Raffe et al v. American National Red Cross et al

Filing 76

MEMORANDUM-DECISION AND ORDER granting in part and denying in part Defts' 38 Motion for Summary Judgment. Signed by Senior Judge Neal P. McCurn on 11/30/2011. (amt)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

Michael J. Raffe,
Plaintiff,
-v.-

5:08-cv-00211

American National Red Cross, American
National Red Cross of Tompkins County,
and Jennifer Yarbrough,
Defendants.

APPEARANCES
WIGGINS & KOPKO, LLP
Attorneys for Plaintiff
308 North Tioga Street
Ithaca, NY 14850

EDWARD E. KOPKO, ESQ.

EPSTEIN BECKER & GREEN, P.C.
Attorneys for Defendants
250 Park Avenue
New York, NY 10177

KENNETH W. DIGIA, ESQ.
ERIC B. TOPEL, ESQ.
LAURI FAITH RASNICK, ESQ.

Neal P. McCurn, Senior District Judge

Memorandum, Decision, and Order
I. Introduction
Presently before the Court is a motion by defendants for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff opposes the

motion. Decision on the pending motion is based entirely on the submitted papers,
without oral argument. For the reasons that follow, the motion is denied in part
and granted in part.
II. Background
Unless otherwise noted, the following is undisputed.
Plaintiff Michael J. Raffe (“Raffe”) brings this action against defendants
American National Red Cross (“Red Cross”), American Red Cross of Tompkins
County (“Chapter”), and Chapter Executive Director Jennifer Yarbrough
(“Yarbrough”) (collectively “Defendants”).1 This action was removed to this court
from the Supreme Court of the State of New York in Tompkins County.
The Red Cross “is a charitable organization as described in section
501(c)(3) of the United States Internal Revenue Code.” Decl. of Michael Yehl,
Feb. 15, 2010, ¶ 2, Dkt. No. 43 (“Yehl Decl.”). The organization is a
“humanitarian organization led by volunteers,” that “provides relief to victims of
disasters and helps people prepare for, prevent, and respond to emergencies.” Id.
The Chapter “provides emergency services to the greater Ithaca, New York
community.” Id. ¶ 3.
The Chapter hired Raffe to serve as the Director of Emergency Services in
December 1997. See Aff. of Michael Raffe, Apr. 30, 2010, ¶ 5, Dkt. No. 58

1

The summons filed in state court prior to the removal of the action to this court
included Lauren Signer, wife of Michael J. Raffe, as a plaintiff. See Summons to Defendants,
Ex. A to Dkt. No. 2. However, the Complaint does not list Lauren Signer as a plaintiff in the
caption, nor does the Complaint include any allegations that she suffered any harm. See Compl.,
Dkt. No. 6. Accordingly, Lauren Singer is not a plaintiff to this action, nor will she be treated as
such.
2

(“Raffe Aff.”).2 Raffe was suspended, without pay, from his position on January
17, 2008. See Ex. A to Decl. of Jennifer Yarbrough, Feb. 16, 2010, Dkt. No. 41-3
(“Yarbrough Decl.”). This suspension was to remain in effect until January 26,
2008. Id. Raffe’s employment with the Chapter was terminated on January 28,
2008. See Yarbrough Decl. ¶ 35.
Raffe alleges that Defendants violated New York Executive Law § 296
(“Human Rights Law” or “NYHRL”) by terminating his employment because of
his age. Compl. ¶¶ 20-21. Raffe also alleges that Defendants violated various
provisions of the New York Labor Law, including section 191 by failing to pay
wages “not later than the regular pay date for the pay period which the termination
occurred,” section 195 by failing to notify Raffe with written notice of the exact
dates of termination and cancellation of employee benefits within five days of his
termination, and section 198-c by failing to pay “benefits or wage supplements.”
Compl. ¶¶ 27, 29-31, 36. Finally, Raffe alleges that Defendants violated 29 U.S.C.
§§ 201-219 (“Fair Labor Standards Act” or “FLSA”) by failing to provide
overtime compensation. Compl. ¶ 48.
III. Discussion
A. Summary Judgment Standard
A motion for summary judgment shall be granted “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). The movant has the initial
burden to show why it is entitled to summary judgment. See Salahuddin v. Goord,

2

Defendants state that Raffe was actually hired in January 1998. See Decl. of Charles
Nocera, Feb. 16, 2010, ¶ 3, Dkt. No. 40 (“Nocera Decl.”). Because neither party has submitted
any documents to verify the hiring date, the Court will construe the ambiguity in Raffe’s favor.
3

467 F.3d 263, 272 (2d Cir. 2006) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
323, 106 S. Ct. 2548 (1986)). If the movant meets its burden, the burden shifts to
the non-movant to identify evidence in the record that creates a genuine issue of
material fact. See id. at 273 (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586, 106 S. Ct. 1348 (1986)). A party’s factual assertions
must be supported by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to
support the fact.
FED. R. CIV. P. 56(c)(1).
When deciding whether a material issue of fact is in dispute, the court is
cognizant that “[a] fact is material when it might affect the outcome of the suit
under governing law.” Tracy v. Freshwater, 623 F.3d 90, 95 (2d Cir. 2010)
(internal citation omitted). Also, a material fact is genuinely in dispute “if ‘the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.’” Bessemer Trust Co., N.A. v. Branin, 618 F.3d 76, 85 (2d Cir. 2010)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
2510 (1986)).
“In ruling on a motion for summary judgment, the district court may rely on
any material that would be admissible or usable at trial.” Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008) (internal quotation
and citation omitted). When deciding a motion for summary judgment, the court
4

