Eren v. Gulluoglu Brighton LLC et al

Filing 41

ORDER ADOPTING REPORT AND RECOMMENDATIONS -- For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, Defendants' objections to the Report and Recommendation ("R&R") issued by the Hon. Ramon E. Reyes, U.S.M.J. on May 10, 2017 are overruled and the R&R is adopted in its entirety. Accordingly, Defendants' motion for summary judgment is denied. This matter is referred to the magistrate judge for further pretrial proceedings, including settlement discussions. SO ORDERED by Chief Judge Dora Lizette Irizarry on 09/30/2017. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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SULEYMAN EREN and TUNCAY SINAN,
:
:
Plaintiffs,
:
:
MEMORANDUM AND ORDER
-against:
ADOPTING REPORT AND
:
RECOMMENDATION
GULLUOGLU LLC and ERCAN
:
15-CV-4083 (DLI)(RER)
KARABEYOGLU,
:
:
Defendants.
:
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DORA L. IRIZARRY, Chief United States District Judge:
On July 10, 2015, Plaintiffs Suleyman Eren (“Eren”) and Tucany Sinan (“Sinan”)
(collectively, “Plaintiffs”) initiated this proceeding against Defendants Gulluoglu LLC
(“Gulluoglu”) and Ercan Karabeyoglu (“Karabeyoglu”) (collectively, “Defendants”), and other
entities subsequently dropped from the action. See Complaint (“Compl.”), Dkt. Entry No. 1.
Plaintiffs allege that Defendants, Plaintiffs’ former employers, failed to provide overtime pay as
required under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207, and New York Labor
Law (“NYLL”) § 651. See Amended Complaint (“Am. Compl.”), Dkt. Entry No. 13. Plaintiffs
further allege that Defendants failed to pay spread of hours wages as required under 12 NYCRR §
142-2.4 and violated New York’s Wage Theft Prevention Act, NYLL § 195(3). See Id.
Defendants moved for summary judgment, asserting that Plaintiffs fall within the creative
professional exemption under the FLSA and NYLL.

See Motion for Summary Judgment

(“Motion”), Dkt. Entry No. 33. Plaintiffs opposed the motion. See Pl. Mem. of Law in Opp. to
Def.’s Mot. for Sum. J. (“Pl. Opp.”), Dkt. Entry No. 35.
On April 12, 2017, this Court referred the Defendants’ Motion to the Honorable Ramon E.
Reyes, U.S. Magistrate Judge for a Report and Recommendation (“R & R”). The magistrate judge

issued his thorough and well reasoned R & R on May 10, 2017. See R & R, Dkt. Entry No. 37.
The magistrate judge concluded that genuine issues of material fact prevent disposition of this
action on summary judgment and that Defendants did not carry their burden in asserting the
creative professional exemption to the FLSA, an affirmative defense. See Id. Defendants objected
to the R & R. See Objection to R & R (“Def. Objs.”), Dkt. Entry No. 40.
For the reasons set forth below, Defendants’ objections are overruled, and the R & R is
adopted in its entirety.
DISCUSSION1
When a party objects to an R & R, a district judge must make a de novo determination as
to those portions of the R & R to which a party objects. See FED. R. CIV. P. 72(b)(3); United States
v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to the standard often articulated by the
district courts of this Circuit, “[i]f a party simply relitigates his original arguments, the Court
reviews the Report and Recommendation only for clear error.” Antrobus v. New York City Dep’t
of Sanitation, No. 11-CV-5434 (CBA) (LB), 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016)
(internal citations and quotation marks omitted); see also Rolle v. Educ. Bus Transp., Inc., No. 13CV-1729 (SJF) (AKT), 2014 WL 4662267, at *1 (E.D.N.Y. Sept. 17, 2014) (“[A] rehashing of the
same arguments set forth in the original papers . . . would reduce the magistrate’s work to
something akin to a meaningless dress rehearsal.”) (internal citations and quotation marks
omitted). On the other hand, the Second Circuit Court of Appeals has suggested that a clear error
review may not be appropriate “where arguably ‘the only way for [a party] to raise . . . arguments
[is] to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 520 n.2 (2d Cir. 2017) (quoting Watson v.
Geithner, No. 11-CV-9527 (AJN), 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013)).

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The Court assumes familiarity with the facts as outlined in the R & R. See R & R at 1-3.

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Nonetheless, a court will not “ordinarily . . . consider arguments, case law and/or evidentiary
material which could have been, but [were] not, presented to the magistrate judge in the first
instance.” Santiago v. City of New York, No. 15-CV-517 (NGG) (RER), 2016 WL 5395837, at *1
(E.D.N.Y. Sept. 26, 2016) (internal citation and quotation marks omitted). After its review, the
district court may then “accept, reject, or modify the recommended disposition; receive further
evidence; or return the matter to the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3);
see also 28 U.S.C. § 636(b)(1).
A.

