Landaeta et al v. New York and Presbyterian Hospital, Inc.
OPINION AND ORDER re: 33 MOTION for Summary Judgment filed by New York and Presbyterian Hospital, Inc. For the reasons stated above, Defendant's motion for summary judgment is GRANTED in part and DENIED in part. Specifically, Plaintiffs' ; retaliation claims are dismissed, but Plaintiffs' unpaid wage and overtime claims survive. The parties are reminded that their Joint Pretrial Order and all related filings required by the Court's Individual Rules and Practices for Civil C ases must be submitted within thirty days. (Docket No. 13). The parties should be prepared to go to trial approximately two weeks thereafter. The parties shall immediately advise the Court by joint letter if they are interested in a referral to the assigned Magistrate Judge for purposes of settlement. The Clerk of the Court is directed to terminate Docket No. 33. (Signed by Judge Jesse M. Furman on 3/4/2014) (mro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JANET LANDAETA, et al.,
NEW YORK AND PRESBYTERIAN HOSPITAL, INC., :
12 Civ. 4462 (JMF)
OPINION AND ORDER
JESSE M. FURMAN, United States District Judge:
Maria Eduarda Rocha-Waid, Ruth Washington-Cohen, and Janet Landaeta (collectively,
“Plaintiffs”) bring suit against New York and Presbyterian Hospital, Inc. (“Defendant” or the
“Hospital”) under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. and the New
York State Labor Law (“NYLL”), N.Y. Lab. Law §§ 650 et seq., alleging unpaid wages, unpaid
overtime hours, and unlawful retaliation. (Am. Compl. (Docket No. 15)). Defendant now moves
for summary judgment on all claims pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Docket No. 33). For the reasons explained below, Defendant’s motion for summary judgment
is GRANTED in part and DENIED in part.
The following facts, taken from the admissible materials submitted by the parties, are
viewed in the light most favorable to Plaintiffs, as they are the non-moving parties. See, e.g.,
Gould v. Winstar Commc’ns, Inc., 692 F.3d 148, 157-58 (2d Cir. 2012).
The Hospital provides medical services at facilities in Manhattan and Westchester.
(Affidavit of Evelyn Ramos (“Ramos Affidavit”) (Docket No. 35) ¶ 3). It is comprised of five
campuses: the Weill Cornell Medical Center, the Columbia University Medical Center, the
Morgan Stanley Children’s Hospital, the “Westchester campus,” and the Allen Hospital. (Id. ¶
3). The Hospital is required by law to provide interpretation services to its non-English speaking
patients. (Affidavit in Support of Motion for Summary Judgment (“Kelly Affidavit”) (Docket
No. 36), Attachments 11-12 (“Ramos Dep.”) 22:21-23:8).
Until early 2012, the Hospital employed three types of interpreters: on-site “agency”
interpreters, on-site “freelance” interpreters, 1 and telephonic interpreters. (Ramos Affidavit ¶ 4).
Agency interpreters performed interpretations at the Hospital, but worked for independent
agencies with whom the Hospital contracted. (Id. ¶ 5). Freelance interpreters were similar to
agency interpreters in that they performed in-person interpretations, but they worked directly for
the Hospital. (Id.). Telephonic interpreters, as the name suggests, provided interpretation
services over the telephone. (Id. ¶ 4).
Plaintiffs were freelance interpreters. Plaintiff Rocha-Waid, who speaks English, French,
Spanish, and Brazilian Portuguese, initially worked for a translation agency that contracted with
the Hospital, CP Language, Inc. (“CP”), but then, in either 2004 or 2005, began working directly
for the Hospital (Kelly Affidavit, Ex. A, at 1; Kelly Affidavit, Attachment 4 (“Rocha-Waid
Dep.”) 18:14-19:4; Declaration of Maria Eduarda Rocha-Waid (“Rocha-Waid Decl.”) (Docket
No. 44) ¶ 2). Plaintiff Washington-Cohen, who speaks English, French, Spanish, and Portuguese
as well, also began working at the Hospital through CP, and became a freelance interpreter in
2002. (Kelly Affidavit, Ex. B, at 1; Kelly Affidavit, Attachments 5-6 (“Washington-Cohen
Dep.”) 18:9-13; Declaration of Ruth Washington-Cohen (“Washington-Cohen Decl.”) (Docket
Plaintiffs refer to this type of interpreters as “in-house,” (see, e.g., Pls.’ Mem. 1), while
Defendant calls them “freelance” interpreters. (Mem. Law Supp. Mot. Summ. J. (Docket No.
