DiDonna v. Village Farms IGA, LLC
Filing
45
MEMORANDUM & ORDER granting in part and denying in part 41 Motion for Summary Judgment. For the foregoing reasons, Defendant's motion for summary judgment is GRANTED IN PART and DENIED IN PART. It is DENIED as to summary judgment on Pla intiff's claim for overtime wages, but otherwise GRANTED. The action is hereby REFERRED to Magistrate Judge Arlene R. Lindsay to resolve any remaining pretrial issues and to determine whether this action is ready for trial. So Ordered by Judge Joanna Seybert on 6/16/2014. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------x
JOHN DIDONNA,
Plaintiff,
-against-
MEMORANDUM & ORDER
12-CV-1487(JS)(ARL)
VILLAGE FARMS IGA, LLC,
Defendant.
----------------------------------------x
APPEARANCES
For Plaintiff:
Saul D. Zabell, Esq.
Zabell & Associates, P.C.
4875 Sunrise Highway, Suite 300
Bohemia, NY 11716
For Defendant:
Michael Anthony Miranda, Esq.
Brian S. Condon, Esq.
Maurizio Savoiardo, Esq.
Miranda Sambursky Slone Sklarin Verveniotis
LLP
240 Mineola Boulevard
Mineola, NY 11501
SEYBERT, District Judge:
Currently pending before the Court is defendant Village
Farms IGA, LLC’s (“Defendant”) motion for summary judgment.
For
the following reasons, Defendant’s motion is GRANTED IN PART and
DENIED IN PART.
BACKGROUND 1
Defendant
is
a
corporation
that
operates
supermarkets at several locations in New York. 2
2011,
Defendant
submitted
managerial positions.
¶¶ 3-4.)
On
job
postings
on
small
In September
Craigslist
for
(Def.’s 56.1 Stmt., Docket Entry 41-53,
September
18,
2011,
Plaintiff
John
DiDonna
(“Plaintiff”) sought such a managerial position at Defendant’s
Shelter Island location through an e-mail application.
(Def.’s
56.1 Stmt. ¶ 5.)
In his resume, Plaintiff represented that he had prior
managerial
experience
at
Lombardi’s
Market
and
various
other
delis, that he had achieved the rank of Sergeant in the United
States
Marines,
and
that
he
graduated
from
Nassau
College with a degree in Business Administration.
Stmt. ¶¶ 6-8, 12-13.)
Community
(Def.’s 56.1
Plaintiff admits that he did not work at
Lombardi’s market during all times represented in his resume,
that he did not graduate from Nassau Community College, and that
he did not achieve the rank of Sergeant.
(Def.’s 56.1 Stmt.
1
The following material facts are drawn from the parties’ Local
Civil Rule 56.1 Statement (“56.1 Stmt.”) and Counterstatement
(“56.1 Counterstmt.”) and the evidence in support. Where
relevant, the Court has noted specific factual disputes. Given
the large number of disputes, however, such issues will be more
fully addressed later in this Memorandum and Order.
2
The parties’ 56.1 Statements do not directly address the nature
of Defendant’s business, but the Court gathers that Defendant
operates at least two locations.
2
¶¶ 18, 20, 22; Pl.’s 56.1 Counterstmt., Docket Entry 42-2, ¶¶ 18,
20, 22.)
Upon receiving his resume, Village Farms owner Diane
Peronace called Plaintiff in for an interview.
Stmt. ¶ 9.)
two
separate
(Def.’s 56.1
Mrs. Peronace subsequently interviewed Plaintiff on
occasions.
During
the
second
interview,
she
informed Plaintiff that the deli department, presumably referring
to the Massapequa Park location, was a “problem child.”
56.1 Stmt. ¶ 29.)
(Def.’s
Plaintiff understood that Mrs. Peronace wanted
Plaintiff to “go in the deli and try to straighten it out.”
(Def.’s 56.1 Stmt. ¶ 30 (internal quotation marks and citations
omitted).)
She also informed Plaintiff that the deli clerks
would be his subordinates and that it was his responsibility to
make sure that they did their jobs correctly.
(Def.’s 56.1 Stmt.
¶ 31.)
At
the
conclusion
of
the
second
interview,
Mrs.
Peronace hired Plaintiff as a Deli Manager and informed him of
the dress code for managers.
Plaintiff
asserts
that,
even
(Def.’s 56.1 Stmt. ¶¶ 32-34.)
though
he
was
hired
as
a
Deli
Manager and began working at the Massapequa Park location, his
primary duty was as a “counter person” and he usually wore the
same
attire
as
other
non-managerial
employees.
