Koch v Friends of Andrew Yang
Annotate this CaseDecided on February 22, 2021
Civil Court of the City of New York, New York County
Andrea P. Koch Claimant,
against
Friends of Andrew Yang, Defendant.
SCNY 323/2020
Claimant (pro se)
Andrea Koch
Defendant
Qian (Shelia) Shen
Qian.Shen@hklaw.com
Leslie A. Stroth, J.
This is a Small Claims matter in which Andrea P. Koch (Claimant) is suing Friends of Andrew Yang (Defendant) for "Wage Theft," wherein Claimant alleges that she was not paid for 44 hours of overtime during her one week employment (January 17, 2020 through January 24, 2020) with Andrew Yang's campaign. Claimant also sued for "Retaliatory Discharge" and "Detrimental Reliance and/or Promissory Estoppel" but withdrew, without objection, all Claims except for the wage theft/unpaid overtime claim prior to the commencement of the trial in this matter. The original Claim was for $9,715.37, but at trial Claimant moved to amend the amount of the claim to $7,854.27, which she explained represents 44 hours of overtime at $32.44/hour, or $1,427.36, plus liquidated damages in the same amount, as well as "$5,000 as per the Department of Labor website which allows for that for their failure to provide a wage statement as per the law."
The trial in this matter was held on December 17 and 18, 2020. Claimant and Defendant both submitted their evidence to the clerk, and the trial was held before this Court remotely via Microsoft Teams.
Trial Testimony
Preliminarily, Claimant advised that she is a lawyer but was proceeding pro se. Her testimony on direct examination was in narrative form. Claimant first referred the Court to her signed Employment Contract with Friends of Andrew Yang (Claimant's Exhibit 1), and specifically Page 3, Paragraph 15 of the "Time of Work" section which states that, "The Employee's normal hours of work, including breaks ('Normal Hours of Work') are as follows: 9:00 am to 6:00 pm EST." Claimant then referenced the Employee Handbook for Friends of [*2]Andrew Yang (later introduced as Defendant's Exhibit B) which states, on page seven, that, "Unless notified otherwise in writing by management, all employees of the company are non-exempt."
On cross-examination, Claimant was directed to paragraph 16 of the above "Time of Work" section of the Employment Contract, which reads, "However, the employee will, on receiving reasonable notice from the employer, work additional hours and/or hours outside of the employee's normal hours of work as deemed necessary by the employer to meet the business needs of the employer." Claimant admitted reviewing this paragraph before signing the Employment Contract but claimed she was not aware that she would be asked to work longer hours every day.
Claimant further testified on direct examination that her understanding of her employment was that she would work at campaign headquarters at 214 W. 39th Street, Suite 204, New York, New York (the Office) from 9:00 a.m. to 6:00 p.m., Monday through Friday, to assist with the ballot process. The Court notes that although the "Place of Work" section of Claimant's Employment Contract (Claimant's Exhibit 1) lists this address as Claimant's primary place of work, Paragraph 13 states that "The Employee will be occasionally required to work onsite at various campaign events across the US," and that, "The Employee will likely make visits to various campaign offices across the US." Claimant emphasized in her redirect examination that that she was issued a campaign laptop to enable her to "work from anywhere."
I. Claimant's Testimony Regarding Hours Worked
A. Direct Examination narrative
Claimant testified that her daily working hours during her brief employment were as follows:
Friday, January 17, 2020: "I arrived at the office at 9:00 a.m., actually earlier than that, and I took my last e-mail at 10:25 p.m."
Saturday, January 18, 2020: "I worked from 8:00 a.m. to 8:00 p.m."
Sunday, January 19, 2020: "I worked from 10:00 a.m. to, well, I would say 10:24 p.m. was the last e-mail I sent out."
Monday, January 20, 2020: "9:00 a.m. to 10:00 p.m."
Tuesday, January 21, 2020: "8:00 a.m. to 10:00 p.m."
Wednesday, January 22, 2020: "6:30 a.m. to 11:00 p.m."
