Godlewska et al v. Human Development Association, Inc et al
Filing
282
ORDER granting 270 City Defendants' Motion for Summary Judgment and denying 277 Plaintiffs' Cross-Motion for Summary Judgment. Ordered by Magistrate Judge Joan M. Azrack on 1/2/2013. (Weiner, Amy)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––X
ELZBIETA GODLEWSKA, KRYSTYNA BIELAWSKA,
BARBARA HATALA, BARBARA PILCH, and
BOLESLAW PRYZGODA, on behalf of themselves and
all others similarly situated,
Plaintiffs,
MEMORANDUM AND
ORDER
CV–03–3985 (RJD) (JMA)
–against–
HDA, HUMAN DEVELOPMENT ASSOCIATION, INC.,
d/b/a HDA, YECHILA GRUENWALD a/k/a YECHIEL
GRUENWALD individually and as Executive Director of
HDA, HUMAN DEVELOPMENT ASSOCIATION, INC.,
ZVI KESTENBAUM, MARINA VOSKOBOYNIKO,
GOLDA POKHIS a/k/a OLGA POKHIS, MARGARITA
ZILBERT, EVA FRIEDMAN, IRENA GADZHIYEVA,
SARAH JUROVIESKY, ELLA RASHKOVA, BELLA
SLOMIVC, RITA STRASHNOV, THE CITY OF NEW
YORK, NEW YORK CITY HUMAN RESOURCES
ADMINISTRATION and VERNA EGGLESTON, as
Commissioner of NYC Human Resources Administration,
Defendants.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––X
APPEARANCES:
Robert Wisniewski
Robert Wisniewski & Associates, P.C.
225 Broadway, Suite 612
New York, New York 10007
Attorney for Plaintiffs
Michael A. Cardozo, Corporation Counsel of the City of New York
Andrea O’Connor, Assistant Corporation Counsel of the City of New York
New York City Law Department
Office of the Corporation Counsel
100 Church Street, Rm. 6-119
New York, New York 10007
Attorneys for City Defendants
1
AZRACK, United States Magistrate Judge:
In June 2012, the parties consented to my deciding summary judgment motions
concerning whether defendants the City of New York (the “City”), New York City Human
Resources Administration (“HRA”), and Verna Eggleston as HRA Commissioner (together,
“City Defendants”) are plaintiffs’ joint employer. ECF Nos. 276, 281. Now before me are the
(i) City Defendants’ motion for summary judgment, in which City Defendants argue that they are
not plaintiffs’ joint employer; and (ii) plaintiffs’ cross-motion for summary judgment, in which
plaintiffs argue the contrary position. ECF Nos. 270–75, 277–80. For the reasons discussed in
this memorandum, City Defendants’ motion for summary judgment is granted, and plaintiffs’
cross-motion for summary judgment is denied.
BACKGROUND
Plaintiffs seek (i) unpaid prevailing, minimum and overtime wages, benefits, liquidated
damages, reasonable attorneys’ fees, and damages for retaliation under the Fair Labor Standards
Act of 1938 (29 U.S.C. § 201, et seq.) (“FLSA”), the Civil Rights Act of 1871 (42 U.S.C.
§ 1983), 42 U.S.C. § 1988, N.Y. Labor Law Arts. 6 and 19, and New York State common law;
(ii) actual, treble, and punitive damages for violations of the Racketeer Influenced and Corrupt
Organizations Act (18 U.S.C. § 1964) and N.Y. Labor Law §§ 193 and 198–b; and (iii) under
New York State common law for unjust enrichment and negligent hiring and supervision. Third
Am. Compl., ECF No. 95.
Plaintiffs are former or current home attendants employed by
defendant Human Development Association (“HDA”), a not-for-profit agency that contracted
with HRA to provide home attendant services to City residents.1 See Home Attendant Services
1
HDA is not a party to the instant summary judgment motions.
2
Agreement, dated November 2, 2001 (“Contract”) at 1, Ex. C.2 Plaintiffs allege, among other
things, that City Defendants (1) are subject to the FLSA’s compensation requirements because
they are plaintiffs’ joint employer; and (2) violated the FLSA by not paying plaintiffs as that
statute requires.
Motion practice in this case has spanned several years. In April 2004, defendants brought
a motion to dismiss plaintiffs’ civil RICO claim, which Judge David Trager granted in part and
denied in part. See Godlewska v. Human Dev. Ass’n, No. 03–CV–3985, 2005 WL 1667852
(E.D.N.Y. July 18, 2005), ECF No. 49. On May 18, 2006, I granted in part and denied in part
plaintiffs’ motion to amend their First Amended Complaint. See Godlewska v. Human Dev.
Ass’n, No. 03–CV–3985, 2006 WL 1422410 (E.D.N.Y. May 18, 2006), ECF No. 72. Plaintiffs
amended their complaint twice thereafter. See ECF Nos. 74, 95. On September 19, 2011, I
granted plaintiffs’ and City Defendants’ request for permission to file summary judgment
motions solely on the issue of whether City Defendants are a joint employer of plaintiffs. In
June 2012, plaintiffs and City Defendants consented to my deciding the summary judgment
motions. ECF Nos. 276, 281.
A. New York State’s Medicaid Program
Medicaid law entitles qualified patients to receive “personal care services” (“PCS”). 42
U.S.C. § 1396d(a)(24); N.Y. Soc. Servs. L. § 365–a(2)(e).
The federal government and
participating states finance Medicaid jointly. 42 C.F.R. § 430.0. New York, as a participating
state, established a “plan” for providing Medicaid services, which the federal government
approved. See 42 U.S.C. §§ 1396–1, 1396b(a); 42 C.F.R. § 430.0.
2
Lettered exhibits referred to herein are annexed to the Declaration of Andrea O’Connor, Esq.,
dated January 9, 2012, ECF No. 271. Numbered exhibits referred to herein are annexed to the
Declaration of Robert Wisniewski, Esq., dated April 3, 2012, ECF No. 277-1. Unless otherwise
indicated, “Contract” refers to Part I of the Contract.
3
The New York State Department of Health (“NYSDOH”) is the state agency that
implements and supervises New York’s Medicaid plan and oversees the governing state
regulatory scheme. See N.Y. Pub. Health L. § 201(1)(v); N.Y. Soc. Servs. L. § 363–a(1); 18
N.Y.C.R.R. § 505.14 (the “Regulations”). Pursuant to the Regulations, NYSDOH delegates
running the PCS program to “local social services districts,” such as the City.
See 18
N.Y.C.R.R. § 505.14; N.Y. Soc. Servs. L. §§ 56, 62. HRA administers the City’s PCS program
and contracts with home healthcare agencies such as HDA to provide PCS to eligible patients.
See Ng Dep. 69:2–3, 4/9/10. HDA is a not-for-profit agency organized “for the sole purpose of
providing personal care services under contract with the City” to persons the City determines are
Medicaid-eligible for such services. Contract at 1. Plaintiffs are former and current home
attendants that HDA employed.