(Pl.’s
56.1
Counterstmt. ¶¶ 32-33.)
In fact, according to Plaintiff, upon
being
ninety-five
hired,
ninety
to
3
percent
of
his
time
was
devoted to performing non-managerial tasks and managerial tasks
such
as
advertising
specials
were
primarily
handled
by
Defendant’s floating manager Scott “Skip” Decicco (“Decicco”).
(Pl.’s
56.1
Counterstmt.
¶¶ 27,
29,
31.)
Plaintiff
further
asserts that, to the extent he did perform managerial functions,
they were at the direction of Decicco and Store Manager Armando
Cortes (“Cortes”).
(Pl.’s 56.1 Counterstmt. ¶ 27.)
Plaintiff
maintains that he had no independent discretion or authority.
(Pl.’s 56.1 Counterstmt. ¶ 27.)
Plaintiff began working for Defendant on October 9,
2011.
(Def.’s 56.1 Stmt. ¶ 38.)
For the first two days of his
employment, Plaintiff worked “undercover” in order to assess the
deli department.
that,
during
(Def.’s 56.1 Stmt. ¶ 34.)
Plaintiff’s
employment,
Plaintiff
dress code that Defendant then implemented.
¶¶ 45-46.)
Defendant asserts
recommended
a
(Def.’s 56.1 Stmt.
Plaintiff maintains that he was merely asked whether
a dress code would be a good idea, to which he responded in the
affirmative.
(Pl.’s 56.1 Counterstmt. ¶ 45.)
Defendant also
maintains that Plaintiff prepared the weekly work schedule for
deli clerks.
(Def.’s 56.1 Stmt. ¶ 48.)
he
schedule
made
the
and
maintains
Plaintiff disputes that
that
he
merely
collected
information from employees and that Cortes ultimately made the
schedule.
(Pl.’s 56.1 Counterstmt. ¶ 48.)
4
The parties further dispute the particular tasks that
Plaintiff performed, such as ordering inventory, and Plaintiff
generally avers that managerial tasks were performed either by
Decicco or Cortes or by Plaintiff at their direction.
(See
Def.’s 56.1 Stmt. ¶¶ 50-57, 59-64; Pl.’s 56.1 Counterstmt. ¶¶ 5057, 59-64.)
Plaintiff admits that he disciplined deli employees,
but asserts that he did so only when told to do so by Cortes.
(Pl.’s 56.1 Counterstmt. ¶¶ 65-67.)
By way of further example,
Defendant maintains that Plaintiff exercised his authority to
hire
employees
when
he
hired
(Def.’s 56.1 Stmt. ¶ 58.)
to
hire
Ms.
McGowan
deli
clerk
Kathleen
McGowan.
Plaintiff counters that the decision
was
made
by
Decicco.
(Pl.’s
56.1
Counterstmt. ¶ 58.)
On
Plaintiff
terminated.
clerk
January
began
25,
working
2012,
for
less
than
Defendant,
(Def.’s 56.1 Stmt. ¶¶ 38-39.)
Chelsea
Amato
went
outside
for
a
four
his
injured her leg.
after
employment
was
On that day, deli
cigarette
violation of the company’s no-smoking break policy.
Stmt. ¶¶ 87-88.)
months
break
in
(Def.’s 56.1
While throwing out the garbage, Ms. Amato
(Def.’s 56.1 Stmt. ¶ 90.)
Defendant maintains
that Plaintiff improperly gave Ms. Amato permission to take a
cigarette break and that he was terminated for his inability to
manage staff and oversee the daily functions of running a deli
department.
(Def.’s 56.1 Stmt. ¶¶ 88, 91.)
5
Although Plaintiff
admits to having been reprimanded on several occasions (Pl.’s
56.1 Counterstmt. ¶ 76), he denies giving Ms. Amato permission to
take a smoking break and believes that his termination was due to
his complaints about overtime compensation and benefits (Pl.’s
56.1 Counterstmt. ¶¶ 88, 91).
According to Defendant, managers become eligible for
health insurance after six months of employment.
Stmt. ¶ 37.)
(Def.’s 56.1
Plaintiff avers that Defendant told him he would be
eligible for health insurance after three months of employment.
(Pl.’s 56.1 Counterstmt. ¶ 37.)
Plaintiff further asserts that,
after he complained, he was informed that he would be eligible
for benefits after one year.
(Pl.’s 56.1 Counterstmt. ¶ 37.)
Plaintiff now alleges that Defendant violated the Fair
Labor Standards Act of 1938, as amended 29 U.S.C. § 201 et seq.
