Prue v. Hudson Falls Post No. 574, The American Legion, Department of New York et al

Filing 68

MEMORANDUM-DECISION AND ORDER: The Court hereby ORDERS that Defendants' # 62 Motion for Partial Summary Judgment is GRANTED and Plaintiff's claim against Defendant Chris Fontaine is DISMISSED. The Court further ORDERS that Plaintiff' s # 27 Motion for Summary Judgment with respect to Defendant Post 574's liability for non-willful violation of the FLSA is GRANTED. The Court further ORDERS that Defendants' # 16 Motion to Dismiss Plaintiff's Complaint is DENIED. T he Court further ORDERS that Plaintiff's # 15 Motion to Strike Defendants' Amended Answer and affirmative defenses to Plaintiff's Complaint or, in the alternative, for a More Definite Statement is DENIED as moot. The Court further OR DERS that counsel shall participate in a telephone conference with the Court on May 12, 2015 at 10:00 a.m. to set a hearing date to determine the following: (1) the number of hours that Plaintiff worked as house manager for each week between April 17 , 2011, and April 1, 2012, and (2) the regular hourly rate at which Defendant Post 574 should compensate Plaintiff for the hours that she worked as house manager in excess of forty hours per week for the period between April 27, 2011, until November 2012. The Court will provide dial-in instructions to counsel for the telephone conference prior to May 12, 2015. Signed by Senior Judge Frederick J. Scullin, Jr. on 3/31/2015. (nmk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
JOY PRUE,
Plaintiff,
v.

1:13-CV-1280
(FJS/CFH)

HUDSON FALLS POST NO. 574, INC., THE AMERICAN
LEGION, DEPARTMENT OF NEW YORK, and CHRIS
FONTAINE,
Defendants.
_______________________________________________
APPEARANCES

OF COUNSEL

FELDMAN MORGADO, P.A.
228 Park Avenue S. #84164
New York, New York 10003
Attorneys for Plaintiff

DALE J. MORGADO, ESQ.
MICHAEL R. MINKOFF, ESQ.

OFFICE OF CHARLES G. MILLS
56 School Street
Glen Cove, New York 11542
Attorneys for Defendants

CHARLES G. MILLS, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION

Currently before the Court are the following motions: (1) Plaintiff’s motion to strike
Defendants’ Amended Answer and affirmative defenses pursuant to Rule 12(f) of the Federal
Rules of Civil Procedure or, in the alternative, to order a more definite statement pursuant to

Rule 12(e), see Dkt. No. 15; (2) Defendants’ motion to dismiss Plaintiff’s complaint, see Dkt.
No. 16; (3) Plaintiff’s motion for Summary Judgment on Defendants’ liability under the Fair
Labor Standards Act (“FLSA”), see Dkt. No. 27; and (4) Defendants’ motion for partial
summary judgment dismissing the complaint as to Defendant Chris Fontaine, see Dkt. No. 62