Thursday, January 23, 2020: "8:00 a.m. to 10:00 p.m."
Friday, January 24, 2020: "8:00 a.m. to 9:45 p.m."
Claimant concluded her testimony by stating that, "I am entitled to overtime pay for the 44 hours that I worked, on top of 40 regular hours "
B. Cross-examination, Redirect examination, Recross-examination
January 17, 2020
Cross-examination: Claimant testified that she arrived at campaign headquarters "a little bit sooner than" 9:00 a.m. and left "between 7:00 and 8:00 p.m."
Recross-examination: Claimant testified that she responded to work-related e-mails and texts in the evening but could not recall how many or the type of work to which they related.
January 18, 2020
Cross-examination: Claimant testified that she did not go into the Office this day but that she collected signatures on Long Island and handled travel requests by e-mail at the direction of her supervisor, Esther Baldwin (Esther). Claimant testified that she was not given a specific starting time or length of time to collect signatures that day, but Esther told her to collect as many as possible. Claimant first testified that she spent "at least seven hours" collecting signatures at various places in Long Island but then testified that she arrived at her first signature collecting location between 8:15 and 9:15 a.m. and finished up, "probably around 6:00 or 7:00 p.m."
Recross-examination: Regarding work allegedly done in the evening after signature collection, Claimant testified that she responded to work-related e-mails "As late as 11:28 p.m. that evening," having looked "at something" the night before her testimony. When asked how many e-mails she responded to the evening of January 18th, she stated, "Oh, I didn't count the amount. I just looked at the last communication that I had with respect to a work-related e-mail or text." Claimant testified that she could not recall whether she collected signatures with anyone else from the Friends of Andrew Yang that day.
January 19, 2020
Cross-examination: Claimant testified that she arrived at the Office between 10:00 and 10:30 a.m. and that she " pretty much left, I am guessing, between 7:00 and 8:00. I just know that I have an e-mail that I responded to at 10:24 p.m." She described what she did that day with uncertainty, prefacing the description of most of her movements with a "probably".
Recross-examination: Claimant testified that she responded to unspecified work-related communications the evening of the 19th but could not recall how many.
January 20, 2020
Cross-examination: Claimant testified that she arrived at the Office "probably by 9:00 a.m.," and when asked what train she took to get to the Office, she said "Probably the 8:03 or the 8:07. If I remember correctly, it was something along those lines." She testified that the train time was 43 minutes and the walking time to the Office was 7 minutes. Claimant added that she left the Office between 7:00 and 8:00 p.m. and handled at least six e-mails when she arrived home.
Recross-examination: Claimant testified that she responded to unspecified work-related e-mails and texts that evening but could not recall how many.
January 21, 2020
Cross-examination: Claimant further testified that on January 21, 2020 she arrived at the Office "no later than 9:00 a.m.," did "petition work," and at some point received an e-mail from Esther advising that Claimant and other Friends of Andrew Yang campaign workers were to fly to Indiana the next day and that Claimant was to make travel arrangements, which she claims she was doing "up until 11:00, maybe midnight," after leaving the Office "probably" between 7:00 and 8:00 p.m.," "probably" on the 8:36 train.
Recross-examination: Claimant testified that she responded to unspecified work-related e-mails in the evening but could not recall how many e-mails or texts to which she responded.
January 22, 2020
Cross-examination: Claimant testified that the flight to Indiana was at, "Probably around 8:30 maybe," that upon their arrival at "something like" noon or lunchtime she and her group collected their rental cars and went to a restaurant for "a good hour and a half. Maybe even longer," drove a half an hour to their Airbnb, claimed rooms and settled in, and then left the Airbnb at "maybe, I don't know 4:00 p.m. maybe." Claimant testified that the group then went to collect signatures until "I'm going to guess around between 9:00 and 10:00 p.m." When asked if she collected any signatures that day, Claimant responded, "You know what, I don't remember. I know we were out and about. Did I personally collect any signatures on that day? I can't remember. We were all out and about with our papers "
Recross-examination: Claimant testified that she could not recall how far away from her Airbnb the signature collection event was that day, or even if it was in the same city. Finally, when asked if she attended a signature collection event at all that day, Claimant testified that she did not recall. As for evening work, she testified that she did work "responding to communications," after the signature collection efforts finished that day, stating that "The last one was at 11:23 p.m." However, when asked how many e-mails or texts she responded to, she did not recall.