(“FLSA”); New York State Labor Law (“NYLL”); and Employee Income
Retirement Security Act of 1974, § 510 (“ERISA”).
DISCUSSION
Defendant has moved for summary judgment.
The Court
will first address the applicable legal standard before turning
to Defendant’s arguments more specifically.
I.
Legal Standard
Summary judgment is only appropriate where the moving
party can demonstrate that there is “no genuine dispute as to any
material fact” and that the moving party is entitled to judgment
6
as a matter of law.
question,
the
FED. R. CIV. P. 56(a).
Court
considers
“the
In considering this
pleadings,
depositions,
answers to interrogatories and admissions on file, together with
any other firsthand information including but not limited to
affidavits.”
Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011)
(citation omitted); see also FED. R. CIV. P. 56(c).
“In assessing
the record to determine whether there is a genuine issue to be
tried . . . the court is required to resolve all ambiguities and
draw all permissible factual inferences in favor of the party
against whom summary judgment is sought.”
Corp., 109 F.3d 130, 134 (2d Cir. 1997).
McLee v. Chrysler
The burden of proving
that there is no genuine issue of material fact rests with the
moving party.
Gallo v. Prudential Residential Servs., L.P., 22
F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Com. & Indus.
Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)).
Once that burden
is met, the non-moving party must “come forward with specific
facts,” LaBounty v. Coughlin, 137 F.3d 68, 73 (2d Cir. 1998), to
demonstrate that “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party,” Anderson v.
Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.
Ed. 2d 202, 218 (1986).
will not suffice.”
1986).
“Mere conclusory allegations or denials
Williams v. Smith, 781 F.2d 319, 323 (2d Cir.
And “unsupported allegations do not create a material
issue of fact.”
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d
7
Cir. 2000), superseded by statute on other grounds as stated in
Ochei v. Coler/Goldwater Mem’l Hosp., 450 F. Supp. 2d 275, 282
(S.D.N.Y. 2006).
II. Plaintiff’s Claim for Overtime Wages
Plaintiff has alleged that Defendant violated the FLSA
and
NYLL
by
failing
to
properly
pay
him
overtime
wages. 3
Defendant seeks summary judgment on this claim, arguing that
Plaintiff is an exempt employee under the relevant statutes and
regulations of the Secretary of Labor.
The Court finds that
whether Plaintiff was an exempt employee presents a question of
fact that cannot be decided at summary judgment.
“The FLSA sets out minimum requirements for wage and
overtime
payments
specified
number
compensation.”
and
of
prohibits
hours
per
employment
week
without
for
more
proper
than
a
overtime
Callari v. Blackman Plumbing Supply, Inc., --- F.
Supp. 2d ----, 2013 WL 6795911, at *11 (E.D.N.Y. Dec. 19, 2013)
(citing 29 U.S.C. §§ 201-13)).
Thus, hours worked in excess of
forty hours per week must be compensated at a rate of at least
time and a half.
29 U.S.C. § 207(a)(1).
“a
executive,
bona
capacity,”
fide
however,
is
An employee working in
administrative,
exempt
from
3
the
or
overtime
professional
compensation
Both parties have provided a single analysis of the FLSA and
NYLL claims. The Court will do the same in this Memorandum and
Order. See Zheng v. Liberty Apparel Co., 355 F.3d 61, 78 (2d
Cir. 2003) (noting that the claims are essentially analogous
under NYLL and the FLSA).
8
requirement.
Id. at 213(a)(1).
Although the FLSA does not
define these terms specifically, the regulations promulgated by
the Secretary of Labor provide that the “executive exemption”
applies to employees who are:
(1) compensated on a salary basis at a rate
of not less than $455 per week 4 . . .; (2)
whose primary duty is management of the
enterprise in which the employee is employed
or of a customarily recognized department or
subdivision thereof; (3) who customarily and
regularly directs the work of two or more
other
employees;
and
(4)
who
has
the
authority to hire or fire other employees or
whose suggestions and recommendations as to
the hiring, firing, advancement, promotion or
any other change of status of other employees
are given particular weight.
29 C.F.R. § 541.100(a)(1)-(4); accord Callari, 2013 WL 6795911,
at *12.
