Brown v. New York City Department of Ed

Filing

OPINION, affirming judgment of the district court, by RSP, RR, RCW, FILED.[1251055] [13-139]

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13-139-cv
Brown v. N.Y.C. Dep’t of Educ.

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
________________
August Term, 2013
(Argued: November 12, 2013

Decided: June 18, 2014)

Docket No. 13-139-cv
________________
JAYQUAN BROWN,
Plaintiff-Appellant,
—v.—
NEW YORK CITY DEPARTMENT OF EDUCATION,
and
JOSHUA LAUB,
Defendants-Appellees.
________________
Before:
POOLER, RAGGI, AND WESLEY, Circuit Judges.
________________
On appeal from an award of summary judgment entered in the Southern
District of New York (Crotty, J.), plaintiff challenges the conclusion that, as a
matter of law, he worked at a New York City public high school as a public

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agency volunteer rather than as an employee and, as such, was not entitled to
minimum or overtime wages under the Fair Labor Standards Act of 1938, see 29
U.S.C. § 201 et seq.
AFFIRMED.
________________
CHINYERE OKORONKWO, ESQ., New York, New York, for PlaintiffAppellant.
LARRY A. SONNENSHEIN AND KATHY H. CHANG, Of Counsel, for
Michael A. Cardozo, Corporation Counsel of the City of New
York, New York, New York, for Defendants-Appellees.
________________
REENA RAGGI, Circuit Judge:
Plaintiff Jayquan Brown appeals from a judgment entered on December 13,
2012, in the United States District Court for the Southern District of New York
(Paul A. Crotty, Judge), in favor of defendants the New York City Department of
Education (‚DOE‛) and DOE principal Joshua Laub. The district court awarded
DOE summary judgment on Brown’s federal claim for relief under the Fair Labor
Standards Act of 1938 (‚FLSA‛), see 29 U.S.C. § 201 et seq., concluding as a
matter of law that Brown was not entitled to statutory minimum and overtime
wages for the three years he worked at DOE’s Banana Kelly High School

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(‚Banana Kelly‛) because Brown had served as a public agency volunteer, not an
employee. Declining to exercise supplemental jurisdiction, the district court also
dismissed Brown’s related New York Labor Law claim against Banana Kelly
principal Laub without prejudice to Brown refiling in the state court. See Brown
v. N.Y.C. Dep’t of Educ., No. 12 Civ. 0035 (PAC), 2012 WL 6186496, at *8
(S.D.N.Y. Dec. 12, 2012).
In urging vacatur, Brown contends only that the district court erred in its
‚volunteer‛ determination. He does not otherwise challenge the district court’s
exercise of discretion in dismissing his state law claim against Laub. Because
Brown’s volunteer challenge fails on the merits for reasons explained in this
opinion, we affirm the judgment in favor of defendants in all respects.
I.

Background
We summarize the relevant facts supported by the record in the light most

favorable to Brown, the party against whom summary judgment was awarded.
See Northeast Research, LLC v. One Shipwrecked Vessel, 729 F.3d 197, 200 (2d
Cir. 2013).

In doing so, however, we note that where Brown’s deposition

testimony appears to conflict with his Rule 56.1 statement of undisputed facts,
see Local Rules of the United States District Courts for the Southern and Eastern

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Districts of New York, we rely on the facts in his Rule 56.1 statement. See Gibbs
ex rel. Estate of Gibbs v. CIGNA Corp., 440 F.3d 571, 578 (2d Cir. 2006) (stating
that parties are bound by factual admissions made to court); see also Cohan v.
Movtady, 751 F. Supp. 2d 436, 443 (E.D.N.Y. 2010) (‚*P+arties are bound by their
concessions in Rule 56.1 Statements.‛).
A.

Brown’s Work at Banana Kelly

Jayquan Brown graduated in 2006 from DOE’s New School for Arts and
Sciences (‚New School‛), located in the South Bronx. At that time, New School
shared physical space with Banana Kelly so that Brown came to know staff at
both schools.
Brown was unable to secure paid employment after graduation. He did,
however, assist his brother who was working as a group leader for younger
students at an after-school program at C.S. 92.1 On a visit back to New School in
or about October 2007, Brown mentioned his ‚mentoring‛ work at C.S. 92 to
Daniel Jerome, Banana Kelly’s director of student life. Jerome asked Brown if he
would be interested in mentoring students at Banana Kelly.

When Brown

responded affirmatively, Jerome raised the matter with principal Laub.

It is not clear from the record whether Brown’s brother was paid for his work at
C.S. 92. Brown himself was not.
1

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Laub determined that Brown lacked the higher education and personal
criteria necessary for a paid staff position; nevertheless, Laub ‚bent some rules‛
to create what he described to Brown as a ‚volunteer internship.‛ J.A. 467–68.
At his deposition, Laub stated that he did this to advance Brown’s career
opportunities.