II. BACKGROUND
Plaintiff Joy Prue (“Plaintiff”) is a resident of New York State. Defendant Hudson Falls Post
No. 574, Inc., The American Legion, Department of New York (“Post 574”) is a domestic notfor profit corporation in Washington County, New York. Defendant Chris Fontaine is the
Commander of Post 574.
Plaintiff, a former employee of Defendant Post 574, filed her Complaint in the Northern
District of New York on October 16, 2013. In her Complaint, Plaintiff alleged that Defendants
employed her as the “house custodian” or “house manager” from about April 27, 2011, until
November 2012. Plaintiff alleged that she regularly worked as house manager in excess of 40
hours per week, but Defendants only paid her a fixed salary of $400 per week.
Based upon these allegations, Plaintiff sued Defendants for violation of the FLSA to recover
unpaid wages in violation of overtime requirements, liquidated damages, interest, and reasonable
attorney’s fees and costs of the action. Plaintiff seeks the following relief from this Court:
1. An order of judgment in Plaintiff’s favor and against Defendants
for violating the FLSA and holding them jointly and severally
liable;
2. A finding that Defendants violated the overtime compensation
provisions of the FLSA and that such violation was and is willful,
in bad faith, and with reckless disregard for the law;
3. An award of overtime compensation for all the previous hours
worked over forty hours in the amount of at least one and one-half
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time compensation and liquidated damages of an equal amount;
4. An order awarding attorney’s fees and costs pursuant to § 216 of
the FLSA; and
5. Any other legal or equitable relief that the Court deems just and
appropriate.
Defendants denied that Plaintiff worked more than forty hours per week as house manager.
Defendants alleged that, prior to and during her time as house manager, Plaintiff also served as
Post 574’s Adjutant. Defendants also asserted that, as the Adjutant, Plaintiff was a member of
Post 574’s executive committee, its chief administrative officer, its fifth-ranking officer, and its
corporate secretary. Based on these allegations, Defendants asserted the defense that Plaintiff
was exempt from the FLSA’s minimum wage and overtime requirements because she was an
executive employee of Post 574. Finally, Defendants argued that Plaintiff was collaterally
estopped from litigating the issue of whether she worked more than forty hours per week as
house manager.

II. DISCUSSION
A.

Defendant Fontaine’s liability
In Irizarry v. Catsimatidis, the Second Circuit provided several considerations for

determining whether the chairman and chief executive officer (“CEO”) of a chain of
supermarkets was an “employer” for the purpose of determining whether that officer “would be
held jointly and severally liable for damages along with the corporate defendants.” 722 F.3d 99,
102 (2d Cir. 2013) (citation omitted). The Court of Appeals first recognized the Supreme
Court’s requirement that courts look to the “economic reality” of an employment situation to
determine whether an employer-employee relationship exists. Id. at 104 (quoting Goldberg v.

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Whitaker House Coop., Inc., 366 U.S. 28, 33, 81 S. Ct. 933, 6 L. Ed. 2d 100 (1961)). This
economic reality cannot be determined based upon any isolated factors but depends “’rather
upon the circumstances of the whole activity.’” Id. (quoting Rutherford, 331 U.S. at 730, 67 S.
Ct. 1473).
In Carter v. Dutchess Cmty. Coll., the Second Circuit identified four “relevant” factors
for evaluating the circumstances as a whole in order to determine that economic reality:
“’whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised
and controlled employee work schedules or conditions of employment, (3) determined the rate
and method of payments, and (4) maintained employment records.” Carter v. Dutchess Cmty.
Coll., 735 F.2d 8 (2d Cir. 1984) (quotation omitted). And yet, the Court of Appeals noted in
Irizarry that none of the four Carter factors comprise a “rigid rule” for a determination that a
defendant is liable as an employer. Irizarry. 722 F.3d at 105 (quoting Barfield [v. New York City
Health & Hospitals Corp., 537 F.3d 132, 143 (2d Cir. 2008)]).
In addition to the “nonexclusive and overlapping” Carter factors, id. (quoting Barfield,
537 F.3d at 143), the Second Circuit in Irizarry noted the existence of “other factors” bearing
upon the “’overarching concern [of] whether the alleged employer possessed the power to
control the workers in question.’” Id. (quoting [Herman v. RSR Sec. Serv.s Ltd, 172 F.3d 132,]
139 [(2d Cir. 1999)]). These factors include whether the defendant “exercised financial control”
over a company; had “authority over” the manager who “directly supervised” the plaintiff
employee; received “periodic reports [including] work orders, memos, investigation reports, . . .
invoices, [and] weekly timesheets,”; referred individuals to the company as potential employees;
occasionally assigned employees to specific tasks; occasionally set the rates clients were charged
for services; ever gave instructions to managers about operations; forwarded complaints about

