Brown v. New York City Department of Education
Filing
42
OPINION AND ORDER: The Court finds that Plaintiff is a volunteer, not an employee, as defined by the FLSA. Accordingly, it grants Defendant's summary judgment motion on Plaintiffs FLSA claim, denies Plaintiffs request for declaratory relief purs uant to 28 U.S.C. § § 2201-02, and damages under 29 U.S.C. § § 206(a), 207(a), and does not reach the question of a willful violation under 29 U.S.C. §216(b). In view or the Court's dismissal of Plaintiffs FLSA claim, the Court declines to assert pendent jurisdiction over the New York Labor Law claim pursuant to N.Y. Lab. L. §§ 652 et seq. Those allegations may be presented to a New York State Supreme Court. The Court GRANTS Defendant's motion for summary judgment. The Clerk of Court is directed to enter judgment accordingly. (Signed by Judge Paul A. Crotty on 12/12/2012) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JAYQUAN BROWN,
:
:
Plaintiff,
:
:
- against :
:
NEW YORK CITY DEPARTMENT
OF EDUCATION; AND JOSHUA LAUB,
:
:
Defendant.
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: December 12, 2012_
12 Civ. 0035 (PAC)
OPINION & ORDER
:
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HONORABLE PAUL A. CROTTY, United States District Judge:
Plaintiff Jayquan Brown (“Brown” or “Plaintiff”) performed services at Banana Kelly
High School (“Banana Kelly”) from October 2007 through December 23, 2010. He claims that
the Department of Education (“DOE”), which manages Banana Kelly, failed to pay him
minimum wage and overtime in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et
seq.; and claims that Banana Kelly Principal Joshua Laub, in his personal capacity, is liable
under the New York Labor Law, N.Y. Lab. Law §§ 650 et seq. The parties cross-move for
summary judgment. For the reasons discussed below, the Court denies Plaintiff’s motion for
summary judgment, grants Defendant summary judgment on the FLSA claim, and declines to
exercise supplemental jurisdiction over Plaintiff’s remaining New York Labor Law claim.
BACKGROUND
Banana Kelly is a New York City public high school in managed by DOE. (DOE 56.1 ¶
2.) At all times relevant to this action, Joshua Laub served as Principal of Banana Kelly; Dean
Daniel Jerome was the Director of Student Life. (Id. ¶¶ 4, 9.) In January 2006, Brown graduated
1
from the New School for Arts and Sciences, a high school that shared space with Banana Kelly.
(Id. ¶ 21.) After graduation, Brown maintained ties with Banana Kelly and occasionally came in
to visit former teachers. (Id. ¶ 23.) In October 2007, when Plaintiff expressed an interest in
mentoring students, Jerome offered Plaintiff the opportunity to do so at Banana Kelly. (Id. ¶¶
24-26.) Neither Brown nor Jerome raised the issue of compensation at this time, and neither
discussed Brown’s employee status. (Id. ¶¶ 32, 34.) No one interviewed Brown about his
background or qualifications. (Id. ¶ 30.) Laub described the position as a “volunteer internship,”
which Plaintiff accepted. (Brown 56.1 ¶ 15.)
Thereafter, Brown went to Banana Kelly and continued at the school for more than three
years, finally leaving in December 23, 2010. (DOE 56.1 ¶ 2.) During his time at the school,
with minor exceptions, Plaintiff reported five days a week throughout the academic year.
(Brown 56.1 ¶ 85.) He started at approximately 9:30 A.M. and stayed late to help, leaving
anywhere between 4:00 P.M. to 6:00 P.M., and occasionally later. (Welikson Dec. Ex. C Brown
Dep. 147:20 to 148:17, 152:12-22.)1
Beginning in January 2010, Plaintiff assisted with a
Saturday program at Banana Kelly that was designed to help students prepare for exams and
classes. (Brown 56.1 ¶¶ 80, 86.) At these Saturday sessions, Plaintiff organized student arrivals,
took attendance, performed office tasks and ensured that students reported to their assigned
teacher. (Id.) Brown provided services during the 2009 summer session as well. (Id. ¶ 88.)
