Gayle v. Harry's Nurses Registry, Inc. et al

Filing 179

MEMORANDUM & ORDER: Plaintiffs' motion for summary judgment on damages is GRANTED. Plaintiffs shall be awarded $309,535.88 in unpaid overtime wages and the same amount in liquidated damages, for a total of $619,071.76; Defendants sha ll be jointly and severally liable for these damages. Defendants' motion to strike Plaintiffs' reply memorandum of law is DENIED. Plaintiffs' motion for sanctions is DENIED. Ordered by Judge Nicholas G. Garaufis on 9/14/2012. (Lee, Tiffeny)

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E.D.NY

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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* SEP 18 2012 *

b/p

BROOKLYN OFFICE

CLAUDIA GAYLE, et aI.,

Plaintiffs,

MEMORANDUM & ORDER
07-CV-4672 (NGG) (MDG)

-againstHARRY'S NURSES REGISTRY, INC, and
HARRY DORVILIER a/k/a HARRY DORVILIEN,
Defendants,

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NICHOLAS G. GARAUFIS, United States District Judge.
Before the court are Plaintiffs' motion for summary judgment as to damages, Defendants'
motion to strike Plaintiffs' reply memorandum of law, and Plaintiffs' motion for sanctions to be
imposed upon Defendants. For the reasons set forth below, Plaintiffs' motion for summary
judgment on damages is GRANTED, and Plaintiffs are awarded a total of $619,071.76 in
damages; Defendants' motion to strike is DENIED; Plaintiffs' motion for sanctions is DENIED.

I.

BACKGROUND
Plaintiffs, nurses who were employed by Defendant Harry's Nurses Registry, Inc.

("Harry's Nurses"), brought this action for unpaid overtime wages under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. §§ 201-19. (Compl. (Docket Entry # 1).) On March 1,
2012, this court granted Plaintiffs' motion for certification of a FLSA collective action and for
summary j~dgment as to liability, and gave Plaintiffs leave to file a motion for summary
judgment as to damages that would incorporate the memoranda of law and evidence they
submitted in connection with their motion for summary judgment on liability. (Liability Order
(Docket Entry # 162).)

On April 4, 2012, Plaintiffs moved for summary judgment on damages pursuant to
Federal Rule of Civil Procedure 56. (PI. Damages. Mot. (Docket Entry # 165); PI. Damages Aff.
(Docket Entry # 166).) Defendants submitted an affidavit in opposition to Plaintiffs' motion
(Def. Damages Aff. (Docket Entry # 167» and Plaintiffs filed a reply affirmation and
memorandum oflaw in further support of their motion (PI. Damages Reply (Docket Entry
# 169».

On April 10,2012, Defendants filed a motion to strike Plaintiffs' reply memorandum of
law on the grounds that it raised new arguments that should have been included in Plaintiffs'
original papers in support of their motion for summary judgment as to liability. (Def. Mot. to
Strike (Docket Entry # 170); Def. Strike Mem. (Docket Entry # 173-2).) Plaintiffs opposed
Defendants' motion to strike and cross-moved for sanctions. (PI. Sanctions Mot. (Docket Entry
# 174); PI. Strike Opp'n (Docket Entry # 174-5).) Defendants filed a reply regarding their

motion to strike and in opposition to Plaintiffs' cross-motion for sanctions. (Def. Strike Reply
(Docket Entry # 175-1).)
II.

DISCUSSION

A.

Defendants' Motion to Strike

Defendants argue that the court should strike Plaintiffs' reply memorandum of law in
support of their motion for summary judgment on damages because it "raises new arguments and
assertions which should have been included in plaintiffls'] original motion papers in support of
their summary judgment motion." (Def. Strike Mem. at 5.) Defendants are wrong.
Although "new issues may not be raised for the first time in reply," Sabre v. First
Dominion Cap., LLC, No. 01-CV-2145 (BSJ) (HP), 2002 WL 31556379, at *3 (S.D.N.Y. Nov.
15,2002), "reply papers may properly address new material issues raised in the opposition

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papers so as to avoid giving unfair advantage to the answering party," Kowalski v.
YellowPages.com, LLC, No. 10-CV-7318 (PGG), 2012 WL 1097350, at *10 (S.D.N.Y. Mar. 31,
2012). Plaintiffs' reply is limited to issues newly raised in Defendants' opposition papers,
including the sufficiency of the timesheet and payroll records Plaintiffs provided to the court
(Def. Damages Aff.

~~

14, 16, 20-21; PI. Damages Reply at 1-2), the individual calculation

discrepancies for four Plaintiffs (Def. Damages Aff.

~~

22-30; PI. Damages Reply at 4-6), and

the alleged exclusion of Plaintiffs' calculation methodology (Def. Damages Aff.