Meanwhile, Brown has professed not to have ‚fully

appreciate*d+‛ what was meant by the terms ‚intern‛ and ‚volunteer.‛ Id. at
468. He acknowledged, however, that he was never required to provide any
qualifications for employment at Banana Kelly and was never told by any school
official that he would be paid for his work. Nor did Brown himself initially
inquire as to compensation. Rather, he accepted Laub’s offer in order (1) to build
his résumé; (2) to model himself on Jerome, whom he admired; and (3) to be a
person who could ‚stand up, and make a change, and show the kids that we do
care.‛ Id. at 547.
Brown worked at Banana Kelly from the fall of 2007 through December
2010.2 He generally spent five days a week (and frequent Saturdays) at the
school for approximately forty hours per week and, in 2009, also assisted during
Brown was asked to stop coming to Banana Kelly when his verbal interaction
with a freshman girl triggered a DOE investigation. See Brown v. N.Y.C. Dep’t
of Educ., 2012 WL 6186496, at *2. Those circumstances are not relevant to the
challenged judgment and, therefore, warrant no further discussion in this
opinion.
2

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the summer session. Brown explained that Jerome told him he was needed five
days per week; therefore, he did not think that he had any choice but to come in
that frequently because ‚if I didn’t, I would be letting him [i.e., Jerome] down,
and I would be letting the school down.‛ Id. at 595. Brown acknowledged that
on the few occasions when he was absent, he was neither criticized nor
disciplined.
Brown was initially assigned to Banana Kelly’s ‚Intervention Team‛ (‚ITeam‛), a group of salaried employees tasked with student conflict resolution.
On this team, Brown performed various duties associated with lunchtime
supervision, detention, parent contact, and student escort. He also answered the
telephone and handed out report cards and progress reports. Only in 2010 was
Brown given any student mentoring responsibilities.
On various occasions, Brown asked Laub for a paid position.

Laub

generally responded negatively, citing budget constraints and Brown’s lack of
higher education. Laub did consider the possibility of offering Brown a parttime paid position and, on one occasion, told Brown that he would search the
budget for the necessary money. Nothing materialized, however, and Brown has
admitted that neither Laub nor Jerome ever told him that he was going to be paid

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for his work. Nevertheless, Brown asserted that Laub and Jerome created an
impression that money to pay him was forthcoming when, in 2010, Jerome
informed the I-Team that Laub had applied for a $170,000 grant to support its
work by, among other things, providing stipends for interns. Apparently, no
grant was ever received. Meanwhile, when Brown inquired as to a paid position
as a ‚school aide,‛ Laub and Jerome encouraged him to seek such a position at
another DOE school.
Brown did seek aide positions at other schools because he ‚wanted to get
paid.‛ Id. at 610. Further, in 2009, with a letter of recommendation from Jerome,
Brown secured a paid part-time evening job with a security company.
From time to time—but on fewer than five occasions in total—Laub gave
Brown cash in amounts ranging from $40 to $50, telling him that he was doing a
great job and should keep up the good work. Brown testified that he did not
know why Laub was giving him this money and did not think it was for his
work. Meanwhile, Brown asserted that in recognition of his ‚working all day‛
without pay and doing a ‚great job,‛ Jerome gave him $60 per week
approximately 10 to 20 times, as well as occasional MetroCards and subway fare.
Id. at 476. Both Laub and Jerome sometimes paid for Brown’s meals.

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Procedural History

On January 4, 2012, Brown commenced this action against DOE, alleging a
failure to pay him minimum and overtime wages as required by the FLSA. See
29 U.S.C. §§ 206(a), 207(a). On March 19, 2012, he amended his complaint to sue
Laub in his individual capacity for alleged violations of the New York Labor
Law. See N.Y. Lab. Law § 652 et seq.
On the parties’ cross-motions for summary judgment, the district court
granted DOE’s motion, concluding as a matter of law from the totality of the
circumstances viewed most favorably to Brown that Brown was a ‚volunteer, not
an employee, as defined by the FLSA‛ and, therefore, without a claim to
minimum or overtime wages. Brown v. N.Y.C. Dep’t of Educ., 2012 WL 6186496,
at *8.
II.

Discussion
A.

Notice of Motion

At the outset, we note that Brown urges vacatur of the judgment in this
case based on defendants’ alleged failure to comply with the particularity
requirements of the Federal Rules of Civil Procedure in moving for summary
judgment.

See Fed. R. Civ. P. 7(b)(1)(B) (requiring motion to ‚state with

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particularity the grounds for seeking the order‛). Brown argues that defendants’
motion was deficient in omitting any mention of the FLSA in their notice of
motion and stating summarily that they sought dismissal of all claims.
Brown concedes that he failed to raise any notice objection in the district
court. Thus, the point is forfeited on appeal. See Oneida Indian Nation v.
Madison Cnty., 665 F.3d 408, 441 (2d Cir. 2011), cert. dismissed, 134 S. Ct. 1582
(2014). Nor do we identify any reason to exercise our discretion to review the
forfeited claim. Defendants’ supporting memorandum of law, filed the same day
as their summary judgment motion, explained in detail the grounds for seeking
the requested relief. Thus, Brown cannot credibly claim that he did not have
notice of the grounds upon which defendants sought summary judgment. We
therefore proceed to discuss Brown’s merits challenge to the award of summary
judgment.
B.

Summary Judgment on FLSA Claim
1.

Standard of Review

Brown argues that disputed issues of fact precluded the district court from
concluding as a matter of law that he worked at Banana Kelly as a public agency
volunteer, thereby exempting DOE from the FLSA’s minimum and overtime

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wage requirements. This court has not previously had occasion to consider the
scope of the FLSA’s public agency volunteer exception.

