Gayle v. Harry's Nurses Registry, Inc. et al
Filing
162
MEMORANDUM & ORDER: For the reasons set forth above, Defendants' motion to strike Plaintiffs' motion is DENIED. Plaintiffs' motion for certification of a collective action is GRANTED. Plaintiffs' motion for summary judgment as to liability is GRANTED. Plaintiffs' motion to enforce sanctions is GRANTED and Defendants are ordered to pay the previously imposed sanctions within fourteen days. Plaintiffs are given leave to file a motion for summary judgment withrespect to da mages within fourteen days of the filing of this Order, which will incorporate the memoranda of law and evidence they submitted in connection with their instant motion. (Plaintiffs are not to submit an additional opening memorandum of law with respec t to damages.) If Plaintiffs file such a motion, Defendants will file any opposition to Plaintiffs' motion within twenty-eight days of the filing of this Order; if Defendants do not file a timely response, the court will rule on Plaintiffs' motion without an opposition. Plaintiffs may file a reply to Defendants' opposition within thirty-five days of this Order. Ordered by Judge Nicholas G. Garaufis on 3/1/2012. (Lee, Tiffeny)
l:>/f
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------------){
CLAUDIA GAYLE, et a!.,
MEMORANDUM & ORDER
Plaintiffs,
07-CV-4672 (NGG) (MDG)
-againstHARRY'S NURSES REGISTRY, INC. and
HARRY DORVILIER alkla HARRY DORVIL/EN,
Defendants.
-------------------------------------------------------------------){
NICHOLAS G. GARAUFlS, United States District Judge.
FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E.D.N.V.
* MAR 0 12012 *
BROOKLYN OFFICE
Plaintiffs, nurses who were employed by Defendant Harry's Nurses Registry, Inc.
("Harry's Nurses"), bring this action for overtime pay under the Fair Labor Standards Act, 29
U.S.C. §§ 201-19 ("FLSA"). (Compl. (Docket Entry# 1).) Plaintiffs move for certification of a
collective action under 29 U .S.C. § 216(b), summary judgment under Federal Rule of Civil
Procedure 56, and to enforce sanctions against Defendants. (Docket Entry# 135.) Defendants
oppose Plaintiffs' motion and cross-move to strike it. (Docket Entry## 148, 158.) As set forth
below, the court grants Plaintiffs' motion for certification of a collective action, for summary
judgment as to liability, and to enforce sanctions. Defendants' motion to strike is denied.
I.
BACKGROUND 1
Defendant Harry's Nurses is a corporation with its principal place of business in Queens,
New York. (Liability Decision (Docket Entry# 53) at 2.) Defendant Harry Dorvilier is Harry's
Nurses' President and Chief Executive Officer. (IQJ Harry's Nurses refers temporary healthcare
1
This abbreviated statement of facts is drawn from portions of Judge Charles P. Sifton's Order of March 9, 2009
(Docket Entry# 53) ("Liability Decision"), and this court's Order of December 30,2010 (Docket Entry# 127)
("Damages Decision"). These findings of fact are the law of the case and are not in dispute. In its discussion of
Plaintiffs' motion for summary judgment in Part JI.C, infra, the court articulates additional undisputed facts upon
which it relies.
1
personnel, including registered nurses and licensed practical nurses (collectively, "field nurses"),
to work in patients' private homes in and around New York City. (IQ)
Harry's Nurses maintains a referral list or "registry" of field nurses. (!d. at 3.) At any
given time, Harry's Nurses may have as many as five hundred field nurses on its referral list.
(!d.) Harry's Nurses screens and selects nurses before placing them on a referral list. (!d.)
Harry's Nurses also has between seven and ten fulltime employees who are responsible for
company administration and supervision. (IQ)
Field nurses have no contractual or economic relationship with patients to whom they are
referred. (!d. at 4.) A nursing supervisor observes and assesses field nurses' skills and phones
the patients at least once per day to verify that the assigned nurse has reported for duty. (!d.)
Field nurses submit progress notes and time sheets to the nursing supervisor. (!d. at 6.)
All field nurses enter into a "Memorandum of Agreement" with Harry's Nurses as part of
Harry's Nurses' procedures. (!d. at 8; see also Samedi Aff. (Docket Entry# 140); Ledain Aff.
