Wilk v. VIP Health Care Services, Inc. et al, No. 1:2010cv05530 - Document 42 (E.D.N.Y. 2012)
Court Description: ORDER denying 23 Motion to Dismiss. For all of the foregoing reasons, the VIP defendants' partial motion to dismiss the amended complaint is DENIED in its entirety. Ordered by Senior Judge I. Leo Glasser on 2/21/2012.
Download PDF
<![CDATA[
Wilk v. VIP Health Care Services, Inc. et al UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x BOZENA WILK, Plaintiff, Doc. 42 MEMORANDUM AND ORDER 10 Civ. 5530 (ILG) (J MA) - against VIP HEALTH CARE SERVICES, INC., et al., Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: On February 18, 20 11, plaintiff Bozena Wilk (“Wilk”), on behalf of herself and others sim ilarly situated, filed an am ended com plaint against defendants VIP Health Services, Inc. (“VIP”), Shlom o Appel (“Appel”), one of VIP’s owners and m anagers, several J ane Doe em ployees at VIP (together, the “VIP defendants”), the City of New York, the New York City Hum an Resources Adm inistration (the “HRA”), and Robert Doar, the Com m issioner of the HRA (together, the “Municipal defendants”). VIP is a hom e health care services provider that em ployed Wilk as a hom e care attendant from Novem ber 20 0 4 to approxim ately March 20 10 . During that tim e, VIP was under contract with the Municipal defendants to em ploy hom e care attendants such as Wilk in private households in exchange for Medicaid and Medicare funding it received from the HRA. The crux of Wilk’s claim s is that she was not com pensated properly for the hours she worked while em ployed by VIP. She alleges violations of (1) the Fair Labor Standards Act, 29 U.S.C. §§ 20 6, 20 7 (the “FLSA”) and the wage orders prom ulgated thereunder by all defendants; (2) the New York Labor Law, Art. 6 § 190 et seq., Art. 19 § 650 et seq. (the “NYLL”) and the wage orders prom ulgated thereunder by the VIP defendants; and (3) her civil rights under 42 U.S.C. § 1983 by the Municipal Dockets.Justia.com defendants. She also alleges claim s of breach of contract against VIP; and quantum m eruit against the VIP defendants. The VIP defendants now m ove the Court pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dism iss all of the claim s against defendant Appel, along with the breach of contract and quantum m eruit claim s against the rem aining VIP defendants. For the reasons set forth below, the VIP defendants’ m otion is DENIED in its entirety. I. BACKGROU N D The following facts are taken from the am ended com plaint filed February 18, 20 11 and are accepted as true for the purposes of this m otion. VIP, a not-for-profit corporation with its principal place of business in New York, provides, am ong other things, nursing, therapy, and hom e health care services to individuals in New York. Am ended Com plaint dated Feb. 18, 20 11 (“Am . Com pl.”) ¶¶ 9, 22 (Dkt. No. 21). Pursuant to periodic contracts with the Municipal defendants, VIP provides its services to, am ong others, residents of Queens who receive governm ent assistance. Am . Com pl. ¶ 44. These services are funded by Medicare and Medicaid m onies that are disbursed to VIP by the HRA and the New York State Departm ent of Health on behalf of the individuals receiving the services. Am . Com pl. ¶ 44. Appel is one of VIP’s owners and m anagers, and he has operational control over the com pany. Am . Com pl. ¶¶ 5, 31. VIP em ployed Wilk as a hom e care attendant, a job in which she was responsible for, am ong other things, feeding, bathing, and cleaning patients, along with household chores such as cleaning the patients’ bathroom s and kitchens. Am . Com pl. ¶¶ 40 , 58, 88. Wilk’s perform ance of these household chores regularly encom passed m ore than 2 20 % of her workweek. Am . Com pl. ¶ 57. Wilk’s em ploym ent with VIP began in Novem ber 20 0 4 after she entered into an oral agreem ent with VIP to perform services as a hom e care attendant in exchange for an hourly wage of $ 10 up to 40 hours worked and $ 15 for each hour she worked in excess of 40 hours. Am . Com pl. ¶¶ 21, 42, 78. She continued her em ploym ent with VIP until approxim ately March 20 10 . Am . Com pl. ¶ 21. Wilk regularly worked m ore than 40 hours a week and som etim es worked as m any as 10 0 hours a week. Am . Com pl. ¶¶ 55, 81. She also frequently worked 24 hour shifts; the first 12 hours of the shift were referred to as “day hours,” while the second were referred to as “night hours.” Am . Com pl. ¶¶ 60 -61. During theses 24 hour shifts, defendants paid Wilk a different hourly rate for the day hours and the night hours: $ 10 per hour for the day hours and a flat sum of between $ 15 and $ 20 for the night hours. Am . Com pl. ¶¶ 61, 78.1 Moreover, defendants did not pay Wilk an hourly rate of $ 15 for the hours she worked in excess