DEFENDANTS’ OBJECTIONS
Defendants object to the R & R’s conclusions that: (1) the tasks Plaintiffs performed for

Defendants during the relevant timeframe cannot be considered creative tasks under 29 C.F.R. §
541.302(a); (2) Plaintiffs’ primary duties did not encompass creative tasks under 29 C.F.R. §
541.302(a); and (3) the Defendants’ defense to the Wage Theft Prevention Act claims must fail.
See Def. Objs. Because Defendants base their objections on the arguments raised in their Motion,
the Court need only review the R & R for clear error.
B. DEFENDANTS DID NOT MEET THEIR BURDEN IN ASSERTING THE CREATIVE
PROFESSIONAL EXEMPTION
The magistrate judge properly concluded, with no clear error, that Defendants did not meet
their burden of proving that Plaintiffs fell within the creative professional exemption of the FLSA.
Exemptions for the FLSA are to be narrowly construed and the defendant bears the burden of
proving that its employees fall within the exemption. R & R at 3. The creative professional
exemption applies when “an employee’s primary duty [is] the performance of work requiring
invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor
as opposed to routine mental, manual, mechanical or physical work.” 29 C.F.R. § 541.302(a).

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Department of Labor (“DOL”) guidance on whether the creative professional exemption
applies to chefs states:
[T]o the extent a chef has a primary duty of work requiring
invention, imagination, originality or talent, such as that involved in
regularly creating or designing unique dishes and menu items, such
chef may be considered an exempt creative professional. . .
However, there is a wide variation in duties of chefs, and the creative
professional exemption must be applied on a case-by-case basis with
particular focus on the creative duties and abilities of the particular
chef at issue. The Department intends that the creative professional
exemption extend only to truly “original” chefs, such as those who
work at five-star or gourmet establishments, whose primary duty
requires “invention, imagination, originality, or talent.”
Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside
Sales and Computer Employees, 69 FR 22122-01 (2004).
The facts of this case do not comport with DOL’s guidance. Defendants did not sell their
baklava and other baked goods in “five-star or gourmet establishments,” and Plaintiffs, tasked with
preparing baklava and other enumerated Turkish baked goods to be sold by third parties, did not
have the autonomy to design “unique dishes and menu items.”
Defendants urge the Court to ignore the DOL guidance because it is not binding. Instead,
Defendants urge a selective reading of the exemption: because the creative professional exemption
requires “invention, imagination, originality, or talent in a recognized field of artistic or creative
endeavor,” Plaintiffs’ talent alone should trigger the exemption. Defendants argue that “[u]nder
the wording of the, as written, regulation it should not matter if Defendants can show if there was
imagination or invention involved with Plaintiff’s job, that is not what the standard requires.” Def.
Objs. at 6.
Defendants’ argument fails. The regulatory language makes clear that an employee
talented at an unimaginative and unoriginal task does not fall within the exemption. See 29 C.F.R.
§ 541.302(c) (“This requirement generally is not met by a person who is employed as a copyist, as
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an ‘animator’ of motion-picture cartoons, or as a retoucher of photographs, since such work is not
properly described as creative in character.”) As the name of the exemption indicates, the standard
is not talent, but creativity.
Thus, although Defendants adequately demonstrate that Plaintiffs were experienced and
talented, Defendants do not demonstrate how Plaintiffs’ experience and talent were applied to an
innovative and imaginative task. Def. Objs. at 3-6. Rather, the record demonstrates that Plaintiffs’
responsibilities in preparing baklava, breads, and cakes “required consistency and precision, not
innovation and imagination.” R & R at 4.
Furthermore, Defendants have pointed to no case, and this Court cannot locate one, in
which a court applied the creative professional exemption to a chef or a baker. In fact, as the R &
R notes, courts in this District have refused to apply the creative professional exemption to chefs.
See Karropoulos v. Soup du Jour, Ltd., 128 F. Supp.3d 518, 537 (E.D.N.Y. 2015); Garcia v.
Pancho Villa's of Huntington Vill., Inc., No. CV 09-486 (SJF) (ETB), 2011 WL 1431978, at *3
(E.D.N.Y. Apr. 14, 2011).
“Exemptions from the FLSA's requirements are to be narrowly construed against the
employers seeking to assert them and their application limited to those establishments plainly and
unmistakably within their terms and spirit.” Davis v. J.P. Morgan Chase & Co., 587 F.3d 529,
531 (2d Cir. 2009). In light of the DOL guidance, case law, and a narrow construction of the
creative professional exemption, this Court agrees with the magistrate judge’s concern that
applying the creative professional exemption to the facts present here “would extend [the
exemption] to virtually every chef save those who work with pre-made food.” R & R at 5.

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C. DEFENDANTS’ OBJECTIONS REGARDING PLAINTIFFS’ PRIMARY DUTIES AND THE
WAGE THEFT PREVENTION ACT FAIL
In a footnote, Defendants assert that, because Plaintiffs’ tasks fall within the creative
professional exemption, the R & R’s other findings regarding primary duties and the Wage Theft
Prevention Act are moot. As this Court adopts the R & R’s conclusion that the creative
professional exemption does not apply to the facts of this case, the R & R’s subsequent findings
are not moot. To the extent that Defendants’ footnote serves as a renewal of their arguments in
their Motion, the R & R is free of clear error and, thus, the magistrate judge adequately rejected
those arguments as well.
CONCLUSION
Upon due consideration and review, as discussed above, and including those portions of
the R & R to which the parties did not object, the recommendations contained in the R & R are
adopted in their entirety. Accordingly, Defendants’ motion for summary judgment is denied.

SO ORDERED.
Dated: Brooklyn, New York
September 30, 2017
/s/
DORA L. IRIZARRY
Chief Judge

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