Brown can point to no evidence that he ever submitted to the normal, legal requirements
for employment by the Department of Education: application, interview, background check, job
classification, and assignment. Instead, Plaintiff argues that he was an employee at Banana
1
In 2009, Plaintiff maintained shorter hours, and left Banana Kelly prior to 3PM dismissal to arrive on time to a
security company at which Plaintiff worked the evening shift. (Id. at 156:10-157:13.)
2
Kelly, not a volunteer, because he expected compensation for his services. (Brown 56.1 ¶ 56.)
Plaintiff occasionally asked Jerome and Laub for money and in response, received small amounts
of cash, meals and Metrocards. (Id. ¶¶ 60-62.) Plaintiff’s requests precipitated conversations in
which Plaintiff asked to be put on the payroll and given a paid position. (Id. ¶¶ 55, 63.) Jerome
and Laub responded by encouraging Plaintiff to search for positions outside of Banana Kelly.
(Id. ¶ 55.) Although Laub told Plaintiff that there was not enough money in the budget to pay
him, (id. ¶ 53), according to Plaintiff, Laub promised that he would attempt to search the budget
for the funding. (Okoronkwo Dec. Ex. 13, Brown Dep. at 188:4-20.) Further, Plaintiff argues
that he was led to believe that Banana Kelly would offer him a stipend. In 2010, Laub informed
that I-Team that the administration was applying for a $170,000 grant to support the I-team,
perhaps as a “stipend” for the interns. (Id. ¶¶ 57, 58.) The school never received the funding and
Brown was never placed on the payroll.
Plaintiff believed that while at Banana Kelly, he was a part of its Intervention Team (“ITeam”).
Principal Laub and Dean Jerome tasked the I-team which with student conflict
resolution and enforcement of school rules. (Id. ¶¶ 10-13, 16.)
The Team “intervene[d],
between teachers and kids, having trouble in the classroom, and [tried] to bring them together
and work together in a comfortable environment.” (Id. ¶ 11.) As part of conflict resolution, the
I-team often held mediation sessions. (Id. ¶ 17.) The I-team also greeted students in the
morning, monitored the hallways, supervised students during lunch, escorted students back to
their classrooms, and supervised dismissal. (Id. ¶ 15.) Plaintiff contends that he was presented
to students, parents and teachers as an I-team “staff member.” (Brown 56.1 ¶ 21.) He performed
the same tasks, including monitoring students during lunch and dismissal, (DOE 56.1 ¶ 38),
escorting disruptive students from their classrooms to Jerome’s office (id. ¶ 39), conducting
3
mediations (id. ¶ 40) and breaking up verbal and physical fights between students (id.).
Significantly, however, while the rest of the members of the I-team were paid, Plaintiff was not.
(Id. ¶ 33.)
Despite their conversations, Jerome did not offer Plaintiff mentoring opportunities when
Brown first started. (Brown 56.1 ¶ 52.) Plaintiff performed administrative tasks for the school,
including answering phones in Jerome’s office, printing out students’ schedules, distributing
progress reports and report cards, and determining students’ emergency contact information.
(DOE 56.1 ¶ 41.)
Brown also assisted with lunch detention, lunch duty, dismissals and
monitoring hallways. (Id. ¶¶ 38-39; Brown 56.1 ¶ 26.) Brown provided classroom coverage for
teachers (Brown 56.1 ¶ 28) and performed miscellaneous tasks that included escorting students
from one area of the school to another and unlocking classroom and bathroom doors. (Id. ¶ 46.)
After school, Brown fielded calls from Banana Kelly’s parents and students about disciplinary
problems. (Id. ¶ 76.) Starting in 2010, Brown was allowed to mentor a small group of students.