of 40 per week. Am . Com pl. ¶ 42, 55-56, 83. Wilk initiated this action on Novem ber 30 , 20 10 seeking com pensatory dam ages, liquidated dam ages under the NYLL and FLSA, interest, and attorney’s fees. On 1 The am ended com plaint is internally inconsistent with respect to whether Wilk was paid a flat sum for the night hours or an hourly rate. Com pare Am . Com pl. ¶ 61 (“For the 12 ‘night hours’ they worked Plaintiff and others sim ilarly situated were paid between $ 15 and $ 20 an hour for the entire 12 hours.” (em phasis added)), with Am . Com pl. ¶ 83 (“VIP only paid them approxim ately $ 16 for what it deem ed nighttim e hours, which were com prised of 12 hours each day when patient was purportedly sleeping.”). It is clear from Wilk’s subm issions, however, that the inclusion of “an hour” in paragraph 61 of the am ended com plaint is a typographical error. See Mem orandum of Law in Opposition to VIP Defendants’ Motion to Dism iss dated J uly 22, 20 11 (“Pl.’s Opp’n”) at 3 (Dkt. No. 34) (“Despite the fact that [Wilk] regularly perform ed work at night, she only received $ 16 for her entire 12 hours of night tim e work.” (citing Am . Com pl. ¶ 61)). 3 J anuary 18, 20 11, the VIP defendants filed a partial m otion to dism iss the com plaint but on February 18, 20 11, Wilk filed an am ended com plaint, thus rendering the m otion to dism iss m oot. The VIP defendants on March 4, 20 11 renewed their m otion to dism iss, Mem orandum of Law in Support of Motion to Dism iss dated Mar. 4, 20 11 (“Defs.’ Mem .”) (Dkt. No. 24) and, after the parties were unable to consum m ate a settlem ent, Wilk on J uly 22, 20 11 filed her opposition subm issions. The VIP defendants did not file a reply. II. D ISCU SSION A. Le gal Stan d ard Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a com plaint to include “a short and plain statem ent of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To survive a m otion to dism iss pursuant to Rule 12(b)(6), Wilk’s pleading m ust contain “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1940 , 173 L. Ed. 2d 868 (20 0 9) (quoting Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 , 127 S. Ct. 1955, 167 L. Ed. 2d 929 (20 0 7). A claim has facial plausibility “when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Iqbal, 129 S. Ct. at 1949. Although detailed factual allegations are not necessary, the pleading m ust include m ore than an “unadorned, the-defendant-unlawfully-harm ed-m e accusation;” m ere legal conclusions, “a form ulaic recitation of the elem ents of a cause of action,” or “naked assertions” by the plaintiff will not suffice. Id. at 1949 (alteration in original) (internal quotations, citations, and alterations om itted). This plausibility standard “is not akin to 4 a ‘probability requirem ent,’ but it asks for m ore than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twom bly, 550 U.S. at 556). Determ ining whether a com plaint states a plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its judicial experience and com m on sense. But where the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)). Thus, on a m otion to dism iss for failure to state a claim , “‘[t]he issue is not whether a plaintiff will ultim ately prevail but whether the claim ant is entitled to offer evidence to support the claim s.’” York v. Ass’n of the Bar of City of N.Y., 286 F.3d 122, 125 (2d Cir. 20 0 2) (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)). The VIP defendants m aintain Wilk is not so entitled because she has failed to sufficiently allege her (1) breach of contract claim s and quantum m eruit claim s against them for recovery of allegedly unpaid wages; and (2) FLSA and NYLL claim s against Appel in his individual capacity. Defs.’ Mem . at 4-10 . The Court turns to these contentions below. B. Bre ach o f Co n tract To m ake out a breach of contract claim against a defendant under New York law a plaintiff m ust show: “(1) the existence of a contract between itself and [the] defendant; (2) perform ance of the plaintiff’s obligations under the contract; (3) breach of the contract by [the] defendant; and (4) dam ages to the plaintiff caused by [the] defendant’s breach.” Diesel Props S.r.l. v. Greystone Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 5 20 11) (citations om itted).2 “While these elem ents need not be separately pleaded, failure to allege them will result in dism issal.” J am es v. Countrywide Fin. Corp., No. 10 Civ. 4953 (DRH) (WDW), 20 12 WL 359922, at *22 (E.D.N.Y. Feb. 22, 20 12) (citation and internal quotation m arks om itted). Prim arily at issue here is the first elem ent. The existence of a contract requires an offer, acceptance, consideration, m utual assent and intent to be bound. Register.com , Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d