Cantave v. Uptown Communications & Electric, Inc. et al
ORDER granting 20 Motion for Summary Judgment. I grant defendants' motion for summary judgment as to Cantave's claim under the Fair Labor Standards Act. I dismiss the remaining state and city causes of action without prejudice. Ordered by Judge Edward R. Korman on 8/5/2015. (Kaye, Julia)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOT FOR PUBLICATION
– against –
MEMORANDUM & ORDER
UPTOWN COMMUNICATIONS &
ELECTRIC INC., and NELSON
FELICIANO, DANNY GREENBERG,
ELVIS PEJOVIC, AND JONATHAN
SMOKLER, individually and as aiders
Plaintiff Remy Cantave filed this action against his former employer, Uptown
Communications & Electric, Inc. (“Uptown”), and individual defendants Nelson Feliciano,
Danny Greenberg, and Elvis Pejovic (collectively, “defendants”), alleging violations of
unidentified sections of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.; New
York Labor Law §§ 193, 198; New York State Executive Law §§ 292, 296; and New York City
Administrative Code § 8-107. 1 Specifically, Cantave alleges that Uptown and its management
team: (1) violated the terms of the collective bargaining agreement (“CBA”) governing his
employment by paying him reduced wages; and (2) discriminated against him on the basis of his
race and national origin by underpaying him, giving him less favorable assignments than
employees outside of his protected class, denying him annual pay raises, prohibiting him from
Cantave initially also filed retaliation claims pursuant to 29 U.S.C. § 218c and New York City Administrative
Code § 6-109, as well as claims against individual defendant Jonathan Smokler. ECF No. 1 at 8–10. He
“voluntarily discontinues” these claims in his reply brief. Pl.’s Opp’n Br. 2, ECF No. 21-8.
taking vacations, and terminating him despite his unofficial status of “medical leave.”
Defendants now move for summary judgment. See ECF No. 20.
Uptown is a contractor engaged by Time Warner Cable to install cable and high speed
internet (“HSI”) in the homes of subscribers. Defs.’ Rule 56.1 Statement (“Defs.’ 56.1”) ¶ 1,
ECF No. 20-2.
Cantave testified that he “probably” first started working for Uptown
Communications in 2004, and then briefly worked for Cablevision before returning to Uptown as
an installation technician in 2005 or “right at the beginning of” 2006. Cantave Dep. 12:9–13,
15:21–24, 31:5–11, ECF No. 21-6 at 4–6. He was subject to a CBA with an effective date of
April 1, 2007. Defs.’ 56.1 ¶ 9. Neither the complaint nor any of the parties’ briefings refer to an
The CBA is the only basis for determining an Uptown technician’s pay. Pejovic Dep.
13:5–9, ECF No. 21-6 at 40; Feliciano Dep. 13:3–8, ECF No. 21-6 at 46. The CBA included a
wage schedule, which provided in relevant part:
1. All new employees may be hired at a minimum rate of $9.00
per hour . . . . All employees with two (2) years of service or
more shall receive a minimum hourly rate of $11.50 per hour . .
7. All A+ work will be performed at minimum [sic] of $15.68 per
hour plus contractual increases for employees hired before
April 1, 2007. If a technician is certified as A+, his/her
minimum salary whether doing A+ work or not will be $13.58
an hour plus contractual increases per year . . . .
8. All existing technicians hired before April 1, 2007 who are not
A+ certified and not performing modem work will receive the
Premium rate of $15.00 per hour plus the contractual increases
if they become qualified to perform modem work.
Decl. Supp. Mot. Summ. J. Ex. C (“CBA”) at 67–68, ECF No. 20-5. Cantave alleges in his
complaint that he “started at $8.00 per hour,” which is “below the minimum wage.” Compl. ¶¶
22, 31, 41, ECF No. 1. He further alleges that, “despite many complaints to supervisors, [his
salary] reached a high of $13.39 per hour in 2010,” which is less than the rate to which he claims
to have been entitled under the CBA. Id.
The parties agree that “A+ certification,” which is not defined in the CBA, “means a
technician has obtained a certification necessary to manage, troubleshoot, or configure
computers,” and that the purpose of obtaining this certification is to earn a higher pay rate under
the CBA. Pl.’s Rule 56.1 Statement (“Pl.’s 56.1”) ¶¶ 10, 12. Cantave concedes that he was not
A+ certified, and was therefore subject to paragraph eight of the CBA. See id. at ¶ 11. The
parties dispute, however, the meaning of the phrase “bec[o]me qualified to perform modem
work” in paragraph eight, and whether Cantave satisfied that requirement. See id. at ¶¶ 11, 17.