Those of our sister

circuits to have considered the question have concluded that whether an
individual is a public service volunteer within the meaning of the FLSA is
ultimately a question of law. See Mendel v. City of Gibraltar, 727 F.3d 565, 568
(6th Cir. 2013); Purdham v. Fairfax Cnty. Sch. Bd., 637 F.3d 421, 428 (4th Cir.
2011); Cleveland v. City of Elmendorf, Tex., 388 F.3d 522, 526 (5th Cir. 2004); see
also Todaro v. Twp. of Union, 40 F. Supp. 2d 226, 228 (D.N.J. 1999). As with
other issues arising under the FLSA, however, the answer to that ultimate legal
question necessarily depends on record circumstances that can present disputed
questions of fact. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714
(1986); Zheng v. Liberty Apparel Co., 355 F.3d 61, 76 (2d Cir. 2003). Accordingly,
on review of a summary judgment award to a public agency, a court deciding
whether a party was a public agency volunteer must view the record evidence in
the light most favorable to the purported volunteer and draw all inferences and
resolve all record ambiguities in his favor. See generally Lynch v. City of New
York, 737 F.3d 150, 156 (2d Cir. 2013) (discussing standard of review on summary
judgment generally), cert. denied, --- S. Ct. ----, 2014 WL 1052398 (May 27, 2014);

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Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010) (same). When we do
that here on de novo review of the challenged judgment, we reach the same legal
conclusion as the district court, i.e., that Brown was a public agency volunteer
while working for Banana Kelly and, thus, exempt from the FLSA’s minimum
and overtime wage requirements.
2.

The Relevant Statutes and Regulations

In explaining how we reach that conclusion, it is useful to begin with the
relevant statutory and regulatory texts.
In enacting the FLSA in 1938, Congress required the payment of minimum
and overtime wages to persons satisfying the statutory definition of ‚employee.‛
See 29 U.S.C. §§ 203(e), 206(a), 207(a). While the term ‚employee‛ has been
construed to reach expansively, see Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d
85, 91 (2d Cir. 2013), cert. denied, 134 S. Ct. 918 (2014), the Supreme Court, in
Walling v. Portland Terminal Co., 330 U.S. 148, 152 (1947), concluded that it does
not reach individuals ‚who, without promise or expectation of compensation,
but solely for . . . personal purpose or pleasure, worked in activities carried on by
other persons either for their pleasure or profit.‛ We need not, however, here
decide how this ruling pertains to ‚volunteers,‛ because, in 1985, Congress

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specifically codified an FLSA exception for individuals who volunteer their
services to public agencies—such as DOE—subject to two conditions:
The term ‚employee‛ does not include any individual who
volunteers to perform services for a public agency which is a State, a
political subdivision of a State, or an interstate governmental
agency, if-(i) the individual receives no compensation or is paid expenses,
reasonable benefits, or a nominal fee to perform services for which
the individual volunteered; and
(ii) such services are not the same type of services which the
individual is employed to perform for such public agency.
29 U.S.C. § 203(e)(4)(A).3
The FLSA does not itself define the term ‚volunteer‛ for purposes of this
statutory exception.

Rather, the Department of Labor (‚DOL‛), the agency

charged with administering the statute, has done so through regulations.4 These

Because our decision here is based on a statutory exception to the FLSA for
public agency volunteers, we express no view on FLSA issues that may be
presented to this court in other cases respecting purported private sector
volunteers.
3

Congress specifically directed DOL to promulgate regulations to implement the
statutory volunteer exception. See S. Rep. No. 99-159, at 14 (1985), reprinted in
1985 U.S.C.C.A.N. 651, 652 (‚A new paragraph . . . is added to the FLSA to make
clear that persons performing volunteer services for state and local governments
should not be regarded as ‘employees’ under the statute. . . . The DOL is
directed to issue regulations providing further guidance in this area.‛). Thus, the
parties do not—and cannot—dispute that the regulations discussed in text are
entitled to Chevron deference. See generally United States v. Mead Corp., 533
U.S. 218, 227 (2001) (‚When Congress has ‘explicitly left a gap for an agency to
4

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regulations establish that to qualify as a ‚volunteer,‛ a person performing
services for a public agency must:
(1) have a civic, charitable, or humanitarian purpose,
(2) have not been promised or expect or receive compensation for the
services rendered,
(3) perform such work freely and without pressure or coercion, direct or
implied, from the employer, and
(4) not be otherwise employed by the same public agency to perform the
same type of services as those for which the individual proposes to
volunteer.
See 29 C.F.R. § 553.101(a), (c), (d).5

fill, there is an express delegation of authority to the agency to elucidate a
specific provision of the statute by regulation,’ and any ensuing regulation is
binding in the courts unless procedurally defective, arbitrary or capricious in
substance, or manifestly contrary to the statute.‛ (quoting Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984) (internal citation
omitted))).
Specifically, § 553.101(a) states: ‚An individual who performs hours of service
for a public agency for civic, charitable, or humanitarian reasons, without
promise, expectation or receipt of compensation for services rendered, is
considered to be a volunteer during such hours.‛ Section 553.101(c) further
states: ‚Individuals shall be considered volunteers only where their services are
offered freely and without pressure or coercion, direct or implied, from an
employer.‛ Finally, § 553.101(d) states: ‚An individual shall not be considered a
volunteer if the individual is otherwise employed by the same public agency to
perform the same type of services as those for which the individual proposes to
volunteer.‛
5