37) 1). The Court adopts Defendant’s preferred term for purposes of this motion.
No. 43) ¶ 2). Plaintiff Landaeta began working at the Hospital as an intern in the financial office,
but accepted a position as a freelance Spanish interpreter in 2005. (Kelly Affidavit, Attachments
7-8 (“Landaeta Dep.”) 54:12-55:7; Declaration of Janet Landaeta (“Landaeta Decl.”) (Docket No.
42) ¶¶ 2-3). Around that same time, Landaeta also began work as an administrator in the
Hospital’s Interpreter Services Office (the “ISO”) under Ariel Lenarduzzi, the Hospital’s
Manager of Interpreter Services. (Landaeta Dep. 54:16-23; Landaeta Decl. ¶ 3). From January
2006 to January 2012, Landaeta spent approximately two-thirds of her time interpreting
(typically from 9:00 a.m. to 3:00 p.m.) and one-third of her time performing administrative tasks
in the ISO (typically from 3:00 p.m. to 6:30 or 7:00 p.m.). (Landaeta Decl. ¶ 10).
The nature of Plaintiffs’ interpretation work is a matter of some dispute, but, at a basic
level, it involved performing a number of pre-scheduled interpretations at the Hospital each day.
Typically, a provider (such as a physician or nurse) would request an interpreter the day before
an appointment by contacting the ISO, and the ISO would contact an interpreter that it deemed
appropriate for the assignment. (Ramos Affidavit ¶ 5). When the ISO determined the job was
appropriate for a freelance interpreter, it would contact that freelance interpreter the evening
before the assignment. (Id.). Through this process, a freelance interpreter would procure one or
more assignments for a given day and would proceed from assignment to assignment in the
Hospital. (Id.; Washington-Cohen Dep. 35:22-36:7). Before the first assignment, the interpreter
would report to the ISO, and the interpreter would return to the ISO at the end of the day.
(Washington-Cohen Dep. 36:17-24, 40:12-14; Landaeta Decl. ¶¶ 9, 15; Rocha-Waid Decl. ¶¶ 9,
11). Plaintiffs would also return to the ISO when they had gaps between assignments, although
whether they were required to do so or simply did so by choice is in dispute. (Pls.’ Opp’n to
Def.’s Statement of Uncontested Facts (Docket No. 48) ¶ 55). Plaintiffs were compensated
based on the number of hours they spent interpreting, multiplied by the applicable hourly rate.
(Ramos Affidavit ¶ 9).
In March 2012, the Hospital ended its use of freelance interpreters. (Ramos Dep. 96:2197:5). The reasons for this decision are also in dispute. According to Plaintiffs, the Hospital
“eliminated the entire in-house medical interpreter program” (i.e., the freelance interpreters) in
response to a complaint lodged by Washington-Cohen that she was misclassified as an
independent contractor. (Pls.’ Mem. Law Opp’n Def.’s M. Summ. J. (“Pls.’ Mem.”) (Docket No.
41) 1). The Hospital, however, argues that its decision to end the use of freelance interpreters
was motivated by a desire to cut costs and was part of a broader, Hospital-wide initiative. (Mem.
Law Supp. Mot. Summ. J. (“Def.’s Mem.”) (Docket No. 37) 8-9, 11). In any case, Plaintiffs all
stopped working at the Hospital just before it formally ended its use of freelance interpreters.