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employees to managers; signed payroll checks; established a separate payment system for some
clients; and represented himself to third-parties as “the boss.” Id. at 106 (citing [Herman, 172
F.3d at 136-37]).
The Irizarry decision also recognized the existence of “two legal questions relevant
here[:]”
The first concerns the scope of an individual’s authority or
“operational control” over a company—at what level of a corporate
hierarchy, and in what relationship with plaintiff employees, must
an individual possess power . . . ? The second inquiry . . . concerns
hypothetical versus actual power: to what extent and with what
frequency must an individual actually use the power he or she
possesses over employees to be considered an employer?
Id. (citing [Herman, 172 F.3d 132]). The Second Circuit did not provide any specific guidance
on how courts should answer these questions, or how much weight to give them. Instead, it
surveyed various decisions of other circuit courts of appeal and noted how they weighed various
factors relating to employment relationships. See id. at 107-09.
Reviewing these decisions, the Second Circuit found the weight of authority to support its
“focus[]” upon a defendant individual’s operational control of the company’s employment of the
plaintiff employees, “rather than simply operational control of the company.” Id. at 109. The
Court of Appeals then clarified, “to be an ‘employer,’ an individual defendant must possess
control over a company’s actual ‘operations’ in a manner that relates to plaintiff’s employment.”
Id. This operational control requirement is satisfied if the individual defendant’s “role within the
company, and the decisions it entails, directly affect the nature or conditions of the employees’
employment . . . the relationship . . . must be closer in degree than simple but—for causation.”
Id. at 110. Operational control need not be exercised constantly to establish liability, and may
still render an individual defendant liable even if it is “restricted, or exercised only occasionally.”

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Id. (quoting [Herman,] 172 F.3d at 139).
Finally, the Court of Appeals noted that while the Eleventh Circuit has squarely held that
unexercised authority is insufficient to establish liability as an employer, the Second Circuit saw
no need to do so based on the factual situation in Irizarry. See id. at 111 (citing Alvarez Perez v.
Sanford—Orlando Kennel Club, Inc., 515 F.3d 1150, 1161 (11th Cir. 2008)).
Here, Defendant Fontaine clearly contributed to Post 574’s exercise of control over
Plaintiff by virtue of his participation in the Post’s Executive Committee. The Executive
Committee alone had authority to approve all expenditures and manage the affairs of Post 574.
It had hiring, firing, and disciplinary authority. Defendant Fontaine presided over this committee
when he was Post Commander and was a voting member of the Executive Committee when he
was First Vice Commander. The Constitution and By-Laws indicate that, as Post Commander,
Defendant Fontaine was also the Post’s CEO and had approval authority for all disbursement of
funds. He also apparently had independent disciplinary authority, with the power to temporarily
suspend persons from the premises subject to Post regulations.
If Post 574 were a for-profit corporation, and Defendant Fontaine one of its owners,
investors, or salaried corporate officers, it would appear that Defendant Fontaine squarely meets
the requirements for individual liability as an employer. He clearly exercised operational control
over Plaintiff’s employment as House Manager as he presided on and voted on the Executive
Committee. He could, therefore, be held jointly and severally liable along with the Defendant
Post for Plaintiff’s damages. However, there does not appear to be any precedent for holding an
individual liable for acts made in his official capacity as the unsalaried officer of a nonprofit
organization.

