk 7 Defendants describe the non-m anagerial work plaintiff claim ed he perform ed for 70 to 75% of his shifts (such as m aking sandwiches or m anning cash registers) as “m onitor[ing] operations,” but this gloss on his testim ony is sim ply not plausible. Com pare Defs.’ Mem . (Dkt. No. 195) at 14 with Pl. Dep. at 10 2:2-11. Although defendants attem pt to salvage this interpretation by claim ing plaintiff was sim ultaneously providing oversight to his subordinates while perform ing nonexem pt work, plaintiff’s testim ony is that he was “just [in] one place doing one thing,” not m ultitasking. See Pl. Dep. at 42:11-15. Finally, while defendants argue that plaintiff was perform ing nonexem pt work voluntarily out of a sense of obligation, plaintiff claim s that he was sim ply following his superiors’ instructions. See id. at 10 3:3-5, 114:8-17 (“your supervisor tells you, you have to be in the units working”).4 Left with these obvious disputes of fact, the Court cannot determ ine what am ount of tim e plaintiff regularly spent perform ing nonexem pt work, rendering sum m ary judgm ent inappropriate. 2. Re lative Im p o rtan ce o f Exe m p t D u tie s Even if the Court were to find the lion’s share of plaintiff’s work to be nonexem pt, defendants argue, his lim ited m anagerial activities, such as com pleting bank paperwork or assigning staff to various concessions, were so vital that “the stores sim ply could not run at all” without him , which warrants exem pting him from overtim e pay. See Defs.’ Mem . at 14. Plaintiff, however, claim s that such activities were “rare or perform ed in strict accordance with nondiscretionary corporate policy or at his supervisor’s behest.” See Clougher, 696 F. Supp. 2d at 291. Som e of the activities plaintiff described in his deposition, such as his unilateral decision to keep a concession closed for breakfast 4 Indeed, a reasonable observer m ight find the fact that plaintiff was disciplined for watching the World Cup on television instead of addressing a long line at the Burger King where “only two associates [were] working” as supportive of plaintiff’s claim that he was regularly expected and required to perform nonexem pt work. See Pl. Dep. at 240 :13-22, Ex. 45. 8 when not enough staff arrived on a given m orning, m ay indicate that he was “solely in charge of [his] restaurants and [was] the ‘boss’ in title and fact.” See Donovan v. Burger King Corp., 675 F.2d 516, 522 (2d Cir. 1982). On other occasions, however, he clearly stated that he was not em powered to m ake m anagerial decisions but m erely functioned as a conduit for the directives of his supervisors. See, e.g., Pl. Dep. at 195:22– 197:20 (allowing hourly associates to work overtim e), 199:3-20 (firing hourly associates). Since it is far from clear whether plaintiff’s m anagerial obligations were truly im portant enough to his workplace to classify them as his prim ary duties, sum m ary judgm ent m ust be denied. 3. Fre e d o m fro m D ire ct Su p e rvis io n As discussed above, since there is a m aterial dispute over the extent to which plaintiff operated independently of his supervisors’ directives, the Court cannot state as a m atter of law that plaintiff m ade or participated in “decisions of the kind and quality norm ally m ade by persons form ulating policy within [his] spheres of responsibility,” further clouding the disputed issue of plaintiff’s prim ary duty. See Clougher, 696 F. Supp. 2d at 291; Pl. Dep. at 247:13-14 (testifying that, rather than being em powered to m ake decisions, “you have to ask. Always”). 4. Plain tiff’s Salary in Co m p aris o n to N o n e xe m p t Em p lo ye e s ’ W age s Defendants’ representative testified that, in general, it is less expensive for them to have hourly associates perform nonexem pt work exclusively (and pay them for any overtim e they incur) than it would be to have salaried m anagers perform hourly associate work. See Lauterbach Dep. at 57:6-13. Plaintiffs correctly point out, however, that defendants have failed to disclose the specifics of their operations at J FK, such as the wages hourly associates are paid at the airport or the am ount of tim e, in practice, an 9 ASM m ight be required to work beyond his or her typical shift. See Pl.’s Mem . (Dkt. No. 198) at 16. For exam ple, although plaintiff testified that he worked a ten-hour