Racewicz v. Alarm Processing Systems, Inc. et al, No. 1:2014cv02325 - Document 20 (E.D.N.Y. 2014)
Court Description: ORDER denying 12 Motion to Dismiss for Failure to State a Claim. Ordered by Judge I. Leo Glasser on 9/8/2014. (Carey, Charles)
Download PDF
<![CDATA[
Racewicz v. Alarm Processing Systems, Inc. et al Doc. 20 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x ROMUALD RACEWICZ, INDIVIDUALLY AND ON BEHALF OF ALL OTHER EMPLOYEES SIMILARLY SITUATED, MEMORANDUM AND ORDER Plaintiff, 14-CV-2325 (ILG) - against ALARM PROCESSING SYSTEMS, INC., THE ESTATE OF EUGENE GOROVETS, NORA GOROVETS, AND J OHN DOES and J ANE DOES # 1-10 , Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: On J uly 10 , 20 14, plaintiff Rom uald Racewicz, purporting to proceed on behalf of him self and others sim ilarly situated, filed an am ended com plaint against Alarm Processing System s, Inc. (“APS”), the estate of Eugene Gorovets (“Mr. Gorovets”), Eleanora Gorovets (s/ h/ a “Nora Gorovets,” hereinafter “Ms. Gorovets”), and several J ohn and J ane Doe defendants who plaintiff alleges were “owners, officers, directors, and/ or m anaging agents” of APS together with Mr. and Ms. Gorovets. Plaintiff states that APS em ployed him as an electrician from 20 0 7 to February 28, 20 14. The crux of plaintiff’s claim s is that he was not com pensated properly (or, in som e cases, at all) for the hours he worked while an APS em ployee. He alleges violations of the Fair Labor Standards Act, 29 U.S.C. §§ 20 1, et seq. (“FLSA”); m ultiple sections of the New York Labor Law, Art. 6 §§ 190 , et seq., Art. 19 §§ 650 et seq. (“NYLL”); and claim s for breach of contract, unjust enrichm ent, and quantum m eruit. Ms. Gorovets now m oves the Court, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dism iss the am ended com plaint in its entirety as to her, 1 Dockets.Justia.com claim ing that plaintiff has not sufficiently alleged facts supporting his claim s that she was his em ployer as defined by the FLSA or NYLL. For the reasons set forth below, her m otion is DENIED in its entirety. BACKGROU N D Except where otherwise noted, the following facts are taken from plaintiff’s am ended com plaint, Dkt. No. 10 (the “Am ended Com plaint”), and are accepted as true for purposes of deciding this m otion. APS is a security system s dealer located in Brooklyn that provides services at various locations throughout the City and State of New York. Plaintiff was em ployed by APS as an electrician from 20 0 7 until February 28, 20 14. Plaintiff’s duties involved providing technical services to City and State public schools, as well as buildings owned by the New York City Housing Authority. APS paid plaintiff’s wages at an hourly rate. From 20 0 7 until Septem ber 21, 20 12, plaintiff was never inform ed what his hourly rate actually was, but it was less than $ 20 per hour. From Septem ber 22, 20 12 until J uly 5, 20 13, plaintiff was paid a rate that ranged between $ 20 and $ 25 per hour. From J uly 6, 20 13 until February 28, 20 14, plaintiff was not paid wages at all. Plaintiff’s rate of pay was less than the prevailing wage for an alarm electrician that was established by the New York City prevailing wage schedules during each year that he worked for APS. During the entirety of his em ploym ent at APS, plaintiff did not receive paym ent at the prevailing wage prem ium rates established by the City’s prevailing wage schedules when he worked m ore than 40 hours a week or 8 hours a night. Nor did defendants pay plaintiff wages at tim e and one-half of his regular rate for the overtim e or Saturdays that he worked, or provide him with any supplem ental benefits. Defendants also failed to keep adequate records of the 2 tim e em ployees worked, or post any notices regarding rights afforded to workers under the FLSA and NYLL, despite being required to do so by those laws. Ms. Gorovets was a m anaging agent of APS. She was in charge of paying its em ployees, and approved of its pay practices. She told plaintiff where and when to work, and dictated both how m uch and the m anner in which plaintiff was paid. She established and adm inistered the term s and conditions of plaintiff’s em ploym ent, and had the authority to discipline him . Together with the other defendants, Ms. Gorovets held plaintiff out as her em ployee. Plaintiff initiated this action on April 10 , 20 14. Dkt. No. 1. Ms. Gorovets m oved to dism iss the initial com plaint on J uly 7, 20 14. Dkt. No. 9. Plaintiff filed the Am ended Com plaint on J uly 10 , 20 14, and Ms. Gorovets filed this m otion on J uly 25, 20 14. Dkt. Nos. 10 & 11. Plaintiff opposed the m otion on J uly 31, 20 14, and Ms. Gorovets replied on August 5, 20 14. Dkt. Nos. 14 & 16. LEGAL 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.” To survive a m otion to dism iss, the plaintiff’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, 678 (20 0 9) (quoting Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (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, 556 U.S. at 678. 