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The closest case appears to involve the Tony and Susan Alamo Foundation, where the
Western District of Arkansas found this nonprofit religious organization to be in violation of the
FLSA’s minimum wage and overtime provisions. See Donovan v. Tony & Susan Alamo Found.,
567 F. Supp. 556, 575 (W.D. Ark. Dec. 13, 1982). In that case, the district court also found that
Defendant Tony Alamo, who acted as the organization’s President, and Defendant Susan Alamo,
who had acted as the Secretary and Treasurer until her death, were liable as employers as well
due to their role in directing the activities of the Foundation. See id. The district court did not
specifically discuss joint and several liability in its order for remedies, probably because the
plaintiff’s claim was for injunctive relief and not damages. See id. at 558-59.
However, in its amended order on remedies, the district court did make one important
distinction between the liability of Mr. Alamo and that of the Foundation. First, the district court
enjoined all defendants equally; it ordered Mr. Alamo, the Foundation, and all of the
Foundations officers, agents, servants, employees, and participants to refrain from further
violating the FLSA. See id. at 576. Second, the district court similarly enjoined both the
individual defendant and the corporate defendant from withholding payment of overtime wages
to specified employees, apparently referring to payments owed for future labor. See id. But in
the third part of the order, the district court enjoined only the corporate foundation from
withholding minimum wage and overtime compensation from all persons “who make claims for
back wages” pursuant to a procedure that the court outlined. See id. In the next sentence of the
same third part, the district court brought Mr. Alamo’s name back into the discussion, ordering
him and the Foundation to furnish the names and addresses of former employees so that the
Secretary of Labor could notify them of their rights to back wages. See id. at 576-77. Finally,
Mr. Alamo received instructions in the fourth part of the remedy order, when the district court

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enjoined him and the corporate defendant from failing to comply with specified provisions of the
FLSA, as well as orders and regulations of the Secretary of Labor. See id. at 577.
Although the district court did not explain its omission of Mr. Alamo from the back
wages payment order or even acknowledge that it had done so, the effect of the omission is clear:
the district court declined to order Mr. Alamo to contribute to back wages and overtime funds.
As the district court threaded the needle, Mr. Alamo could no longer use his position of authority
at the Foundation to deprive current or former employees of their just compensation, but he was
not required to use his personal funds to compensate employees for decisions he had previously
made in his official capacity as President.
The Court of Appeals for the Eighth Circuit affirmed the district court’s judgment
without comment upon the distinction drawn in its order of remedies. See Donovan v. Tony &
Susan Alamo Found., 722 F.2d 397, 405 (8th Cir. 1983). The Supreme Court did the same.
Tony and Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 306 (1985).
Here, the Court would fashion a similar resolution if Plaintiff had sought injunctive relief,
as the Secretary of Labor sought in Tony & Susan Alamo Foundation. However, Plaintiff seeks
not injunctive relief but damages from both Defendants. Although this Court finds reason to
hold Defendant Post 574 liable for damages (see Part B, infra), it finds no precedent for ordering
that the corporate officer of a non-profit, who drew no salary from his office and had no financial
stake in the business of the non-profit, be liable for damages relating to his official duties.
Accordingly, this Court grants Defendants’ motion for partial summary judgment and dismisses
Plaintiff’s claim against Defendant Fontaine.

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B.

Defendant Post 754’s liability under the FLSA
1.

Enterprise coverage

The FLSA applies to all employees of Defendant Post 574. An enterprise is covered
under the FLSA where that enterprise employs people engaged in commerce and it does more
than $500,000 in gross business. See 29 U.S.C. § 203(s)(1); Velez v. Vassallo, 203 F. Supp. 2d
312, 328 (S.D.N.Y. 2002). Here, Post 574 employed people who received items such as
alcoholic beverages in interstate commerce. Post 574 also did more than $500,000 in gross
business in 2011 and 2012. Therefore, the Court finds that the FLSA’s “enterprise coverage”
provision applies to Post 574 and, by extension, to Plaintiff.

2.

Individual coverage

Individual coverage arises under the FLSA for employees who engage in interstate
commerce, even if those employees only receive goods in interstate commerce. See Walling v.
Jacksonville Paper Co., 317 U.S. 564, 568-69 (1943). Here, it was Plaintiff’s job to receive
goods such as alcoholic beverages in interstate commerce. Therefore, the Court finds that the
FLSA applies to Plaintiff as an individual.

3.