~~

33-34; PI.

Damages Reply at 7-8). Indeed, Defendants themselves state in their brief in support of their
motion to strike "that the explanations included in Plaintiffs' reply papers are exactly what
Defendants cited as lacking in the Plaintiffs' original motion papers in support." (Def. Strike
Mem. at 6.) In other words, Defendants admit that Plaintiffs' reply responded to issues that
Defendants raised for the first time in their opposition. Plaintiffs did not have an obligation to
anticipate in their opening papers the specific arguments Defendants raised in their opposition;
their response to those arguments was properly raised in their reply. Defendants' motion to
strike is therefore denied.

B.

Plaintiffs' Motion for Sanctions

Plaintiffs argue that Defendants should be sanctioned for bringing their motion to strike,
pursuant to 28 U.S.C. § 1927, on the grounds that their motion was brought in bad faith for the
sole purpose of delay. (PI. Strike Opp'n at 8-10.) The court disagrees.
Under § 1927, "[a]ny attorney who so multiples the proceedings in any case unreasonably
and vexatiously may be required by the court to satisfy personally the excess costs, expenses,
and attorneys' fees reasonably incurred because of such conduct." "Bad faith is the touchstone
of an award under this statute." United States v. Int'l Bhd. of Teamsters, 948 F.2d 1338, 1345

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(2d Cir. 1991). The court "must find clear evidence that (l) the offending party's claims were
entirely meritless and (2) the party acted for improper purposes." Revson v. Cinque & Cinque,
P.C., 221 F.3d 71, 79 (2d Cir. 2000). Plaintiffs are required to show with a "high degree of
factual specificity" that Defendants acted to "harass, delay, or for other improper purposes,
and/or in bad faith." Star Mark Mgmt., Inc. v. Koon Chun Hing Soy & Sauce Factory, Ltd., No.
07-CV-3208 (KAM) (SMG), 2010 WL 3924674, at *5 (E.D.N.Y. Sept. 30,2010), aff'd, 682
F.3d 170 (2d Cir. 2012).
Here, Plaintiffs assert that Defendants acted in bad faith because their motion to strike
discussed only de minimus ambiguities and discrepancies in the documentary evidence
submitted by Plaintiffs. (See PI. Strike Opp'n at 8.) But as discussed in Part II.C.2.a, some of
Defendants' assertions do indeed have merit. Nor is the court aware of any case law suggesting
that a party may be sanctioned for making a meritorious argument on a relatively inconsequential
issue-particularly one that will have an effect (even if a small one) on the total amount of
damages to be awarded. Accordingly, Plaintiffs' motion for sanctions is denied.
C.

Plaintiffs' Motion for Summary Judgment

This court has already granted summary judgment on liability and damages to Plaintiff
Claudia Gayle. (Docket Entry ## 53, 127.) It has also certified a collective action and granted
summary judgment on liability to the persons who opted into this action pursuant to 29 U.S.C.
§ 216(b). (Liability Order.) In accordance with the Liability Order, Plaintiffs have moved for
summary judgment on damages, and request both unpaid overtime premiums and an equal
amount in liquidated damages. (See PI. Damages Reply at 9.) Plaintiffs' motion will be granted.

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1.

Summary Judgment Standard

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 oflaw." 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 Corp., 475 U.S. 574,587 (1986).
Initially, the party moving for summary judgment must demonstrate the absence of any
genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,323 (1986). When a
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.
See id. at 323. As to issues on which the nonmoving party has the burden of proof at trial, the
moving party must demonstrate the absence of evidence supporting the nonmoving party's
claim. See id. at 323-24.
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. Id. 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

a.

Unpaid Overtime Premiums

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.

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29 U.S.C. § 207(a)(I). Plaintiffs bear the burden of proving that they perfonned overtime work
and the amount of overtime work that they perfonned. See Seever v. Carrols Corp., 528 F. Supp.
2d 159, 170 (W.D.N.Y. 2007).
Pursuant to court order, Defendants produced thousands of pages of time and pay records
during discovery. (Pay Records (Docket Entry # 108, Ex. 3).) Plaintiffs submitted these records
by CD to the court and Defendants' counsel incident to Plaintiffs' June 25, 2010, motion for
summary judgment.) (See Bernstein Aff. (Docket Entry # 108) ~ 6.) Plaintiffs also submitted a
Microsoft Excel spreadsheet with overtime premium calculations for each opt-in Plaintiff, which
contains a detailed break-down of the number of hours each opt-in Plaintiff worked and the
applicable pay rate. 2 (Pay Spreadsheet (Docket Entry # 108, Ex. 1).)
Defendants respond to Plaintiffs' evidence in two ways.
First, they argue that the time and pay records that Defendants produced during
discovery-and that Plaintiffs submitted to the court in support of their motion for summary
judgment on liability-are insufficient to discharge Plaintiffs' burden of proving that they
perfonned uncompensated overtime work. (Def. Damages Aff.