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 3 legal conclusions, “a form ulaic recitation of the elem ents of a cause of action,” or “naked assertions devoid of further factual enhancem ent” will not suffice. Id. (internal quotations and citations om itted). This plausibility standard “is not akin to 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.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Thus, on a m otion to dism iss for failure to state a claim , “the 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 the City of N.Y., 286 F.3d 122, 125 (2d Cir. 20 0 2) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). D ISCU SSION Ms. Gorovets alleges that the Am ended Com plaint fails to state a claim against her because it does not sufficiently allege that she was plaintiff’s em ployer as that term is defined by the FLSA or NYLL. The definitions of an em ployer under the two statutes are generally treated as coextensive, and since Ms. Gorovets’s m otion discusses only the FLSA in any detail, the Court will do the sam e. See Lopez v. Pio Pio NYC, Inc., 20 14 WL 1979930 , at *2 (S.D.N.Y. May 15, 20 14). Under the FLSA, an “em ployer” is “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). Given the broad and opaque nature of this definition, courts have held that the question of who 4 qualifies as an em ployer under the statute should be answered by an individualized review of the totality of the circum stances, one “grounded in econom ic reality rather than technical concepts.” See Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132, 141 (2d Cir. 20 0 8) (quoting Goldberg v. Whitaker House Coop., Inc., 366 U.S. 23, 33 (1961)). In determ ining whether an individual or entity is an em ployer as a m atter of econom ic reality, courts m ay consider such factors as “whether the alleged em ployer (1) had the power to hire and fire the em ployees, (2) supervised and controlled em ployee work schedules and conditions of em ploym ent, (3) determ ined the rate and m ethod of paym ent, and (4) m aintained employm ent records.” Velez v. Sanchez, 693 F.3d 30 8, 326 (2d Cir. 20 12) (quoting Carter v. Dutchess Cm ty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)). However, no one of these factors standing alone is dispositive, and courts should consider any other relevant evidence “so as to avoid having the test confined to a narrow legalistic definition.” Herm an v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). In this case, plaintiff has m ore than plausibly alleged that Ms. Gorovets was one of his em ployers at APS. According to the Am ended Com plaint, Ms. Gorovets “told [p]laintiff where to work and when to work” (Am . Com pl. ¶ 15), was in charge of paying him and all other APS em ployees (id. ¶¶ 13-14), had the authority to determ ine when and how m uch plaintiff was paid (id. ¶ 13), and generally “m anaged, supervised, established, and adm inistered the term s and conditions” of his em ploym ent (id. ¶¶ 9, 13). Ms. Gorovets claim s that these allegations are “only a conclusory restatem ent of the legal standard” (Dkt. No. 12-1 at 5), but she is m istaken. A conclusory restatem ent of the legal standard would be a paragraph stating m erely that “upon inform ation and belief, [d]efendants were em ployers . . . within the m eaning of the FLSA.” See Xue Lian Lin v. 5 Com prehensive Health Mgm t., Inc., No. 0 8 Civ. 6519, 20 0 9 WL 976835, at *2 (S.D.N.Y. Apr. 9, 20 0 9). As noted above, the Am ended Com plaint contains far m ore. In short, to state a claim against Ms. Gorovets, plaintiff needed to allege that she had a “degree of individual involvem ent [in the com pany] that affect[ed] em ploym entrelated factors such as workplace conditions and operations, personnel, or com pensation.” See, e.g., Irizzary v. Catsim atidis, 722 F.3d 99, 10 9 (2d Cir. 20 13); Lopez, 20 14 WL 1979930 , at *3. That is precisely what he has done, and his case m ay proceed against her. CON CLU SION For the foregoing reasons, Ms. Gorovets’ m otion to dism iss the Am ended Com plaint as against her is DENIED in its entirety. SO ORDERED. Dated: Brooklyn, New York Septem ber 8, 20 14 / s/ I. Leo Glasser Senior United States District J udge 6
]]>
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.