Furthermore, “management” includes, inter alia:
activities such as interviewing, selecting,
and training of employees; setting and
adjusting their rates of pay and hours of
work; directing the work of employees;
maintaining production or sales records for
use in supervision or control; appraising
employees’ productivity and efficiency for
the purpose of recommending promotions or
other changes in status; handling employee
complaints
and
grievances;
disciplining
employees; planning the work; determining the
techniques to be used; apportioning the work
among the employees; determining the type of
materials, supplies, machinery, equipment or
4
Although New York law sets a higher minimum, there is no
dispute that Plaintiff’s salary met either threshold. See
Martinez v. Hilton Hotels Corp., 930 F. Supp. 2d 508, 521 n.12
(S.D.N.Y. 2013); see also Def.’s Br. at 1 n.1-2.
9
tools to be used or merchandise to be bought,
stocked and sold; controlling the flow and
distribution of materials or merchandise and
supplies; providing for the safety and
security of the employees or the property;
planning and controlling the budget; and
monitoring or implementing legal compliance
measures.
29 C.F.R. § 541.102; accord Callari, 2013 WL 6795911, at *12.
“‘Because
exemptions
Martinez,
are
930
the
FLSA
construed
F.
Supp.
is
a
remedial
narrowly
2d
at
statute,
against
(quoting
520
the
Kahn
its
employer.’”
v.
Superior
Chicken & Ribs, Inc., 331 F. Supp. 2d 115, 117 (E.D.N.Y. 2004)).
Ultimately,
“[w]hether
an
exemption
applies
to
a
employee is a mixed question of law and fact.”
Id.
particular
How the
employee “spent their working time” is a question of fact whereas
“whether their particular activities excluded them from . . .
overtime benefits” is a question of law.
Id. (internal quotation
marks and citations omitted).
It is undisputed that Plaintiff was a salaried employee
who made $1,000 per week.
(See Def.’s 56.1 Stmt. ¶ 118; Pl.’s
Dep., Docket Entry 41-43, at 73.)
While there may have been a
salary differential between Plaintiff’s pay and that of exempt
employees, little else is undisputed.
See Clougher v. Home Depot
U.S.A., Inc., No. 06-CV-5474, 2010 WL 4568984, at *4 (E.D.N.Y.
Nov.
3,
2010)
(“In
circumstances,
this
light
Court
of
the
totality
concluded
10
that
of
the
the
facts
and
compensation
differential alone was not sufficient to find as a matter of law
that Plaintiff is a managerial employee.”).
The parties proffer differing versions of Plaintiffs’
duties,
activities,
and
responsibilities
and
Plaintiff’s primary duty was management.
contest
whether
“The term ‘primary
duty’ means the principal, main, major or most important duty
that the employee performs.”
29 C.F.R. § 541.700(a).
In making
this determination, relevant factors include: (1) “the relative
importance of the exempt duties as compared with other types of
duties”; (2) “the amount of time spent performing exempt work”;
(3) “the employee’s relative freedom from direct supervision”;
and (4) “the relationship between the employee’s salary and the
wages paid to other employees for the kind of nonexempt work
performed by the employee.”
Id.
Here, we know that Plaintiff was hired as a manager and
that he at least held the title of deli manager.
Moreover,
Plaintiff does not dispute that he worked “undercover” for one to
two days and “assessed” the deli department.
133.)
(Pl.’s Dep. at 93,
In fact, Plaintiff does admit to having some level of
authority.
(See, e.g., Pl.’s Dep. at 99 (either Plaintiff or
other managers had to authorize putting a chicken out); id. at
111
(Plaintiff
oversaw
others
in
the
deli
department
with
managerial titles); id. at 187 (Plaintiff was responsible for
certain tasks in the morning).)
11
On the other hand, Plaintiff maintains that he spent
ninety to ninety-five percent of his time doing non-managerial
work.
Though this is not dispositive, it is telling.
See
Callari, 2013 WL 6795911, at *13 (“With respect to time spent
performing exempt work, while ‘employees who spend more than 50
percent
of
their
time
performing
exempt
work
will
generally
satisfy the primary duty requirement[,] [t]ime alone [ ] is not
the sole test’ and ‘exempt employees need not spend more than 50
percent
of
their
time
performing
exempt
work.’”
(quoting
29
C.F.R. § 541.700(b))).
Additionally, the parties contest a significant number
of
tasks,
Plaintiff.
activities,
and
duties
allegedly
performed
by
For example, they dispute whether Plaintiff had the
authority to discipline employees or did so only at the direction
of
others.
Certainly,
the
evidence
in
the
record
clearly
indicates that Plaintiff had at least some involvement in the
discipline of employees.
For example, Plaintiff signed various
disciplinary notices for disciplinary actions taken against deli
clerks.
(See Savoiardo Decl., Docket Entry 41, Exs. M, N, O, P;
Pl.’s Dep. at 231-33, 238, 244, 249.)