~

14.) This argument is

inconsistent with Second Circuit case law holding that, "[w]hen the employer has kept proper
and accurate records, the employee may easily discharge his burden [to prove that he perfonned
work for which he was not properly compensated] by securing the production of those records."
Kuebel v. Black & Decker, Inc., 643 F.3d 352, 362 (2d Cir. 2011).

Plaintiffs supplied the records of their overtime work by CD rather than by electronic filing because of the
voluminous size of the records. (See Bernstein Aff. (Docket Entry # 108) ~ 6.) Defendants' counsel admittedly
received Plaintiffs' CD on May 31, 20 II. (Alter Ltr. of June I, 20 II (Docket Entry # 154) at I n.1.)
Plaintiffs' spreadsheet contains tabs for each opt-in Plaintiff along with a tab that summarizes all of the
opt-in Plaintiffs' overtime premium calculations.
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Second, Defendants assert that Plaintiffs committed errors in calculating overtime
premium pay for four Plaintiffs. (See Def. Damages Aff. ~~ 22-27.) The court responds to
Defendants' arguments as follows.
Defendants assert that the number of hours worked and the applicable pay rate are
inaccurate for Lindon Morrison's February 20, 2009 time sheet. (Def. Damages Aff. ~ 22.) The
parties dispute whether Morrison worked on the Saturday of that week. (M) The court
concludes that Morrison did not work that Saturday because the time sheet has a line through the
Saturday time box (see Pay Records at 45); thus, she will not be compensated for overtime that
day. There is also no documentation to show the applicable hourly wage for the weeks of
February 20 to April 10, 2009. The records show that Harry's Nurses routinely paid Morrison
$19 or $20 per hour depending on the client. As the court must draw all reasonable inferences in
favor of the Defendants, the court will award Morrison damages for the hours she worked from
February 20 to April 10,2009, at a rate of$19 per hour. 3
Defendants next assert that Souciane Querette's April 18 and April 25, 2008, time sheets
fail to identify the applicable pay rate because a handwritten mark over the pay rate is
inexplicable. (Def. Damages Aff.

~~

23-24.) Although Plaintiffs correctly assert that Querette

was paid $19.50 per hour in May 2008 (Pay Records at 10), she was paid at a rate of $19 per
hour earlier in April 2008 for the same client for whom she worked on April 18 and 25, 2008 (id.
at 12). Therefore, the court awards Querette damages in accordance with an hourly rate of
$19.00.
Both parties now agree that Willie Evans' applicable pay rate was $19.50 rather than
$21.00, although Plaintiffs had originally used the latter amount to calculate Evans' damages.

An approximation of damages is pennissible. See Kuebel, 643 F.3d at 362.
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(See Def. Damages Aff. ~ 26; PI. Damages Reply at 5.) The Court will award Evans at the
$19.50 pay rate.
Defendants assert that Henrick Ledain' s applicable pay rate is unclear for May 18 and
May 25,2007, and for January 16, January 23, January 30, March 23, March 30, April 3, July
11, and July 18,2009. (Def. Damages Aff.

~

27.) For May 18 and May 25,2007, the record is

clear that the applicable pay rate was $20 per hour. For January 16, January 23, and January 30,
2009, Ledain's hourly rate is omitted from his pay records. During those weeks, Ledain worked
for a patient named Ameer Atkinson whom he had previously charged $20 per hour. As such,
the applicable pay rate is $20 per hour for January 2009. Plaintiffs do not seek damages for the
weeks of March 23, March 30, April 3, July 11, and July 18, 2009, so any ambiguity with respect
to those weeks is irrelevant. The court will award Ledain accordingly.
After its own review of the evidence, the court finds that the evidence generally supports
Plaintiffs' request for damages as they set forth in the Pay Spreadsheet, but with a few
exceptions. Plaintiff Getty Rocourt claims that he was due overtime pay for work conducted in
2006 but he produced no payor time records from 2006. Plaintiff Yolanda Robinson claims that
she was due overtime pay from 2006-2010 but produced records only from 2008-2010. Plaintiff
Jane Hylton Burke claims that she was due overtime pay for work in January and March 2010
but did not produce records to support that claim. Plaintiff Samedi Maud claims that he was due
overtime pay for the week of October 17, 2008, but did not work any overtime that week. The
court will award only damages established by payor time records. Plaintiff Anthony Headlam's
August 21 and November 6, 2009, pay calculations used an incorrect pay rate. The court will
recalculate his damages using the appropriate pay rate of $19.00. Plaintiff Lena Thompson's pay
calculations omitted hours from her April 20 and April 27, 2007, pay records, amounting to a

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deficiency of $40.00. Finally, Plaintiffs' overall calculations omitted Plaintiffs Sussan Ajiboye's
and Catharine Modeste's damages from the total damages sum. Because Plaintiffs included
these two individuals' damages calculations in the Pay Spreadsheet under each individual's
personal tab sheet, Plaintiffs' failure to include these individuals' damages in the total calculation
appears to have been inadvertent, and the court will therefore include them in its total damages
sum.
Based on the evidence in the record, opt-in Plaintiffs are entitled to a total of$309,535.88
in unpaid overtime premiums. The Appendix to this Memorandum and Order contains a table
listing individual awards for each Plaintiff.
b.