(Brown 56.1 ¶ 23.) Plaintiff maintains that Defendants used his services to combat staffing
challenges at Banana Kelly. (Brown 56.1 ¶ 5, 9.)
While at Banana Kelly, Plaintiff applied for a variety of positions outside of the school,
including as a school aide, at a school cafeteria, and at Building Educated Leaders for Life, an
afterschool program. (DOE 56.1 ¶ 65, 73, 88.) Plaintiff informed others at Banana Kelly that he
was searching for positions and requested letters of recommendation. (Id. ¶¶ 67, 70.) On
December 23, 2010, Principal Laub met with Brown and explained that Brown could no longer
come to Banana Kelly. (Id. ¶¶ 94-95.) At the time, the Special Commissioner of Investigation
for the New York City School District (“SCI”) was investigating Plaintiff for having made
inappropriate comments made to a freshmen girl, and instructed Laub not to allow Plaintiff back
4
to Banana Kelly. (Id. ¶¶ 95-97.) Plaintiff left and terminated his association with Banana
Kelly.2
DISCUSSION
A.
SUMMARY JUDGMENT
Summary judgment may be granted where “there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact
is material if it “might affect the outcome of the suit under governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial burden of producing
evidence on each material element of its claim or defense demonstrating that it is entitled to
relief. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “In moving for summary
judgment against a party who will bear the ultimate burden of proof at trial, the movant’s burden
will be satisfied if he can point to an absence of evidence to support an essential element of the
nonmoving party’s claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18
(2d Cir. 1995).
B.
DOE’s LIABILITY UNDER FLSA
The FLSA is a remedial act; and its exemptions must be narrowly construed against the
employer seeking to assert them. Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 123
(2d Cir. 2004) (citing Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960)). An employer
carries the burden of proving that an employee falls within an exemption. Id. (citing Corning
Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974)). Whether an individual is a volunteer, as
opposed to an employee, is a question of law for the court to decide. Purdham v. Fairfax County
2
Plaintiff alleges that Laub had spoken with Brown earlier in November 2010 about leaving the school, but called
Brown to return to the school, which Brown did until December 23, 2010. (Brown 56.1 Counterstatement ¶ 95.)
This dispute is not relevant to the FLSA case.
5
School Board, 637 F.3d 421, 428 (4th Cir. 2011); Cleveland v. City of Elmendorf Texas, 388
F.3d 522, 526 (5th Cir. 2004); Todaro, 40 F. Supp. 226, 228 (D.N.J. 1999).3
In 1985, Congress amended the FLSA to exclude “volunteers” from its definition of
“employee.” Congress’ intent was “to make clear that persons performing volunteer services for
state and local governments should not be regarded as ‘employees’ under the statute.” S. Rep.
No. 99-159, at 14 (1985). This volunteer exemption is contained in 29 U.S.C. § 203(e)(4)(A),
which provides:
The term ‘employee’ does not include any individual who volunteers to perform services
for a public agency which is a State, a political subdivision of a State, or an interstate
governmental agency, if (i) the individual receives no compensation or is paid expenses,
reasonable benefits, or a nominal fee to perform the services for which the individual
volunteered; and (ii) such services are not the same type of services which the individual
is employed to perform for such public agency.
The FLSA does not define “volunteer.”
Instead, in 1987, the Department of Labor
defined “volunteer,” and articulated two requirements: first the individual must perform hours
for “civic, charitable, or humanitarian reasons” and second, the individual must do so “without
promise, expectation or receipt of compensation for services rendered.” 29 C.F.R. § 553.101(a).
This regulation should be interpreted in light of the Supreme Court’s definition of “volunteer” as
one who, “‘without promise or expectation of compensation, but solely for his personal purpose
or pleasure, worked in activities carried on by other persons either for their pleasure or for
profit.’” Tony & Susan Alamo Foundation, 471 U.S. 290, 295 (1985) (quoting Walling v.