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To clarify the definition further, an additional regulation explains that
‚*v+olunteers may be paid expenses, reasonable benefits, a nominal fee, or any
combination thereof, for their service without losing their status as volunteers.‛
Id. § 553.106(a); see id. § 553.106(f) (stating that whether furnishing of expenses,
benefits, or fees would result in loss of volunteer status under FLSA can only be
determined by examining ‚total amount of payments made (expenses, benefits,
fees) in the context of the economic realities of the particular situation‛). ‚A
nominal fee is not a substitute for compensation and must not be tied to
productivity.‛ Id. § 553.106(e); see id. (identifying following factors as relevant
to determining if fee is nominal: ‚*t+he distance traveled and the time and effort
expended by the volunteer; whether the volunteer has agreed to be available
around-the-clock or only during certain specified time periods; and whether the
volunteer provides services as needed or throughout the year‛). Nevertheless,
individuals who volunteer ‚to provide periodic services on a year-round basis
may receive a nominal monthly or annual stipend or fee without losing
volunteer status.‛ Id. Moreover, individuals will ‚not lose their volunteer status
because they are reimbursed for the approximate out-of-pocket expenses

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incurred incidental to providing volunteer services, for example, payment for the
cost of meals and transportation expenses.‛ Id. § 553.106(b).
DOL regulations also state that the FLSA places ‚no limitations or
restrictions . . . on the types of services which private individuals may volunteer
to perform for public agencies.‛ Id. § 553.104(a); see id. § 553.104(b) (citing as
examples of volunteer service ‚assisting in a school library or cafeteria,‛ working
with ‚disadvantaged youth,‛ and participating in ‚charitable or educational
programs‛).
3.

Applying the Volunteer Exception to this Case

In considering any exception to the FLSA’s minimum and overtime wage
requirements, we are mindful that because the statute is remedial, exemptions
are to be narrowly construed against the employers seeking to assert them. See
Reiseck v. Universal Commc’ns of Miami, Inc., 591 F.3d 101, 104 (2d Cir. 2010).
In the case of the volunteer exception, however, we recognize, as DOL has, that
‚Congress did not intend‛ for the FLSA requirements to be construed ‚to
discourage or impede volunteer activities undertaken for civic, charitable, or
humanitarian purposes.‛ 29 C.F.R. § 553.101(b).

Rather, ‚its wish *was+ to

prevent any manipulation or abuse of minimum wage or overtime requirements

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through coercion or undue pressure upon individuals to ‘volunteer’ their
services.‛ Id.
It is with these principles in mind that we consider whether the facts
viewed most favorably to Brown demonstrate a genuine dispute as to his having
been a public agency volunteer at Banana Kelly.

While our ultimate

determination is based on the totality of circumstances, see Irizarry v.
Catsimatidis, 722 F.3d 99, 104 (2d Cir. 2013), cert. denied, 134 S. Ct. 1516 (2014),
our discussion necessarily focuses on discrete facts relevant to particular
statutory and regulatory criteria.
a.

The Required ‚Civic, Charitable, or Humanitarian‛
Purpose

Brown acknowledges that at least one of his goals in agreeing to work at
Banana Kelly was ‚civic, charitable, or humanitarian,‛ i.e., he wished to help
high school students by showing that people like himself genuinely cared about
them. 29 C.F.R. § 553.101(a); see supra at [5]. Nevertheless, he contends that the
regulation’s purpose requirement is not satisfied here because a person must act
solely for civic, charitable, or humanitarian purposes to qualify as a volunteer; a

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person acting with mixed motives cannot qualify. The district court rejected this
argument, and we do likewise.6
First, we note that the regulatory text does not support Brown’s urged
construction. It states that ‚*a+n individual who performs hours of service for a
public agency for civic, charitable, or humanitarian reasons, without promise,
expectation or receipt of compensation for services rendered, is considered to be
a volunteer during such hours.‛ 29 C.F.R. § 553.101(a). The language contains
no qualifying modifier requiring ‚civic, charitable, or humanitarian reasons‛ to
be ‚exclusive,‛ ‚singular,‛ or even ‚predominant.‛
Second, Brown points to nothing in the legislative or regulatory history to
suggest that either Congress or DOL intended to limit the volunteer exception to
Among our sister circuits, the Fourth has also concluded that mixed motives do
not preclude application of the volunteer exception. See Purdham v. Fairfax
Cnty. Sch. Bd., 637 F.3d at 429; see also Todaro v. Twp. of Union, 40 F. Supp. 2d
at 230 [D.N.J.]. The Fifth Circuit has avoided the issue by looking to the
‚objective facts‛ rather than the ‚personal motivations behind the provision of
services‛ and concluding that ‚anyone who performs public services without the
expectation of compensation, and with no tangible benefits for himself, is
volunteering for civic, charitable and/or humanitarian reasons.‛ Cleveland v.
City of Elmendorf, Tex., 388 F.3d at 528–29. We need not here decide whether
the statute permits a court to forego all inquiry into personal motivation because,
in this case, Brown admits that he was subjectively motivated, at least in part, by
civic, charitable, and humanitarian reasons. We thus discuss only why we reject
Brown’s argument that such a motivation must be singular to support the
volunteer exception to the FLSA.
6

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persons acting solely for civic, charitable, or humanitarian reasons. The 1985
Senate Report accompanying the amendments creating the volunteer exception
states Congress’s intent ‚*t+o make clear that persons performing volunteer
services for state and local governments should not be regarded as ‘employees’
under the [FLSA].‛