B.
HRA and HDA
1.
The Contract
The Regulations require HRA to use a State-approved model contract when it contracts
with home healthcare agencies. 18 N.Y.C.R.R. § 505.14(c). The City may vary the model
contract only if the variations do not change the model contract’s requirements and NYSDOH
permits the variation. Id. HDA and HRA did not negotiate over the Contract. Ng Dep. 109:20–
110:4, 4/9/10; Gruenwald Dep. 354:4–12, 6/7/10. HRA reserves the right to terminate the
Contract without cause if doing so would be in the City’s best interest. Contract Part II Art.
6.1(F).
The Contract states several times that City Defendants do not have an employment
relationship with HDA or the home attendants. See Contract Art. 10.1(B), Contract Part II Arts.
5.1, 5.4.
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2.
How City Defendants Authorize PCS
The Regulations govern in detail the terms, delivery, and administration of PCS, which
they define as “some or total assistance with personal hygiene, dressing and feeding; and
nutritional and environmental support functions,” which “must be essential to the maintenance of
the patient’s health and safety in his or her own home, as determined by the social services
district in accordance with the Regulations of the Department of Health; ordered by the attending
physician; based on an assessment of the patient’s needs and of the appropriateness and costeffectiveness of services . . .; and supervised by a registered professional nurse.” 18 N.Y.C.R.R.
§ 505.14(a) et seq. The Regulations list specific PCS tasks that City Defendants may authorize
and, for some of those tasks, the maximum number of hours a home attendant may work for a
particular patient. See id.
The Regulations also dictate the procedures HRA must follow when a prospective
Medicaid patient requests services. First, the patient’s physician must submit an order on the
form the State requires. Id. §§ 505.14(b)(2)–(3)(i). Second, an HRA employee must complete a
social assessment of the prospective patient on a form the State requires. Id. §§ 505.14(b)(2)–
(3)(ii). Third, a nurse must assess the patient. Id. §§ 505.14(b)(2)–(3)(iii).
Using input from the doctor, nurse, and social assessment, HRA’s Community
Alternative Systems Agency division (“CASA”) makes the initial determination whether to
authorize any of the specific tasks the Regulations enumerate and, if so, how many hours to
authorize. See id. § 505.14(b)(5); Kalvin Dep. 7:16–8:5, 11/8/10. Once the City authorizes
services, HRA provides HDA with written information about the services authorized, including
their duration and frequency. See 18 N.Y.C.R.R. § 505.14(b)(5). HRA must approve any
change to the authorization. Id. § 505.14(b)(5)(vii).
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3.
Hiring and Training Home Attendants
Pursuant to the Contract, HDA is “responsible for the recruitment and employment” of
home attendants. Contract Art. 6.1. HDA screens all prospective home attendants and chooses
which ones to hire.
Id. Art. 6.1(C)–(D); Gruenwald Dep. 362:22–363:3, 6/7/10.
HDA
“personnel specialists” conduct the interviewing and hiring. See Godlewska Dep. 20:19–21,
1/22/09; Bielawska Dep. 14:5–21, 1/23/09; Pryzgoda Dep. 11:3–13, 2/1/10; Pilch Dep. 13:12–
18, 2/9/10.
The Regulations dictate specific minimum qualifications for home attendants who
provide PCS, including “maturity, emotional and mental stability,” experience in personal care
or homemaking, literacy, “sympathetic attitude,” certification of good physical health, a criminal
history record check, and certain required training that NYSDOH approves – forty hours of
“basic training,” three semi-annual hours of “in-service” training, and on-the-job training as
needed. 18 N.Y.C.R.R. § 505.14(d)(4)–(e).
In addition to the regulatory requirements, the Contract requires HDA to hire at least one
Public Assistance recipient for each $250,000 in the Contract’s value, though HDA may request
that HRA exempt it from this requirement on grounds of “extreme hardship.” Contract Part II
Art. 7.
4.
The Assignment Process at HDA
When HDA receives a service authorization for a new patient, an HDA nurse schedules a
home visit to see what type of home attendant would best serve the patient. Gruenwald Dep.
232:20–233:7, 5/4/10. HDA also assigns the new patient to a personnel specialist, who gives the
home attendant her assignments and is responsible to find a suitable substitute if the home
attendant is sick. See 18 N.Y.C.R.R. § 505.14(f)(2); Gruenwald Dep. 36:12–19, 96:15–21,
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5/3/10; Gruenwald Dep. 206:17–22, 5/4/10; Hatala Dep. 264:5–10, 1/21/10; Biewlawska Dep.
10:22–24, 1/23/09; Pryzgoda Dep. 71:19–25, 2/1/10; Pilch Dep. 26:13–15, 2/9/10; Contract Art.
6.2(F).
5.
Supervision and Monitoring
i.
Supervision of Home Attendants
The Regulations require that home attendants receive “administrative supervision” and
“nursing supervision,” both of which HDA handles.
18 N.Y.C.R.R. § 505.14(f).
The
administrative supervision includes “verifying” that the patient is receiving PCS according to the
City’s authorization, evaluating home attendants’ job performance or helping the nurse
supervisors to do so, checking home attendants’ time cards, and keeping scheduling records. Id.
§ 505.14(f)(2); see Contract Arts. 6.2, 6.5(B). The nursing supervision entails instructing or
training the home attendant upon initiating services for a new patient and, at least every three
months, conducting “Supervisory Nursing Visits” at which an HDA nurse evaluates and trains
the home attendant. See Contract Arts. 1.28, 5.4; 18 N.Y.C.R.R. § 505.14(f)(3). HDA must
forward to HRA copies of the performance evaluations that the nursing supervisors conduct.
Contract Art. 5.4(D).
HDA also evaluates home attendants’ performance annually.
See
Gruenwald Dep. 85:9–13, 5/3/10; Contract Art. 6.2(G). The HDA personnel specialist assigned
to the home attendant handles any disciplinary issues involving the home attendant.
City
Defendants’ Local Rule 56.1 Stmt. of Facts (“Defs.’ 56.1”) ¶ 73.
The Contract obligates HDA to maintain a “personnel file” for each home attendant.
Contract Art. 6.3(A); see Gruenwald Dep. 79:13–25, 5/3/10; Ng. Dep. 223:13–14, 4/16/10.
HDA keeps the home attendant’s performance evaluations, training certificates, time sheets, and
7
records of any disciplinary action in the personnel file. See Gruenwald Dep. 83:25–84:18,
5/3/10; Contract Art. 6.2; see also 18 N.Y.C.R.R. § 505.14(f)(2).
HDA handles home attendants’ complaints. See Contract Art. 6.5(G)(2) (requiring HDA
to have grievance procedures for home attendants’ complaints regarding “conditions of
employment and proposed termination of employment”); Gruenwald Dep. 85:14–86:14, 5/3/10.