January 23, 2020
Cross-examination: Claimant testified that on January 23, 2020 she left the Airbnb at "I guess 9:00 a.m. I want to say," went to a coffee shop with another campaign worker, then had lunch, and was driven to Purdue University by Esther, arriving, "I don't know, I want to say 2:00 p.m., and I spent several hours collecting signatures " When asked when she stopped collecting signatures, Claimant replied that, "I want to say around 5:30 approximately, maybe 6:00. I am not really sure." She testified that Esther picked her up and they drove for about an hour back to the Airbnb.
Recross-examination: When asked if she did any work after the event she worked, Claimant testified that she was, "Responding to e-mails, texts, et cetera. The last one at 11:28 p.m." She stated that she "assumed" she did this work at the Airbnb but said she "could have been on the road collecting signatures." Although Claimant had testified that the event ended between 5:30 and 6:00 p.m. that day, she could not recall what she did after the event was over, if the event was in a different city than the Airbnb, or if Purdue University, where the event took [*3]place, was in Indianapolis, where the Airbnb was located.
January 24, 2020
Cross-examination: Claimant testified that she was scheduled to leave Indiana on a late afternoon flight this day, "shortly after 5:00 or 5:30 if I am not mistaken." Claimant testified that she was approved to return to New York so that she could fly to Iowa the next day on a trip she had pre-paid, and that, as reflected in her Employment Contract, her time off was not to be paid by Friends of Andrew Yang. Claimant conceded that she was instructed to drop off signed petitions that day, which she did not do, and that she waited at the Airbnb for someone to call her so that she could approve the payroll that she had been asked to complete. Claimant testified that during the time she was waiting, she volunteered to do laundry but did not do any other work. Claimant testified that she waited from 9:00 a.m. to 9:45 p.m., at which time she was terminated.Redirect examination: Claimant testified that she began work at "around 9:00 a.m.," and in reference to her answer on cross-examination that she did not believe she was doing any other work that day as she waited for someone to help her approve payroll, she added that, "I probably was, but there were a number of e-mails back and forth with respect to travel arrangements and other things." She stated that her workday was 9:00 a.m. to 9:45 p.m. when she was terminated.
Recross-examination: Claimant admitted that she left the Airbnb between 2:00 and 5:00 p.m., when someone from Enterprise picked her up and took her to rent a car to get to the airport for her flight back to New York. Claimant testified that the distance from her Airbnb to Enterprise Car rental was, "about a 15 drive, I think. Maybe 20," and that the drive to the airport from her Airbnb was "about" 30 minutes. When asked what time she expected to get to the airport for her flight, Claimant stated that she could not recall. When asked if she had luggage with her in Indiana, Claimant testified that she could not recall.
Claimant further testified that she was told in the morning that she should return petitions she had before she left, but that she did not have time to do that and to make her flight back to New York, for which the campaign pre-paid. In addition, Claimant stated that while she was waiting for hours for someone to help her "get into the system" to approve payroll, she also tried reaching out to "Wesley" or someone else from the campaign by e-mail and by phone. She could not recall when she did this or how many times but testified that it was less than ten. When asked if any of the other employees of the Friends of Andrew Yang who were in Indiana with her were scheduled to return to New York on January 24th, Claimant replied, "Not that I can recall."
January 19, 2020- January 24, 2020
During her redirect examination, Claimant testified that " I responded to work-related communications, at least for most of the days, and responded as late as 10:00 to 11:00 p.m." She went on to testify that since she worked eight days at 12 hours per day, she is owed overtime pay for 56 hours, not the 44 overtime she sued for and that she testified she worked on direct examination.