S. Rep. No. 99-159, at 14 (1985), reprinted in 1985

U.S.C.C.A.N. 651, 652. Further, it specifically disavows an ‚inten*t+ to discourage
or impede volunteer activities undertaken for humanitarian purposes,‛ not
activities undertaken solely for humanitarian purposes, id.; accord Application of
the Fair Labor Standards Act to Employees of State and Local Governments;
Volunteers, 51 Fed. Reg. 13411 (proposed Apr. 18, 1986) (codified at 29 C.F.R. pt.
553) (stating that ‚key area of concern was the possibility that volunteer activities
undertaken for humanitarian purposes would be discouraged or impeded by
application of existing FLSA law and regulations‛). Moreover, the regulations
do express a clear limiting intent, defined not by the volunteer’s exclusivity of
purpose, but, rather, by his free choice in providing services without payment.
See 29 C.F.R. § 553.101(b)–(d).7

7

The relevant subsections of § 553.101 state as follows:
(b) Congress did not intend to discourage or impede volunteer
activities undertaken for civic, charitable, or humanitarian purposes,
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While we are obliged to construe the volunteer exception narrowly, that
obligation does not contemplate the imposition of judicial limits not intended by
either Congress or the implementing agency, particularly where those limits
would further a result—discouraging or impeding volunteer services to public
agencies—that Congress and the agency expressly disavow.

In this respect,

common sense and human experience inform our consideration of Brown’s
urged exclusive-purpose limitation.

They instruct that human actions are

frequently informed by multiple reasons.

As Justice—then Judge—Cardozo

aptly observed in a different context, ‚the springs of conduct are subtle and
varied.‛ De Cicco v. Schweizer, 221 N.Y. 431, 438 (1917). Thus, a person may
provide a public agency with free services for genuine civic, charitable, or
humanitarian reasons, at the same time that he acts for a variety of personal

but expressed its wish to prevent any manipulation or abuse of
minimum wage or overtime requirements through coercion or
undue pressure upon individuals to ‚volunteer‛ their services.
(c) Individuals shall be considered volunteers only where their
services are offered freely and without pressure or coercion, direct
or implied, from an employer.
(d) An individual shall not be considered a volunteer if the
individual is otherwise employed by the same public agency to
perform the same type of services as those for which the individual
proposes to volunteer.
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reasons, e.g., to secure community approbation, to make amends for unrelated
wrongs, to fill idle time, to meet new people, or—as in Brown’s case—to improve
one’s résumé. To exclude all services provided with such mixed motives from
the public agency volunteer exception to the FLSA would undoubtedly
discourage and impede a significant amount of public agency volunteering,
contrary to Congress’s intent. This we decline to do. Rather, we conclude that a
person’s mixed motives are simply part of the totality of circumstances properly
considered by a court in making the final legal determination of whether a
person is a public agency volunteer or an employee. See Irizarry v. Catsimatidis,
722 F.3d at 104.
Here, as already noted, Brown acknowledges that civic and humanitarian
reasons sincerely (and significantly) informed his decision to work at Banana
Kelly.

That is sufficient to satisfy the purpose requirement of 29 C.F.R.

§ 553.101(a).8 The fact that this unemployed, recent high school graduate hoped
also to build his résumé and to emulate his role model does not legally preclude

This case does not require us to decide whether even a trivial civic, charitable,
or humanitarian reason satisfies the regulatory purpose requirement.
8

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a court from finding him to have served as a public agency volunteer exempt
from the FLSA’s minimum and overtime wage requirements.9
Nor is a different conclusion warranted because Brown hoped to achieve
his civic and humanitarian goals by mentoring students and, instead, was
assigned to a team more focused on student discipline. The record convincingly
demonstrates that such work also afforded Brown opportunities to serve his
primary civic and humanitarian objective: showing students that there were
people who cared about them. See 29 C.F.R. § 553.104(a) (recognizing that FLSA
places no limits on types of services that volunteer may perform for public
agencies).

Thus, because nothing in the nature of Brown’s work takes his

services out of the statutory public agency volunteer exception, we adhere to our
conclusion that the regulatory purpose requirement is satisfied in this case. See
id. § 553.101(a); see generally id. § 553.104(b) (identifying as examples of
volunteer services ‚assisting in a school . . . cafeteria,‛ working with
‚disadvantaged youth,‛ and participating in ‚educational programs‛).

Velez v. Sanchez, 693 F.3d 308 (2d Cir. 2012), cited by Brown, is not to the
contrary. There we held that motives in addition to an expectation of material
gain did not preclude application of the FLSA. See id. at 328. We now hold that
motives in addition to civic, charitable, and humanitarian ones do not preclude
application of the statutory public agency volunteer exception to the FLSA.
9

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Prohibition on Compensation

The regulatory definition of a public agency volunteer precludes the
‚promise, expectation, or receipt of compensation for services rendered.‛ Id.
§ 553.101(a). We discuss, in turn, Brown’s contention that he satisfied, or at least
raised triable issues of fact, as to each of the prohibited actions relating to
compensation.
(1)

Promise

Brown asserts that he raised a triable issue of fact regarding promised
compensation through evidence that (1) Laub promised to ‚search the budget‛
for money to pay him, J.A. 620; and (2) Jerome informed him and others that
Banana Kelly was applying for a grant that could be used, among other things, to
fund a stipend for interns. Like the district court, we conclude that these facts
cannot admit a genuine dispute as to promised compensation.
Because the regulations do not define the term ‚promise‛ as used in
§ 553.101(a), we assume that the word bears its ordinary meaning: ‚a declaration
that one will do or refrain from doing something specified.‛ Webster’s Third
New International Dictionary 1815 (1986); see also Black’s Law Dictionary 1332
(9th ed. 2009) (defining ‚promise‛ as ‚[t]he manifestation of an intention to act or