shift, he also noted that he “would never leave work [at] 2 o’clock” when his 4 a.m . to 2 p.m . shift was scheduled to end. See Pl. Dep. at 119:5. Since there is no way to determ ine from the record presently before the Court whether plaintiff’s salary was com parable to the hourly wages of nonexem pt em ployees, or the extent to which those nonexem pt em ployees’ duties overlapped with plaintiff’s, “factual questions predom inate and sum m ary judgm ent is denied.” Clougher, 696 F. Supp. 2d at 294. B. Cu s to m arily an d Re gu larly D ire ctin g th e W o rk o f Tw o o r Mo re Em p lo ye e s Unlike the question of plaintiff’s prim ary duty, there is no genuine m aterial dispute between the parties that plaintiff custom arily and regularly directed the work of two or m ore em ployees. Under the FLSA’s im plem enting regulations, “‘custom arily and regularly’ m eans a frequency that m ust be greater than occasional but which, of course, m ay be less than constant.” 29 C.F.R. § 541.70 1. Plaintiff’s em ails to his superiors dem onstrate that he was responsible for assigning (or im plem enting his supervisor’s assignm ent of) two or m ore hourly associates to various concessions on a greater-thanoccasional basis. See, e.g., Pl. Dep. at 188:12– 189:5, 20 8:7– 20 9:18 (im plying that “three people for three units” was a typical short-staffing situation). Since all four factors listed in 29 C.F.R. § 541.10 0 (a) m ust be satisfied for defendants to prevail on their executive exem ption defense, however, the lack of a m aterial dispute over this issue does not warrant dism issal of plaintiff’s suit. C. In p u t in to H irin g & Firin g 10 Defendants’ perfunctory claim s that the disciplinary notices plaintiff wrote were “assigned significant value” by his superiors when firing junior em ployees (Defs.’ Mem . at 20 ) are contradicted by plaintiff’s own assertions that he m erely com plied with his supervisors’ directives in writing such notices and did not m ake recom m endations concerning hiring or firing. See, e.g., Pl. Dep. at 217:22– 218:3, 227:10 – 231:4. On this lim ited record, the Court cannot determ ine, as a m atter of law, what role plaintiff played in the “change of status of other em ployees,” and sum m ary judgm ent is therefore inappropriate. See 29 C.F.R. § 541.10 0 (a)(4). II. Ad m in is trative Exe m p tio n A worker is em ployed in a bona fide adm inistrative capacity if he (1) is paid no less than $ 455 per week on a salary basis, (2) perform s office or non-m anual work directly related to the m anagem ent or general business operations of the em ployer or the em ployer’s custom ers as his prim ary duty, and (3) exercises discretion and independent judgm ent with respect to m atters of significance as part of that prim ary duty. 29 C.F.R. § 541.20 0 (a). J ust as with the executive exem ption, there are genuine m aterial disputes between the parties as to the contours of plaintiff’s prim ary duty that warrant denial of sum m ary judgm ent as to defendants’ adm inistrative exem ption defense. Defendants argue that plaintiff’s activities such as the docum entation of workplace injuries, processing of em ployee discipline, and m onitoring of daily staffing all involved the exercise of independent judgm ent over significant m atters. See Defs.’ Mem . at 23. Plaintiff argues in turn that these tasks were not plaintiff’s prim ary duty, or, even if they were, am ounted to little m ore than “recording or tabulating data,” which the FLSA’s im plem enting regulations do not regard as the exercise of discretion or independent 11 judgm ent. See Pl.’s Mem . at 20 -21 (quoting 29 C.F.R. § 541.20 2(e)). With plaintiff’s conflicting ipse dixit effectively constituting the entirety of the record evidence on his prim ary duties, the Court cannot conclude as a m atter of law that he is exem pt from the FLSA’s overtim e pay requirem ents, and sum m ary judgm ent m ust be denied. CON CLU SION For the foregoing reasons, defendants’ m otion for sum m ary judgm ent is DENIED. The parties m ust contact the Court’s Case Manager to schedule a final pretrial conference on a m utually agreeable date by no later than August 19, 20 15. SO ORDERED. Dated: Brooklyn, New York August 5, 20 15 / s/ I. Leo Glasser Senior United States District J udge 12
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