In particular, they contest: (1) whether Cantave was performing HSI installations; (2) whether
HSI installations constitute “modem work” within the meaning of the CBA; and (3) even if
Cantave was performing HSI installations, and HSI installations do constitute “modem work,”
whether he was “qualified” to do those installations without having received an A+ certification. 2
Defendant Greenberg is one of the co-owners of Uptown, Def.’s 56.1 ¶ 2; Defendant
Feliciano was the company’s General Manager, id. at ¶ 6; and Defendant Pejovic was Cantave’s
Defendants concede in a footnote that “HS[I] work is modem work,” Def’s Mem. Supp. Mot. Summ. J. 4 n.2, ECF
No. 20-19, and Cantave alleges that he regularly installed HSI, see Pl.’s 56.1 ¶ 11. This would seemingly resolve
the first two factual questions on a motion for summary judgment, leaving only the question of whether Cantave was
in fact “qualified” to perform those installations despite lacking A+ certification. Nevertheless, Cantave asserts that
“HS[I] work is high speed internet work, which Plaintiff was performing, though he was not performing modem
work.” Pl.’s 56.1 ¶ 17 (emphasis added). In addition to undermining Cantave’s wage claim, this assertion appears
to contradict Cantave’s deposition testimony that performing HSI installation requires “bring[ing] in a modem” and
then troubleshooting any problems that result. Cantave Dep. 36:2–14, ECF No. 20-3.
direct supervisor, id. at ¶ 4. Cantave is an African-American male of Haitian national origin. Id.
at ¶ 3. Feliciano is Latino and of Puerto Rican descent, and Pejovic is White. Id. at ¶¶ 5, 7.
Cantave alleges that Pejovic, who was responsible for assigning work, gave more
favorable assignments to non-A+ certified technicians with less experience than Cantave. See
Compl. ¶¶ 18–19; Cantave Dep. 132:4–24, ECF No. 21-6 at 25. He cited one example at his
deposition of a Latino technician, whose name Cantave could not remember, who allegedly
received higher-paying assignments than Cantave despite the fact that he was more junior. Id.
Cantave alleges that he repeatedly complained about this practice to defendants. See, e.g., id. at
143:21–25, ECF No. 21-6 at 27.
He also alleges in his complaint that “prior to 2008, [he] did not receive pay raises, while
similarly-situated co-workers outside Cantave’s protected classes received raises at least once a
Compl. ¶ 20.
Moreover, he was “denied the opportunity to take vacations, while
similarly-situated co-workers outside Cantave’s protected classes were permitted to take their
available vacations.” Id. at ¶ 21.
Cantave was fired in February 2012 for failing to attend work or call to report his
absence. See Decl. Opp’n Mot. Summ. J. Exs. B & C, ECF Nos. 21-2, 21-3. Cantave alleges
that he was recovering from a work-related knee injury, and had informed Pejovic that he would
be out for several days for medical reasons. Cantave Dep. 98:11–101:9, ECF No. 21-6 at 12–15.
At a meeting with Feliciano, Pejovic, and union representative William Bruno, Cantave was
informed that he was being terminated “because . . . I stayed out for too long, and I didn’t have
no more vacation days, and I didn’t call.” Id. at 107:15–21, 109:5–12, ECF No. 21-6 at 20–21.
3. Grievance Procedures
The CBA contained the following provision governing grievances procedures:
All complaints or disputes involving the interpretation or
application of this Agreement, or disciplinary penalty (including
discharge) must be filed by the grievant within fifteen (15)
working days from the occurrence or knowledge of the occurrence.
The respondent has five (5) working days to reply. Failure for
either side to abide by this time frame shall render either the
grievance or the defense null and void. If said grievance cannot be
settled directly by the parties it may, upon application by either
party, be submitted to the American Arbitration Association for
binding arbitration in accordance with its Expedited Arbitration
CBA at 65. Cantave does not allege that he utilized these grievance procedures either to
challenge what he perceived to be his under-payment or to challenge defendants’ allegedly
4. Procedural History
Cantave initially filed this lawsuit in New York State Supreme Court (Queens County) in
September 2012. Compl. ¶ 10. It was transferred to the Eastern District of New York by joint
stipulation of the parties to allow Cantave to raise “his wage and vacation claims under the
Collective Bargaining Agreement as federal claims . . . .” Id. at ¶12 & Ex. A.