must resolve all ambiguities and draw all reasonable inferences in the
non-movant’s favor. Vt. Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d
241, 244 (2d Cir. 2004) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 157,
90 S. Ct. 1598 (1970)). However, a properly supported summary judgment motion
“will not be defeated merely upon a ‘metaphysical doubt’ concerning the facts . . .
or on the basis of conjecture or surmise.” Bryant v. Maffucci, 923 F.2d 979, 982
(2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., 475 U.S. at 586)).
B. New York Human Rights Law
The New York Human Rights Law, which is codified in the state’s
Executive Law, prohibits an employer from terminating an employee because of
his or her age. See N.Y. EXEC. LAW § 296(3-a)(a). Despite some differences
between the state law and the federal Age Discrimination in Employment Act
(“ADEA”), “age discrimination suits brought under the [NYHRL] are subject to
the same analysis as claims brought under the ADEA.” Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citation omitted). As such, NYHRL
age discrimination claims, like ADEA claims, are analyzed “under the same
burden shifting framework as claims brought pursuant to Title VII of the Civil
Rights Act of 1986, as amended, 42 U.S.C. § 2000e, et. seq.” Id. (citation
omitted); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct.
1817 (1973).
Under McDonnell Douglas, a plaintiff bears the initial burden of
establishing a prima facie case for age discrimination. Abdu-Brisson, 239 F.3d at
467. To meet this burden, the plaintiff must show that: “(1) he is a member of the
protected class; (2) he is qualified for his position; (3) he has suffered an adverse
employment action; and (4) the circumstances surrounding that action give rise to
5

an inference of age discrimination.” Id. at 466-67 (citations and footnote
omitted).3 “A plaintiff’s burden of establishing a prima facie case is de minimis,”
and the “requirement is neither onerous . . . nor intended to be rigid, mechanized
or ritualistic.” Id. at 467 (citations omitted).
After the plaintiff establishes a prima facie case of age discrimination, the
defendant “may rebut it by articulating legitimate and non-discriminatory reasons
for the adverse employment action.” Id. at 468-69. A defendant meets this burden
“if he presents reasons that, ‘taken as true, would permit the conclusion that there
was a nondiscriminatory reason for the adverse action.’” Id. (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S. Ct. 2742 (1993)).
If the defendant meets his burden of articulating a legitimate and nondiscriminatory reason for the adverse employment action, “the presumption of age
discrimination dissolves, and the burden shifts back to the plaintiff to prove that
3

In their memorandum of law, Defendants contend that the second element of a claim
for age discrimination is satisfactory job performance instead of being qualified for the position,
citing Norville v. Staten Island University Hospital, 196 F.3d 89, 96-97 (2d Cir. 1999) for
support. See Defs.’ Mem. of Law at 7-8, Dkt. No. 45. Defendants, however, have misstated the
elements as they are listed in Norville. In both Norville and Abdu-Brisson, the second element
requires a showing that the plaintiff is qualified for the position. Abdu-Brisson, 239 F.3d at 466;
Norville, 196 F.3d at 96. Satisfactory job performance is the second element of an employment
discrimination claim under Title VII of the Civil Rights Act, but not under the ADEA. See
Boyce v. Bank of N.Y., 226 F. App’x 17, 18 (2d Cir. 2006) (listing the elements under both Title
VII and ADEA claims). In age discrimination claims, assuming that a plaintiff meets his initial
burden, a showing by the defendant that the plaintiff did not perform his job satisfactorily may
articulate a legitimate, nondiscriminatory reason for dismissal. See Cross v. N.Y. City Transit
Auth., 417 F.3d 241, 250 (2d Cir. 2005). See also Slattery v. Swiss Reinsurance Am. Corp., 248
F.3d 87, 91-92 (2d Cir. 2001) (“[A] mere variation in terminology between ‘qualified for the
position’ and ‘performing . . . satisfactorily’ would not be significant so long as, in substance, all
that is required is that the plaintiff establish basic eligibility for the position at issue, and not the
greater showing that he satisfies the employer. The qualification prong must not . . . be
interpreted in such a way as to shift onto the plaintiff an obligation to anticipate and disprove, in
his prima facie case, the employer’s proffer of a legitimate, non-discriminatory basis for its
decision.”).
6

the employer’s stated reason is merely pretextual and that age discrimination was
the true reason for the adverse employment action.” Id. at 466.
Finally, although McDonnell Douglas requires a fact-intensive inquiry, “[i]t
is now beyond cavil that summary judgment may be appropriate even in the
fact-intensive context of discrimination cases.” Id.
As noted above, under McDonnell Douglass, the Court must first determine
if Raffe has established a prima facie case for age discrimination. Defendants
acknowledge that Raffe is a member of a protected age group (first element), and
that Raffe suffered an adverse employment action (third element). See Defs.’
Mem. of Law at 8, Dkt. No. 45. The remaining issues in the first step are whether
Raffe was qualified for the position (second element) and whether Raffe was
terminated under circumstances giving rise to the inference of discrimination
(fourth element). The Court will discuss these two issues in turn.
1. Whether Raffe Was Qualified For the Position
“[T]he qualification necessary to shift the burden to defendant for an
explanation of the adverse job action is minimal; plaintiff must show only that he
‘possesses the basic skills necessary for performance of [the] job.’” Slattery v.
Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001) (quoting Owens v.
New York City Hous. Auth., 934 F.2d 405, 409 (2d Cir. 1991)). “[W]here
discharge is at issue and the employer has already hired the employee, the
inference of minimal qualification is not difficult to draw.” Id. (citing Gregory v.
Daly, 243 F.3d 687, 696 (2d Cir. 2001)).
Defendants did not discuss whether Raffe was qualified for the position.
Raffe states that he had been working “at the Chapter for over ten years” at the
time of his termination. Raffe Aff. ¶ 157. There is nothing in the record to call
7