[*4]II. Claimant's Testimony Regarding Labor Law Violations
At the commencement of the trial, Claimant specified that her claim is "for overtime that is owed to me, 44 hours of overtime at a rate of $32.44," totalling $1427.36, plus liquidated damages in the same amount, and an award of "$5,000.00 as per the Department of Labor website which allows for that for their failure to provide a wage statement as per the law." (Labor Law Section 195).
Claimant presented no evidence on direct examination to support her claim that Defendant failed to provide a wage statement and that she is therefore entitled to a $5,000.00 penalty, although the Court did take judicial notice of a related "fact sheet" found on the Department of Labor website at her request.
On cross-examination, Claimant's Earnings Statement from Friends of Andrew Yang was admitted into evidence, without objection, as Defendant's Exhibit A, and in response to Defendant's attorney's questions, Claimant admitted the following:
1. Claimant's personal information on the earnings statement is accurate.2. The name of the company that employed Claimant (Friends of Andrew Yang), as well as its address and phone number, appear on the earnings statement.3. The pay period of the company that Claimant worked, January 16th through January 31st, 2020, accurately appears on the earnings statement.4. Claimant was paid $873.19 by Friends of Andrew Yang for her employment through January 24th, as reflected on the earnings statement.5. Claimant received a check from the Friends of Andrew Yang in the amount of $873.19.The Court notes that the wage statement admitted into evidence as Exhibit A also shows that the number of hours worked per week was 40, at an hourly rate of $21.63. Further, this wage statement includes holiday pay of 8 hours, also at the hourly rate of $21.63, in addition to the "Total Hours worked" of 40 hours.
Also admitted into evidence without objection at this time was Defendant's Exhibit B, the Employee Handbook.
III. Defendant's Evidence
Other than Claimant's Earnings Statement (Defendant's Exhibit A), and the Employee
Handbook (Defendant's Exhibit B), Defendant introduced no other evidence.
Analysis
Claimant was not a credible witness. Her testimony was internally inconsistent on direct examination, cross-examination, redirect examination, and recross-examination. She contradicted herself almost every time she testified about how many hours per day she worked. Claimant gave few details about the work she was doing in the capacity of her employment, other than "ballot access," signature collection, travel arrangements, and "work-related communications" and never broke down how much time she worked on each task, or what exactly the alleged work entailed. On direct examination, when Claimant had a full opportunity to go into that detail in her narrative and explain how she calculated the amount of regular and [*5]overtime hours she claims to have worked, she simply summarized her hours without any detailed explanation. On redirect examination, Claimant added 12 hours to her claimed overtime hours without providing a basis for them other than saying that she worked at least 12 hours per day.
Although Defendant does not dispute that Claimant did campaign work during the days when she went to campaign headquarters for the Friends of Andrew Yang, Claimant did not provide any proof that Defendant requested her to stay past 6:00 p.m. on the days she alleges she stayed later, nor did Claimant testify that she was doing work for the campaign during that time. Even if she had, Paragraph 16 of her signed Employment Contract (Exhibit 1) provides that employees may be asked to work additional hours upon request.
As to Claimant's allegations that she worked late into every evening, Claimant testified as to "the last e-mail or text" that she sent out on certain evenings, but she did not provide any proof that she was working from the time she left the campaign office or a signature collecting day or event until that last e-mail was sent. She could not recall the number or nature of any other e-mails or texts in a given night, and she produced no other evidence of same. Her testimony regarding which nights and at what times she sent or "took" a "last e-mail" or text was inconsistent. Claimant testified that on some evenings, she sent some other e-mails in addition to the last e-mail, but she did not provide the times nor did she detail how they were work-related.
With respect to her work on Saturday, January 18th, Claimant could not recall if she worked alone or with someone else, she did not detail the times she was in each place collecting signatures versus the time she spent making travel arrangements or even doing other things. She described how collecting signatures could be challenging at times but did not give any details about her experiences. Although Claimant testified that her supervisor asked her to collect signatures that day, she admitted that she was not given any specific time to begin or length of time to so do.