Liquidated Damages

An employer who violates the compensation provisions of the FLSA is liable for unpaid
wages "and an additional equal amount as liquidated damages." 29 U.S.C. § 216(c). Liquidated
damages under the FLSA are presumed in every case where violation of the statute is found. Id.
§ 260. The presumption may be overcome if an employer proves, as an affirmative defense, both
that it acted in good faith and that it had objectively reasonable grounds for believing that its
conduct did not violate the FLSA. Brock v. Wilamowsky, 833 F.2d 11, 19 (2d Cir. 1987). To
establish good faith, a defendant must produce "plain and substantial evidence of at least an
honest intention to ascertain what the [FLSA] requires and to comply with it." Id. "Good faith
requires more than ignorance of the prevailing law or uncertainty about its developments."
Reich v. So. New. Eng. Telcoms. Corp., 121 F.3d 58, 71 (2d Cir. 1997). An employer must
"first take active steps to ascertain the dictates ofthe FLSA and then act[] to comply with them."
Id. The burden "is a difficult one to meet"; "double damages are the norm, single damages the
exception." Brock, 833 F.2d at 19.

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The court has previously found that Defendants had not demonstrated good faith with
respect to Plaintiff Gayle sufficient to overcome the presumption in favor of liquidated damages;
indeed, Defendants essentially ignored the issue of good faith altogether. (See First Damages
Decision (Docket Entry #127) at 11 ("[T]here is no evidence in the record that would have
supported a reasonable belief on defendants' part that Gayle was not covered by the FLSA.").)
That is equally true of the opt-in Plaintiffs. Defendants have not submitted any new evidence to
show that there is a genuine issue of material fact with respect to Defendants' good faith. As
such, the opt-in Plaintiffs are entitled to liquidated damages pursuant to 29 U.S.C. § 216(c) in a
sum equal to the amount of their unpaid overtime premiums.

III.

CONCLUSION
For the foregoing reasons, Plaintiffs' motion for summary judgment on damages is

GRANTED. Plaintiffs shall be awarded $309,535.88 in unpaid overtime wages and the same
amount in liquidated damages, for a total of$619,071.76; Defendants shall be jointly and
severally liable for these damages. Defendants' motion to strike Plaintiffs' reply memorandum
oflaw is DENIED. Plaintiffs' motion for sanctions is DENIED.
SO ORDERED.

s/Nicholas G. Garaufis
NICHOLAS G. GARAUFIS
United States District Judge

Dated: Brooklyn, New York
September l!i, 2012

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APPENDIX
Plaintiff Name
Ajiboye, Sussan
Ali-EI, Sulaiman
Barbot Geneviene
Bernice, Sankar
Brenda, Lewis
Bhola, Margarite
Burke Hylton Jane
Clunie, Carol
Depasquale, Anne
Davis, A. Mary
Evans, Willie
Evans, Niseekah
Francois, Nathalie
Gervil, Michelle
Gumbs, Alexander
Hamilton, Lucille
Headlam, Anthony
Hyman, Marlene
Ledain, Hendrick
Llewellyn, Annabel
Miller, Paulette
Modeste, Catharine
Morrison, Lindon
Mukandi, Edith
Ogunjana, Martha
Paris, Merika
Pierre-Joseph, B.
Pierre, Christa
Patterson, Merlyn
Querette, Soucianne
Recourt, Getty
Robinson, Yolanda
Robinson, Patricia
Samedi, Maud
Thompson, Lena
Ward, Jacqueline
GRAND TOTAL

Award
$690.00
$7,105.95
$320.00
$8,744.00
$60.00
$292.50
$68,660.00
$1,640.00
$6,473.25
$3,838.61
$16,560.00
$61.25
$574.38
$960.00
$245.00
$490.00
$6,834.14
$2,646.00
$16,634.00
$210.00
$1,190.00
$40.00
$22,960.50
$2,031.33
$326.50
$27,021.00
$5,725.02
$195.00
$49.00
$18,724.93
$0.00
$46,176.00
$8,040.00
$18,541.02
$14,382.75
$1,093.75
$ 309,535.88

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