Raffe’s qualifications into question.
Thus, the Court finds that Raffe has satisfied the second element of a prima
facie case for job discrimination.
2. Whether Raffe’s Termination Occurred Under
Conditions Giving Rise To The Inference Of
Discrimination
There are a number of ways for a plaintiff to establish “the inference of
discriminatory intent necessary to complete the prima facie case.” Abdu-Brisson,
239 F.3d at 468. Such ways include—but are not limited to—
a showing of disparate treatment[;] . . . the employer’s
continuing, after discharging the plaintiff, to seek
applicants from persons of the plaintiff’s qualifications to
fill that position; or the employer’s criticism of the
plaintiff’s performance in . . . degrading terms; or its
invidious comments about others in the employee’s
protected group; or the more favorable treatment of
employees not in the protected group; or the sequence of
events leading to the plaintiff’s discharge.
Id. (internal quotation marks and citations omitted).
Raffe argues that an inference of discrimination arises from statements that
Cynthia Gordineer (“Gordineer”) allegedly made regarding staff “longevity.”
Raffe’s Mem. of Law at 8, Dkt. No. 62. Gordineer currently serves as the Chief
Executive Officer of the [Red Cross’s] Southern Tier Chapter, and she
simultaneously served as Interim Executive Director of Tompkins Red Cross from
May 2007 to December 2007. See Decl. of Cynthia Gordineer, Feb. 15, 2010, ¶¶
1, 4, Dkt. No. 42. At a May 2007 staff meeting, Gordineer allegedly said that
“longevity in one place was not a good thing.” Dep. of Michael J. Raffe, May 11,
2009, at Ex. A to Decl. of Eric B. Topel, Feb. 17, 2010, at 180, Dkt. Nos. 39 and

8

39-1(“Topel Decl.”). At another senior staff meeting on June 11, 2007, Gordineer
purportedly repeated that “longevity” was “not a good thing” because it breeds
“complacency.” Aff. of Michele VanOrman, Apr. 30, 2010, ¶ 9, Dkt. No. 56-1; at
Ex. 2 to Decl. of Edward E. Kopko, Apr. 30, 2010, Dkt. No. 56 (“Kopko Decl.”);
Aff. of Cheryll Vosburgh, Apr. 29, 2010, ¶ 4, Dkt. No. 56-2, at Ex. 3 to Kopko
Decl.
Gordineer neither denies nor admits making these statements. Because all
factual ambiguities must be construed in Raffe’s favor, the Court will assume that
Gordineer made these statements. The Court, however, must still determine
whether such statements raise an inference of discrimination.
“‘[R]emarks made by decisionmakers that could be viewed as reflecting a
discriminatory animus’ may ‘give rise to an inference of discriminatory motive.’”
Gregory v. Daly, 243 F.3d 687, 697 (2d Cir. 2001) (quoting Chertkova v. Conn.
Gen. Life Ins. Co., 92 F.3d 81, 91 (2d Cir. 1996)). But “the more remote and
oblique the remarks are in relation to the employer’s adverse action, the less they
prove that the action was motivated by discrimination.” Tomassi v. Insignia Fin.
Group, Inc., 478 F.3d 111, 115 (2d Cir.2007). “For example, remarks made by
someone other than the person who made the decision adversely affecting the
plaintiff may have little tendency to show that the decision-maker was motivated
by the discriminatory sentiment expressed in the remark.” Id. (citing Ostrowski v.
Atl. Mut. Ins. Co., 968 F.2d 171, 182 (2d Cir.1992)). However, rather than giving
each remark an individual evaluation pertaining to a protected class and
disregarding them if they are merely “stray” or “inoffensive,” courts should
determine whether the remarks “suggest that discrimination motivated a particular
employment action.” Id. at 116.
9

Statements regarding employee longevity alone are insufficient to raise an
inference of discrimination. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611,
113 S. Ct. 1701 (1993). “Because age and years of service are analytically
distinct, an employer can take account of one while ignoring the other, and thus it
is incorrect to say that a decision based on years of service is necessarily ‘age
based.’” Id. Remarks similar to those purportedly made by Gordineer are
insufficient to show an inference of discriminatory animus. See, e.g., Revere v.
Bloomingdale’s, Inc., No. 03 CV 5043, 2006 WL 3314633, at *3, 6 (E.D.N.Y.
Nov. 14, 2006) (a company president’s statements that “we need some ‘fresh
blood’ in the company,” that “we need new and fresh ideas,” that “longer service
employees were ‘complacent’ and ‘not as motivated as new employees[,]’ and that
longer service employees were not ‘keeping up with the times’” did not infer
discrimination, and that plaintiff, in relying on such remarks, “erroneously
equate[d] long service with age”); Veleanu v. Beth Isr. Med. Ctr., No. 98-7455,
2000 WL 1400965, at *5 (S.D.N.Y. Sept. 25, 2000) (comment referring to “fresh
blood” that was directed to length of tenure, which could apply with equal force to
employees under age forty, is age-neutral).
Even remarks that are directly related to age may not evince discriminatory
animus. See, e.g., Iuorno v. DuPont Pharms. Co., 129 F. App’x 637, 641-42 (2d
Cir. 2005) (a supervisor’s “stray remark” that the plaintiff was old enough to be a
younger employee’s “mother” was “insufficient to support an inference of age
discrimination”); Criley v. Delta Air Lines, 119 F.3d 102, 105 (2d Cir. 1997) (an
airline’s “concerns about the economics of hiring pilots approaching mandatory
retirement were not discriminatory within the meaning of the ADEA, even though
their retirement was required by law at a specified age, and not determined by
10