3
The Second Circuit has not yet analyzed the FLSA’s volunteer exemption under 29 U.S.C. § 203(e)(4)(A), nor
applied the Administrator’s definition of “volunteer” in 29 C.F.R. § 553.101(a), see infra. But both parties apply the
regulation’s criteria, and we find that courts in other circuits that have addressed the volunteer exemption provide
useful guidance.
6
Portland Terminal Co., 330 U.S. 148, 153 (1947)).4 Some examples of activities that would fall
within the exemption include helping at a sheltered workshop, hospital, nursing home, school
library or cafeteria, or participating in “charitable or educational programs.”
553.104(b).
29 C.F.R.
While Brown makes much of his different assignments at Banana Kelly, his
changing responsibilities, and whether his work is mentoring or non-mentoring, these
distinctions are irrelevant under the statutory and regulatory scheme. “There are no limitations
or restrictions imposed by the FLSA on the types of services which private individuals may
volunteer to perform for public agencies.” 29 C.F.R. 553.104(a). Further, the fact that Brown
performed so many different types of tasks suggests that he was a volunteer. If Brown held a
position as an employee, his tasks would be limited to those in his job classification.
Whether one is a volunteer is to be determined “in a common-sense manner, which takes
into account the totality of the circumstances surrounding the relationship between the individual
providing services and the entity for which the services are provided.” Purdham, 637 F.3d at
428; City of Elmendorf, 388 F.3d at 528; Todaro, 40 F. Supp. 2d at 230. Accordingly, courts
should review “the objective facts surrounding the services performed to determine whether the
totality of the circumstances establish volunteer status, or whether, instead, the facts and
circumstances, objectively viewed, are rationally indicative of employee status.” Purdham, 637
F.3d at 428.
The Court first considers whether Brown performed the tasks at Banana Kelly for “civic,
charitable, or humanitarian reasons,” pursuant to 553.101(a). One is a volunteer, if motivated by
an altruistic sense of civic duty, see Krause, 969 F. Supp. at 276, as opposed to the expectation of
4
The major difference is that the Court would still consider an individual as a volunteer even if he does so for his
own “personal purposes” while under the regulation, this motivation would remove an individual from volunteer
status.
7
compensation, see Rodriguez, 866 F. Supp. at 1019. When the situation is one of mixed motives,
“the regulatory definition does not require that the individual be exclusively, or even
predominantly, motivated by ‘civic, charitable or humanitarian reasons. Rather, what is required
is that the individual must be motivated by civic, charitable or humanitarian reasons, at least in
part.” Purdham, 637 F.3d at 429 (citing Todaro, 40 F. Supp. at 230); see also Benshoff v. City of
Virginia Beach, 9 F. Supp. 2d 610, 623 (E.D. Va. 1998) (finding that firefighters were volunteers
when motivated primarily, but not exclusively, by civic, charitable and humanitarian concerns).
Here, Brown accepted Jerome’s offer to mentor, in part, because he wanted “[s]omeone . . . to
stand up, and make a change, and show the kids that we do care.” (Welikson Dec. Ex. C, Brown
Dep. at 35:21-22.) He felt that the school needed the change because in his experience as a
student, “nobody cared” (id. 35:14-17). This motivation remained unchanged as Brown started
performing non-mentorship tasks. Brown testified that he helped with lunch duty, dismissals and
escorting students despite his displeasure with being asked because he wanted to be a “team
player” and that he “want[ed] to help and [he] care[d].” (38:14-39:5.) He felt obligated because
he did not want to “let[ ] the school down.” (id. at 150:20-22.) These statements show a
continued civic and charitable intent to improve the environment at Banana Kelly. At the same
time, Brown testified that he worked because he believed (“hoped”) that money was
forthcoming.
(Okoronkwo Dec. Ex. 13 Brown Dep. 231:18-19).