1. Standard of Review
Summary judgment is appropriate “if the movant shows 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). A dispute about a material fact is “genuine” if the “evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). In ruling on a motion for summary judgment, “[t]he evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255 (citation
2. The FLSA and the LMRA
The FLSA, 29 U.S.C. § 201 et seq., and the Labor Management Relations Act
(“LMRA”), 29 U.S.C. § 185, reflect “[t]wo aspects of national labor policy.” Barrentine v. Ark.–
Best Freight Sys., Inc., 450 U.S. 728, 734 (1981). “The LMRA, on one hand, governs the
relationships between employers and unions by ‘encourag[ing] the negotiation of terms and
conditions of employment through the collective-bargaining process.’” Vadino v. A. Valey
Eng’rs, 903 F.2d 253, 264 (3d Cir. 1990) (quoting Barrentine, 4450 U.S. at 734).
That process . . . consists of the grievance and arbitration
procedures and, if necessary, the resort to federal courts via section
301 to resolve disputes between employers and employees over the
interpretation and enforcement of the previously negotiated
provisions of collective bargaining agreements relating to, inter
alia, pay and conditions of employment.
Id. (citing Smith v. Evening News Ass’n, 371 U.S. 195, 200 (1962)). “[C]laims founded directly
on rights created by collective-bargaining agreements, and also claims ‘substantially dependent
on analysis of a collective-bargaining agreement,’” are thus governed exclusively by § 301 of the
LMRA. Caterpillar Inc. v. Williams, 482 U.S. 386, 394 (1987) (citations omitted).
“The FLSA, on the other hand, is reflective of a different genre of statute, one which
‘guarantees covered employees specific substantive rights.’” Vadino, 903 F.2d at 264 (quoting
Barrentine, 450 U.S. at 734). The rights conferred by the FLSA “are independent of contractual
rights arising out of a CBA,” Johnson v. D.M. Rothman Co., 861 F. Supp. 2d 326, 331 (S.D.N.Y.
2012) (citing Barrentine, 450 U.S. at 745), and “[t]he enforcement provision of the FLSA is
limited to employee suits seeking enforcement of their rights under the statute.” Vadino, 903
F.2d at 265 (citing 29 U.S.C. § 216(b)). Thus, “although FLSA . . . claims that ‘are truly
independent of a [CBA] are enforceable,’ the LMRA will preclude such claims that are
‘inextricably intertwined’ with the terms of a CBA.” Johnson, 861 F. Supp. 2d at 332 (citing
Dougherty v. Am. Tel. & Tel. Co., 902 F.2d 201, 203–04 (2d Cir. 1990)); cf. Allis-Chalmers
Corp. v. Lueck, 471 U.S. 202, 220–21 (1985) (holding that “when resolution of a state-law claim
is substantially dependent upon analysis of the terms of an agreement made between the parties
in a labor contract, that claim must either be treated as a § 301 claim or dismissed as pre-empted
by federal labor-contract law.” (citations omitted)).
“The boundary between claims requiring ‘interpretation’ of a CBA and ones that merely
require such an agreement to be ‘consulted’ is elusive.” Wynn v. AC Rochester, 273 F.3d 153,
157–58 (2d Cir. 2001). Nevertheless, courts have found federal and state law employment
claims to be precluded by § 301 of the LMRA when they “require more than ‘simple reference
to the face of the CBA.’” Johnson, 861 F. Supp. 2d at 333 (quoting Wynn, 273 F.3d at 158)
(concluding that § 301 preempted the plaintiffs’ FLSA claims arising from their alleged
entitlement under the CBA to wage differentials established for “hi-lo operators” or
“grandfathered employees,” where the CBA did not define those terms); see also, e.g., Hoops v.
Keyspan Energy, 822 F. Supp. 2d 301, 306–09 (E.D.N.Y. 2011) (dismissing FLSA claim as
premature where the plaintiff’s right to receive night shift differentials “hinge[d] on the [CBA]’s
definition of the terms of employment” and the plaintiff failed to exhaust his administrative
remedies under the CBA); Salamea v. Macy’s E., Inc., 426 F. Supp. 2d 149, 154–55 (S.D.N.Y.