(Docket Entry# 137); Y. Robinson Aff. (Docket Entry# 139); Sankar Aff. (Docket Entry
# 141); P. Robinson Aff. (Docket Entry# 138) (collectively, "Plaintiffs' Affidavits").)2 By
entering into this Agreement, field nurses agree to retain Harry's Nurses to coordinate placement
opportunities. (Liability Decision at 8; see also Plaintiffs' Affidavits.)
On November 7, 2007, Plaintiff Claudia Gayle filed this action, on behalf of herself and
others similarly situated, against Harry's Nurses and Dorvilier, alleging that she regularly
worked in excess of forty hours a week on assignments she received through Harry's Nurses and
2
These affidavits were submitted with Plaintiffs' instant motion for summary judgment. Defendants do not dispute
the facts alleged in the affidavits.
2
did not receive overtime premium pay for her excess hours, in violation of the FLSA.
3
(See
Compl. ~~ 22-24.) On July 9, 2008, Defendants moved for summary judgment as to Gayle.
(Docket Entry# 19.) On August 13, 2008, Gayle cross-moved for summary judgment on the
issue of liability and to authorize notice to potential class members of a FLSA collective action.
(Docket Entry# 27.)
On March 9, 2009, Judge Sifton denied Defendants' motion for summary judgment and
granted Gayle's motion for partial summary judgment as to liability. (See Liability Decision.)
Judge Sifton found that there was no genuine issue of material fact as to Gayle's status as an
"employee" under FLSA, and that Gayle indisputably was not paid overtime wages when she
worked more than forty hours in one week. (Id. at 23.) He also found that Harry's Nurses and
Dorvilier were jointly and severally liable to Gayle. (!d.) Finally, Judge Sifton conditionally
certified a class under the FLSA after concluding that Gayle had made the "modest factual
showing needed to support a preliminary determination that there [we]re others similarly situated
who should be notified of their opportunity to join this suit as plaintiffs." (!d. at 27-28 (noting
that "[t]his is a preliminary determination that may be revised upon the completion of
discovery")f Subsequently, fifty-five other Plaintiffs opted into this action. (Docket Entry
##55-59, 62, 66-73, 79-80, 85, 88-89.)
The case was reassigned to this court on November 24, 2009. Plaintiffs filed a motion for
summary judgment as to damages on June 25,2010. (Docket Entry# 107.) On July 21,2010,
Defendants served Plaintiffs with a "Memorandum in Opposition to Plaintiffs' Motion for
Summary Judgment." (Docket Entry# 113.) Despite its title, Defendants' submission did not
3
A fuller account of the procedural history of this case appears in the Damages Decision. (See Damages Decision
at 2-5.)
4
As will be discussed below, certification of a FLSA collective action proceeds in two stages: one in the early
stages of the litigation and one after discovery is complete. (See Part II.B., infra.)
3
address Plaintiffs' arguments regarding an award of damages. (See i.QJ Instead, Defendants'
submission was, in substance, a motion for reconsideration of the Liability Decision. (See id.)
With the consent of the parties, the court converted Defendants' opposition into a motion for
reconsideration. (See Order of Aug. 10,2010 (Docket Entry# 116).)
On December 23, 20 I 0, the court issued its Damages Decision. The court denied
Defendants' motion for reconsideration. (Damages Decision at 5-8.) The court granted
Plaintiffs' motion for summary judgment on damages with respect to Gayle and awarded her
$14,780. (ld. at 11-12.) But the court denied Plaintiffs' motion for summary judgment on
damages as to the opt-in Plaintiffs, reasoning that Judge Sifton had "never concluded that all of
the individuals who subsequently opted into this action would be entitled to summary judgment
on liability." (!d. at 9-10.)
Defendants appealed the Damages Decision to the United States Court of Appeals for the
Second Circuit. (Notice of Appeal (Docket Entry# 128).) The Second Circuit dismissed the
appeal on the grounds that it Jacked jurisdiction because there was no final order issued by this
court. (Mandate ofUSCA (Docket Entry# 160).)
On April 15, 2011, Plaintiffs submitted the instant motion for certification of a collective
action, summary judgment, and to enforce sanctions. (Docket Entry# 135.) On June 21,2011,
Defendants filed a motion to strike Plaintiffs' motion, arguing that Plaintiffs had failed to comply
with Local Rule 56.2 of the United States District Court for the Eastern District of New York,
which governs the provision of notice to pro se litigants; Defendants requested that their motion
be considered together with Plaintiffs'. (Docket Entry# !58.)