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refrain from acting in a specified manner, conveyed in such a way that another is
justified in understanding that a commitment has been made; a person’s
assurance that the person will or will not do something‛). To the extent the
statements cited by Brown made declarations or commitments sufficient to be
deemed a ‚promise,‛ that promise was not to pay Brown, but only to search the
budget or to apply for a grant that might make payment possible. In short,
before the outcome of the search was known or the grant received, no person
would be justified in understanding that defendants had made a commitment to
pay Brown.
(2)

Expectation

Brown submits that his professed subjective expectation of payment is
sufficient to preclude finding him a public agency volunteer and that the district
court erred in requiring him to demonstrate that his expectation was objectively
reasonable. We disagree. To construe ‚expectation of payment‛ as Brown urges
would allow individuals to wish themselves (however unreasonably) into being
owed FLSA wages, despite the (reasonable) belief of public agencies that they
were accepting volunteered services.

This construction would impede

volunteerism because public agencies, if placed at risk of owing FLSA back pay

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based on persons’ subjective expectations of payment, will be more reluctant to
accept volunteered services.

Thus, consistent with Congress’s intent not to

discourage or impede volunteering, we conclude that the term ‚expectation,‛ as
used in 29 C.F.R. § 553.101(a), is properly construed to contemplate an
objectively reasonable expectation of compensation.10
In this case, the objective fact weighing most strongly in Brown’s favor is
his work history at Banana Kelly, which generally reflects 40-hour (and
sometimes more) work weeks over more than three years.

Few people

voluntarily work such long hours for so extensive a period without expecting
compensation. This case, however, presents the somewhat unusual circumstance
of a recent high school graduate who, unable to find paid employment—with the
exception of a part-time night job—decided to use his time constructively to help
others and to build his résumé. His choice is commendable. But, like the district
court, we conclude that the record does not admit a reasonable finding of an

We have identified two district courts outside this circuit that have applied an
objective reasonableness standard to an expectation of payment under the FLSA.
See Palar v. Blackhawk Bancorporation, Inc., No. 4:11-cv-4039-SLD-JAG, 2013
WL 5366124, at *4 (C.D. Ill. Sept. 25, 2013) (holding plaintiff to be volunteer in
part because he did not reasonably expect compensation for his activities (citing
29 C.F.R. § 553.101(a))); Todaro v. Twp. of Union, 40 F. Supp. 2d at 230–31
[D.N.J.] (stating that unreasonable expectation of compensation should not be
allowed to defeat volunteer status under DOL regulations).
10

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objectively reasonable expectation of compensation for the work done at Banana
Kelly.
In his undisputed statement of facts, Brown acknowledged that, at the
start, Laub told him that he would work as a ‚volunteer intern[],‛ explaining that
meant he would ‚help out, but receive no pay.‛ J.A. 467–68. Even if, as Brown
asserted at his deposition, he ‚failed to fully appreciate‛ what this meant in all
respects, id. at 468, he acknowledged no recollection of anyone ever telling him
that he was going to get paid. Moreover, Brown’s understanding that he would
not be compensated for his services at Banana Kelly is evident from his repeated
requests for a ‚paid position,‛ requests generally met with negative responses
based on his lack of a higher education and/or budget constraints. Insofar as
Laub or Jerome represented that they would search the budget for money, or
were seeking a grant, that might allow them to pay Brown, such forward looking
statements as to future possibilities are not enough to support an objectively
reasonable expectation of payment for work performed in advance of finding
money in the budget or of receiving a grant, neither of which appears to have
occurred here.

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Accordingly, the record admits no genuine dispute as to a reasonable
expectation of payment precluding application of the public agency volunteer
exception in this case.
(3)

Receipt

Brown asserts that the cash and benefits that Laub and Jerome gave him
demonstrate a receipt of compensation precluding volunteer status. Specifically,
he contends that the amounts received were more than nominal, and that the
district court erred in failing to apply an economic reality test to assess the
significance of the payments at issue.

These arguments implicate 29 C.F.R.

§ 553.106(a) (‚Volunteers may be paid expenses, reasonable benefits, a nominal
fee, or any combination thereof, for their service without losing their status as
volunteers‛ (emphasis added)), and § 553.106(f) (‚Whether the furnishing of
expenses, benefits, or fees would result in individuals’ losing their status as
volunteers under the FLSA can only be determined by examining the total
amount of payments made (expenses, benefits, fees) in the context of the
economic realities of the particular situation‛ (emphasis added)).11

Neither

argument is persuasive.

Also relevant are 29 C.F.R. § 553.106(e) (stating that nominal fees to volunteers
cannot serve as ‚substitute for compensation‛ and must not be ‚tied to
11

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First, Brown is mistaken in suggesting that there is a single ‚economic
realities‛ test consisting of uniform factors that should have been applied in this
case. As the text of § 553.106(f) itself makes plain, economic realities are assessed
by reference to ‚the particular situation‛ with some factors more important than
others depending on the FLSA question at issue and the context in which it
arises. This court has, in fact, applied several variations of economic reality tests
as best suited to particular situations.