Executive exemption

Defendants are incorrect that Plaintiff was an executive under the FLSA and therefore
exempt from its wage and hour rules under 29 U.S.C. § 213. A bona fide executive is an
executive who, among other things, receives at least $455 per week in salary. 29 C.F.R.
§ 541.100; Idaho Sheet Metal Works, Inc. v. Wirtz, 383 U.S. 190, 209 (1966); Martin v. Malcolm

9

Pirnie, Inc., 949 F.2d 611, 615 (2d Cir. 1991). Here, Defendant Post 574 paid Plaintiff $400 per
week; and, thus, Plaintiff was not a bona fide executive under the FLSA.

4.

Hours worked

As a threshold matter, Plaintiff is not collaterally estopped from litigating this issue. The
four requirements for issue preclusion under collateral estoppel are “’(1) the identical issue was
raised in a previous proceeding; (2) the issue was actually litigated and decided in the previous
proceeding; (3) The party had a full and fair opportunity to litigate the issue; and (4) the
resolution of the issue was necessary to support a valid judgment on the merits.’”
See Proctor v. LeClaire, 715 F.3d 402, 414 (2d Cir. 2013) (quotation and other citations
omitted). Defendants have the burden of proving that the hours issue was “raised and necessarily
decided in a previous proceeding . . . .” Lafleur v. Whitman, 300 F.3d 256, 272 (2d Cir. 2002)
(quotation omitted).
Here, the New York State Department of Labor (“NYS DOL”) conducted an
investigation of Plaintiff’s employment at Defendant Post 574. However, there is no evidence
that the NYS DOL conducted a “proceeding” on this issue sufficient to satisfy the first
requirement for collateral estoppel. Defendants’ argument that Plaintiff is collaterally estopped
from litigating the issue of the hours she worked relies upon a mischaracterization of the record;
in particular, an August 30, 2013 letter from an NYS DOL investigator to Plaintiff (“August
2013 Letter”). The August 2013 Letter, which Defendants cite, is not an official finding of the
NYS DOL or an administrative law judge. Nor does it state the conclusive results of an
investigation. The August 2013 Letter stated instead that “[o]ur division is currently
investigating your claim,” that it had “interviewed several people at the Legion, but found no

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indication that you worked as many hours for American Legion as you claimed,” that it “tried to
determine the amount of time it would have taken for you to perform your duties . . . but found
that it would generally have taken you far fewer than 40 hours a week.” The letter stated that the
division could not require payment of back wages for overtime hours but gave Plaintiff the
option of “provid[ing] a credible explanation with documentary evidence” to support her claims.
Finally, the August 2013 Letter advised Plaintiff that the division would close her case if it did
not receive additional evidence. None of the foregoing meets the requirements for collateral
estoppel.
Turning to the merits of Plaintiff’s claim, the Court finds that Plaintiff worked more than
forty hours per week at least occasionally. Where an employer’s records of an employee’s hours
worked are “inaccurate or inadequate,” an employee may meet her burden by producing
“sufficient evidence to show the amount and extent of work as a matter of just and reasonable
inference.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946). Once a plaintiff
does so, “[t]he burden then shifts to the employer to come forward with evidence of the precise
amount of work performed or with evidence to negative the reasonableness of the inference to be
drawn from the employees evidence.” Id. at 687-88. If an employer fails to negate a plaintiff’s
evidence of uncompensated labor, the Court may award damages “even though the result be only
approximate.” Id. at 688 (citation omitted).
Here, Plaintiff has alleged that she worked more than forty hours per week, citing her
own recollection as well as business records that support her version of events. She personally
recalled working more than forty hours “almost every week.” A ledger of Plaintiff’s hours
worked (“Hours Ledger”), which Defendants produced in discovery and which Defendant Post
574’s Treasurer signed, records nineteen weeks between April 2012 and November 2012 in