Accepting Brown’s
acknowledgements, the Court turns to whether, in this mixed motive case, Brown acted at least
in part, by the proper humanitarian concerns. See Purdham, 637 F.3d at 429. Plaintiff’s
testimony shows that his actions at Banana Kelly, had their source, at least in part, in his concern
for what would become of students if he did not show up, and was thus properly motivated.5
5
Brown’s other motivations for mentoring included building his resume (Okoronkwo Dec. Ex. 13, Brown Dep.
8
The Court turns to whether there was a “promise, expectation or receipt of compensation
for services rendered.” 29 C.F.R. § 553.101(a). First, Plaintiff was not “compensated” for his
services. The small sums of money that Principal Laub and Dean Jerome gave to Plaintiff outof-pocket,6 along with occasional meals and Metrocards, did not constitute such “compensation.”
Volunteers may receive “expenses, reasonable benefits, [or] a nominal fee” from the public
agency for which they work without losing their status as bona fide volunteers. 29 C.F.R. §
553.106(a).
Reasonable “expenses” include reimbursement for the cost of meals and
transportation expenses . . . .”
29 C.F.R. § 553.106(b).
The Metrocards and occasional
breakfasts or lunches that Jerome received are exactly the type of “expenses” provided in the
regulation.
Circumstances do not suggest that the money was offered as an under-the-table
inducement to coerce or compel Brown to work for the purpose of avoiding minimum wage
33:13-23), and learning mentorship skills from Mr. Jerome (id. 44:18-25-45:7). These motivations, entirely
understandable, are not fatal to a determination that Brown is a volunteer, rather than an employee. The Supreme
Court has included within its definition of volunteer those who perform hours solely for one’s own “personal
purpose.” Tony & Susan Alamo Foundation, 471 U.S. 290, 295 (1985). This definition has been interpreted to
include volunteering to “acquire employment contracts, gain experience, or obtain school credit.” Todaro, 40 F.
Supp. 2d at 230.
6
Principal Laub admitted that over the course of years in which Brown worked at Banana Kelly, he gave Brown
amounts between $25 and $40 out of his pocket around three or four times “in appreciation of his work.”
(Okoronkwo Dec. Ex. 4 Laub Dep. at 184:7-19; 185:10-12.) Similarly, Dean Jerome typically gave Brown metro
cards or some cash in response to Brown’s requests for money to cover transportation and meals. (Okoronkwo Dec.
Ex. 5, Jerome Dep. 39:11-21.) Brown asserts that in either 2009 or 2010 Mr. Jerome gave him $60 every week,
between ten and twenty times, and told him each time to “keep up the hard work” and “see you Saturday.”
(Okoronkwo Dec. Ex. 13 Brown Dep. 236:7-13, 18-22, 237:17-238:7.) Mr. Jerome testified that he did not recall
regularly paying Brown, (Okoronkwo Dec. Ex. 5, Jerome Dep. at 42:15-21), but for the purposes of analyzing
Defendant’s motion for summary judgment, we will consider Plaintiff’s version of the facts as accurate. There is no
evidence that the Department of Education ever advanced any money to Brown.
9
laws.7 There was no evidence that the money was connected to or varied based on a particular
number of hours worked. Jerome’s comments to “keep up the hard work” and “[s]ee you
Saturday” are not to the contrary. (Okoronkwo Dec. Ex. 13 Brown Dep. At 236:18-22.) The
petty cash—amounts between $20 and $60—did not “compensate” Brown for his services.
Volunteers may receive a nominal fee that “is not a substitute for compensation and must not be
tied to productivity.” 29 C.F.R. § 553.106(e); Purdham, 637 F.3d at 434 (finding that a School
Board’s stipend was a “nominal fee” that did not constitute “compensation” for an unpaid
coach’s services). The U.S. Department of Labor Wage and Hour Division has found that a fee
is nominal, and not considered compensation, if it does not exceed 20 percent of the market
amount paid to a full-time employee. WH Admin. Op. FLSA2005-51 (Nov. 10, 2005). The cash
that Plaintiff received at most totaled $1,200. That is less than “nominal”; it is a mere trifle
compared to a full-time salary.