For example, to determine employer

status, we have looked to economic realities such as (1) the power to hire and fire
employees, (2) the ability to supervise and control employee work schedules or
terms of employment, (3) authority over the rate and method of employee
payment, and (4) the maintenance of employment records.

See Carter v.

Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984). To distinguish between
employees and independent contractors, we have considered (1) the degree of
control exercised by the employer over workers, (2) workers’ own investment in
a business and their opportunity for profit and loss, (3) the degree of skill and
initiative required to perform the work, (4) the permanence or duration of the

productivity‛) and § 553.106(b) (stating that ‚individuals *do+ not lose their
volunteer status because they are reimbursed for the approximate out-of-pocket
expenses incurred incidental to providing volunteer services, for example,
payment for the cost of meals and transportation expenses‛).
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working relationship, and (5) the extent to which the work is integral to the
employer’s business. See Brock v. Superior Care, Inc., 840 F.2d 1054, 1058–59 (2d
Cir. 1988). More recently, in Velez v. Sanchez, 693 F.3d 308, 329–31 (2d Cir.
2012), we employed factors from both these tests to determine whether an
individual was a domestic service worker or a household member, considering
(1) the employer’s ability to hire and fire the individual, (2) the method of
recruitment or solicitation, (3) the employer’s ability to control terms of
employment such as hours and duration, (4) the presence of employment
records, (5) the expectations or promises of compensation, (6) the flow of benefits
from the relationship, and (7) the history and nature of the parties’ relationship
aside from domestic labor. More important, Velez clarified that an economic
realities test is not ‚confined to a narrow legalistic definition‛ but, rather, looks
to all circumstances relevant to the matter in issue. Id. at 330 (internal quotation
marks omitted).
We understand the district court correctly to have assessed Brown’s
claimed receipt of compensation by reference to all relevant economic realities.
In any event, Brown’s argument to the contrary merits little discussion because,
on de novo review, we make such an assessment ourselves. In so doing, we

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conclude that economic realities such as an employer’s ability to hire and fire, to
supervise and control, and to maintain records provide little assistance here in
deciding

whether

the

cash

and

benefits

compensation for his services at Banana Kelly.

Brown

received

constituted

Nor do such factors reveal

whether Brown’s status was that of an employee or a volunteer, as they appear to
apply equally to persons working in both capacities. Economic realities such as
worker skill level, initiative, and integrality in an employer’s business are also
unhelpful here in distinguishing between employees and volunteers as these
factors can often weigh the same for both.
More probative are the permanence and duration of a working
relationship.

As already noted, it is unusual for a person to provide

uncompensated services for 40-hour weeks over the course of years. Thus, this
economic reality warrants careful consideration in assessing whether the cash
and benefits given to Brown constituted compensation. Also relevant, however,
are the history and nature of the parties’ relationship. Here Laub and Jerome, in
their capacities as professional educators, had known Brown as a high school
student.

Upon learning that this recent graduate was unemployed, and

recognizing the difficulty someone with his modest skills would have securing a

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paid position, they offered him an unpaid internship, an opportunity that Brown
himself recognized would help build his résumé. In this respect, the parties’
relationship was not that of a typical employer/employee but, rather, retained
some of the mentoring features of educator/student. This factor also warrants
careful consideration in assessing whether the cash and benefits these two men
gave Brown constituted compensation.
As for the employer’s ability to determine the rate and method of
payment, this factor is here superseded by a more probative inquiry: Was the
payment given, by whatever method, more than nominal? If it was, the payment
is appropriately deemed compensation, precluding a volunteer determination. If
the payment was only nominal, however, DOL regulations instruct that the
recipient can still qualify as a volunteer. See 29 C.F.R. § 553.106(a).
Brown asserts that the cash and benefits given to him by Laub and Jerome
cannot be deemed nominal when viewed against the ‚economic reality‛ of his
almost impoverished condition. Specifically, he contends that he ‚counted on‛
the cash, subway fare, and lunches provided to cover his ‚transportation
expenses‛ to and from Banana Kelly and ‚to pay for personal expenses.‛ J.A.
444. In support, he notes that in Velez v. Sanchez, we held that the provision of

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minimal ‚dispensations‛ to a domestic worker did not preclude a finding that
she was an employee under the FLSA where she was ‚dependent upon those
benefits.‛ 693 F.3d at 328. Velez, however, is distinguishable in two important
respects. First, the alleged employer was a private person, not a public entity.
Thus, our assessment of the parties’ employer/employee relationship in that case
was not informed by the public agency volunteer exception codified in 29 U.S.C.
§ 203(e)(4)(A) and implementing DOL regulations.

Second, the minimal

‚dispensations‛ referenced in that case were provided along with room and
board, circumstances that, in their totality, could not be said to reflect nominal
payments. See Velez v. Sanchez, 693 F.3d at 314; see generally Tony & Susan
Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 292, 301 (1985) (holding that
workers were employees, not volunteers, where food, shelter, and other benefits
upon which they were dependent constituted ‚wages in another form‛).
Here, even if we fully credit Brown’s claims of indigence and reliance, the
payments made to him cannot be considered more than nominal. If, as Brown
asserts, Laub gave him $40 to $50 on five occasions, and Jerome gave him $60 on
20 occasions, the cash received would total only $1450, an amount that, over
approximately three years, can only be deemed nominal. Although Laub and