Unlike HDA, HRA does not accept complaints from home attendants; if a home attendant
complains to HRA, HRA refers the home attendant back to HDA. See Ng Dep. 49:3–11, 4/9/10.
HDA conveys a home attendant’s complaint to CASA only if the home attendant complains that
the patient is asking her to perform services outside the Medicaid authorization. See Kalvin Dep.
47:20–48:12, 11/8/10. If this happens, CASA schedules a “case conference” with the patient and
HDA, and “sometimes” with the home attendant as well, to explain to the patient the scope of the
home attendant’s job. Id. 48:13–20.
In contrast, both HDA and City Defendants handle patients’ complaints. The Contract
requires HDA to develop and use procedures to (1) investigate and resolve patient complaints
and (2) contact patients – by telephone, home visits, or mail surveys – to obtain their responses
regarding whether the home attendants’ services are satisfactory. Contract Arts. 5.4(C)(1),
6.5(G). HDA must keep and forward to HRA records of these contacts. Id. Art. 5.4(D). Apart
from this, HRA has a “quality assurance division,” which receives patients’ complaints and visits
patients on a random basis to ensure that patients are receiving services and “happy with the
services.” Ng Dep. 142:17–143:14, 169:23–25, 4/16/10. It is very rare for HRA to send a
quality control monitor to visit a patient. Moss Dep. 33:9–14, 8/17/10.
When HRA receives a patient complaint, it refers the complaint to HDA to investigate
and report back to HRA any actions HDA has taken. Id. 33:24–34:10. If the complaint alleges
8
that the home attendant poses a high risk to the patient, HRA will also investigate. Id. 34:6–10.
If HRA were to determine that the home attendant posed a risk to the patient, HRA would direct
HDA to remove the home attendant from the patient’s case. Id. 34:6–10; Ng Dep. 23:5–24:22,
5/21/10. If HDA were to refuse to remove the home attendant, HRA would pull the case from
HDA and hold HDA responsible, such as by deeming HDA “non–responsive,” decreasing its
case load, or terminating the Contract entirely. Ng Dep. 25:13–26:20, 5/21/10. HRA has never
recommended to HDA that a specific home attendant be disciplined or deemed HDA “nonresponsive.” Id. 26:15-20; Gruenwald Dep. 364:16–18, 6/7/10.
The Contract also requires HDA to employ certain administrative staff “to operate the
program in accordance with the allowable rates and procedures promulgated by” HRA. Contract
Art. 6.4(D). These include a Program Director, Assistant Director for Field Operations, and
Assistant Director for Administrative Services, who are responsible to ensure that HDA complies
with the Contract and spends government funds properly. See id. Art. 6.4(C). HRA dictates the
minimum criteria for persons who fill these positions and reviews applicants’ resumes to ensure
that the applicants are adequately qualified, but HDA selects the individuals who fill the
positions. See id. Art. 6.4.
ii.
Monitoring HDA
The Regulations require HRA to “have a plan,” which is subject to State approval, “to
monitor and audit the delivery of personal care services provided pursuant to” the Contract,
maintain a record of its monitoring activities, and report its monitoring activities in the annual
plan it submits to the State. 18 N.Y.C.R.R. §§ 505.14(c)(9), (12). This monitoring includes
evaluating HDA’s ability to deliver PCS, measuring HDA’s performance against regulatory and
contractual requirements, and reviewing HDA’s fiscal practices. Id. § 505.14(c)(9)–(10).
9
HRA reserves the right to (1) contact patients directly to assess the sufficiency,
efficiency, and adequacy of the PCS they are receiving; (2) base the assignment of cases,
caseload levels, and administrative reimbursement on HDA’s performance; (3) visit HDA
unannounced to assess HDA’s performance and, while there, provide technical assistance in
solving problems affecting provision of services; and (4) review and duplicate HDA’s records,
which are subject to audit. Contract Art. 9.1(B), (D), (G).
HRA, via an accounting firm, conducts an annual fiscal audit of HDA to ensure that
HDA spends money appropriately, assess HDA’s total expenditures and revenues, and recoup
any excess funds. Ng Dep. 17-21, 142:4–9, 4/16/10; Ng Dep. 73:9–16, 5/21/10; Tyler Dep.
49:6–11, 9/15/10.
HRA also audits HDA three times per year to ensure that HDA complies with regulatory
requirements and delivers quality service.
4/16/10.
Ng Dep. 60:7–13, 4/9/10; Ng Dep. 186:13–20,
During the audits, HRA rotates through a set of approximately 30 indicators of
compliance, including whether HDA nurses have visited the patient to perform the required
nursing visits; whether home attendants have received certificates of training, annual medical
exams, and drug screening; and whether new hires have submitted the necessary documentation.
Ng Dep. 60:7–20, 4/9/10; Ng Dep. 188:11–191:10, 4/16/10. On a random basis, HRA samples
HDA’s personnel files to ensure that HDA is complying with the requirement to evaluate the
home attendants. Ng Dep. 223:21–24, 4/16/10.
Additionally, the Regulations require HRA to have, and to submit to the State for
approval, a plan to monitor home attendants’ assignments to “assure” that home attendants “are
in compliance with the training requirements.” 18 N.Y.C.R.R. § 505.14(e)(8). HRA conducts
10
such monitoring by reviewing a random sample of home attendants’ personnel files. Ng Dep.
180:7–17, 4/16/10.
Pursuant to the Contract, HDA must maintain “all fiscal and program statistical records”
required by HRA, produce such records and data as HRA may require, and arrange with HDA’s
contracted computer service company for HRA to directly access any of HDA’s “fiscal or
programmatic records and data related to the provision of services” under the Contract. Contract
Art. 6.5(E). The Contract also provides that to ensure compliance with the Contract, HRA may
require HDA to submit “standards and procedures,” including copies of HDA’s organizational
papers and policies for management, accounting, purchasing, and personnel. Id. Art. 6.5(F).
6.
Government Reimbursement of HDA
The rate at which the government reimburses HDA includes three components: “direct”
wages and benefits for home attendants, “indirect” wages and fringe benefits for administrative
staff and allocated costs, and allowable expenditures.
Contract Art. 3.4(A); see also 18
N.Y.C.R.R. § 505.14(h)(5)–(6). Although the City proposes a reimbursement rate to the State,
the State sets the rate. See 18 N.Y.C.R.R. § 505.14(h)(7); Contract Art. 3.1. HRA may, with
State approval and after consulting with HDA, reduce the reimbursement rate if it discovers that
the extant rate was based on inaccurate information that HDA furnished and accurate
information would have produced a lower rate. Contract Art. 3.2.
To receive reimbursement, HDA must submit documentation of the time its employees
spend providing services. 18 N.Y.C.R.R. § 505.14(h)(1). HDA submits this information to a
company called SanData, which transmits the information to the State’s Medicaid Management
Information System (“MMIS”) every month.