years of service or some other yardstick”).4
Aside from being insufficient to raise an inference of discriminatory animus,
Gordineer’s purported statements were made six to seven months before Raffe
suffered any adverse employment action, and there is nothing in the record to
indicate that they were directed at Raffe. Moreover, Gordineer merely concurred
with Yarbrough’s decision to terminate Raffe’s employment, and did not make the
decision herself. See Yarbrough Decl. ¶ 34; Dep. of Cynthia Gordineer, Nov. 17,
2009, 113, at Ex. C to Topel Decl., Dkt. No. 39-3. A statement relating to
longevity that was not made by the individual who took the adverse employment
action and that was not directed at the employee who suffered the adverse
employment is insufficient to raise an inference of discriminatory animus.
Raffe relies on Gregory v. Daly, 243 F.3d 687 (2d Cir. 2001), for the
proposition that Gordineer’s statements give rise to an inference of discrimination.
This reliance is misplaced. In Gregory, the plaintiff-employee alleged sex
discrimination, id. at 689, and not age discrimination as is the case here.

4

On the other hand, remarks regarding age may be sufficient to raise an inference of
discrimination where they are also accompanied by other occurrences that show discriminatory
animus, which is not the case here. See, e.g., Abdu-Brisson, 239 F.3d at 468 (defendants “made
numerous comments about the age of the . . . pilot force, referring to them as ‘contaminated’ and
‘Bad Apples,’” and defendants had an “all-consuming interest in the age and projected retirement
rates of [the] pilots”); Nembhard v. Mem’l Sloan Kettering Cancer Ctr., 104 F.3d 353, 1996 WL
680756, at *3-4 (2d Cir. 1996) (plaintiff replaced by a younger individual and supervisor had
referred to plaintiff as an “‘old, black guy’ she was trying to get rid of,” told plaintiff “that only
older people tended to accumulate sick time,” and rebuffed plaintiff’s request for computer
training by saying that “younger staff would train on computers”); Woroski v. Nashua Corp., 31
F.3d 105, 108 (2d Cir. 1994) (manager purportedly said “on many occasions” that the “salary
work force[] was older, had been around too long, made too much money and enjoyed too many
benefits” and that “what this company needed was new younger people, perhaps people out of
college . . . that were younger, more aggressive, hungrier, that would have come and not had six
weeks vacation . . . and in fact could be hired for” a substantially lower salary).
11

Moreover, the statements at issue in Gregory referred to “women as easy victims
of sexual assault” and the statements were “generally demeaning” to women. Id.
at 694. Finally, those statements were made by the defendant who withheld raises
from the plaintiff and ultimately fired her. Id. at 693. Here, the purported
statements about “longevity” and “complacency” do not directly refer to Raffe’s
age, and they are alleged to have been made not by Yarbrough—who made the
decision to terminate Raffe’s employment—but by Gordineer, who merely
concurred with Yarbrough’s decision. Yarbrough Decl. ¶ 34; Gordineer Dep. at
113. Such “stray” remarks are insufficient to raise an inference of discriminatory
animus.
As such, the Court concludes that Raffe has failed to establish the fourth
element of a prima facie case for age discrimination, which is that he was
terminated under circumstances giving rise to the inference of discrimination.
Because Raffe has failed to meet his initial burden, the Court need not determine
whether Defendants had a legitimate, nondiscriminatory reason for terminating
Raffe’s employment, or whether such a reason was a mere pretext for
discrimination. See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69 (2d Cir.
2005) (affirming a grant of summary judgment because plaintiff failed to meet his
initial burden of establishing a prima facie case of age discrimination).
Accordingly, Defendants’ motion for summary judgment as to Raffe’s age
discrimination claim under New York Human Rights Law § 296 is granted, and
this claim is dismissed.
C. New York Labor Law
Raffe alleges that Defendants violated New York Labor Law §§ 191, 195,
and 198-c. Compl. ¶¶ 30-31, 36. Those sections govern the payment of wages to
12

an employee, and each will be addressed in turn.
1. Section 191
Raffe alleges that Defendants violated Labor Law § 191 because they failed
to pay him “not later than the regular pay day for the pay period during which the
termination occurred.” Compl. ¶ 30.
Section 191 states in pertinent part: “A clerical and other worker shall be
paid [by his employer] the wages earned in accordance with the agreed terms of
employment, but not less frequently than semi-monthly, on regular pay days
designated in advance by the employer.” N.Y. LAB. LAW § 191(1)(d). It further
provides: “If employment is terminated, the employer shall pay the wages not
later than the regular pay day for the pay period during which the termination
occurred, as established in accordance with the provisions of this section. If
requested by the employee, such wages shall be paid by mail.” Id. § 191(3).
Defendants argue that Raffe “was paid all wages and supplements and
benefits that was owed and he has failed to produce any evidence or testify to the
contrary.” Defs.’ Mem. of Law at 25. Yarbrough states that the “Chapter’s
records indicated that [Raffe] was paid all compensation and benefits to which he
was entitled to upon termination.” Yarbrough Decl. ¶ 37. Raffe states that he has
not been paid “all the compensation and benefits to which [he] was entitled upon
[his] termination.” Raffe Aff. ¶ 130. The parties’ contrary statements create an
issue of fact that could have been resolved by documentary evidence. Raffe has
requested the Chapter’s records regarding compensation. See Ex. 4 to Raffe Aff.,
at 43, Dkt. No. 58-4. It is unclear, however, if these records were ever produced
as they have not been made a part of the record. Thus, an issue of fact remains
regarding whether Defendants complied with section 191 by providing Raffe all
13