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Jerome sometimes accompanied these payments with expressions of appreciation
for Brown’s efforts and encouragement to keep up his hard work, this is not
enough to tie the payments to Brown’s productivity. See 29 C.F.R. § 553.106(e)
(stating that nominal fee ‚must not be tied to productivity‛); see also Purdham v.
Fairfax Cnty. Sch. Bd., 637 F.3d at 434 (holding, as matter of law, that annual
coaching stipend not tied to success or hours worked does not constitute
compensation precluding application of volunteer exception). Indeed, nothing in
the record indicates that Laub’s or Jerome’s cash payments were tied to the
particular hours Brown worked or the performance goals he met.
As for the MetroCards, subway fares, and meals that Laub and Jerome
sporadically provided to Brown, we conclude that such benefits constituted
precisely the sort of expenses coverage permitted by 29 C.F.R. § 553.106(b)
(stating that individuals do not lose ‚volunteer status because they are
reimbursed for the approximate out-of-pocket expenses incurred incidental to
providing volunteer services, for example, payment for the costs of meals and
transportation expenses‛).
In sum, we conclude that, even when all relevant economic realities are
viewed in the light most favorable to Brown, the cash and benefits he received

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from Laub and Jerome cannot reasonably be deemed ‚compensation‛ so as to
preclude application of the public agency volunteer exception to the FLSA’s
minimum and overtime wage requirements.
c.

Prohibition on Coercion

As we have already observed, see supra at [13], critical to identifying a
person as a public agency volunteer for purposes of claiming an exception from
the FLSA’s minimum and overtime wage requirements is that the person offer
his services ‚freely and without pressure or coercion, direct or implied, from an
employer.‛ 29 C.F.R. § 553.101(c). Brown argues that the record did not permit
the district court to resolve this question as a matter of law in favor of defendants
because his deposition testimony raised a genuine dispute of material fact about
coercion. We disagree.
Brown testified that ‚*s+ometimes‛ he did not have a choice as to whether
to come to work at Banana Kelly. J.A. 595. But as he himself acknowledged, this
obligation was the result not of any coercion by defendants but of his own
laudable sense of responsibility. Thus, when Jerome told Brown he needed him
at the school from Monday through Friday, Brown said ‚Fine.‛ Id. at 592. On
days when Jerome told Brown that ‚we really, really need you,‛ Brown thought

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he had no choice but to come in because, otherwise, he would be ‚letting
*Jerome+ down, and . . . letting the school down.‛ Id. at 595.

Indeed, Brown

rarely missed a day at Banana Kelly, but when he did, he acknowledged that he
was not criticized, nor did he suffer any adverse consequences. See id. at 594–95.
These circumstances admit no reasonable finding of coercion by Banana Kelly
but, rather, particular conscientiousness by Brown in freely giving his services to
the school and its students.

Like the district court, we conclude that the

voluntariness requirement of the public agency volunteer exception is
established as a matter of law.
Indeed, for the reasons discussed, we conclude that the totality of record
circumstances, even when viewed in the light most favorable to Brown, compels
the legal conclusion that Brown rendered services at Banana Kelly as a public
agency volunteer, thereby exempting DOE from the minimum and overtime
wage requirements of the FLSA. Summary judgment was therefore properly
entered in DOE’s favor.12

Because we affirm the district court’s summary judgment award on the merits,
we need not address defendants’ argument that Brown’s claim is barred in part
by the statute of limitations.
12

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Conclusion
To summarize, we conclude as follows:
1.

Because plaintiff did not challenge summary judgment in the district
court based on defendants’ failure to satisfy the notice requirements
of Fed. R. Civ. P. 7(b), and because plaintiff cannot credibly claim
lack of notice, we decline to review this forfeited claim.

2.

Whether a person qualifies as a public agency volunteer exempt
from the minimum and overtime wage requirements of the FLSA,
see 29 U.S.C. § 203(e)(4)(A), is a question of law that, on a summary
judgment motion by the public agency, should be decided by the
court based on the totality of circumstances viewed most favorably
to the purported volunteer.

3.

The regulatory requirement that a public agency volunteer be
motivated by ‚civic, charitable, or humanitarian reasons,‛ 29 C.F.R.
§ 553.101(a), does not demand that such motivation be singular.

4.

Economic realities properly inform an assessment of various
questions arising under the FLSA, including whether a person
alleged to have been a public agency volunteer was promised,

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reasonably expected, or received compensation. See id. No single
economic realities test, however, applies to all FLSA questions.
Rather, a court must identify, from the totality of circumstances, the
economic (and other) factors most relevant to the issue in dispute.
5.

In assessing a person’s expectation of compensation for purposes of
deciding whether he is a public agency volunteer, a court applies an
objective reasonableness rather than subjective standard.

6.

The record, even when viewed most favorably to Brown, compels
the legal conclusion that he served at DOE’s Banana Kelly High
School as a public agency volunteer.

Specifically, Brown was

significantly motivated by civic, charitable, or humanitarian reasons
in providing his services, at the same time that he acted for other
personal reasons. The record does not admit a reasonable finding of
promise, expectation, or receipt of compensation within the meaning
of the FLSA.

Nor is there a triable issue of fact as to Brown’s

services being provided other than freely and without coercion.

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Accordingly, summary judgment of Brown’s FLSA claim was correctly
entered in favor of DOE, and the district court acted well within its discretion in
dismissing Brown’s New York Labor Law claim against Laub without prejudice
to refiling in state court. The judgment of the district court is hereby AFFIRMED
in all respects.

37