4
I.
DISCUSSION
A.
Defendants' Motion to Strike
Defendants assert that the court should deny Plaintiffs' motion without prejudice because
Plaintiffs failed to comply with Local Rule 56.2. 5 For the reasons that follow, Defendants'
motion is denied.
Under Local Rule 56.2, "any represented party moving for summary judgment against a
party proceeding pro se shall serve and file as a separate document, together with the papers in
support of the motion, a Notice To Pro Se Litigant Opposing Motion For Summary Judgment."
The purpose of this rule is to ensure that a party acting pro se "understands its burden in
responding to a motion for summary judgment, and the consequences of failing to do so."
Hartford Life Ins. Co. v. Einhorn, 452 F. Supp. 2d 126, 129 (E.D.N.Y. 2006). "The failure to
include a Rule 56.2 Statement with a motion for summary judgment is grounds for the denial of
the motion ifit is not otherwise clear from the record that the pro se litigant understood the
nature of the summary judgment motion." !d. (first italics added) (citing Vital v. Interfaith Med.
Ctr., 168 F .3d 615, 620-21 (2d Cir. 1999); M.B. # II 072-054 v. Reish, 119 F.3d 230, 232 (2d
Cir. 1997)); see also Forsvth v. Fed. Empl. & Guidance Serv., 409 F.3d 565, 572 (2d Cir. 2005)
(where "plaintiffs opposition papers ... indicated that he understood his responsibilities under
Rule 56 ... , neither the district court nor defendants were required to provide plaintiff with
notice under Rule 56.2"), abrogated on other grounds by Ledbetter v. Goodyear Tire & Rubber
Co., 550 U.S. 618 (2009); Venable v. Reed Elsevier. Inc., No. 04-CV-3532, 2009 WL 2516844,
at *2 (S.D.N.Y. Aug. 17, 2009) (failure to serve Rule 56.2 notice was "harmless" where plaintiff
' Defendants also argue that Plaintiffs failed to serve Defendants with a statement of material facts as required by
Local Rule 56.1. (Def. Mot. to Strike at 1.) They are incorrect. As the record indicates, Plaintiffs did properly file
their Rule 56.1 statement with the court and served it on Defendants. (See Pl. R. 56.1 Statement (Docket Entry
# 143) (cc-ing Defendants); Bernstein Ltr. of Apr. 15,2011 (Docket Entry# 159, Ex. A).)
5
had "demonstrated her knowledge of all obligations and consequences stemming from the
Defendant's motion for summary judgment").
Although Dorvilier was proceeding pro se at the time Plaintiffs filed their instant motion, 6
Plaintiffs' failure to include a Rule 56.2 statement with their motion is not grounds for denial of
the motion because it is clear from the record that Defendants understood the nature of the
motion at the time they filed their opposition papers. On May I 0, 2011-after Plaintiffs filed
their motion but before Defendants filed their opposition papers-Defendants retained attorney
Bernard Alter. (Def. Mot. to Strike at 1.) Alter prepared and filed Defendants' opposition on his
clients' behalf, which was timely and addressed all of the substantive issues raised by Plaintiffs'
motion. (Docket Entry# 148.) Moreover, even before Dorvilier retained counsel, Dorvilier
appeared in person before this court and the court explained the nature and import of the instant
motion to him. (See Docket Entry of Feb. 23, 2011.) Indeed, Defendants do not argue that they
did not understand the nature of Plaintiffs' motion; they argue only that a Local Rule 56.2
Statement "would have heightened defendants to the nature of the motion and caused the
defendants to move quickly to protect their rights." (Def. Mot. to Strike at 3.) Local Rule 56.2
does not require this kind of "heightened" notice.
In sum, because Defendants were informed by this court of the nature of Plaintiffs'
motion, and then filed timely and detailed opposition papers with the assistance of counsel, it is
"clear from the record that [they] understood the nature of the summary judgment motion."