compensation to which he was entitled.5
Accordingly, Defendants’ motion for summary judgment as to Raffe’s
claims arising under New York Labor Law § 191 is hereby denied.
2. Section 195
Defendants allegedly violated Labor Law § 195(6) by failing to notify Raffe
“in writing within five days of the exact date of termination and the exact date of
cancellation of employee benefits.” Compl. ¶ 36.
Labor Law § 195 states in pertinent part:
Every employer shall . . . notify any employee terminated
from employment, in writing, of the exact date of such
termination as well as the exact date of cancellation of
employee benefits connected with such termination. In no
case shall notice of such termination be provided more than
five working days after the date of such termination.
N.Y. LAB. LAW § 195(6).
Defendants have produced the termination letter that Yarbrough gave to
Raffe on January 28, 2008. See Ex. F to Yarbrough Decl., Dkt. No. 41-6. This
letter stated that the termination was “effective, January 28, 2008.” Id. Raffe
admits to receiving this letter on that date and admits that he was terminated on
January 28, 2008. See Raffe’s 7.1 Statement at 23. Thus, Defendants complied
with section 195(6)’s requirement that Raffe receive written notification of his
5

It should also be noted that Yarbrough states that Raffe was not paid for “unused sick or
personal days” because Chapter policy does not provide for such compensation upon an
employee’s termination. Yarbrough Decl. ¶ 38. Raffe has admitted to this statement. See
Raffe’s 7.1 Statement at 24. Raffe further contends that he “was denied benefits he was
otherwise entitled to” because of the “sham discharge,” and that this “sham discharge was
designed to avoid having the Chapter pay Raffe what Raffe was actually due.” Id. at 84 (citing
Raffe Aff. ¶ 229). Regardless, even if the discharge were a “sham,” there is nothing in that
statement to raise an issue of fact as to whether the Chapter’s policy permits the payment of
unused sick or personal days upon an employee’s termination.
14

termination within five business days of the termination.
The Letter of Termination also references a “Severance Agreement and
General Release (‘Agreement’) delineating the terms of [the] separation” that was
provided to Raffe along with the Letter of Termination. Ex. F to Yarbrough Decl.,
Dkt. No. 41-6. Raffe was to sign and return the Agreement to Yarbrough by
February 18, 2008. Id. According to the Letter of Termination, Raffe’s failure to
sign and return the Agreement or revoke the Agreement will result in the
Agreement being deemed “null and void.” Id. Unfortunately, this Agreement has
not been made a part of the record, and thus, it is unknown if it provided Raffe
with notice of the “exact date of cancellation of employee benefits” as required by
section 195(6). Whether the deadline contained in the Letter of Termination
serves as written notice of the “exact date of cancellation of employee benefits” is
an issue of fact to be resolved by a jury.
Accordingly, Defendants’ motion for summary judgment as to Raffe’s claim
arising under New York Labor Law § 195(6) is denied.
3. Section 198-c
Raffe also brings a claim under New York Labor Law § 198-c, alleging that
Defendants failed to pay him “benefits and wage supplements.” Compl. ¶¶ 27, 31.
Under New York law:
[A]ny employer who is party to an agreement to pay or
provide benefits or wage supplements to employees . . . and
who fails, neglects or refuses to pay the amount or amounts
necessary to provide such benefits or furnish such
supplements within thirty days after such payments are
required to be made, shall be guilty of a misdemeanor[.]
N.Y. LAB. LAW § 198-c(1).
Section 198-c, however, is a criminal statute and does not provide for a civil
15

cause of action. See Ramos v. SimplexGrinnell LP, — F. Supp. 2d —, —, No. 07CV-981, 2011 WL 2471584, at *19 (E.D.N.Y. Jun. 21, 2011) (citing Moran v.
GTL Const., LLC, No. 06-Civ.-168, 2007 WL 2142343, at *5 (S.D.N.Y. July 24,
2007). See also Hammell v. Banque Paribas, 780 F. Supp. 196, 200–01
(S.D.N.Y.1991) (noting that the New York Court of Appeals affirmed a Fourth
Department decision holding that there is no private civil action available under §
198–c) (citing Stoganovic v. Dinolfo, 461 N.Y.S.2d 121, 92 A.D.2d 729 (N.Y.
App. Div. 1983), aff’d 61 N.Y.2d 812, 813 (1984))). But see Castagna v. Luceno,
No. 09-CV-9332, 2011 WL 1584593, at *21 (S.D.N.Y. Apr. 26, 2011) (noting that
there is “conflicting case law” whether § 198–c provides a private right of action
and ultimately permitting plaintiff's § 198 claim to proceed).
As such, Defendants motion for summary judgment as to Raffe’s claim
arising from New York Labor Law section 198-c is granted, and this claim is
dismissed.
D. Federal Fair Labor Standards Act6
Raffe alleges that Defendants violated the Fair Labor Standards Act by
failing to provide him with the overtime pay to which he was entitled. Compl. ¶¶