11

which Plaintiff worked more than forty hours. Plaintiff also produced her own personal calendar
(“Plaintiff’s Calendar”), in which she noted her hours worked each day between June 2011 and
November 2012. The work hours recorded in Plaintiff’s Calendar correspond exactly to the
hours recorded in the Hours Ledger for every day from April 2012 to November 2012.
Plaintiff’s Calendar also records 35 weeks in which Plaintiff worked more than 40 hours between
June 2011 and April 2012.
Defendants have been unable to produce any documentation of Plaintiff’s work hours
from April 2011 until April 2012. The only records they have produced corroborate Plaintiff’s
account. Defendants produced a copy of Plaintiff’s Hours Ledger from their own files, which
was identical to the one that Plaintiff produced. Defendants also produced Plaintiff’s Time
Cards from their own files. The work hours recorded in the Plaintiff’s Time Cards correspond
exactly to the hours recorded in the Hours Ledger and Plaintiff’s Calendar for every day from
June 2012 to November 2012.
The only evidence Defendants have produced to negative the reasonableness of
Plaintiff’s work-hours evidence are declarations and affidavits, which Defendants created after
Plaintiff filed her Motion for Summary Judgment. In these statements, Defendant Post 574’s
Judge Advocate, and Defendants’ counsel, asserts that Plaintiff “never worked as much as forty
hours a week.” The Judge Advocate goes on to assert that Plaintiff is seeking compensation for
time during which “she was seen by many post members hanging around the post to conduct her
own business enterprises . . . .” The Judge Advocate’s assertions are conclusory and do not
specifically challenge a single hour of Plaintiff’s claimed work on any of the 119 days recorded
in the Time Cards, the 203 days recorded in the Hours Ledger, or the 518 days recorded in
Plaintiff’s Calendar.

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Defendant Fontaine, the Post Commander, asserts that Plaintiff’s work requirements
during non-member functions “happened far less than every day” and “each time [they] lasted
about four hours.” 1 Defendant Fontaine also asserts that Plaintiff “improperly wants to count”
her time spent at meetings of the Post and Executive Board. Defendant Fontaine finally asserted
that Plaintiff “alleges that she worked on the Post’s bingo games as part of her computation of
hours worked,” and that “This was not part of her paid duties as house chairman . . . .” Like the
Judge Advocate, Defendant Fontaine does not specifically challenge a single hour of Plaintiff’s
claimed work. Even if Plaintiff were claiming such time, Defendant Fontaine does not explain
why bingo games would not require her presence as the employee tasked with “[m]anagement of
the lounge and rental areas,” who must “handle all situations that may arise.”
Margaret Folk, the Vice Commander of The American Legion, Department of New York,
asserted that she was “second in command for about 200 American Legion Posts in New York
State,” including Defendant Post 574. She asserts that, although she was not a member of Post
574, she is “frequently in the Post” and she “often saw [Plaintiff] using the Post for the
transaction of the business of her business enterprises.” (sic). This declaration appears to have
no probative value as the allegation, even if true, would not negate the possibility that Plaintiff
worked more than forty hours per week as house manager in addition to the occasions of
unspecified duration and frequency when Ms. Folk claims to have seen her conduct personal
business.
Robert Beard, who like Mr. Mills also claims to be “the Judge Advocate (chief legal
officer)” of Defendant Post 574, alleges that he “frequently saw [Plaintiff] conducting non1