With respect to her alleged work on January 22, 2020, the date that Claimant travelled to Indiana with other employees of the Friends of Andrew Yang, she testified on direct examination that she worked from 6:30 a.m. until 11:00 p.m., but on cross-examination she testified that the flight was not until "probably 8:30 maybe," and that the group did not leave for the signature collecting event until "Maybe, I don't know, 4:00 p.m. maybe." She claimed that she was "out and about" collecting signatures, until "I'm going to guess around 9:00 or 10:00 p.m.," but when pressed for details on recross-examination, she could not recall where the event was, how far away from the Airbnb it was, if it was even in the same city as the Airbnb, whether she collected any signatures, and finally, whether or not she even attended the event. Claimant's testimony as to her work that day was so lacking in credibility and substance that one is left to wonder what, if any, work she completed that day. She also claimed for the first time on cross-examination, that she sent a work communication at 11:24 p.m., but again failed to provide any details or proof.
Claimant's testimony regarding the work she allegedly did on January 23rd was similarly vague and inconsistent with her other testimony. During cross-examination and recross-examination, Claimant became uncooperative and argumentative toward Defendant's attorney, and at times was even belligerent. She began answering questions she had previously answered with the response, "I don't recall," such as whether Purdue University was in Indianapolis, when the day before she testified that it was an hour away.
The Court again found Claimant's testimony not credible with respect to her working [*6]hours and other events on January 24, 2020, when she first claimed on cross-examination that she did no work except laundry on a voluntary basis that day while waiting for hours for someone to help her process payroll. On redirect examination, however, she claimed that she worked from 9:00 a.m. to 9:45 p.m., but on recross-examination admitted that she actually left the Airbnb that day to rent a car, and provided no testimony or other proof as to how long she was gone, or if she ever returned prior to 9:45 p.m. when she was terminated. Claimant clearly indicated that she failed to complete the job of returning petitions that day when she knew all day that she was required to do this.
Claimant has failed to prove that she worked either the original 44 hours, or the later claimed 56 hours of overtime she alleges to have worked, or that she worked any overtime hours at all. She provided no credible proof through documentary or other evidence, and her own testimonial evidence was too inconsistent to be reliable evidence.
Not only has Claimant failed to prove that she worked any overtime hours, she failed to prove that she even worked eight hour days on January 18, 22, 23, or 24, 2020, although Defendant paid her for a full 40 hour week as well as a holiday (Martin Luther King, Jr. Day).
With respect to Claimant's allegation that she is entitled to a $5,000.00 penalty for a Labor Law 195 violation, Claimant has provided absolutely no proof of any such violation. Most significantly, Claimant admits to being properly and timely paid for 40 hours and a holiday following her eight days of employment, at the requisite hourly rate. She has failed to prove entitlement to pay for any more than these hours. In addition, she was informed through her employment contract of the details of her pay, her scheduled hours, and most, if not all details relating to her employment. Moreover, Defendant has proven, and Claimant does not contest, that her Earnings Statement for the pay period relating to her eight days of employment is accurate and complete and contains no deficiencies pursuant to Labor Law Section 195. See Julien v Bischoff, 67 Misc.3d142(a) (App Term, 2d Dept 2020), Gabal v Scoutsee Inc., WL 6220546 (SD NY, Oct. 25, 2019 No. 18-CV-2236 [VSB] [OTW]).
As Claimant has failed to prove that she worked any hours for which she was not fully and properly compensated, and her underlying Claim is therefore dismissed, she is not entitled to liquidated damages.
Conclusion
For the foregoing reasons, the Court finds in favor of the Defendant after trial, and this matter is dismissed in its entirety.
This constitutes the Decision and Order of the Court.
Dated: February 22, 2021
New York, New York
___________________________
Hon. Leslie A. Stroth, J.C.C.
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