See Gruenwald Dep. 350:15–351:12, 6/7/10;
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Contract Arts. 3.1(A)–(B), 7.4. HDA receives its government reimbursement through MMIS.
Contract Art. 3.1(B).
7.
Home Attendants’ Wages
The Contract obligates HDA to comply with the City’s Living Wage Law. Renewal
Agr., dated Jan. 23, 2004, Art. 8, Ex. 3 Subexhibit 17; N.Y.C. Code § 6–109. Pursuant to the
Regulations, HDA must also pay home attendants “FICA, workers’ compensation,
unemployment insurance, and other employee benefits included in the providers’ labor
contracts.” 18 N.Y.C.R.R. § 505.14(h)(3)(ii)(2)(b).
HDA’s employees were not unionized. See Tyler Dep. 15:24–16:14, 9/15/10; Gruenwald
Dep. 354:13–355:4, 6/7/10. Nevertheless, the Contract requires HDA to pay home attendants
wages and benefits “comparable to that offered by not-for-profit home care agencies’ collective
bargaining agreements.” Contract Art. 6.3(B)(2), (C)(2). The Contract elaborates that such
wages and benefits shall include, at minimum, “base wage and differential for longevity, mutual
cases, weekends, single client sleep-in, and mutual case sleep-in,” and health and retirement
benefits that do not require employee contributions. Contract Arts. 6.3(B)(2), (C)(2). Defendant
Gruenwald testified that HDA “follows along the same pattern” of union rates despite not being
unionized. Gruenwald Dep. 133:15–16, 5/3/10; Gruenwald Dep. 149:3–5, 5/4/10; Gruenwald
Dep. 354:25–355:4, 6/7/10; see also Tyler Dep. 16:1–14, 9/15/10.
HDA issued plaintiffs’ checks. Third Am. Compl. ¶ 31. Plaintiff Godlewska testified
that HDA paid her a flat rate per five days rather than an hourly rate. See Godlewska Dep. 20:1–
6, 1/22/09.
8.
Turnover
During the relevant period, plaintiff Pryzgoda spent several years, and plaintiff Hatala
12
spent several months-long stretches, working full-time with HDA patients. See Pryzgoda Dep.
58:3–9, 62:14–22, 71:9–72:12, 2/1/10; Hatala Dep. 128:15–17, 136:7–23, 170:1–15, 2/16/10.
Defendant Gruenwald testified that HDA does not have a “high turnover rate” of home
attendants, home attendants stay at HDA for “a fair amount of time,” and a “small percentage” of
HDA’s home attendants also work for other home healthcare agencies. Gruenwald Dep. 364:23–
365:10, 371:18–23, 6/7/10. Home attendants who do not have enough work through HDA may
seek other jobs, whether at another home healthcare agency or elsewhere. See id. 371:4–6;
Pryzgoda Dep. 38:4–8, 2/1/10; Hatala Dep. 220:22–24, 3/9/10.
If a home attendant wishes to follow a patient from HDA to another home healthcare
agency, the home attendant must apply to the new agency. Gruenwald Dep. 365:16–366:6,
6/7/10. The record indicates that on some occasions, some plaintiffs followed patients to or from
HDA. See Pryzgoda Dep. 10:2–13, 2/1/10; Hatala Dep. 71:5–23, 73:11–13, 1/21/10.
Sometimes HRA transfers patients from one home healthcare agency to another. See
Contract Art. 5.3(A)(3). When this occurs, the Contract requires HDA, if the patient requests, to
“make its best effort to employ and maintain current home attendants and assign such Home
Attendants to such requesting [patient].” Id.
DISCUSSION
Summary judgment is “proper only when, construing the evidence in the light most
favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir.
2011) (quoting Fed. R. Civ. P. 56(a)). The moving party is entitled to judgment as a matter of
law if “the nonmoving party . . . fail[s] to make a sufficient showing on an essential element of
its case with respect to which it has the burden of proof.” Id. The substantive law of the action
13
determines which facts are material, and “only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.”
Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir.2000) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In other words, summary judgment is
appropriate only “[w]here the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” Donnelly v. Greenburgh Cent. School Dist. No. 7, 691 F.3d
134, 141 (2d Cir. 2012) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)). In deciding a summary judgment motion, a court cannot credit a party’s
“merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.
2012); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (“[C]onclusory statements
or mere allegations [are] not sufficient to defeat a summary judgment motion.”) (quoting Davis
v. New York, 316 F.3d 93, 100 (2d Cir. 2002)). One of the primary purposes of the summary
judgment rule is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
The FLSA’s overtime provision states, in pertinent part, that “no employer shall employ
any of his employees . . . for a workweek longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above specified at a rate not less than
one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1).
Federal regulations and the Second Circuit recognize the possibility of joint employment for
purposes of determining FLSA responsibilities. See 29 C.F.R. § 791.2(a); Zheng v. Liberty
Apparel Co., 355 F.3d 61, 66 (2d Cir. 2003). “[A]ll joint employers are responsible, both
individually and jointly, for compliance with all the applicable provisions of the act, including
14
the overtime provisions, with respect to the entire employment for the particular workweek.” 29
C.F.R. § 791.2(a).
The FLSA defines employment broadly:
“Employee” generally references “any
individual employed by an employer.” 29 U.S.C. § 203(e)(1). “Employ” includes “to suffer or
permit to work.” Id. § 203(g); see Barfield v. N.Y. City Health and Hosps. Corp., 537 F.3d 132,
140 (2d Cir. 2008). Accordingly, employment for FLSA purposes is “a flexible concept to be
determined on a case-by-case basis by review of the totality of the circumstances.” Id. at 141–
42. The Court’s task is to determine the “economic reality” of the employment arrangement.
Zheng, 355 F.3d at 66. In Carter v. Dutchess Community College, the Second Circuit adopted a
test for joint employment which examines whether the alleged employer (1) had the power to
hire and fire the employees, (2) supervised and controlled employee work schedules or
conditions of employment, (3) determined the rate and method of payment, and (4) maintained
employment records. 735 F.2d 8, 12 (2d Cir. 1984). Subsequently, the Second Circuit held that
satisfying Carter’s test for “formal control” over workers is sufficient but not necessary to
establish joint employment because an entity that lacks formal control may nevertheless exercise
“functional control,” as reflected by six non-exclusive factors: (1) whether the purported joint
employer’s premises and equipment were used for plaintiffs’ work; (2) whether plaintiffs
belonged to an organization that could or did shift as a unit from one putative joint employer to
another; (3) the extent to which plaintiffs performed a discrete line-job that was integral to the
purported joint employer’s process of production; (4) whether responsibility under the contracts
could pass from one vendor to another without material changes; (5) the degree to which the
purported joint employer supervised plaintiffs’ work; and (6) whether plaintiffs worked
exclusively or predominantly for the purported joint employer. Zheng, 535 F.3d at 72. The
15
Court is “also free to consider any other factors it deems relevant to its assessment of the
economic realities.” Id. at 71–72.