The amount that Brown was paid cannot reasonably be
understood as compensation. See 29 C.F.R. § 553.106(f) (“Whether the furnishing . . . benefits,
or fees would result in individuals losing their status as volunteers under the FLSA can only be
determined by examining the total amount of payments made . . . in the context of the economic
realities of the particular situation.”). In fact, Brown admits that he did not know why Jerome or
Laub paid him; but did not believe that it was in exchange for his services. (Okoronkwo Dec.
Ex. 13 Brown Dep. at 197:9-10, 198:7-199:2, 238:10-24.) Jerome testified that Brown’s requests
for money were out of pocket expenses for food and transportation (Okoronkwo Dec. Ex. 5
Jerome Dep. 39:11-21), not as compensation. Laub explained that he gave Plaintiff money in
appreciation of his work and efforts (Okoronkwo Dec. Ex. 4 Laub Dep. 184:10-12, 185:12-21).
7
The regulation provides: “Individuals shall be considered volunteers only where their services are offered freely
and without coercion, direct or implied, from an employer.” 29 C.F.R. § 553.101(c). There is no evidence that
Brown was coerced or compelled in any way to work at Banana Kelly.
10
Plaintiff continued at Banana Kelly even at times when he undisputedly did not receive money
from either Laub or Jerome, which covered most of his tenure there.
Brown cannot point to any evidence that he was “promised” compensation. See 29
C.F.R. § 553.101(a). Brown admits that while he asked Mr. Jerome several times whether he
would get paid (id. at 188:22-25), no one ever told him, either at the time he started (Welikson
Dec. Ex. C, Brown Dep. at 44:4-6) or at any time thereafter (Okoronkwo Dec. Ex. 13, Brown
Dep. at 189:2-9), that he would actually receive compensation. He was never told that he would
be an employee at Banana Kelly. (Id. at 43:24-44:1.) Brown points to Mr. Laub’s statement that
he would search the school budget for money to pay him. (Okoronkwo Dec. Ex. 13, Brown Dep.
at 188:4-20.)8 But a promise to look for money is not a promise of compensation. Further, the
clear implication of needing to “search the budget” is that money is not available for Brown’s
employment. Plaintiff’s expectation that the search for money to fund his activities would be
fruitful became more remote and less reasonable with each month that passed without news from
Mr. Laub. See Todaro, 40 F. Supp. 2d at 232 (D.N.J. 1999) (holding that the township’s
“occasional statements” that they would “look into matters” or comments that “we have to do
something about this” did not substantiate any expectation of progress when the officers were
faced with objective indicia to the contrary).
Finally, Brown did not have a reasonable expectation of compensation. See 29 C.F.R. §
553.101(a).
Expectation cannot be entirely subjective—otherwise, volunteers could wish
themselves into a paying job. Further, the regulatory definition that volunteers are not motivated
by an “expectation of . . . compensation” incorporates a standard of reasonableness. Todaro, 40
8
Plaintiff’s opposition papers argue that Laub repeatedly promised Plaintiff that he would search the budget, but
Plaintiff’s own deposition testimony does not support the notion that Laub said this more than once.
11
F. Supp. 2d at 231. One who performs in the face of a stated policy that he will not be paid
should not be able to convert one’s own status by “unreasonably insisting that he has a subjective
expectation of receiving wages. . . .” Id. at 230-31; see Purdham, 637 F.3d at 429 (endorsing a
totality-of-the-circumstances approach as supported by objective facts to determine volunteer
status); Cleveland v. City of Elmendorf, 388 F.3d at 528 (same). Here, the evidentiary record
cannot support a reasonable expectation of compensation. Brown could not recall whether he
expected payment for his services. (Welikson Dec. Ex. C, Brown Dep. at 39:16-21; 43:9-13.)
Nor did he ask when he first accepted the offer to start.