Cir. 20 0 4) (citations om itted) (applying New York law). Further, “‘[i]n order to adequately allege the existence of an agreem ent, a plaintiff m ust plead the provisions of the contract upon which the claim is based. A plaintiff need not attach a copy of the contract to the com plaint or quote the contractual provisions verbatim ,” but the plaintiff “m ust at least set forth the term s of the agreement upon which liability is predicated by express reference.’” J am es, 20 12 WL 359922, at *22 (quoting Howell v. Am . Airlines, Inc., No. 0 5 Civ. 3628 (SLT), 20 0 6 WL 3681144, at *3 (E.D.N.Y. Dec. 11, 20 0 6)); see also McGee v. State Farm Mut. Auto. Ins. Co., No. 0 9 Civ. 3579 (ILG) (RLM), 20 11 WL 540 9393, at *8 (E.D.N.Y. Nov. 8, 20 11) (“‘In pleading [the] elem ents [of a breach of contract claim ], a plaintiff m ust identify what provisions of the contract were breached as a result of the acts at issue,’” (quoting CreditSights, Inc. v. Ciasullo, No. 0 5 Civ. 9345 (DAB), 20 0 8 WL 4185737, at *10 (S.D.N.Y. Sept. 5, 20 0 8))). Defendants m aintain that Wilk has failed to allege such term s here. Defs.’ Mem . at 5-6. The Court disagrees. While it is true that Wilk failed to identify such term s in her previously filed com plaint—which the VIP defendants m oved to dism iss on identical grounds—her 2 The parties do not dispute that New York law applies. 6 am ended com plaint rectifies this deficiency an d identifies the specific contractual term s VIP allegedly breached: that she would be paid an hourly wage of $ 10 up to 40 hours worked and $ 15 for each hour she worked in excess of 40 hours. Am . Com pl. ¶¶ 42, 78. Indeed, Wilk has alleged facts sufficient to show the existence of a contract between her and VIP, her perform ance under the contract, the contract’s breach, and that she suffered dam ages as a result of the breach. She alleges that she “entered into an oral agreem ent to perform work and services as [a] healthcare attendant[] for VIP,” Am . Com pl. ¶ 77, in exchange for com pensation of a wage of “$ 10 an hour for each hour she worked and overtim e pay for each hour worked in excess of 40 ” hours, Am . Com pl. ¶ 78. Wilk further alleges that the parties also agreed that the overtim e rate for all hours in excess of 40 was to be 150 % of her norm al wage. Am . Com pl. ¶ 42. These allegations sufficiently show that the alleged agreem ent was supported by consideration. See, e.g., Ferguson v. Lion Holdings, Inc., 312 F. Supp. 2d 484, 494 (S.D.N.Y. 20 0 4) (consideration m eans “a bargained-for exchange of prom ises or perform ance” (citing Restatem ent (Second) of Contracts § 71 (1981))). Wilk’s allegation that she “work[ed] as [a] hom e attendant[], often for as m uch [sic] as 10 0 hours a week,” Am . Com pl. ¶ 81, show her perform ance under the contract. And her allegations that VIP failed to pay her according to the agreed upon hourly rates shows VIP’s breach. Am . Com pl. ¶ 83. Finally, Wilk alleges that as a result of VIP’s failure to pay her for her services—its breach—she suffered dam ages. Am . Com pl. ¶ 85. VIP contends that these “barebones allegations . . . lack precision” as they contain no detail with respect to “when the alleged agreem ent was entered into, what VIP representative entered into the alleged agreem en t on behalf of VIP, the specific term s of 7 the alleged agreem ent . . . and on what days, or how m any days, Plaintiff worked and did not receive proper com pensation for her services.” Defs.’ Mem . at 5-6.3 Yet whether Wilk’s allegations “lack precision” and contain such details is irrelevant; in order to state a claim , Wilk’s pleading need only contain “a short and plain statem ent of the claim showing that [she] is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Wilk’s factual allegations are sparse to be sure, but Rule 8 “does not require detailed factual allegations,” Iqbal, 129 S. Ct. at 1949 (citation and internal quotation m arks om itted), and courts considering argum ents sim ilar to those defendants raise here under analogous circum stances have rejected them . See Meadows v. Planet Aid, Inc., 676 F. Supp. 2d 83, 95 (E.D.N.Y. 20 0 9) (denying 12(b)(6) m otion and rejecting argum ent that failure of pro se plaintiff, a form er em ployee of defendant asserting FLSA and breach of contract claim s, to allege “the hours worked or the work perform ed” requires dism issal, reasoning that Rule 8(a) “does not require this level of specificity at the pleading stage, 3 VIP also states that Wilk’s claim is “baseless and duplicative,” presum ably contending that Wilk’s breach of contract claim is duplicative of her FLSA claim . Defs.’ Mem . at 6. Although whether com m on law claim s for overtim e pay are preem pted by the FLSA is an open question that the Second Circuit has not addressed, see, e.g., Chen v. Street Beat Sportswear, Inc., 364 F. Supp. 2d 269, 293 (E.D.N.Y. 20 0 5) (“[T]he law is unsettled as to whether the FLSA preem pts state com m on law claim s.”), it is clear that the FLSA does not preem pt com m on law claim s for “straight tim e,” i.e., non-overtim e hours, for which a plaintiff was paid at least m inim um wage. See, e.g., DeSilva v. N. Shore-Long Island J ewish Health Sys., Inc., 770 F .Supp. 2d 497, 50 8 & n.4 (E.D.N.Y. 20 11). Here, since it is not clear from Wilk’s com plaint whether her breach of contract claim seeks both straight tim e and overtim e or just overtim e, the Court will not dism iss Wilk’s breach of contract claim on preem ption grounds at this tim e. “Discovery will reveal whether this claim seeks overtim e com pensation and whether it is duplicative of [p]laintiff’s FLSA claim for overtim e com pensation.” Chaluisan v. Sim sm etal E. LLC, 698 F. Supp. 2d 397, 40 8 (S.D.N.Y. 20 10 ) (m otion to dism iss unjust enrichm ent as preem pted by the FLSA denied where it was unclear from com plaint whether plaintiff sought only overtim e com pensation). 8 especially not for pro se plaintiffs”); Kaplan v. Aspen Knolls Corp., 290 F. Supp. 2d 335, 338 (E.D.N.Y. 20 0 3) (denying 12(b)(6) m otion, rejecting defendant’s argum ent that plaintiff’s breach of contract claim should be dism issed because plaintiff failed to allege, am ong other things, when and by whom plaintiff’s com pensation contract was executed, and reasoning that “these argum ents do not warrant dism issal, as it is not necessary for each detail of a contract to be pleaded individually”).4 Wilk has sufficiently alleged a breach of contract claim against the VIP defendants, and their m otion to dism iss this claim is therefore denied. C. Qu an tu m Me ru it Claim s To state a claim for recovery in quantum m eruit Wilk m ust sufficiently allege “(1) the perform ance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of com pensation therefor, and (4) the reasonable value of the services.” Mid-Hudson Catskill Rural Migrant Ministry, Inc. v. Fine Host Corp., 418 F.3d 168, 175 (2d Cir. 20 0 5) (applying New York law) (internal quotation m arks om itted).5 4 Kaplan was decided before Twom bly and Iqbal and included the pleading standard established in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 10 2, 2 L. Ed. 2d 80 (1957), that required denying a Rule 12(b)(6) m otion to dism iss “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” and which the Suprem e Court subsequently retired in Twom bly. See Twom bly, 550 U.S. at 563 (stating that Conley’s “no set of facts” language “has earned its retirem ent. The phrase is best forgotten as an incom plete, negative gloss on an accepted pleading standard”). The ruling in Kaplan did not, however, turn on this pleading standard and the factual allegations there, as here, were m ore than sufficient to state a plausible claim for breach of contract. 5 Under New York law, claim s of quantum m eruit and unjust enrichm ent constitute a single cause of action. See Catskill, 418 F.3d at 175. 9 The VIP defendants m ove to dism iss Wilk’s quantum m eruit claim s against them on grounds sim ilar to those they raised with respect to Wilk’s breach of contract claim s. They argue: (1) Wilk has adequate rem edies at law for the alleged harm she suffered— her FLSA and NYLL claim s—and her quantum m eruit claim is thus duplicative of those claim s; and (2) Wilk’s com plaint does not sufficiently state a claim for quantum m eruit because it does not contain factual details regarding how often she perform ed her hom e attendant services, or where or for whom she perform ed them . Defs.’ Mem . at 7-8. The VIP defendants also m aintain that Wilk’s quantum m eruit claim is precluded in light of Wilk’s allegations concerning the existence of an agreem ent between her and VIP. Defs.’ Mem . at 7 n.4. The Court finds these contentions unpersuasive. With respect to the VIP defendants’ last contention, while it is true that a claim for quantum m eruit or unjust enrichm ent is precluded when a valid contract governing the sam e subject m atter exists between the parties, see, e.g., Catskill, 418 F.3d at 175, a quantum m eruit claim m ay be alleged alongside a breach of contract claim where, as here, the parties dispute the existence or validity of the alleged contract, see, e.g., Davis v. Lenox Hill Hosp., No. 0 3 Civ. 3746 (DLC), 20 0 4 WL 19260 87, at *6 (S.D.N.Y. Aug. 21, 20 0 4) (citing Net2Globe Int’l, Inc. v. Tim e Warner Telecom m . of New York, 273 F. Supp. 2d 436, 466 (S.D.N.Y. 20 0 3)).6 Wilk thus m ay plead both her quantum m eruit and breach of contract claim s. The sam e is true with respect to Wilk’s quantum m eruit, NYLL, and FLSA claim s; Wilk m ay plead these causes of action in the alternative as well. See id. (denying m otion 6 The VIP defendants contest that any agreem ent between VIP and Wilk exists, stating that they “know of no such agreem ent.” Defs.’ Mem . at 5 n.2. 10 to dism iss unjust enrichm ent claim on grounds that it was preem pted by FLSA, reasoning that at “the pleading stage . . . parties are entitled to plead causes of action under both state and federal law to vindicate the sam e right”); Chaluisan, 698 F. Supp. 2d at 40 8 (m otion to dism iss unjust enrichm ent as preem pted by the FLSA denied where unclear whether “[p]laintiff’s unjust enrichm ent claim [was] based solely on an alleged FLSA violation, or whether it [had] an independent basis”); cf. Avery v. City of Talladega, 24 F.3d 1337, 1348 (11th Cir. 1994) (concluding that it was error for district court to grant sum m ary judgm ent on state law breach of contract claim as preem pted by FLSA and allowing contract claim to survive “as an alternative legal theory”). This is particularly so here because, as discussed above, the law is unsettled as to whether the FLSA preem pts com m on law claim s such as Wilk’s claim for quantum m eruit and, as in Chaluisan, it is unclear from Wilk’s com plaint whether her quantum m eruit claim is co-term inus with her FLSA and NYLL claim s. In fact, Wilk’s allegations are quite sim ilar to those of the plaintiff in Chaluisan who sim ply alleged he “conferred the benefit of his services on the Defendants with the understanding and expectation that he would be com pensated for their [sic] services” and that “[d]efendants have intentionally failed and refused to fully com pensate Plaintiff for his services.” Chaluisan, 698 F. Supp. 2d at 40 8. Sim ilarly, Wilk alleges that she “perform ed work and services as [a] hom e care attendant[] for [the VIP Defendants]” and she “had reasonable expectations of paym ent for the hours [she] worked for [the VIP defendants], but [they] failed to rem unerate Plaintiff an d others sim ilarly situated for all the hours they worked, particularly for the nighttim e hours.” Am . Com pl. ¶¶ 87, 90 . Defendants will have the opportunity during discovery to determ ine the specific hours Wilk seeks 11 com pensation for and whether he quantum m eruit claim is in fact co-term inus with her FLSA and NYLL claim s; and, if so, m ay choose to m ove for sum m ary judgm ent at a later tim e.7 Also unavailing is the VIP defendants’ contention that Wilk has not sufficiently alleged her quantum m eruit claim . Defs.’ Mem . at 8 (“Plaintiff fails to allege facts which identify the specific services she perform ed or the reasonable value of their [sic] services.”). Wilk does, in fact, identify the specific services she perform ed: “providing hom e care services, including but not lim ited to, feeding the patient, bathing the patient, cleaning after [sic] the patient and the like.” Am . Com pl. ¶ 88. She likewise generally identifies the reasonable value of the services she perform ed—an hourly wage of $ 10 up to 40 hours worked and $ 15 for each hour she worked in excess of 40 hours. Am . Com pl. ¶¶ 42, 78.8 In any event, the VIP defendants have failed to provide the Court with any authority in which a court dism issed a quantum m eruit claim based on allegations sim ilar to those in the am ended com plaint. 7 The VIP defendants argue that Clougher v. Hom e Depot, Inc., 696 F. Supp. 2d 285 (E.D.N.Y. 20 10 ) and Bongat v. Fairview Nursing Care Ctr., Inc., 341 F. Supp. 2d 181 (E.D.N.Y. 20 0 4) support their contention that Wilk’s quantum m eruit claim is duplicative of her FLSA and NYLL claim s. Defs.’ Mem . at 6-7. But these decisions are of little relevance; both were decided on sum m ary judgm ent after the parties had engaged in discovery to determ ine the scope of the plaintiffs’ com m on law claim s. Further, the Bongat court’s dism issal of the plaintiffs’ unjust enrichm ent and quantum m eruit claim s was prem ised, in part, on the fact that the court had granted the plaintiffs the relief they sought under the FLSA, thus providing them with an adequate rem edy at law for their injuries. See Bongat, 341 F. Supp. 2d at 189. 8 Wilk originally failed to identify such term s in her previously filed com plaint, but the am ended complaint corrects these om issions. 12 For all of these reasons, the VIP defendants’ m otion to dism iss Wilk’s quantum m eruit claim is denied. D . FLSA an d N YLL Claim s Again s t Ap p e l Wilk brings claim s against all of the defendants, including Appel in his individual capacity, as “em ployers” under the FLSA pursuant to 29 U.S.C. §§ 20 6, 20 7 and the wage orders issued under 29 C.F.R. § 552, seeking her allegedly unpaid statutory m inim um wage and overtim e com pensation. Am . Com pl. ¶ 96. She seeks the sam e relief under the NYLL’s m inim um wage and overtim e provisions. Am . Com pl. ¶ 93. The VIP defendants m ove to dism iss these claim s as against Appel, contending that Wilk failed to allege sufficient facts to establish Appel’s individual liability as an “em ployer” within the m eaning of the FLSA and NYLL. Defs.’ Mem . at 8-10 . Wilk responds that she has averred facts sufficient to show Appel’s status as an “em ployer” in light of her allegations that Appel, as an owner and director of VIP, had operational control over the com pany, m ade decisions such as how m any attendants to em ploy and what rate to pay them , and had the authority to hire and fire any attendant. Pl.’s Opp’n at 8-9. The Court agrees. “In identifying the persons or entities who qualify as ‘em ployers’ . . . statutory definitions sweep broadly.” Barfield v. N. Y. City Health & Hosps. Corp., 537 F.3d 132, 140 (2d Cir. 20 0 8). The FLSA defines an “em ployer” as “any person acting directly or indirectly in the interest of an em ployer in relation to an em ployee.” 29 U.S.C. § 20 3(d). It defines an “em ployee,” as, am ong other things, “any individual em ployed by an em ployer.” Id. § 20 3(e)(1). The definition of em ploy under the FLSA “includes to suffer 13 or perm it to work.” Id. U.S.C. § 20 3(g).9 “An entity ‘suffers or perm its’ an individual to work if, as a m atter of ‘econom ic reality,’ the entity functions as the individual’s em ployer. Chen, 364 F. Supp. 2d at 277 (citing Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S. Ct. 933, 6 L. Ed. 2d 10 0 (1961) and Bartels v. Birm ingham , 332 U.S. 126, 130 , 67 S. Ct. 1547, 91 L. Ed. 1947 (1947)). An entity or person need not possess “form al control” over a worker to qualify as an em ployer but instead m ay sim ply exercise “functional control” over the worker in question. Zheng v. Liberty Apparel Co., 355 F.3d 61, 72 (2d Cir. 20 0 3). In determ ining whether such functional control exists, a court m ay consider “whether the alleged em ployer (1) had the power to hire and fire the em ployees, (2) supervised and controlled em ployee work schedules or conditions of em ploym ent, (3) determ ined the rate and m ethod of paym ent, and (4) m aintained em ploym ent records.” Herm an v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (quoting Carter v. Dutchess Cm ty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)). “No one of the four factors standing alone is dispositive,” id., and a court should consider “any other factors it 9 The NYLL’s definition of em ploym ent is alm ost identical to the FLSA’s. See N.Y. Lab. Law § 2(7) (“Em ployed’ includes perm itted or suffered to work.”). Likewise, “New York’s ‘em ployer’ provisions are equally [as] broad [as the FLSA’s].” Garcia v. La Revise Assocs. LLC, No. 0 8 Civ. 9356 (LTS) (THK), 20 11 WL 1350 0 9, at *5 (S.D.N.Y. J an. 13, 20 11) (citing Spicer v. Pier Sixty LLC, 269 F.R.D. 321, 335 n.13 (S.D.N.Y. 20 10 )). Consequently, because “[c]ourts hold that the New York Labor Law em bodies the sam e standards for joint em ploym ent as the FLSA,” Chen, 364 F. Supp. 2d at 278 (collecting cases), and because “[t]here is general support for giving FLSA and the New York Labor Law consistent interpretations,” Yang v. ACBL Corp., 427 F. Supp. 2d 327, 342 n.25 (S.D.N.Y. 20 0 5) (citation and internal quotation m arks om itted), the Court’s conclusions with respect to whether Appel constitutes an “em ployer” under the FLSA will apply equally to whether he constitutes an em ployer under the NYLL. 14 deem s relevant,” Zheng, 355 F.3d at 71-72; see also Herm an, 172 F.3d at 139 (“Since econom ic reality is determ ined based upon all the circum stances, any relevant evidence m ay be exam ined so as to avoid having the test confined to a narrow legalistic definition.” (em phasis in original)); Ansoum ana v. Gristede’s Operating Corp., 255 F. Supp. 2d 184, 193 (S.D.N.Y. 20 0 3) (the “econom ic reality” test “takes into account the real econom ic relationship between the em ployer who uses and benefits from the services of workers and the party that hires or assigns the workers to that em ployer”). Moreover, “[t]he regulations prom ulgated by the DOL under the FLSA expressly provide that an individual m ay be em ployed by m ore than one entity”—m ultiple “joint em ployers”—when carrying out a single task. Chen, 364 F. Supp. 2d at 277-78 (citing 29 C.F.R. § 791.2(a)). Thus, individual officers, directors, and executives of an entity m ay constitute “em ployers” of an em ployee if they “possessed the power to control” him or her. See, e.g., Herm an, 172 F.3d at 139-40 (founder and 50 % owner of com pany constituted em ployer under FLSA because he was responsible for hiring decisions at com pany, supervised its work schedules and conditions of em ploym ent, and had authority to sign its paychecks); Ansoum