Hartford, 452 F. Supp. 2d at 129. Accordingly, Plaintiffs' failure to provide a Local Rule 56.2
6
Over the course of this litigation, Dorvilier has retained and terminated the services of several different attorneys,
and has at times purported to be directing this litigation on behalf of himself and Harry's Nurses. At the time
Plaintiffs filed their instant motion, Dorvilier was acting prose after having once again requested that his attorney be
relieved. (See Schirtzer Ltr. of Feb. 17, 20 II (Docket Entry # 129); Docket Entry of Feb. 23, 20 I 1.) But as the
court has repeatedly instructed Dorvilier, despite his interest in Harry's Nurses, there are two separate Defendants in
this case-Dorvilier and Harry's Nurses-and Harry's Nurses, as a corporate party, cannot act prose. See Grace v.
Bank Leumi Trust Co., 443 F.3d 180, 192 (2d Cir. 2006). At the pre-motion conference in advance of Plaintiffs'
instant motion, the court again reminded Dorvilier of this rule. (See Docket Entry of Feb. 23, 2011.)
6
statement does not mandate dismissal of their motion, and Defendants' motion to strike is
denied. See Forsyth, 409 F.3d at 572; Venable, 2009 WL 2516844, at *2.
B.
Plaintiffs' Motion for Certification of a Collective Action
Plaintiffs move for second-stage class certification of Gayle and fifty-five other
individuals who have opted into this case. For the reasons that follow, the motion is granted.
Courts follow a two-stage process to determine whether a matter should proceed as a
FLSA collective action under 29 U.S.C. § 216(b). Ayers v. SGS Control Servs., Inc., No.
03-CV-9077, 2007 WL 646326, at *4 (S.D.N.Y. Feb. 27, 2007). In the first stage, which
typically occurs early in the litigation, the named plaintiffs bear the "minimal" burden of proof to
show that there are other employees who are similarly situated to them. !d. (quoting Torres v.
Gristede's Operating Com., No. 04-CV-3316, 2006 WL 2819730, at *7 (S.D.N.Y. Sept. 29,
2006)); see also Prizmic v. Armour. Inc., No. 05-CV-2503, 2006 WL 1662614, at *2 (E.D.N.Y.
2006). "If the court finds that they are similarly situated, it may conditionally certify the class
and authorize notice to be sent to putative class members." Prizmic, 2006 WL 1662614, at *2.
As discussed above, prior to the end of discovery in this action, Judge Sifton ruled that Plaintiff
Gayle had met the modest factual showing needed to support a first-stage determinationrevisable upon completion of discovery-that there were other individuals who were similarly
situated to Gayle and who should be notified of their opportunity to join this suit as Plaintiffs.
(Liability Decision at 27-28.)
The second stage of the certification inquiry occurs after discovery closes. See Ayers,
2007 WL 646326, at *4. At the second stage, the court must determine whether the class should
be decertified or continue to trial as a collective action. See Prizmic, 2006 WL 1662614, at *2.
Second-stage certification requires the court to exercise "a more heightened scrutiny" in
7
determining whether the potential plaintiffs are similarly situated. Jacobs v. NY Foundling
Hosp., 483 F. Supp. 2d 251,265 (E.D.N.Y. 2007). Still, even at this stage, Plaintiffs may
support their claims through "generalized proof' and "need show only that their positions are
similar, not identical." Ayers, 2007 WL 646326, at *5.
Plaintiffs argue that they satisfy the heightened scrutiny necessary for second-stage class
certification. (Pl. Mem. (Docket Entry# 144) at 13-18.) Defendants make three arguments in
opposition: (I) that a determination of second-stage class certification is premature because
discovery is incomplete; (2) that Plaintiffs cannot obtain class certification because they have
failed to present affidavits from all of the opt-in Plaintiffs; and (3) that opt-in Plaintiffs are not
similarly situated to Plaintiff Gayle. (Def. Opp. at 5-13.) The court will address each of these
arguments in tum.
I.
Timing of Motion
Defendants argue that discovery is incomplete-and certification is premature-because
they have not had the opportunity to depose any opt-in Plaintiffs or subpoena all relevant
documents. (ld. at 6.) They are incorrect. Magistrate Judge Marilyn D. Go supervised
discovery in this matter. On March 29,2010, Judge Go issued an Order stating that "[d]iscovery
is completed" with the exception of "defendants' failure to produced payroll records at the
present date." 7 (Docket Entry of Mar. 29,2010 (emphasis added).) In other words, there was no
discovery left to be taken of Plaintiffs.