(Rocha-Waid Decl. ¶ 18; Washington-Cohen Decl. ¶ 31; Landaeta Decl. ¶ 31).
Plaintiffs allege that, in the course of their work, they were not compensated for certain
“off-the-clock” work, in violation of the FLSA and NYLL. Specifically, Plaintiffs contend that
they were required to arrive at the ISO ten to fifteen minutes before the start of their first
interpretation assignment each day, and to return to the ISO for ten to thirty minutes after their
final interpretation assignment each day, but were not compensated for this time. (Am. Compl.
¶¶ 16, 36, 41, 60-65; Washington-Cohen Decl. ¶ 11; Rocha-Waid Decl. ¶ 11). They further
allege that they were not paid overtime rates in weeks when they worked more than forty hours
(Am. Compl. ¶¶ 37, 42, 66-71), and were not paid for breaks of twenty minutes or less
(Washington Cohen Decl. ¶ 32; Rocha-Waid Decl. ¶ 19; Landaeta Decl. ¶ 32). Finally,
Plaintiffs contend that the Hospital unlawfully terminated their employment in retaliation for
Washington-Cohen’s exercising rights under the FLSA and NYLL. (Am. Compl. ¶¶ 72-75). 2
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the admissible evidence and the pleadings
demonstrate “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). In ruling on a motion for summary judgment, all
evidence must be viewed “in the light most favorable to the non-moving party,” Overton v. N.Y.
State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and the court must
“resolve all ambiguities and draw all permissible factual inferences in favor of the party against
whom summary judgment is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line,
Inc., 391 F.3d 77, 83 (2d Cir. 2004). A dispute over an issue of material fact qualifies as genuine
if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the initial
burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (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); accord
PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002).
In the Amended Complaint, Plaintiffs make these allegations only with respect to
Plaintiffs Landaeta and Washington-Cohen. (Am. Compl. ¶¶ 73, 75). Like Defendant, the Court
assumes that Plaintiffs intended to bring a retaliation claim on Rocha-Waid’s behalf as well.
(Def.’s Mem. 21). In any case, it makes no difference to the Court’s analysis or conclusion.
As noted, Defendant moves for summary judgment with respect to all of Plaintiffs’
claims. Specifically, Defendant advances three arguments as to why summary judgment is
warranted. First, it contends that Plaintiffs are independent contractors, and therefore not
protected by the FLSA or NYLL. (Def.’s Mem. 11-20). Second, Defendant maintains that
Plaintiffs’ wage claims should be dismissed because any damages are de minimis. (Id. at 20).
Finally, Defendant argues that Plaintiffs have not stated a viable retaliation claim. (Id. at 21-25).
The Court addresses the three arguments in turn.
A. Independent Contractor Versus Employee Status
The FLSA defines employee as “any individual employed by an employer,” 29 U.S.C.
§ 203(e)(1), and, circularly, defines employer as “any person acting directly or indirectly in the
interest of an employer in relation to an employee,” id. § (203)(d); see Magnuson v. Newman, No.
10 Civ. 6211 (JMF), 2013 WL 5380387, at *6 (S.D.N.Y. Sept. 25, 2013). In assessing whether
an individual is an employee under the FLSA, courts consider the following factors:
(1) the degree of control exercised by the employer over the workers, (2) the
workers’ opportunity for profit or loss and their investment in the business, (3) the
degree of skill and independent initiative required to perform the work, (4) the
permanence or duration of the working relationship, and (5) the extent to which
the work is an integral part of the employer’s business.
Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir. 1988); see also Hart v. Rick’s
Cabaret Int’l, Inc., No. 09 Civ. 3043 (PAE), 2013 WL 4822199, at *5 (S.D.N.Y. Sept. 10, 2013).
The overriding consideration under the FLSA is the “economic reality” of the relationship —
that is, whether “the workers depend upon someone else’s business for the opportunity to render
service or are in business for themselves.” Brock, 840 F.2d at 1059.