6

In his memorandum of law in opposition to Defendants’ summary judgment motion,
Raffe contends that Defendants also violated New York’s laws and regulations requiring
overtime compensation. See Raffe’s. Mem. of Law at 10-11, Dkt. No. 62. See also N.Y. Labor
Law §§ 650-665; 12 N.Y.C.R.R. § 142-2.2. The Complaint, however, did not include claims for
overtime compensation pursuant to New York’s laws or regulations. Where Raffe asserted Labor
Law violations, he alleged only violations of section 191, 195 and 198-c. The Complaint did not
invoke either Labor Law §§ 650-665 or 12 N.Y.C.R.R. § 142-2.2, both of which govern the
payment of overtime. Accordingly, the Court will not consider any claim for overtime
compensation that Raffe seeks under either the New York Labor Law or New York State
Department of Labor regulations. See Lyman v. CSX Transp., Inc., 364 F. App’x 699, 701 (2d
Cir. 2010) (“An opposition to a summary judgment motion is not the place for a plaintiff to raise
new claims.”).
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39-52. Defendants proffer two arguments in support of their summary judgment
motion regarding this claim: (1) Plaintiff’s claim is barred by the statute of
limitations; and (2) Plaintiff is not entitled to overtime pay because he qualifies as
an exempt administrative employee.
1. Timeliness of the FLSA Claim
The statute of limitations for a claim for overtime compensation under the
FLSA is two years after the claim accrues, or in the case of a willful FLSA
violation, within three years following accrual. See 29 U.S.C. § 255(a). A
violation is willful if a plaintiff shows that “that the employer either knew or
showed reckless disregard for the matter of whether its conduct was prohibited by
the statute.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999)
(quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S. Ct.
1677(1988)). “[A] cause of action under the Fair Labor Standards Act for . . .
unpaid overtime compensation . . . ‘accrues’ when the employer fails to pay the
required compensation for any workweek at the regular pay day for the period in
which the workweek ends.” 29 C.F.R. § 790.21(b).
“A federal court must honor state court rules governing commencement of
civil actions when an action is first brought in state court and then removed to
federal court, even though the cause of action arises from federal law.” Winkels v.
George A. Hormel & Co., 874 F.2d 567, 570 (8th Cir. 1989) (citing Herb v.
Pitcairn, 324 U.S. 117, 120, 65 S. Ct. 459 (1945) (whether case is pending in state
court for the purpose of tolling a federal statute of limitations is determined by
state law)). See also Gorwin v. Local 282, I.B.T., 838 F. Supp. 116, 121
(S.D.N.Y. 1993); Juliano v. Stroehmann Bakeries, Inc., 734 F. Supp. 595, 598,
(W.D.N.Y. 1990).
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Raffe began working at the Chapter in December 1997. See Raffe Aff. ¶ 5.
This case was removed to this court on February 22, 2008, after the Chapter was
served with a Summons with Notice pursuant to the New York State Civil
Procedure and Rules on January 25, 2008.7 See Notice of Removal, Dkt. No. 1.
Raffe has made no showing that Defendants willfully violated the FLSA. In
fact, he fails to respond to the statute of limitations issue altogether. As such, all
claims for overtime compensation that accrued before January 25, 2006 are time
barred. But because some of the claims for overtime might have occurred within
the applicable statute of limitations, the Court will determine whether Raffe is
exempt from FLSA requirements.
2. The Administrative Exemption
Under the FLSA, an employee who has worked for more than forty hours
per week is entitled to overtime pay from his employer. 29 U.S.C. § 207(a)(1).
But “any employee employed in a bona fide executive . . . capacity” is exempt
from the FLSA’s overtime requirements. 29 U.S.C. § 213(a)(1). The United
States Department of Labor has promulgated regulations to help determine
whether an employee is exempt from the FLSA’s requirements. Donovan v.
Burger King Corp., 675 F.2d 516, 517-18 (2d Cir. 1982).
Defendants argue that Raffe “qualifies as an exempt administrative
employee.” Defs.’ Mem. of Law at 17. To qualify for the administrative
exemption, the employee must satisfy three conditions. First, the employee must
earn at least $455 per week, excluding board, lodging or other facilities. 29 C.F.R.
§ 541.200(a)(1). Second, the employee’s “primary duty” must be “the

7

Under New York law, a claim may be commenced in state court with the filling of a
Summons with Notice. N.Y. C.P.L.R. 304(a).
18