A. Formal Control
1. Whether City Defendants Had the Power to Hire and Fire the Employees
The first Carter factor is whether City Defendants had the power to hire and fire
plaintiffs. Carter, 735 F.2d at 12.
i.
Power to Hire
Contrary to plaintiffs’ allegation, the Regulations, and not City Defendants, set the
minimum qualifications for home attendants. See 18 N.Y.C.R.R. 505.14(d)(4)–(e). HDA, and
not City Defendants, recruits and screens home attendants and chooses which ones to hire.
Contract Art. 6.1(C)–(D); Gruenwald Dep. 362:22–363:3, 6/7/10. HDA personnel specialists,
and not City Defendants, decide which home attendants will receive assignments.
See
Godlewska Dep. 20:19–21, 1/22/09; Bielawska Dep. 14:5–21, 1/23/09; Pryzgoda Dep. 11:3–13,
2/1/10; Pilch Dep. 13:12–18, 2/9/10; Third Am. Compl. ¶¶ 126–142 (alleging that HDA
personnel specialists demanded that plaintiffs pay them kickbacks in exchange for assignments).
The Contract does require HDA to hire at least one Public Assistance recipient for each
$250,000 of the Contract’s value unless HDA obtains an exemption due to “extreme hardship.”
Contract Part II Art. 7. However, the Contract is a model contract whose terms the State
dictates. See 18 N.Y.C.R.R. 505.14(c)(2). And HDA alone has the power to decide which
Public Assistance recipients to hire.
The Contract also requires HDA to employ certain administrative staff. See Contract Art.
6.4. But these positions are not home attendant positions; rather, they exist to ensure that HDA
is complying with the Contract and Regulations and is accountable to the government. See id.
16
Moreover, although HRA dictates the minimum criteria for persons who fill these positions and
reviews applicants’ resumes to ensure the applicants are qualified, HDA alone decides which
qualified applicants to hire. See id.
ii.
Power to Fire
HDA personnel specialists handle any disciplinary issues involving the home attendants.
Defs.’ 56.1 ¶ 73. HRA has never recommended to HDA that a specific home attendant be
disciplined. Gruenwald Dep. 364:16–18, 6/7/10; Ng Dep. 26:15–20, 5/21/10; see Jean-Louis v.
Metro. Cable Communications, Inc., 838 F. Supp. 2d 111, 118 (S.D.N.Y. 2011) (finding that
defendant cable company did not have power to fire plaintiff technicians, where “the record does
not contain any evidence that Time Warner has ever instructed [vendor] to discipline . . . any
individual technician”).
The only patient complaints HRA investigates are those which allege that the home
attendant poses a high risk to the patient. See Moss Dep. 33:24–34:10, 8/17/10. If HRA were to
determine that the home attendant posed such a risk, HRA would direct HDA to remove the
home attendant from the particular patient’s case. Id. 34:6–10; Ng Dep. 23:5–24:22, 5/21/10.
There is no evidence, however, that HRA has power, let alone ever exercised power, to require
HDA to fire a home attendant entirely. See Jean-Louis, 838 F. Supp. 2d 111 at 118 (finding that
demand for vendor to remove technician from only certain cases is not firing).
Accordingly, I find that City Defendants do not have power to hire and fire employees,
and the first Carter factor is not satisfied.
17
2. Whether City Defendants Supervised and Controlled Employee Work Schedules
or Conditions of Employment
The second Carter factor is whether City Defendants supervised and controlled employee
work schedules or conditions of employment. Carter, 735 F.2d at 12.
i. Employee Work Schedules
Simply determining when a certain job will be performed is not tantamount to
determining which employee will perform that job at a particular time. See Moreau v. Air
France, 356 F.3d 942, 950 n.5 (9th Cir. 2004) (affirming summary judgment for airline held not
to be ground handlers’ joint employer, where although airline scheduled its flight into and out of
the airport, “which necessarily indicated when the services were to be performed,” vendors,
rather than airline, were “responsible for designating which employees would report to service
the aircraft”); Garcia v. Pace Suburban Bus Serv., 955 F. Supp. 75, 76 (N.D. Ill. 1996) (granting
defendant municipal corporation’s motion for summary judgment against plaintiff bus drivers,
where contract specified bus routes and schedules but did not dictate “who should drive them or
how many hours they should work”); Jean-Louis, 838 F. Supp. 2d at 126 (rejecting plaintiff
technicians’ argument that defendant cable company determined their work schedules by
dictating “time windows” for installation jobs, where vendor, rather than defendant, “decides
which technicians will work on which job and whether a technician will work on any jobs in that
period at all”).
HRA determines whether a prospective patient needs any of the specific services the
Regulations list and, if so, how many hours of such services the patient needs.
See 18
N.Y.C.R.R. § 505.14(b)(5); Kalvin Dep. 7:16–8:5, 11/8/10. But HDA determines which home
attendant to assign to the patient, given the patient’s location, language, culture, and needs. See
Gruenwald Dep. 232:20–233:7, 5/4/10.
And HDA is responsible to find an appropriate
18
substitute if a home attendant is sick. See 18 N.Y.C.R.R. § 505.14(f)(2); Gruenwald Dep.
206:17–22, 5/4/10; Hatala Dep. 264:5–10, 1/21/10; Biewlawska Dep. 10:22–24, 1/23/09;
Pryzgoda Dep. 71:19–25, 2/1/10; Pilch Dep. 26:13–15, 2/9/10; Contract Art. 6.2(F).
Therefore, I find that the City does not supervise and control employees’ work schedules.
ii. Conditions of Employment
Exercising quality control by having strict standards and monitoring compliance with
those standards does not constitute supervising and controlling employees’ work conditions. See
Zheng, 355 F.3d at 75 (“[S]upervision with respect to contractual warranties of quality and time
of delivery has no bearing on the joint employment inquiry, as such supervision is perfectly
consistent with a typical, legitimate subcontracting arrangement.”) (citing Moreau, 343 F.3d at
1188); Chen v. Street Beat Sportswear, Inc., 364 F. Supp. 2d 269, 286 (E.D.N.Y. 2005) (“[T]he
Court will not consider evidence plaintiffs present with respect to this factor to the extent it
concerns the presence of . . . quality control personnel.”); Lepkowski v. Telatron Marketing
Group, Inc., 766 F. Supp. 2d 572, 579 (W.D. Pa. 2011) (“Courts have widely held that detailed
instructions and a strict quality control mechanism will not, on their own, indicate an
employment relationship.”) (internal quotation marks omitted).
This is especially true where the quality control’s purpose is to ensure compliance with
the law or protect clients’ safety. See Moreau, 356 F.3d at 951 (“[M]uch of the indirect
supervision or control exercised by [airline] over the ground handling employees was
purportedly to ensure compliance with various safety and security regulations.”); Lawrence v.