In this Declaration, Defendant Fontaine also makes the apparently false, or at least incorrect,
statement that Plaintiff’s “alleged records of her time submitted in support of her motion for
summary judgment are recent creations. There were no such records while she was employed.”
See Fontaine Declaration, April 2014 at 3.
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Legion business (tutoring students and running a travel agency) from the Post while it was
open.” This declaration lacks probative value for the same reason that Ms. Folk’s does.
Defendants also include a single declaration signed by eight members of Defendant Post
574, who allege that they “frequently saw [Plaintiff] conducting non-Legion business (tutoring
students or running a travel agency) from the Post while it was open.” This declaration lacks
probative value for the same reason that Ms. Folk’s and Mr. Beard’s do.
Among the declarations disputing Plaintiff’s hours worked, Defendants did not include a
statement from Mary Gebo, Defendant Post 574’s Treasurer and Chief Financial Officer, whose
name appears on Plaintiff’s Hours Ledger and who signed Plaintiff’s paychecks.
In satisfaction of Anderson, Plaintiff has produced sufficient evidence to support the
reasonable inference that she worked more than forty hours on at least several occasions.
Defendant Post 574 has failed to meet its burden to negate the reasonableness of this inference.
Defendant Post 574 admitted that Plaintiff was never paid more than her weekly salary of $400.
Defendant’s failure to compensate Plaintiff for her overtime work is a violation of the FLSA.
See 29 U.S.C. § 207(a)(1). Therefore, the Court finds that Defendant Post 574 is liable to
Plaintiff for the hours that she worked in those weeks in which she worked more than forty
hours.

5.

Willfulness

There is insufficient evidence to find as a matter of law that Defendant’s violations were
willful. An FLSA violation is only willful where the employer knowingly violates or shows
reckless disregard for the provisions of the Act. See Brock v. Superior Care, Inc., 840 F.2d
1054, 1062 (2d Cir. 1988). In Brock, for instance, the Second Circuit held that an employer was

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on actual notice of its FLSA obligations due to previous findings of FLSA violations against it.
See id. Here, Plaintiff has not alleged that Defendant Post 574 was or should have been aware
that the FLSA applied to Post 574 as an enterprise or to Plaintiff as an individual. Indeed,
Defendant Post 574 apparently had a good-faith basis to believe, albeit erroneously, that
Plaintiff, as Post 574’s Adjutant and a member of its Executive Committee, was exempt under
the FLSA’s executive exemption. Accordingly, the Court finds that Defendants’ violations were
not willful.

IV. CONCLUSION
Having reviewed the entire file in this matter, the parties’ submissions, and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Defendants’ Motion for Partial Summary Judgment, see Dkt. No. 62, is
GRANTED and Plaintiff’s claim against Defendant Chris Fontaine is DISMISSED; and the
Court further
ORDERS that Plaintiff’s Motion for Summary Judgment with respect to Defendant Post
574’s liability for non-willful violation of the FLSA, see Dkt. No. 27, is GRANTED; and the
Court further
ORDERS that Defendants’ Motion to Dismiss Plaintiff’s Complaint, see Dkt. No. 16, is
DENIED, and the Court further
ORDERS that Plaintiff’s Motion to Strike Defendants’ Amended Answer and
affirmative defenses to Plaintiff’s Complaint or, in the alternative, for a More Definite Statement,
see Dkt. No. 15, is DENIED as moot; and the Court further

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ORDERS that counsel shall participate in a telephone conference with the Court on May
12, 2015 at 10:00 a.m. to set a hearing date to determine the following: (1) the number of hours
that Plaintiff worked as house manager for each week between April 17, 2011, and April 1,
2012, 2 and (2) the regular hourly rate at which Defendant Post 574 should compensate Plaintiff
for the hours that she worked as house manager in excess of forty hours per week for the period
between April 27, 2011, until November 2012. The Court will provide dial-in instructions to
counsel for the telephone conference prior to May 12, 2015.

IT IS SO ORDERED
Dated: March 31, 2015
Syracuse, New York

2

The Court notes that, because Defendants have produced the House Ledger for the period
between April 2012 and November 2012, which records the same hours as Plaintiff recorded in
her calendar for this period, the Court does not need any additional evidence to determine how
many hours Plaintiff worked each week during this period of time. Accordingly to both
documents, Plaintiff worked more than forty hours a week in nineteen weeks during this time
frame. Therefore, once the Court determines the hourly rate of compensation, the Court will be
able to determine the amount that Defendant Post 574 owes to Plaintiff for the overtime hours
that she worked during this period of time.
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