Moreover, Defendants have had ample opportunity to seek discovery from opt-in
Plaintiffs, several of whom opted into this case as early as April 10, 2009. (See Docket Entry
#56.) Defendants have not, however, taken advantage of this opportunity; indeed, according to
7
This failure comports with Defendants' history of causing delays in this case. For instance, on December II,
2009, and February 5, 2010, the court sanctioned Defendants for failing to comply with discovery orders. (See
Damages Decision at I 0 (noting that the "vast majority of delays are attributable to Defendants' conduct").)
8
Plaintiffs, Defendants have sought no discovery from opt-in Plaintiffs. (Pl. Reply (Docket Entry
# 149) at 3.) Nor have Defendants raised with the court any difficulties obtaining discovery from
opt-in Plaintiffs. The court will not allow Defendants to benefit from their own inaction.
2.
Sufficiency of Evidence
Defendants next contend that Plaintiffs' motion must fail because they have submitted
affidavits from only five of the fifty-five opt-in Plaintiffs. Defendants suggest that Plaintiffs
must present evidence from "each and every" opt-in Plaintiff to show that they are similarly
situated to Plaintiff Gayle. (De f. Opp. at 7 .)
The court disagrees. Plaintiffs need not present evidence from "each and every" opt-in
Plaintiff so long as they can show that Defendants engaged in a unified policy, plan, or scheme
ofFLSA violations. See Alonso v. Uncle Jack's Steakhouse, No. 08-CV-7813, 2011 U.S. Dist.
Lexis 106356, at *10-12 (S.D.N.Y. Sept. 21, 2011); Ayers, 2007 WL 646326, at *5; Rodolico v.
Unisys., 199 F.R.D. 468,481-83 (E.D.N.Y. 2001). Even where plaintiffs have "otherwise varied
circumstances," courts frequently find members of a putative class similarly situated where the
plaintiffs were all impacted by a "single decision, policy, or plan."
~.Ayers,
2007 WL
646326, at *5. As discussed in Part 11.8.3, infra, Plaintiffs have established that Defendants
engaged in a unified policy of not paying overtime premiums to field nurses. Accordingly,
Defendants' contention regarding the sufficiency of Plaintiffs' evidence is mistaken. 8
3.
Similarly Situated
Finally, Defendants argue that Plaintiffs' motion must be denied because the opt-in
Plaintiffs are not similarly situated to Plaintiff Gayle. (Def. Opp. at 8-13.) In order to determine
8
Plaintiffs request that the court admit facts alleged in Plaintiffs' Request for Admissions. (Pl. Mem. at 21.)
Because the court need not rely on those facts in order to grant Plaintiffs' motion for certification of a collective
action, Plaintiffs' request is denied as moot.
9
whether Plaintiffs are similarly situated, the court considers three factors: "(!)disparate factual
and employment settings of the individual plaintiffs; (2) the various defenses available to
defendant which appear to be individual to each plaintiff; and (3) fairness and procedural
considerations." Jacobs, 483 F. Supp. 2d at 265. Each of these factors supports second-stage
certification of a collective action.
a.
Similarity ofPlaintiffi' Factual and Employment Settings
According to the Vendor List produced by Defendants, the deposition taken of Dorvilier,
and Plaintiffs' Affidavits, all of the opt-in Plaintiffs, like named-Plaintiff Gayle, were employed
by Harry's Nurses as field nurses on or after November 7, 2004. (See Vendor List (Docket Entry
# 136, Ex. 9); Dorvilier Dep. Tr. (Docket Entry# 136, Ex. 5) at 6-9, 22-23; Plaintiffs' Affidavits
at 1.) Gayle and the opt-in Plaintiffs were subject to the same hiring, working, supervision,
compensation, and termination procedures. (See Liability Decision at 2-8; 9 Plaintiffs'
Affidavits; Williams-West Aff. (Docket Entry# 142); Dorvillier Dep. Tr. (Docket Entry# 136,
Ex. 4) at I 9-20, 33.) Finally, each of the opt-in Plaintiffs challenges the same employment
practice as Gayle: Harry's Nurses' failure to pay field nurses earned overtime pay. Each of
these factors weighs strongly in favor of a finding that Gayle and opt-in Plaintiffs are similarly
situated. See. e.g., Rodriguez v. Almighty Cleaning. Inc., 784 F. Supp. 2d I 14, 130-3 I
(E.D.N.Y. 201 I) (holding that plaintiffs were similarly situated because they shared the same job
title and job functions); Scott v. Aetna Serv., Inc., 210 F.R.D. 261,264-65 (D. Conn. 2002)
(denying a motion to decertify because plaintiffs' job duties and responsibilities were
substantially similar); Rodolico v. Unisys., 199 F.R.D. 468,481-83 (E.D.N.Y. 2001) (fact that
the challenged employment practice was the same for each of the potential class members
9
The Liability Decision recites facts about the structure of Harry's Nurses that Judge Sifton found were undisputed.