(Id. at 39:22-25; 43:14-15.)
Nonetheless, Brown believed that he would get paid based on his “hard work . . . dedication and
commitment . . . .” (Okoronkwo Dec. Ex. 13, Brown Dep. at 189:10-14.) Volunteers can work
hard as well, so the fact of Plaintiff’s “hard work,” by itself, does not provide a reasonable basis
to support an expectation of compensation. Many bona fide volunteers work hard and commit
themselves to agencies in need, and doing so is fully consistent with the spirit of volunteerism.
Brown also argues that he worked at Banana Kelly in anticipation of being promoted to a
paid position. It is not at all clear that the expectation of gaining future employment after a
period of service qualifies as “expectation of . . . [current] compensation” under the
Administrator’s regulation.9 The Court need not resolve this issue because, in the circumstances
here, Plaintiff’s expectation in a paid position was unreasonable as a matter of law. When
9
In its commentary to implementing the FLSA’s volunteer exemption, the Department of Labor agreed, in principle
“that the possibility of future employment does not in itself affect the status of otherwise bona fide volunteers.” It
also noted, however, that where “the volunteers expect or anticipate future employment after a period of ‘volunteer’
service, such conditions raise a question as to whether such individuals are bona fide volunteers . . . .” 52 Fed. Reg.
2012 (Section 553.104 Private individuals who volunteer services to public agencies). A court in the Southern
District of Texas found that a patrol officer who performed unpaid hours pursuant to an explicit agreement allowing
him to maintain concurrent paid employment as a road-construction flagmen received “compensation” for his officer
duties, but that has little bearing on whether the possibility of future employment similarly qualifies as
compensation. Rodriguez, 866 F. Supp. at 1018.
12
Brown asked about paid positions at Banana Kelly, Laub told him there was not a paid position
for him at the school (Okoronkwo Dec. Ex. 4 Laub Dep. at 141:18-19, 142:9-11), that Laub’s
staffing practice was to hire college graduates or attendees, which Brown was not (id. at 141:22142:2), encouraged Brown to apply for positions outside of Banana Kelly, (id. at 185:8-14;
21:24), and brought postings for available school aid positions at other schools to Brown’s
attention (id. at 76:3-8). On one occasion, Laub wrote Brown a letter of recommendation for a
school aide position at Lehman. (id. at 169:4-18.) Jerome similarly conveyed, on multiple
occassions, that there were no openings at the school (Welikson Dec. Ex. E, Jerome Dep. at
61:8-62:3). Jerome also encouraged Brown to apply for school aide positions at other schools.
(id. at 55:18-56:19.) Although Laub had discussed with Jerome the possibility of hiring Brown
for a part-time, paid position a few times in 2010 (Okoronkwo Dec. Ex. 4 Laub Dep. 1539:154:1), there is no evidence that these comments were shared with Brown; or led him to believe
he would get hired. Further, Jerome testified that when he became concerned that Brown spent
too many hours at Banana Kelly, he told Brown to reduce his hours so that he could secure
employment elsewhere. (Welikson Dec. Ex. E, Jerome Dep. at 62:22-63:14.) These statements
quash any claim of a reasonable expectation of a paid position.
Plaintiff also asserts that he expected compensation in the form of a stipend from an
anticipated grant to the Intervention team, of which he was a member. This claim must be
rejected because the grant never materialized. And even if it did, it would not change the result.
Volunteers may be given stipends that (1) are not a substitute for compensation, (2) are not tied
to productivity and (3) are nominal10 in the context of the economic realities of the particular
10
As previously indicated, payments which do not exceed 20% of the market amount are considered to be nominal.
Brown was paid less than $1500 over a three year period. This is surely nominal.