Adderley Indus., No. CV–09–2309, 2011 WL 666304, at *9–10 (E.D.N.Y. Feb. 11, 2011)
(granting summary judgment to defendant cable company and finding that defendant did not
employ plaintiff technicians, where quality control stemmed from the nature of the cable
19
company’s business and was designed partly to protect customers whose homes technicians
entered) (citing Jacobson v. Comcast Corp., 740 F. Supp. 2d 683, 691 (D.Md. 2010)); Taylor v.
Waddell & Reed Inc., No. 09 CV 2909, 2010 WL 3212136, at *3 (S.D. Cal. Aug. 12, 2010)
(“[C]ompliance with legal requirements is not indicative of control for purposes of establishing
an employer-employee relationship.”); Zhao v. Bebe Stores, Inc., 247 F. Supp. 2d 1154, 1160–61
(C.D. Cal. 2003) (denying summary judgment to plaintiffs, finding that clothing store which
used compliance monitor, as Department of Labor encouraged, to ensure that garment
manufacturer complied with labor laws was not joint employer); Matson v. 7455, Inc., No. CV
98–788, 2000 WL 1132110, at *2 (D. Or. Jan. 14, 2000) (granting summary judgment to
defendant nightclub owners who imposed “house rule” to ensure compliance with statute).
In contrast, control over the employee’s “day-to-day conditions of employment” is
relevant to the joint employment inquiry. Lepkowski, 766 F. Supp. 2d at 580; see also JeanLouis, 838 F. Supp. 2d at 127 (granting summary judgment to defendant, contrasting efforts to
ensure quality service with controlling the “day-to-day manner” in which employees provide the
service); Jacobson, 740 F. Supp. 2d at 691(contrasting “maintain[ing] specific standards to which
the [contractors] and technicians must adhere, and regularly monitor[ing] the technicians to
ensure that their performance satisfies . . . expectations” with being “responsible for the day-today management of the technicians”). In other words, the nature of the alleged control is highly
relevant.
Quality control and compliance-monitoring that stem from the “nature of the[]
business” – that is, from the nature of the goods or services being delivered – are “qualitatively
different” from control that stems from the nature of the relationship between the employees and
the putative employer. Jacobson, 740 F. Supp. 2d at 691–92. “[D]ifferences in the purpose and
focus of the control produce[] . . . divergent conclusions.” Id. at 691.
20
Applying these guidelines, I find that City Defendants do not control or supervise
plaintiffs’ working conditions. City Defendants do not manage plaintiffs on a day-to-day basis.
HDA, and not City Defendants, conducts the “administrative” and “nursing” supervision of the
home attendants that the Regulations require. See 18 N.Y.C.R.R. § 505.14(f); Contract Arts.
1.28, 5.4. As part of such supervision, HDA, and not City Defendants, trains home attendants
and evaluates their job performance.
See 18 N.Y.C.R.R. §§ 505.14(d)(4), (e), (f)(2)–(3);
Gruenwald Dep. 85:9–13, 5/3/10. HDA personnel specialists, and not City Defendants, handle
disciplinary issues involving the home attendants. Defs.’ 56.1 ¶ 73. Furthermore, HDA, and not
City Defendants, accepts home attendants’ complaints concerning their working conditions and
involves City Defendants only if somebody must explain to the patient the scope of the Medicaid
authorization. See Gruenwald Dep. 85:14–25, 86:1–14, 5/3/10; Ng Dep. 49:3–11, 4/9/10; Kalvin
Dep. 47:20–48:20, 11/8/10.
In contrast, City Defendants monitor HDA’s compliance with the law and ensure that
HDA delivers quality service to patients. Specifically, City Defendants determine whether
prospective patients are legally entitled to Medicaid services and audit HDA to ensure that HDA
adheres to regulatory requirements and uses government funding properly. City Defendants
further ensure quality service and patient safety by occasionally contacting or visiting patients in
their homes and investigating those patient complaints which allege that a home attendant poses
a high risk to the patient. See Jean-Louis, 838 F. Supp. 2d at 127 (distinguishing efforts to
ensure quality service from controlling the day-to-day manner in which employees provide the
service); Chen, 364 F.Supp.2d at 286; Moreau, 356 F.3d at 951 (“[M]uch of the indirect
supervision or control exercised by [airline] over the ground handling employees was
purportedly to ensure compliance with various safety and security regulations.”). These limited
21
actions of City Defendants stem entirely from the “nature of the[] business” of providing heavily
regulated, government-funded health services to patients in their homes. Jacobson, 740 F. Supp.
2d at 691; see also Lawrence, 2011 WL 666304, at *9 (citing Jacobson, 740 F. Supp. 2d at 691).
Accordingly, I find that City Defendants do not control or supervise plaintiffs’ working
conditions, and the second Carter factor is not satisfied.
3. Whether City Defendants Determined the Rate and Method of Payment
The third Carter factor is whether City Defendants determined the rate and method of
plaintiffs’ payment. Carter, 735 F.2d at 12. Two issues are potentially relevant to this analysis.
First, plaintiffs argue that although HDA’s employees were not unionized, the Contract requires
HDA to pay all home attendants wages and benefits “comparable to that offered by not-for-profit
home care agencies’ collective bargaining agreements.”
Contract Art. 6.3(B)(2)–(C)(2).
(Contrary to City Defendants’ claim, the Regulations contain no such requirement.) If this
requirement were attributable to City Defendants, it would be accurate to say that City
Defendants determined the rate and method of plaintiffs’ payment. However, the Regulations
require HRA to use a State-approved model contract, which City Defendants may vary only if
the variation will not change the model contract’s requirements and the State approves the
variation. 18 N.Y.C.R.R. § 505.14(c). Modifying the model contract to exempt HDA from
paying union wages and benefits would have changed the model contract’s requirements.
Moreover, the record contains no evidence that the State would have authorized such a change.
Accordingly, I cannot attribute to City Defendants the contractual provision requiring HDA to
pay union wages and benefits.
Second, although the State ultimately set the hourly rate at which the government would
reimburse HDA, the City may have proposed that rate to the State. See id. § 505.14(h)(7)
22
(requiring the City to propose a rate to the State). If so, and if HDA paid plaintiffs an hourly
rate, the City might be said to have “effectively set a cap” on the rate at which HDA paid
plaintiffs, especially because HDA is a not-for-profit agency and, therefore, would not have
deducted its own profit before paying plaintiffs. Barfield, 537 F.3d at 144–45. The record,
however, contains no evidence concerning whether the State adopted the reimbursement rate that
the City proposed. Moreover, the record is unclear as to whether HDA paid plaintiffs by the
hour, as plaintiff Godlewska testified that HDA paid her a flat rate per five days rather than an
hourly rate. See Godlewska Dep. 20:1–6, 1/22/09.
Accordingly, the analysis under the third Carter factor is inconclusive.
4. Whether City Defendants Maintained Employment Records
The fourth Carter factor is whether City Defendants maintained employment records.