10
weighed "very strongly" in favor of a collective action). 10 Accordingly, opt-in Plaintiffs and
Gayle are similarly situated with respect to their factual and employment settings.
b.
Defenses Applicable to Individual Plaintiffi' Claims
The court next considers whether Defendants have asserted affirmative defenses that can
be asserted collectively or whether their defenses require individualized determinations that
warrant decertification. Defendants assert three defenses in this action: (I) that the nurses were
independent contractors; (2) that Harry's Nurses is exempt from FLSA coverage because it is
organized under Article 36 of the N.Y. Public Health Law; and (3) that the nurses are exempt
from the FLSA because they were bona fide professionals. (See Def. Opp. at 12.) Defendants
concede that the second and third defenses are capable of being asserted collectively. (!d.)
The court finds that Defendants' first defense is also capable of being asserted
collectively. As discussed above, Harry's Nurses subjected all field nurses to the same hiring,
working, supervision, compensation, and termination procedures. (See Part II.B.3.a, supra.)
Thus, Defendants' argument that the nurses were independent contractors does not require
individualized determinations, and the second factor favors a finding that opt-in Plaintiffs and
Gayle are similarly situated.
10
Defendants argue that opt-in Plaintiffs' factual and employment settings varied because they had different
opportunities for profit or loss. (Def. Opp. at 9-11.) The court rejected a similar argument in its Liability Decision.
(See Liability Decision at 19-20.) A plaintiff's opportunity for profit or loss is one factor in the "economic realities"
test applied by courts to determine whether an individual qualifies as an employee or an independent contractor
under the FLSA. See. e.g., Brock v. Sup. Care, 840 F.2d 1054, 1058 (2d Cir. 1988). But Defendants offer no legal
support for their assertion that this test has any significance in the context of a second-stage certification
determination (see Def. Opp. at 10-11), and the court is aware of none. In any event, even if differences in
opportunities for profit and loss could be considered in the analysis ofthe potential Plaintiff class, there is no
evidence that opt-in Plaintiffs and Gayle differed in this regard; neither Gayle nor the other field nurses had any
opportunity for profit or loss at Harry's Nurses beyond collecting an hourly fee. (See Liability Decision at 19;
Plaintiffs' Affidavits.)
1l
c.
Fairness and Procedural Considerations
The third factor-fairness and procedural considerations-also weighs in favor of class
certification. Certification is favored where a collective action would lower costs to the
Plaintiffs by pooling resources, efficiently resolving common issues of law and fact, and
coherently managing the class in a manner that will not prejudice any party. See Ayers, 2007
WL 646326, at *6. Here, there are common issues of law and fact that are better resolved
through collective action, including Plaintiffs' employment status and Defendants' policies
toward nurses. Moreover, at least twenty-one of the opt-in Plaintiffs seek an award ofless than
$5,000; 11 the pooling of resources will enable Plaintiffs to adjudicate these small claims in a
cost-effective manner. Finally, Defendants have not suggested that they will be prejudiced by
collective action, nor is the court aware of any reason that they would be.
.. * * * *
In sum, because each of the above three factors favors a determination that Gayle and
opt-in Plaintiffs are similarly situated within the meaning of29 U.S.C. § 216(b), and because
Defendants' arguments with respect to timing and sufficiency of evidence lack merit, Plaintiffs'
motion for second-stage certification of a collective action is granted.
C.