2006) (finding that § 301 preempted the plaintiff’s state law claims arising from the defendants’
alleged failure to pay her for vacation days, because determining whether she was entitled to
those vacation days required interpreting the CBA); Tand v. Solomon Schechter Day Sch. of
Nassau Cnty., 324 F. Supp. 2d 379, 383 (E.D.N.Y. 2004) (concluding that the plaintiff’s claims
were preempted because “[i]n order to determine whether there was, in fact, a breach of the
CBA, the Court must determine the ‘rights and responsibilities’ of the parties under the CBA . . .
. [and] interpret certain articles in the CBA . . . .”).
3. Exhaustion under the LMRA
Before bringing an action pursuant to § 301 of the LMRA, “the employee must exhaust
grievance procedures provided by the relevant collective bargaining agreement.” Dougherty,
902 F.2d at 203 (citing Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563 (1976)); accord
Vaca v. Sipes, 386 U.S. 171, 184 (1967). The failure to exhaust will not bar an employee’s
action only if he “can prove that the union has breached its duty of fair representation in failing
to pursue his grievance.” Sanchez v. Local 660, United Workers of Am., 25 F. Supp. 3d 261, 267
(E.D.N.Y. 2014) (citations omitted). “In order to be excused from the exhaustion requirement
based on a union’s breach of the duty of fair representation, the employee must adequately plead
and eventually prove that breach, even if only the employer is sued.” Vera v. Saks & Co., 424 F.
Supp. 2d 694, 705 (S.D.N.Y. 2006) (citations omitted).
4. Cantave’s FLSA Claims
Cantave does not specify which provision of the FLSA defendants allegedly violated, nor
point to any substantive statutory rights that he has been denied.
His allegation that the
$8.00/hour rate he received when he first started at Uptown was “below the minimum wage” is
factually inaccurate, at least to the extent that he refers to the federal minimum wage established
by FLSA (which reached its current high of $7.25 in July 2009). See Compl. ¶ 31; 29 U.S.C. §
206. While he may have a breach of contract claim if he was receiving less than the $9.00
minimum wage at which “[a]ll new employees may be hired” under the CBA, see CBA at 67
(emphasis added)—assuming that he was still receiving that rate after the CBA took effect in
April 2007—this does not constitute a valid claim under FLSA. Similarly, Cantave’s allegation
that he was paid less than the $15.00/hour rate to which he was entitled under paragraph eight of
the CBA does not constitute a cognizable claim under FLSA, because he is not “seeking
enforcement of [his] rights under the statute.” Vadino, 903 F.2d at 265 (citing 29 U.S.C. §
216(b)). Rather, he seeks to enforce his rights under the CBA.
Cantave’s claims, which turn on the meaning of the phrase “become qualified to perform
modem work” under paragraph eight of the CBA, are “intextricably intertwined” with the CBA
and thus governed by § 301 of the LMRA. Doughtery, 902 F.2d at 204. Cantave has not,
however, alleged a violation of § 301. Indeed, his complaint does not reference the LMRA at all.
See generally Compl., ECF No. 1.
Nor has he alleged that he exhausted the grievance
procedures established by the CBA as required before bringing a § 301 claim, or that he is
entitled to an exemption from the exhaustion requirement because the union “breached its duty
of fair representation in failing to pursue his grievance.” Sanchez, 25 F. Supp. 3d at 267. “He
cannot remedy that defect by establishing in the claim brought under . . . the FLSA that which he
should have established under section 301 of the LMRA.” Vadino, 903 F.2d at 266.
Cantave’s FLSA claim is preempted by § 301 of the LMRA. Defendants are therefore
entitled to summary judgment on that claim as a matter of law.
5. Cantave’s State Law Claims
Because Cantave’s only federal cause of action is dismissed, I decline to exercise
supplemental jurisdiction over his remaining state and city claims. See 28 U.S.C. 1367(c)(3);
Valencia ex rel. Franco v. Lee, 316 F.3d 299, 304–06 (2d Cir. 2003). The state and city claims
are therefore dismissed without prejudice.
I grant defendants’ motion for summary judgment as to Cantave’s claim under the FLSA.
I dismiss the remaining state and city causes of action without prejudice.
Brooklyn, New York
August 5, 2015
Edward R. Korman
Edward R. Korman
Senior United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?