Carter, 735 F.2d at 12. The employment records “most relevant” to FLSA payment obligations
are those concerning “hours worked.” Barfield, 537 F.3d at 144. The Contract obligates HDA to
maintain home attendants’ time sheets and a “personnel file” for each home attendant. See
Contract Arts. 6.3(A), 6.5(B)(2); see also 18 N.Y.C.R.R. § 505.14(f)(2); Gruenwald Dep. 79:13–
25, 5/3/10; Ng. Dep. 223:13–14, 4/16/10.
HDA keeps the home attendant’s performance
evaluations, training certificates, time sheets, and records of any disciplinary action in the
personnel file.
See Gruenwald Dep. 80:1–14, 83:25–84:18, 5/3/10; Ng. Dep. 223:13–14,
4/16/10; Contract Art. 6.2(C), (G). The Contract does require HDA to forward to HRA copies of
the performance evaluations that the nursing supervisors conduct. See Contract Art. 5.4(D).
And HRA does reserve the right to review and duplicate HDA’s records. See id. Arts. 5.4(D),
9.1. Nevertheless, maintaining employment records is primarily HDA’s responsibility, and
HRA’s review of certain records is “only an extension” of City Defendants’ quality control
23
procedures. Jacobson, 740 F. Supp. 2d at 692. Accordingly, I find that the fourth Carter factor is
not satisfied.
Furthermore, I find that on balance, the Carter test is not satisfied because the City did
not have the power to hire and fire, did not supervise and control plaintiffs’ schedules and
conditions of employment, and did not maintain employment records. In light of my finding that
the first, second, and fourth Carter factors are not satisfied, the record’s inconclusiveness as to
the third Carter factor is immaterial.
B. Functional Control
Having determined that City Defendants did not exercise formal control over plaintiffs, I
will proceed to examine whether City Defendants nevertheless exercised functional control over
plaintiffs. See Zheng, 535 F.3d at 72 (listing non-exclusive factors to determine functional
control).
1. Whether City Defendants’ Premises and Equipment Were Used for the
Plaintiffs’ Work
The first Zheng factor is whether City Defendants’ premises and equipment were used for
the plaintiffs' work. Zheng, 355 F.3d at 72. This factor “is relevant because the shared use of
premises and equipment may support the inference that a putative joint employer has functional
control over the plaintiffs' work.” Id. The plaintiffs in this case worked in their patients’ homes
and did not use City Defendants’ equipment.
Accordingly, the first Zheng factor is not satisfied.
2. Whether HDA Could or Did Shift as a Unit from One Putative Joint Employer
to Another
The second Zheng factor is whether HDA could or did shift as a unit from one putative
joint employer to another. Id. This factor “is relevant because a subcontractor that seeks
24
business from a variety of contractors is less likely to be part of a subterfuge arrangement than a
subcontractor that serves a single client.” Id. Nevertheless, the Second Circuit has cautioned
that “the absence of a broad client base” is not “anything close to a perfect proxy for joint
employment.” Id. Even if I determine that HDA does not shift as a unit from one putative joint
employer to another, I must still examine whether HDA could shift if it so desired. See JeanLouis, 838 F. Supp. 2d at 132.
It is undisputed that HDA contracts only with City Defendants. It is disputed, however,
whether HDA is free to contract with providers other than City Defendants. The Contract states
that “[HDA] represents that it is a Not-For-Profit Corporation organized . . . for the sole purpose
of providing personal care services under contract with the City . . . to persons determined by the
City . . . to be eligible for such services.” Contract at 1. City Defendants argue that HDA is free
to contract with non-City providers. Plaintiffs, however, argue that HDA cannot contract with
other non-City providers because (1) HDA would lose its tax-exempt status if it engaged in forprofit business; (2) HDA’s “only reason for existence” is to provide home attendant services
under City Defendants’ PCS contracts; and (3) City Defendants are the only “source of Medicaid
recipients” because City Defendants administer the funding for all Medicaid patients in the City.
Pls.’ Repl. Mem. of Law at 7, ECF No. 279. Notably, plaintiffs do not argue that the Contract
prohibits HDA from contracting with other providers.
Contrary to plaintiffs’ argument, HDA’s not-for-profit status alone does not preclude
HDA from contracting with providers besides City Defendants. Likewise, the mere fact that City
Defendants are “the only source of Medicaid recipients” does not preclude HDA from
contracting to serve patients other than Medicaid patients.
Id.
However, the contractual
language does suggest that the Contract requires HDA to be a not-for-profit corporation
25
“organized . . . for the sole purpose of providing personal care services under contract with the
City.” Contract at 1. At the very least, the Contract would need to be amended if HDA
contracted to do something besides providing PCS to Medicaid recipients.
Accordingly, I find that HDA could not shift as a unit from City Defendants to another
employer, and the second Zheng factor is satisfied.
3. The Extent to Which Plaintiffs Performed a Discrete Line-Job that was Integral
to City Defendants’ Process of Production
The third Zheng factor is the extent to which plaintiffs performed a discrete line-job that
was integral to City Defendants’ process of production. Zheng, 355 F.3d at 72. “Interpreted
broadly, this factor could be said to be implicated in every subcontracting relationship, because
all subcontractors perform a function that a general contractor deems ‘integral’ to a product or
service.” Id. at 73 (emphasis in original). The Second Circuit, however, does not interpret this
factor “quite so broadly.” Id. Rather, the Circuit recognizes a spectrum spanning from, at one
end, “piecework on a producer’s premises that requires minimal training or equipment, and
which constitutes an essential step in the producer's integrated manufacturing process” to, at the
other end, “work that is not part of an integrated production unit, that is not performed on a
predictable schedule, and that requires specialized skills or expensive technology.”
Id.
Moreover, courts have “question[ed] whether . . . this factor translates well outside of the
production line employment situation.” Moreau, 356 F.3d at 952; see also Jean-Louis, 838 F.
Supp. 2d at 134 (“[T]he third factor might apply with somewhat less vigor where, as here, the
parties are engaged in providing a service rather than manufacturing a product.”).
In this case, plaintiffs did not perform piecework or a discrete line-job. Plaintiffs’ work
required a fair amount of training – forty hours of “basic” training, six annual hours of “in-
26
service” training, and on-the-job training as needed.
18 N.Y.C.R.R. § 505.14(d)(4)–(e).
Furthermore, I “doubt” that providing home healthcare service is actually integral to City
Defendants. Moreau, 356 F.3d at 952 (“[W]e . . . doubt that functions . . . such as food service or
cargo transport, are actually ‘integral’ to a passenger airline.”).
Accordingly, I find that the third Zheng factor is not satisfied.
4. Whether Responsibility Under the Contracts Could Pass from One Home
Healthcare Agency to Another Without Material Changes
The fourth Zheng factor is whether responsibility under the contracts “could” pass from
one home healthcare agency to another without material changes. Zheng, 355 F.3d at 72. The
factor “asks not whether all of the putative joint employer’s contractors do the same work but
whether, if the putative joint employer hired one contractor rather than another, ‘the same
employees’” could “‘continue to do the same work in the same place.’” Jean-Louis, 838 F.