Plaintiffs' Motion for Summary Judgment
As discussed above, the court has already granted summary judgment to Plaintiff Gayle
and awarded her $7,390 in damages. (Damages Decision at I 1-12.) The remaining Plaintiffs
now move for summary judgment as to liability. (As explained in footnote 12 below, the court
does not construe Plaintiffs' motion as a motion for summary judgment with respect to
11
Nineteen of the fifty-live opt-in Plaintiffs have not submitted time and pay records to show that they suffered any
damages.
12
damages. 12 ) For the reasons set forth below, the court grants summary judgment on liability as
to opt-in Plaintiffs. 13
I.
Legal Standard for Summary Judgment
Summary judgment is appropriate only when the record reflects that "there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(a). There is no genuine issue of material fact if, viewing the evidence in the light
most favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio Com., 475 U.S. 574, 587 (1986).
Initially, the party moving for summary judgment must demonstrate the absence of any
genuine issues of material fact. As to issues on which the party seeking summary judgment
bears the burden of proof at trial, it must come forward with evidence that would entitle it to a
directed verdict if such evidence were uncontroverted at trial. Celotex Com. v. Catrett, 477 U.S.
317, 324 (1986). As to issues on which the nonmoving party bears the burden of proof at trial,
12
It is not entirely clear whether Plaintiffs seek summary judgment with respect to damages. On the one hand,
Plaintiffs' memorandum oflaw in support of their instant motion contains a two-sentence section entitled "Plaintiffs
Have Proven Their Damages" and asks for the court to "order[] defendants to pay [Plaintiffs] $362,793.96 and an
equal amount as liquidated damages." (Pl. Mem. at 18, 22.) But after Defendants' counsel asked the court for an
extension of time to review a CD containing Plaintiffs' time and pay records and damage calculations (Alter Ltr. of
May 30, 20 II (Docket Entry # 152) at 2}-which Defendants claimed in their opposition papers that they had not
yet received (see Def. Opp. at 13-14}-Plaintiffs stated in a letter to the court that an extension of time was
unnecessary because "[t]he motion currently before the court concerns certification of the collective action, not
damages" (Bernstein Ltr. of May 31, 20 II (Docket Entry # 153) at I (emphasis added)). On the day of that letter,
Defendants' counsel admittedly received Plaintiffs' CD (see Alter Ltr. of June I, 2011 (Docket Entry# 154) at I
n.l ), and has therefore had over nine months to review Plaintiffs' time and pay records and damages calculations.
The court finds the statement in Plaintiffs' letter to be perplexing in light of the clear request for damages in
Plaintiffs' opening brief. In an abundance of caution, the court will not construe Plaintiffs' motion as a motion for
summary judgment with respect to damages but will give Plaintiffs an opportunity to tile such a motion
incorporating the evidence and memoranda they submitted in connection with their instant motion, according to the
schedule set forth at the end of this Memorandum and Order.
13
In assessing Plaintiffs' instant motion, the court relies in part on the findings of fact and determinations of law in
prior orders, which are the law of the case. See Official Comm. of Unsecured Creditors of Color Tile. Inc. v.
Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003).
13
the moving party must demonstrate the absence of evidence supporting the nonmoving party's
claim.
If the moving party succeeds in its showing, the burden shifts to the nonmoving party to
show that there is a genuine issue for trial. !d. at 322-23. The nonmoving party may not rest on
mere allegations or denials of the adverse party's pleadings as a means of establishing a genuine
issue worthy of trial, but must demonstrate by affidavit or other admissible evidence that there
are genuine issues of material fact or law. Anderson v. Liberty Lobby. Inc., 477 U.S. 242,
248-49 ( 1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970).
2.
Application
The court concludes that there is no genuine issue of material fact with respect to
Defendants' liability under the FLSA. The FLSA requires covered employers to compensate
their employees at one and one-halftimes the employees' regular pay rate for any work that
exceeds forty hours in a week. 29 U.S.C. § 207(a)(l). Here, it is undisputed that the opt-in
Plaintiffs were employed by Harry's Nurses as field nurses on or after November 7, 2004, and
were not paid overtime wages when they performed over forty hours of work per week. (See
Vendor List; Dorvilier Dep. Tr. (Docket Entry# 136, Ex. 5) at 6-9, 22-23; Plaintiffs' Affidavits;
Liability Decision at 9.) Defendants assert, however, that Harry's Nurses is exempt from the
FLSA for three reasons: (I) the field nurses were independent contractors; (2) Harry's Nurses is
organized under Article 36 of the New York Public Health Law; and (3) the field nurses were
bona fide professionals. (Def. Opp. at 1.) The court addresses each of these arguments in tum.