Significantly, however,
Cortes confirms that at least on one occasion, Plaintiff took
disciplinary action against a deli clerk only after seeking, and
receiving, Cortes’ approval.
at
84,
91.)
Furthermore,
(Cortes Dep., Docket Entry 41-45,
Plaintiff
12
was
present
at
various
meetings involving disciplinary actions against employees.
The
capacity in which Plaintiff attended these meetings, however, is
unclear.
(See Pl.’s Dep. at 101, 141, 246.)
suggests
that
Plaintiff
Plaintiff’s
testified
involvement
that
he
disciplinary actions taken.
ever
participate
in
the
did
not
have
as
a
any
manager,
input
in
but
the
(See Pl.’s Dep. at 101 (“Q: Did you
meetings
with
department regarding their performance?
only one?
was
The evidence
A: I didn’t participate.
employees
A: No.
of
the
deli
Q: This was the
I was dragged in there and
they told me they were demoting him, so I was -- okay, you’re
demoting him.”); see also Pl.’s Dep. at 231, 238.)
They also dispute whether Plaintiff took inventory and
ordered product, whether Plaintiff had apparent responsibility
for
ensuring
that
catering
orders
were
filled
whether Plaintiff created employee schedules.
properly,
and
While Defendant
presents strong evidence in this regard (see generally, e.g.,
Melo Aff., Docket Entry 41-50; Amato Aff., Docket Entry 41-51;
Enochs Aff., Docket Entry 41-49; McGowan Aff., Docket Entry 4148) 5, as the Court has already noted, there is also evidence to
suggest
that
Plaintiff
undertook
5
certain
activities
at
the
That Plaintiff was disciplined for his failures in properly
executing such activities and alleged responsibilities is also
significant. (See Pl.’s Dep. at 135 (testifying that Plaintiff
was disciplined for his failure to oversee catering orders); id.
at 193 (testifying that Plaintiff was disciplined for failing to
order enough product).)
13
direction of others (see Pl.’s Dep. at 130, 156 (testifying that
Cortes had ultimate control over employees’ schedules); Cortes
Dep.
at
indeed
86-87
made
authority).
(corroborating
changes
to
Plaintiff’s
employees’
account
schedules
that
and
had
Cortes
final
See Carhuapoma v. New York-Presbyterian Healthcare
Sys., Inc., No. 11-CV-8670, 2013 WL 1285295, at *11 (S.D.N.Y.
Mar. 29, 2013) (finding that there was a question of fact “as to
whether overall Plaintiff had a level of discretion consonant
with an employee whose duties are managerial” where the record
showed that Plaintiff was “closely scrutinized by his supervisor”
but
also
did
not
lack
complete
authority
to
make
managerial
judgments); Indergit v. Rite Aid Corp., Nos. 08-CV-9361, 08-CV11364, 2010 WL 1327242, at *9 (S.D.N.Y. Mar. 31, 2010) (finding
that there was a factual dispute as to the plaintiff’s scheduling
responsibilities because plaintiff claimed only to have entered
employees’ availability into a computer system).
Significantly, neither party squarely addresses whether
Plaintiff’s managerial or non-managerial tasks were more valuable
to Defendant. 6
See Callari, 2013 WL 6795911, at *20 (denying
summary judgment where there were disputes regarding the proper
characterization of the plaintiff’s work and “the relative import
6
It is also unclear whether Plaintiff undertook non-managerial
tasks at his own discretion. See Martinez, 930 F. Supp. 2d at
524 (noting that exempt employees make decisions regarding
performance of nonexempt duties in contrast to non-exempt
employees (quoting 29 C.F.R. § 541.106(a))).
14
of such responsibilities” to the defendant); Carhuapoma, 2013 WL
1285295, at *11-12 (denying summary judgment where the evidence
showed both that the plaintiff’s managerial duties were valuable
and that, due to staff shortages, his manual labor was also
valuable); cf. Indergit, 2010 WL 1327242, at *6 (declining to
grant summary judgment where the factual record was undeveloped
and therefore “the relative importance” of the plaintiff’s exempt
duties versus non-exempt duties was unclear).
As
to
whether
Plaintiff
customarily
and
regularly
directed the work of two or more employees, again the parties
proffer
employees
differing
versions
certainly
viewed
of
the
facts.
Plaintiff
as
Several
their
of
the
supervisor
and
considered part of his duties to include overall supervision of
the deli employees and management of the department, which they
affirm he did.
(See Melo Aff. ¶ 11 (“In short, Mr. Didonna ran
the entire deli operation at IGA.”); Amato Aff. ¶ 9 (“Mr. Didonna
ran
the
entire
deli
operation
at
IGA.”);
Enochs
Aff.