Supp. 2d at 135 (quoting Zheng, 355 F.3d at 74) (emphasis in original). For example, in Chen,
plaintiff garment workers argued that defendant clothing manufacturer was their joint employer
because they performed transient work for several contractors, who all contracted with
defendant. 364 F. Supp. 2d at 285–86. The court found that the fourth Zheng factor weighed in
favor of a finding of joint employment because “plaintiffs were tied to [defendant] rather than to
the contractors that hired them.” Id. at 286 (citations omitted).
If HRA were to terminate its contract with HDA, City Defendants would reassign HDA’s
patients to another home healthcare agency (or several other home healthcare agencies). If a
patient’s home attendant wished to follow the patient from HDA to the newly assigned agency,
the home attendant would need to apply to the new agency. See Gruenwald Dep. 365:16–366:6,
6/7/10. The new agency would have hiring discretion but would presumably be obligated to
27
“make its best effort” to hire the incoming patient’s home attendant from HDA if the patient so
requested. Contract Art. 5.3(A). The record reflects that on some occasions, some plaintiffs
followed patients to or from HDA. See Pryzgoda Dep. 10:2–13, 2/1/10; Hatala Dep. 71:5–23,
73:11–13, 1/21/10. Therefore, it is possible, though I cannot say whether it is likely, that the new
agency (or agencies) would hire the HDA home attendants to continue providing the same PCS
for the same patients.
Accordingly, I find that the fourth Zheng factor is satisfied, albeit not as overwhelmingly
as if the evidence showed a likelihood, rather than a mere possibility, that if HRA terminated
HDA’s contract, plaintiffs would continue doing the same work in the same place.
5. The Degree to Which City Defendants Supervised Plaintiffs’ Work
The fifth Zheng factor is the degree to which City Defendants supervised plaintiffs’ work.
Zheng, 355 F.3d at 72. The inquiry under this factor is “largely the same” as the inquiry under
the second Carter factor and is the most relevant factor in determining whether a purported joint
employer exercises functional control over plaintiffs. Jean-Louis, 838 F. Supp. 2d at 126 n.7.
As discussed in analyzing the second Carter factor, City Defendants did not supervise
plaintiffs’ work, manage plaintiffs on a day-to-day basis, or evaluate plaintiffs’ performance.
City Defendants merely exercised quality control to ensure that HDA delivered quality service
and complied with legal requirements. See, e.g., Zheng, 355 F.3d at 75; Chen, 364 F. Supp. 2d
at 286; Moreau, 356 F.3d at 951. These limited measures stemmed from the “nature of the[]
business” of providing heavily regulated, government-funded health services to patients in their
homes – not from the nature of any employment relationship between City Defendants and
plaintiffs. Jacobson, 740 F. Supp. 2d at 691; see Lawrence, 2011 WL 666304, at *9.
Accordingly, I find that the fifth Zheng factor is not satisfied.
28
6. Whether Plaintiffs Worked Exclusively or Predominantly for City Defendants
The sixth Zheng factor is whether plaintiffs worked exclusively or predominantly for City
Defendants. Zheng, 355 F.3d at 72.
During the relevant period, plaintiff Pryzgoda spent several years, and plaintiff Hatala
spent several months-long stretches, working full-time with HDA patients. See Pryzgoda Dep.
58:3–9, 62:14–22, 71:9–72:12, 2/1/10; Hatala Dep. 128:15–17, 136:7–23, 170:1–15, 2/16/10.
Accordingly, I find that plaintiffs worked exclusively or predominantly for City Defendants,
“albeit by [their] own choice,” and the sixth Zheng factor is satisfied. Lawrence, 2011 WL
666304, at *10.
Nevertheless, I find that, on balance, City Defendants did not exercise functional control
over plaintiffs. See Zheng, 355 F.3d at 76–77 (“[T]he Court need not decide that every factor
weighs against joint employment.”) (emphasis in original). The first and third Zheng factors are
not satisfied; plaintiffs did not use City Defendants’ premises and equipment for their work, nor
did plaintiffs perform a discrete line-job that was integral to City Defendants’ process of
production. Most importantly, the fifth Zheng factor is not satisfied; City Defendants did not
supervise plaintiffs’ work, manage plaintiffs on a day-to-day basis, or evaluate plaintiffs’
performance. In short, City Defendants did not relate to plaintiffs as an employer. While the
overlapping second, sixth, and, to a lesser extent, fourth Zheng factors are satisfied, the sum of
their satisfaction in this case is that plaintiffs (1) worked full-time for an agency that can contract
with only the City and (2) might follow their patients to other such agencies. This alone does not
reflect that City Defendants controlled plaintiffs in the context of an employment relationship.
Accordingly, I find that City Defendants are not plaintiffs’ joint employer. No genuine
issue of material fact remains, and City Defendants are entitled to judgment as a matter of law.
29
CONCLUSION
City Defendants’ motion for summary judgment is granted, and plaintiffs’ cross-motion
for summary judgment is denied.
SO ORDERED.
Dated: January 2, 2013
Brooklyn, New York
____________________/s/_____________
JOAN M. AZRACK
UNITED STATES MAGISTRATE JUDGE
Copies also sent to:
David S. Greenhaus
Jackson Lewis LLP
58 South Service Road, Suite 40
Melville, NY 11747
Attorney for defendants HDA, Human Development Association, Inc., d/b/a HDA;
Yechila Gruenwald a/k/a Yechiel Gruenwald individually and as Executive Director of
HDA; Zvi Kestenbaum; Marina Voskoboyniko; Golda Pokhis a/k/a Olga Pokhis; and
Margararita Zilbert
Anne P. Edelman
Kaufman, Dolowich & Voluck & Gonzo, LLP
135 Crossways Park Drive, Suite 201
Woodbury, NY 11797
Attorney for defendants HDA, Human Development Association, Inc., d/b/a HDA;
Yechila Gruenwald a/k/a Yechiel Gruenwald individually and as Executive Director of
HDA; Zvi Kestenbaum; Marina Voskoboyniko; Golda Pokhis a/k/a Olga Pokhis;
Margararita Zilbert; Jane Doe a/k/a “Mrs. Friedman”; Jane Does 1–10 and John Does
1–10
Jeffrey S. Ettenger
Kaufman, Dolowich & Voluck & Gonzo, LLP
135 Crossways Park Drive
Suite 201
Woodbury, NY 11797
Attorney for defendant HDA, Human Development Association, Inc., d/b/a HDA
Joshua Robert Fay
New York City Law Department, Labor and Employment
30
100 Church Street
New York, NY 10007–2601
Attorney for City Defendants
Lisa Marie Griffith
New York City Law Department
Office of the Corporation Counsel
100 Church Street, Room 2–193
New York, NY 10007–2601
Attorney for City Defendants
31
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