ana, 255 F. Supp. 2d at 192-93 (individual defendants constituted em ployers under the FLSA because evidence on sum m ary judgm ent established that they were the founders, owners, and sole shareholders of com pany and that they personally operated it); Gayle v. Harry’s Nurses Registry, Inc., No. 0 7 Civ. 4672 (CPS) (MDG), 20 0 9 WL 60 5790 , at *9 (E.D.N.Y. Mar. 9, 20 0 9) (evidence on sum m ary judgm ent established that CEO of traveling nurse com pany constituted em ployer under FLSA where CEO testified that he “overs[aw] the whole operation, m ak[ing] sure that the [nursing] service ha[d] been provided.”); cf. Bravo v. 15 Eastpoint Int’l, Inc., No. 99 Civ. 9474 (WK), 20 0 1 WL 314622, at *2 (S.D.N.Y. Mar. 30 , 20 0 1) (dism issing claim against fashion designer Donna Karan as em ployer under the FLSA because plaintiffs only alleged her status as the owner and chairperson of em ployer com pany and failed to allege any facts establishing her “power to control the plaintiff workers”). Indeed, “the overwhelm ing weight of authority is that a corporate officer with operational control of a corporation’s covered enterprise is an em ployer along with the corporation, jointly and severally liable under the FLSA for unpaid wages.” Moon v. Kwon, 248 F. Supp. 2d 20 1, 237 (S.D.N.Y. 20 0 2) (quoting Donovan v. Agnew, 712 F.2d 150 9, 1511 (1st Cir. 1983) (citing cases)); see also Ansoum ana, 255 F. Supp. 2d at 184 (“[O]fficers and owners of corporations m ay be deem ed em ployers under the FLSA where the individual has overall operational control of the corporation, possesses an ownership interest in it, controls significant functions of the business, or determ ines the em ployees’ salaries and m akes hiring decisions.”). This control, however, “m ay be restricted, or exercised only occasionally” and “does not require continuous m onitoring of em ployees, looking over their shoulders at all tim es.” Herm an, 172 F.3d at 139. Applying this standard and bearing in m ind that the “Suprem e Court has em phasized the expansiveness of the FLSA’s definition of em ployer,” id. (citation om itted), the Court concludes that Wilk has alleged enough facts to show that Appel had sufficient control over Wilk to be considered her em ployer as that term is defined by the FLSA and NYLL. Wilk alleges as follows: 5. Appel is an officer, shareholder, m anager and/ or m ajority owner of VIP. . . . 31. At all relevant tim es, Appel had operational control over VIP. 16 32. Appel was authorized to m ake decisions on behalf of VIP, particularly the rate of pay to be paid to its em ployees, how paym ents were to be m ade, and the frequency of the paym ents. 33. Appel also decided how m any em ployees, including hom e attendants, VIP would em ploy in any given tim e. 34. Furtherm ore, Appel had the authority to hire and fire em ployees, including Plaintiff and other hom e attendants. Am . Com pl. ¶¶ 5, 31-34. The decision in Severin v. Project OHR, Inc., No. 10 Civ. 9696 (DLC), 20 11 WL 390 2994 (S.D.N.Y. Sept. 2, 20 11), which involved facts nearly identical to the ones here, buttresses the Court’s conclusion regarding the sufficiency of these allegations. There, the plaintiffs, hom e care attendants, brought FLSA and NYLL claim s against their form er em ployer, a provider of hom e health care services to disabled, frail, and elderly individuals who qualify for governm ent assistance, seeking unpaid wages, particularly for night shifts in which they were allegedly paid a flat sum for a 12 hour period of tim e. Id. at *1. They also sued their form er em ployer’s executive director in her individual capacity, alleging that she “had actual influence over hiring and firing decisions, and the term s of their em ploym ent.” Id. The individual defendant m oved to dism iss the claim s against her, contending that she did not constitute an em ployer within m eaning of the FLSA and NYLL. Id. The court rejected these contentions and denied the m otion, reasoning that the allegations were sufficient to show that the individual defendant “controlled personnel decisions, and had the power to hire and fire, set wages, and otherwise control the term s and conditions of the plaintiffs’ em ploym ent.” Id. The sam e is true here. Since Wilk alleges that Appel had influence over hiring and firing decisions, and the term s and conditions of her em ploym ent—including how, when, and how m uch she was to be paid—the VIP defendants’ m otion to dism iss the claim s against Appel is denied. 17 The VIP defendants rely on two cases in support of their contention that Wilk has failed to sufficiently allege Appel’s control over Wilk. Defs.’ Mem . at 8-9. But the allegations at issue in those cases bear little resem blance to the ones here. For instance, in Xue Lian Lin v. Com prehensive Health Managem ent, Inc., No. 0 8 Civ. 6519 (PKC), 20 0 9 WL 976835, at *2 (S.D.N.Y. Apr. 9, 20 0 9), the court granted the individual defendants’ m otion to dism iss the FLSA and NYLL claim s against them for several reasons—none of which is also applicable in this case. First, “[t]he com plaint m erely allege[d] that ‘upon inform ation and belief, Defendants were em ployers . . . within the m eaning of the FLSA,’ . . . [and] that ‘Defendants em ployed Plaintiffs within the m eaning of the FLSA.’” Id. Second, “there [was] no allegation that any Individual Defendant had power to m ak[e] hiring or firing decisions, control work schedules or em ploym ent conditions, determ ine the rate or m ethod of paym ent, or m aintain em ploym ent records.” Id. And finally, “the com plaint [did] not even allege that the Individual Defendants held supervisory or m anagerial positions at [the plaintiffs’ form er em ployer.]” Id. The allegations at issue in Tracy v. NVR, Inc., 667 F. Supp. 2d 244, 247 (W.D.N.Y. 20 0 9), upon which the VIP defendants also rely, also bear little resem blance to those in the am ended com plaint. The court in Tracy granted the m otion of an individual defendant, the Chief Hum an Resources Officer of a large m ulti-billion dollar corporation, to dism iss the plaintiff’s FLSA and NYLL claim s against him , reasoning “that m ere boilerplate allegations that an individual m eets the various prongs of the econom ic reality test stated solely upon inform ation and belief and without any supporting details—essentially ‘a form ulaic recitation of the elem ents of a cause of 18 action’—are insufficient to raise plaintiffs’ right to relief ‘above a speculative level’ with respect to that individual’s liability as an em ployer under the FLSA.” Id. at 247 (quoting Twom bly, 550 U.S. at 555). Regarding the plaintiffs’ allegations, the court noted: [P]laintiffs[’] allegations establish only that, upon inform ation and belief, Madigan had the general authority to hire and/ or fire em ployees, and that he m aintained em ployee records. Plaintiffs offer no supporting details to substantiate their belief other than Madigan’s job title, and allege no facts concerning the extent of Madigan’s alleged involvem ent in NVR’s hiring and/ or firing processes or record-keeping policies. Notably, plaintiffs do not allege that they or anyone else were hired by Madigan, or by any predecessor in his position. Plaintiffs’ allegations concerning Madigan’s level of control, if any, over their work schedules, conditions of em ploym ent, and com pensation, are even m ore attenuated. Plaintiffs assert only that Madigan’s exercise of his supposed policy-setting powers as the Director of Hum an Resources in som e way “support[ed],” or indirectly im pacted, those aspects of their em ploym ent. Id. (em phasis in original). It also stressed the im plausibility of the plaintiffs’ assertions in light of the sheer size of their form er em ployer’s business. See id. (“[P]laintiffs have failed to sufficiently allege that Madigan—the chief hum an resources officer in an enorm ous, m ulti-billion dollar corporation scattered across hundreds of m iles—had and exercised sufficient control over them to satisfy the econom ic reality test, . . . .”). By contrast, here, the key allegations with respect to Appel’s control over Wilk are not m ade upon inform ation and belief, and, in them , Wilk does m ore than sim ply invoke Appel’s title. Am . Com pl. ¶¶ 30 -34. Nor is there any allegation that Appel m erely “supports” the policies that ultim ately im pacted the day to day polices of VIP. Instead, Wilk alleges that Appel him self was authorized to m ake such decisions on behalf of VIP, including the rate, frequency, and m ethod of VIP’s paym ents to its em ployees. Am . Com pl. ¶ 32. Finally, here, unlike in Tracy, there is no reason to question the plausibility of Wilk’s allegations in light of VIP’s size or num ber of em ployees; there is 19 no allegation that VIP is a m assive enterprise with far-flung offices and a large num ber of em ployees. Instead, Wilk m erely alleges that VIP is a dom estic corporation with its principal place of business in New York that provides services prim arily to those living in New York. Am . Com pl. ¶¶ 3, 24. In sum , because the am ended com plaint sufficiently alleges Appel’s role as Wilk’s em ployer under the FLSA and NYLL, the VIP defendants’ m otion to dism iss Wilk’s FLSA and NYLL claim s against Appel is denied. III. CON CLU SION For all of the foregoing reasons, the VIP defendants’ partial m otion to dism iss the am ended com plaint is DENIED in its entirety. SO ORDERED. Dated: Brooklyn, New York February 21, 20 12 / s/ I. Leo Glasser Senior United States District J udge 20
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