¶ 8
(affirming that Plaintiff supervised employees’ work and issued
work assignments to deli clerks).)
At the same time, there is
evidence to suggest that Plaintiff did not have a full panoply of
discretion.
(Cortes Dep. at 75-76 (Plaintiff reported to Cortes,
Gary Manino, Dave Oratski, and Robert Micello).)
2013
WL
6795911,
at
*20
(denying
summary
See Callari,
judgment
because
“although the Defendant attempts to point to ways in which the
15
Plaintiff directed the work of two or more other employees, they
do not establish that he ‘customarily and regularly’ did so and
the Plaintiff disputes that this was the case”); Martinez, 930 F.
Supp. 2d at 527 (“A jury could credit [plaintiffs’ evidence that
Room Attendants could refuse their directions and were instructed
by
supervisors
not
to
bother
attendants]
and
conclude
that
Plaintiffs had little meaningful supervisory authority over the
Room Attendants and Housemen . . . .”
(internal quotation marks
and citations omitted)).
Finally, as to the authority to hire or fire employees
or to make meaningful recommendations, Plaintiff testified that
he did not have such authority.
(Pl.’s Dep. at 119.)
Additional
testimony further indicates that the hiring was primarily--if not
solely--handled by Mr. and Mrs. Peronace and Mr. Cortes.
e.g., Pl.’s Dep. at 123.)
(See,
Defendants dispute this, however.
(See, e.g., D. Peronace Dep., Docket Entry 41-44, at 98.)
Accordingly, the Court finds that there are questions
of fact precluding summary judgment on Plaintiff’s claim for
overtime compensation and Defendant’s motion in this regard is
DENIED.
III. Plaintiff’s Claim for Retaliation
16
Defendant
next
moves
for
summary
judgment
Plaintiff’s claim for retaliation under the FLSA. 7
on
Defendant
makes two main arguments: (1) that it has provided legitimate
reasons for Plaintiff’s termination, and (2) that Plaintiff’s
retaliation claim warrants dismissal based upon after acquired
evidence.
Because the Court agrees with Defendant that it has
provided legitimate reasons for Plaintiff’s termination, and that
Plaintiff
has
not
otherwise
sufficiently
established
a
retaliation claim in this respect, the Court will not address
Defendant’s argument regarding after acquired evidence.
The FLSA provides that it is unlawful for any person:
to discharge or in any other manner
discriminate against any employee because
such employee has filed any complaint or
instituted or caused to be instituted any
proceeding under or related to this chapter,
or has testified or is about to testify in
any such proceeding, or has served or is
about to serve on an industry committee.
29 U.S.C. § 215(a)(3).
Claims for retaliation under the FLSA are
subject to the burden-shifting analysis set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973)).
See Perez v. G & P Auto Wash Inc., 930 F. Supp.
7
“The standards for stating a claim for retaliation under the
FLSA and the New York Labor Law significantly overlap,” and
therefore the Court will provide a single analysis. Salazar v.
Bowne Realty Assocs., L.L.C., 796 F. Supp. 2d 378, 384 (E.D.N.Y.
2011); see also Esmilla v. Cosmopolitan Club, 936 F. Supp. 2d
229, 238-39 (S.D.N.Y. 2013) (discussing the standard under NYLL
and using the same burden-shifting analysis).
17
2d 423, 436 (E.D.N.Y. 2013).
case
of
FLSA
Thus, “[t]o establish a prima facie
retaliation,
a
plaintiff
must
show:
‘(1)
participation in protected activity known to defendant, like the
filing
of
an
FLSA
lawsuit;
(2)
an
employment
action
disadvantaging the plaintiff; and (3) a causal connection between
the protected activity and the adverse employment action.’”
Id.
(quoting Mullins v. City of N.Y., 626 F.3d 47, 53 (2d Cir.
2010)).
the
If the plaintiff is able to do so, “the burden shifts to
defendant
to
articulate
a
legitimate,
reason for the employment action.”
(internal
quotation
defendant
is
reason,
support
“the
a
able
marks
to
plaintiff
rational
and
show
a
must
finding
Mullins, 626 F.3d at 53
citation
omitted).
legitimate,
produce
that
non-discriminatory
the
non-discriminatory
sufficient
the
If
evidence
legitimate,
to
non-
discriminatory reasons proffered by the defendant were false, and
that more likely than not discrimination was the real reason for
the employment action.”
Id. at 53-54 (internal quotation marks
and citation omitted).