performance of office or non-manual work directly related to the management or
general business operations of the employer or the employer’s customers.” Id. §
541.200(a)(2). Finally, the employee’s “primary duty” must also “include[] the
exercise of discretion and independent judgment with respect to matters of
significance.” Id. § 541.200(a)(3). Defendants, as the employer invoking the
exemption, “bear[] the burden of establishing that [Raffe] falls within the
exemption.” Mullins v. City of New York, 653 F.3d 104, 113 (2d Cir. 2011).
Raffe does not dispute that he meets the salary requirement. See Raffe’s
Mem. of Law at 12. Thus, the Court will discuss the remaining two elements in
turn.
a. Whether Raffe’s Primary Duties
Were Directly Related To The Management
Or General Business Operations Of The Chapter
Federal regulations define “primary duty” as “the principal, main, major or
most important duty that the employee performs.” 29 C.F.R. § 541.700(a). “To
determine whether [a] plaintiff[’s] performance of these exempt activities
constitutes [his] ‘primary duty,’ a court must consider ‘the character of an
employee’s job as a whole.’” Mullins, 653 F.3d at 106.
Factors to consider . . . include, but are not limited to, the
relative importance of the exempt duties as compared with
other types of duties; the amount of time spent performing
exempt work; the employee’s relative freedom from direct
supervision; and the relationship between the employee’s
salary and the wages paid to other employees for the kind
of nonexempt work performed by the employee.
29 C.F.R. § 541.700(a).
To meet the “directly related to the management and general operations”
requirement, the plaintiff “must perform work directly related to assisting with the
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running or servicing of the business, as distinguished, for example, from working
on a manufacturing production line or selling a product in a retail or service
establishment.” 29 C.F.R. § 541.201(a). Such work
includes, but is not limited to, work in functional areas
such as tax; finance; accounting; budgeting; auditing;
insurance; quality control; purchasing; procurement;
advertising; marketing; research; safety and health;
personnel management; human resources; employee
benefits; labor relations; public relations, government
relations; computer network, internet and database
administration; legal and regulatory compliance; and
similar activities.
Id. § 541.201(b). A plaintiff may also qualify for this exemption if his “primary
duty is the performance of work directly related to the management or general
business operations of the employer’s customers.” Id. § 541.201(c).
It is undisputed that the Red Cross “is a charitable organization” that
“provides relief to victims of disasters and helps people prepare for, prevent, and
respond to emergencies.” Yehl Decl. ¶ 2. The organization’s Tompkins County
Chapter “provides emergency services to” Ithaca and its surrounding communities.
Id. ¶ 3; Raffe’s 7.1 Statement at 2. Raffe admits to being “responsible for almost
every aspect of the Chapter’s involvement with disaster services,” including
managing and monitoring delivery of services to “five different program areas
encompassing” forty-five volunteers and “serving . . . 3,000 community residents.”
Ex. F to Topel Decl., Dkt. No. 39-6; Raffe’s 7.1 Statement at 30. He further
admits that his “duty to make sure that the Red Cross responded during a disaster
was a significant responsibility” that was “at the core [of the Red Cross’s]
mission.” Dep. of Cheryll Vosburgh, May 13, 2009, 29-30, at Ex. D to Topel
Decl., Dkt. No. 39-4 (“Vosburgh Dep.”); Raffe’s 7.1 Statement at 30. Raffe
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admits to having a role in formulating and revising the Chapter’s disaster and
emergency response plans. See Nocera Decl. ¶¶ 15-16; Ex. F to Topel Decl.;
Raffe’s 7.1 Statement at 36-37.
Additionally, Raffe has admitted to “overseeing the entire [Emergency
Services] Department,” which was comprised of “approximately [forty-five]
volunteers and the [Board of Directors’] Emergency Services Committee,” and
“had responsibility for managing the day-to-day emergency and disaster services
of the chapter.” Nocera Decl. ¶ 7; Raffe’s 7.1 Statement at 31. Raffe states that he
was not the “sole supervisor” of the volunteers. Raffe Aff. ¶ 165. That
contention, however, is immaterial because the administrative exemption is
satisfied “even if the employee does not have direct supervisory responsibility
over the other employees on the team.” 29 C.F.R. § 541.203(c).
Finally, Raffe also admits to “act[ing] as the ‘face’ of the Chapter to the
community, volunteers, and clients.” Nocera Decl. ¶ 22; Raffe’s 7.1 Statement at
38. This responsibility included “establish[ing] and maintain[ing] effective
working relationships with appropriate government agencies and other community
and volunteer organizations concerned with disaster relief.” Nocera Decl. ¶ 22;
Raffe’s 7.1 Statement.
Despite admitting to carrying out all those duties, Raffe argues that he “was
working toward fulfilling a customer’s need for a service, rather than . . .
performing administrative duties.” Raffe’s Mem. of Law at 14-15. He states that
his “daily tasks ensured that Red Cross services were delivered timely and
efficiently.” Id. Raffe then attempts to analogize his daily duties to those that
were at issue in Relyea v. Carman, Callahan and Ingham, L.L.P., No. 03 Civ.
5580, 2006 WL 2577829, at *1 (E.D.N.Y. Sept. 6, 2006). In Relyea, real estate
21

closers who were employees of a law firm’s closing department sought overtime
pay from the law firm, but the law firm claimed that they were exempt
administrative employees. Id. The real estate closers’ duties included “preparing
documents prior to closings, overseeing and attending closings, distributing
checks at the closing, and completing closing documents after closings[;] . . .
recognizing deficiencies before closing . . . and then consult[ing] an attorney;
determining whether” all required conditions were met before a closing;
“attending most closings, on their own; and exercising their discretion to disburse
the checks to the parties” at the closing if all “prerequisites” were met and
“paperwork” completed. Id. The court found there that the real estate closers’
duties required them to “appl[y] existing policies and procedures on a case-by-case
basis,” rather than “the crafting of those policies . . . .” Id. at *5. The court, thus
concluded that they were “better described as ‘production,’ rather than
administrative workers.” Id.
Certainly, Raffe’s duties included ensuring that the emergency services
needs of the Red Cross’s and the Chapter’s “customers” were met. But Raffe’s
responsibilities also included managing the Emergency Services Department’s
operations, supervising the department’s volunteers, allocating the department’s
resources, authorizing the department’s expenditures, promoting the department’s
services, formulating the department’s operation and emergency response policies,
and representing the Red Cross at various events. Those myriad duties go
significantly further than merely producing the Red Cross’s services for its
customers.
Accordingly, the Court finds that Defendants have met their burden of
showing that Raffe’s primary duties were directly related to the management or
22