First, the court holds that Plaintiffs were employees, not independent contractors, within
the meaning of the FLSA. In ruling on Defendants' liability as to Gayle, Judge Sifton held that
Gayle was an "employee" under the FLSA, relying on undisputed facts about the structure of
14
Harry's Nurses that are applicable to all opt-in Plaintiffs, who, as discussed above, were subject
to the same hiring, working, supervision, compensation, and termination procedures as Gayle.
(See Liability Decision at 11-23.) Defendants have submitted no evidence to dispute these
findings. 14 Plaintiffs, on the other hand, have submitted five affidavits from individual Plaintiffs
and an affidavit from a nursing supervisor (see Williams-West Aff.) supporting Plaintiffs'
contention that the opt-in Plaintiffs' employment statuses were the same as Gayle's. Thus, the
court rejects Defendants' first affirmative defense and holds that the opt-in Plaintiffs, like Gayle,
are "employees" under FLSA.
Defendants' second affirmative defense is also meritless. Article 36 of the New York
Public Health Law describes the procedures and regulations for establishing and maintaining a
home care services organization. See N.Y. Code Art. 36. But no section of Article 36 exempts
home care services organizations from the FLSA and, in any event, no provision of the FLSA
permits a state to opt out of the statute.
Finally, the bona fide professional exemption applies only if an employee is paid on a
salary basis. 29 C.F.R. § 541.300(a)(l). Harry's Nurses indisputably paid Plaintiffs on an
hourly basis. (See Dorvilier Dep. Tr. (Docket Entry# 136, Ex. 4) at 20; Pay Records (Docket
Entry# 108, Exs. I, 3).) Thus, the bona fide professional exemption does not apply to Plaintiffs.
In sum, the court finds that Defendants failed to pay opt-in Plaintiffs overtime wages as
required by the FLSA, and that Defendants have asserted no valid defense. Plaintiffs' motion for
summary judgment is therefore granted with respect to liability.
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Although Defendants submitted three affidavits in support of their opposition to summary judgment (Docket
Entry## 145-47), none of these documents disputes facts from Judge Sifton's decision or otherwise creates a
genuine issue of material fact with respect to Plaintiffs' employment status.
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D.
Plaintiffs' Motion to Enforce Sanctions
On December II, 2009, Judge Go ordered Defendants to pay a discovery sanction of
$764.17 to Plaintiffs' counsel and an additional $500.00 to the court by December 21,2009.
(Docket Entry ofDec. II, 2009.) On February 8, 2010, Judge Go ordered Defendants to pay an
additional $764.50 to Plaintiffs' counsel. (Docket Entry of Feb. 8, 201 0.) Defendants have not
paid any part of these sanctions to date. Defendants are ordered to pay these sanctions within
fourteen days of this Order. Failure to do so may result in additional sanctions, including a
finding of contempt of court.
IV.
CONCLUSION
For the reasons set forth above, Defendants' motion to strike Plaintiffs' motion is
DENIED. Plaintiffs' motion for certification of a collective action is GRANTED. Plaintiffs'
motion for summary judgment as to liability is GRANTED. Plaintiffs' motion to enforce
sanctions is GRANTED and Defendants are ordered to pay the previously imposed sanctions
within fourteen days. Plaintiffs are given leave to file a motion for summary judgment with
respect to damages within fourteen days of the filing of this Order, which will incorporate the
memoranda oflaw and evidence they submitted in connection with their instant motion.
(Plaintiffs are not to submit an additional opening memorandum oflaw with respect to damages.)
If Plaintiffs file such a motion, Defendants will file any opposition to Plaintiffs' motion within
twenty-eight days of the filing of this Order; if Defendants do not file a timely response, the
court will rule on Plaintiffs' motion without an opposition. Plaintiffs may file a reply to
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Defendants' opposition within thirty-five days of this Order.
SO ORDERED.
s/Nicholas G. Garaufis
Dated: Brooklyn, New York
March_l_, 2012
NICHOLAS G. GARAUFIS
United States District Judge
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