Here, Plaintiff asserts that he “engaged in statutorily
protected activity, meeting the first element, by making numerous
and ongoing complaints about his non-receipt of employee benefits
and earned, but unpaid, overtime compensation . . . .”
Opp. Br., Docket Entry 42-1, at 14.)
(Pl.’s
Defendant counters that,
even assuming, arguendo, that Plaintiff could establish a prima
18
facie case, Defendant has shown a legitimate, non-discriminatory
reason for Plaintiff’s termination that Plaintiff cannot show was
pretext.
The Court agrees.
Plaintiff himself admits that he was “ineffective” as a
manager and that he was disciplined on several occasions during
his short tenure with Defendant.
(Pl.’s Dep. at 132-33, 273.)
In fact, in less than four months of employment, it is undisputed
that Defendant disciplined Plaintiff regarding an incident in
which a customer was spoken to rudely (Savoiardo Decl. Ex. R),
failing
to
properly
distributor
place
(Savoiardo
Decl.
a
food
Ex.
order
R),
and
with
Defendant’s
failing
to
have
a
customer’s catering order timely prepared (Savoiardo Decl. Ex.
S).
Furthermore, Defendant failed an inspection allegedly due to
Plaintiff’s
ineptitude.
(See
Savoiardo
Decl.
Ex.
U.)
In
addition, Defendant ultimately terminated Plaintiff’s employment
on the same day that deli clerk Chelsea Amato had been improperly
allowed
to
company’s
take
no
Counseling
“specify
smoking
smoking
Record
reason
“Negligence,
managerial
a
going
duties
policy,
dated
for
break,
and
January
in
injured
25,
counseling
against
company
properly[,]
contravention
under
session,”
the
In
herself.
2012,
the
the
Cortes
policy,
instrumental
of
Not
in
title
wrote:
doing
an
his
accident
regarding his employee and not being able to manage his dept
[sic]
and
his
employees.”
(Savoiardo
19
Decl.
Ex.
U.)
The
Counseling Record goes on to detail Amato’s injury, Plaintiff’s
involvement in Amato’s injury, and how Amato’s bills and claims
may affect the company.
(Savoiardo Decl. Ex. U.)
sets forth a legitimate business reason.
This clearly
See Baldwin v. N. Shore
Univ. Hosp., 470 F. Supp. 2d 225, 232 (E.D.N.Y. 2007) (collecting
cases).
Plaintiff proffers virtually no evidence in response to
Defendant’s evidence.
While Plaintiff asserts that he spent
little time performing managerial duties, thus demonstrating that
Defendant’s
purported
termination
for
failure
to
perform
his
managerial duties was pretextual (Pl.’s Opp. Br. at 5-6), this
does little to support Plaintiff’s position.
have been the problem.
In fact, this may
In any event, at best Plaintiff shows
that he complained on a few occasions regarding overtime pay and
benefits and that the owners responded that they’d “look into
it.”
(Pl.’s Dep. at 145.)
His only evidence of any purported
feelings regarding Plaintiff’s complaints is a statement from
Gary Mannino that Plaintiff might be fired if he continued to
complain.
(Pl.’s Dep. at 326.)
At times, Plaintiff even admits
that the basis of his claim is that it is his “feeling” that he
was
terminated
benefits.
because
he
complained
(Pl.’s Dep. at 323.)
about
overtime
pay
and
This is woefully insufficient.
See Jamilik v. Yale Univ., 362 F. App’x 148, 151 (2d Cir. 2009)
(“As [plaintiff] has not raised a genuine issue of material fact
20
as to whether [defendant’s] proffered explanation for the adverse
employment actions are pretextual, we find that summary judgment
on her retaliation claim was appropriate.”).
Accordingly, Defendant’s motion for summary judgment on
Plaintiff’s retaliation claim is GRANTED.
IV.
Plaintiff’s Claim Pursuant to ERISA Section 510
Finally,
Plaintiff’s
claim
Defendant
for
moves
Defendant’s
for
summary
alleged
judgment
violation
of
on
ERISA
Section 510, arguing that Plaintiff cannot show that Defendant
had
the
specific
Section 510.
intent
to
engage
in
conduct
prohibited
by
The Court agrees.
Section
“unscrupulous
510
was
employers
from
enacted
primarily
discharging
or
to
prevent
harassing
their
employees in order to keep them from obtaining vested pension
rights.”
Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1111 (2d
Cir. 1988) (internal quotation marks and citation omitted).