13
situation. See Purdham, 637 F.3d 421, 434 (4th Cir. 2011). Therefore the fact that an individual
may be motivated by the receipt of such a permissible benefit does not alter their status from a
volunteer to an employee. See id.; Todaro, 40 F. Supp. 2d at 232. Jerome admits that he openly
discussed the goal of the grant application: to raise money for the Intervention team. (id. at 90:815.) And if the grant were received, which it was not, Jerome said he might use the grant to
“have a robust internship program in which we could really support the interns, and maybe a
stipend . . . .” (id. at 92:11-20.) This is speculation about an event which never occurred; it is
not the basis for an expectation of compensation. There is no evidence that anyone told Brown
about the amount of the “stipend,” which would have been nominal to offset Plaintiff’s expenses.
There is no evidence that Brown was told that the stipend would be contingent on his
performance or a certain number of hours worked. While there was talk of a grant application, it
never materialized and all or any predictions for its probable uses–and some of the uses which
did not include a stipend for Brown— is too remote and extremely speculative to constitute a
basis for FLSA relief.
This case presents a scenario in which Plaintiff knew or reasonably should have known,
that he would not be compensated for his services. He continued to work in the apparent hope
that perhaps a paid position might become available.
Cf. Todaro, 40 F. Supp. 2d 226, 232
(finding that unpaid officers were volunteers despite their genuine, but unsubstantiated belief and
hope that performing unpaid hours would contribute to restoring their eligibility for benefits).
There is ample evidence that Brown knew and understood, despite his hopes to the contrary, that
he would not be compensated. Brown admitted that he understood that he would not get paid for
mentoring. (Welikson Dec. Ex. C, Brown Dep. 174:12-15.) No one led Plaintiff to believe that
he would get paid for non-mentoring tasks. Laub testified that he had conversations with
14
Plaintiff in which he relayed to Brown that he was volunteer and intern. (Okoronkwo Dec. Ex.
4, Laub Dep. at 139:3-12, 141:6-8, 142:15-17.)
Banana Kelly gave him certificates of
appreciation that acknowledged his services as an intern and volunteer (Okoronkwo Dec. Ex. 4
Laub Dep. 165:22-166-7), which Brown accepted without objection (Okoronkwo Dec. Ex. 13
Brown Dep. 194:8-9). While labels used by the parties do not control the outcome (P. Opp. at
11), the parties’ understanding of their arrangement is a relevant factor in the totality-ofcircumstances analysis. See Rodriguez v. Township, 866 F. Supp. 1012, 1020 (S.D. Tex. 1994)
(declining to hold that the plaintiff was a volunteer in part because both parties understood their
relationship as an employment, rather than volunteer, relationship).
Plaintiff argues that the primary consideration in distinguishing an employee from a
volunteer is the identity of the primary recipient of benefits from the relationship, and contends
that the Department of Education derived an immediate, and greater benefit from Brown’s tenure
at the school than did Brown. (P. Opp. at 11, 13.) This argument is based on the Department of
Labor Wage and Hour Division’s Fact Sheet #71, which enumerates six criteria for determining
whether an internship or training program qualifies as FLSA-exempt. By its own terms, it
applies only to services provided to “‘for-profit’ private sector employers,” and not to public
agencies, which are instead governed by 29 U.S.C. § 203(e)(4)(A)’s volunteer exemption.11
Plaintiff’s analogy to Archie v. Grant Cent. P’ship, 997 F. Supp. 504, 531 (S.D.N.Y. 1998) fails
11
The Department of Labor’s commentary on the matter is helpful. The Department affirmatively elected not to
include language in its definition of volunteer that would have taken into account whether the individual, as opposed
to the agency, accrued the “primary benefit” and additionally whether such services would have displaced paid
work. 52 Fed. Reg. 2012, § 553.101. The Department noted that this would not have been consistent with the
“legislative history and Congressional intent of the 1985 Amendments which sought to recognize existing,
historical, and legitimate practices affecting persons who volunteer their services to State and local government
agencies.” For example, volunteer firefighters have historically been considered volunteers, despite the fact that
their services primarily benefit the public agencies for whom they work. Id.
15
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