general business operations of the Chapter, and no that reasonable jury could find
otherwise. Raffe has not raised a genuine issue of material fact sufficient to
overcome Defendants’ summary judgment motion. Thus, the second element of
the administrative exception has been satisfied as a matter of law.
b. Whether Raffe’s Primary Duties Included
The Exercise Of Discretion And Independent
Judgment With Respect To Matters Of
Significance
“The term ‘matters of significance’ refers to the level of importance or
consequence of the work performed.’” 29 C.F.R. § 54.202(a). Additionally, the
“phrase ‘discretion and independent judgment’ must be applied in the light of all
the facts involved in the particular employment situation in which the question
arises.” Id. § 541.202(b). Factors to consider in making this determination
include, but are not limited to: whether the employee has
authority to formulate, affect, interpret, or implement
management policies or operating practices; whether the
employee carries out major assignments in conducting the
operations of the business; whether the employee performs
work that affects business operations to a substantial
degree, even if the employee’s assignments are related to
operation of a particular segment of the business; whether
the employee has authority to commit the employer in
matters that have significant financial impact; whether the
employee has authority to waive or deviate from
established policies and procedures without prior approval;
whether the employee has authority to negotiate and bind
the company on significant matters; whether the employee
provides consultation or expert advice to management;
whether the employee is involved in planning long- or
short-term business objectives; whether the employee
investigates and resolves matters of significance on behalf
of management; and whether the employee represents the
23

company in handling complaints, arbitrating disputes or
resolving grievances.
Id. “Federal courts generally find that employees who meet at least two or three of
these factors are exercising discretion and independent judgment . . . .” 69 Fed.
Reg. 22122, 22143 (Apr. 23, 2004).
Raffe admits to having significant budgetary and fiscal responsibilities,
including reallocation of emergency services funds, submitting grant applications,
handling procurement, overseeing equipment and inventory, and authorizing
purchases. See Nocera Decl. ¶ 12; Raffe’s 7.1 Statement at 34-35. He also admits
to developing and evaluating the Chapter’s Continuity of Operations Plan. See
Nocera Decl. ¶ 16; Raffe’s 7.1 Statement at 37. Despite these admissions, Raffe
argues that he “used his knowledge, experience and skills to make ‘simple
decision[s]’ when providing services mandated by the Red Cross.” Raffe’s Mem.
of Law at 16. He “contends that he lacked even limited authority” because he
“had to seek the approval of his supervisor, the executive director, before taking
most actions.” Id. For example, before entering into relationships with vendors,
Raffe consulted with the Chapter’s Board of Directors. See Raffe Aff. ¶ 169.
When revising and formulating the Chapter’s disaster response policies, Raffe was
a part of a three-person team. See id. ¶ 125. Before issuing public announcements
or speaking to the media, he had to seek clearance from the Chapter’s Executive
Director or Human Resources Director. See id. ¶ 166. Raffe also consulted with
senior staff before committing volunteers to raise community awareness or to
recruit other volunteers, and Raffe consulted with senior staff before deciding
where to deliver presentations, before coordinating and overseeing events, and
before paying for and marketing the events. See id. ¶ 186.

24

The fact that Raffe did not have sole or final authority to make decisions
does not disqualify him from satisfying the conditions necessary for the
administrative exemption. Under the regulations,
‘discretion and independent judgment’ does not require
that the decisions made by an employee have a finality that
goes with unlimited authority and a complete absence of
review. The decisions made as a result of the exercise of
discretion and independent judgment may consist of
recommendations for action rather than the actual taking of
action. The fact that an employee’s decision may be
subject to review and that upon occasion the decisions are
revised or reversed after review does not mean that the
employee is not exercising discretion and independent
judgment.
29 C.F.R. § 541.202(c).
Accordingly, Defendants have met their burden of showing that Raffe’s
primary duties included the exercise of discretion and independent judgment with
respect to matters of significance and that no reasonable jury could find otherwise.
Raffe has failed to raise a genuine issue of material fact sufficient to defeat
summary judgment as to this third and final condition of the of the administrative
exemption to FLSA’s overtime requirement. As such, Defendants’ motion for
summary judgment as to Raffe’s claim for overtime pay pursuant to the Federal
Labor Standards Act is granted, and this claim is dismissed.
IV. Conclusion
In accordance with the foregoing discussion, it is hereby ORDERED that
the motion for summary judgment by defendants, American National Red Cross,
American Red Cross of Tompkins County, and Jennifer Yarbrough against
plaintiff, Michael J. Raffe, see Dkt. No. 38, is GRANTED in part and DENIED in

25

part as follows: The motion is GRANTED as to plaintiff’s claim of age
discrimination under New York Human Rights Law § 296; plaintiff’s claim for
“benefits or wage supplements” under New York Labor Law § 198-c; and
plaintiff’s claim for overtime pay under the Federal Labor Standards Act; and the
motion is DENIED as to plaintiff’s claims arising under New York Labor Law §§
191 and 195. Accordingly, it is
ORDERED that plaintiff’s claims under New York Human Rights Law §
296, New York Labor Law § 198-c, and the Federal Labor Standards Act are
DISMISSED; and that plaintiff’s claims arising under New York Labor Law §§
191 and 195 remain to be resolved at trial.
The Clerk of the Court is directed to terminate Lauren Signer as a plaintiff
in this action.

IT IS SO ORDERED.

DATED:

November 30, 2011
Syracuse, New York

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