It
provides that “[i]t shall be unlawful for any person to discharge
. . . a participant or beneficiary . . . for the purpose of
interfering
with
participant
may
plan].”
the
attainment
become
entitled
29 U.S.C. § 1140.
of
any
[under
right
an
to
which
employee
such
benefit
Like an FLSA retaliation claim, a
claim brought for violation of ERISA Section 510 is subject to
the McDonnell Douglas burden-shifting framework.
See Strohmeyer
v. Int’l Bhd. of Painters & Allied Trades, 989 F. Supp. 455, 461
21
(W.D.N.Y. 1997).
As such, to establish a prima facie case, a
plaintiff must prove that: (1) the employee was engaged in a
protected activity; (2) the employer was aware of the employee’s
participation in the protected activity; (3) the employer took
adverse employment action against the employee; and (4) a causal
connection existed between the protected activity and the adverse
action.
See Giordano v. Thomson, 438 F. Supp. 2d 35, 44-45
(E.D.N.Y. 2005) (citing Kreinik v. Showbran Photo, Inc., No. 02CV-1172, 2003 WL 22339268, at *3 (S.D.N.Y. Oct. 14, 2003)).
It
is essential that a plaintiff “show that an employer was at least
in part motivated by the specific intent to engage in activity
prohibited by § 510.”
Dister, 859 F.2d at 1111.
“[A]n ERISA
cause of action will not lie where the loss of pension benefits
was a mere consequence of, but not a motivating factor behind, a
termination of employment.”
Russell v. Northrop Grumman Corp.,
921 F. Supp. 143, 147 (E.D.N.Y. 1996) (internal quotation marks
and citation omitted).
For the same reasons articulated above with respect to
Plaintiff’s
retaliation
claim also fails.
Inc.,
703
plaintiff
F.
has
claim,
Plaintiff’s
ERISA
Section
510
See Miller v. Nat’l Ass’n of Sec. Dealers,
Supp.
failed
2d
to
230,
250
adduce
(E.D.N.Y.
evidence
to
2010)
(“Just
demonstrate
as
that
[defendant’s] explanation was a pretext for age discrimination,
he has not shown any reasonable basis for a conclusion that it
22
was
a
pretext
for
pension-based
citation omitted)).
discrimination.”
(internal
In fact, Plaintiff’s claim under ERISA is
arguably even weaker because Plaintiff must show that Defendant
was motivated, at least in part, by a specific intent to engage
in prohibited activity.
receive
the
employee
Plaintiff’s arguments that he did not
handbook
and
that
Gary
Mannino
warned
Plaintiff not to complain about overtime pay and benefits do not
pertain directly to whether Defendant was motivated by a specific
intent.
(See Pl.’s Opp. Br. at 20.)
Perhaps Plaintiff’s strongest argument is that “[t]he
proximity between termination to the vesting in a pension plan,
along with the evidence showing that he was qualified for his
position, raises an inference of ERISA discrimination as a matter
of law.”
(Pl.’s Opp. Br. at 20 (citing Bang v. IBM Corp., 600 F.
Supp. 2d 430 (E.D.N.Y. 2009).)
However, there is virtually no
evidence to suggest that Plaintiff was indeed qualified for the
position.
of
his
He readily admits that he lied about various aspects
resume
and
that
disciplinary warnings.
Given
Plaintiff’s
in
four
months
he
received
several
(See generally Pl.’s 56.1 Counterstmt.)
disciplinary
record,
and
the
potential
liability resultant from Amato’s injury, Defendant was “left with
no option but to terminate” Plaintiff.
at
45
(internal
quotations
marks
Giordano, 438 F. Supp. 2d
and
citation
omitted)
(alterations omitted); see Mayers v. Emigrant Bancorp, Inc., 796
23
F. Supp. 2d 434, 458 (S.D.N.Y. Apr. 22, 2011) (finding that the
plaintiff failed to show pretext where the defendant hired her
for failure “to live up to her managerial responsibilities”).
Accordingly, Defendant’s motion for summary judgment on
Plaintiff’s ERISA Section 510 claim is GRANTED.
[BOTTOM OF THE PAGE INTENTIONALLY LEFT BLANK]
24
CONCLUSION
For
the
foregoing
reasons,
Defendant’s
motion
summary judgment is GRANTED IN PART and DENIED IN PART.
for
It is
DENIED as to summary judgment on Plaintiff’s claim for overtime
wages, but otherwise GRANTED.
The
action
is
hereby
REFERRED
to
Magistrate
Judge
Arlene R. Lindsay to resolve any remaining pretrial issues and to
determine whether this action is ready for trial.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: June 16, 2014
Central Islip, NY
25
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