The NYLL defines “employee” as “any person employed for hire by an employer in any
employment,” N.Y. Lab. Law § 190(2), and an “employer” as “any person, corporation, limited
liability company, or association employing any individual in any occupation, industry, trade,
business, or service,” N.Y. Lab. Law § 190(3). In determining whether a worker is an employee
or independent contractor under the NYLL, courts consider factors similar to those used in the
FLSA inquiry, although with a slightly different emphasis. Specifically, courts consider the
factors outlined in Bynog v. Cipriani Group, Inc., 1 N.Y.3d 193 (2003): “whether the worker (1)
worked at his own convenience, (2) was free to engage in other employment, (3) received fringe
benefits, (4) was on the employer’s payroll and (5) was on a fixed schedule.” Id. at 198; see also
Browning v. Ceva Freight, LLC, 885 F. Supp. 2d 590, 598 (E.D.N.Y. 2012). Unlike the FLSA,
which focuses on the economic reality of the relationship, “the critical inquiry in determining
whether an employment relationship exists [under the New York Labor Law] pertains to the
degree of control exercised by the purported employer over the results produced or the means
used to achieve the results.” Bynog, 1 N.Y.3d at 198. Nevertheless, many courts have
commented upon the similarity of the two tests, and some have even analyzed the two together.
See, e.g., Sellers v. Royal Bank of Canada, 12 Civ. 1577 (KBF), 2014 WL 104682, at *6
(S.D.N.Y. Jan. 8, 2014); Browning, 885 F. Supp. 2d at 599; see also Hart, 2013 WL 4822199, at
*16-17 (“[T]here appears to have never been a case in which a worker was held to be an
employee for purposes of the FLSA but not the NYLL (or vice versa).”).
The fact-intensive nature of the two tests often precludes courts from granting summary
judgment. See, e.g., Evans v. MassMutual Fin. Grp., 856 F. Supp. 2d 606, 610 (W.D.N.Y. 2012)
(“A determination of [whether a plaintiff is an employee of the defendant or an independent
contractor] . . . typically cannot be made until the underlying facts concerning the nature of the
plaintiff’s and defendant's relationship are resolved. Thus, a plaintiff’s status as either an
employee or an independent contractor may present issues of fact that cannot be decided until
trial.”); Sikorski v. Burroughs Drive Apartments, Inc., 762 N.Y.S.2d 718, 721 (4th Dep’t 2003)
(noting that the determination of “whether an individual is an employee or an independent
contractor . . . usually presents questions of fact sufficient to preclude summary judgment”
(internal quotation marks omitted)). At the same time, while “[t]he existence and degree of each
factor is a question of fact . . . the legal conclusion to be drawn from those facts — whether
workers are employees or independent contractors — is a question of law.” Brock, 840 F.2d at
1059. Accordingly, courts can and do grant summary judgment on this threshold inquiry, but
only where there are no disputed issues of material fact. See, e.g., Browning, 885 F. Supp. 2d at
598; Sikorski, 762 N.Y.S.2d at 721 (“[W]here evidence is undisputed, and the facts are
compellingly clear, the issue may be determined as a matter of law.” (internal quotation marks
omitted)); Melbourne v. New York Life Ins. Co., 707 N.Y.S.2d 64, 66 (1st Dep’t 2000) (similar).
Because the inquiries under the FLSA and NYLL have slightly different emphases, and
because the question of whether “the tests for ‘employer’ status are the same . . . has not been
answered by the New York Court of Appeals,” Irizarry v. Catsimatidis, 722 F.3d 99, 117 (2d Cir.
2013), the Court will conduct the two inquiries separately. Before doing so, however, the Court
pauses briefly to address Defendant’s argument that the Court need not engage in the two factintensive inquiries at all on the ground that Plaintiffs are judicially estopped from claiming to be
employees by virtue of their tax filings, in which they classified themselves as independent
contractors. (Def.’s Mem. 12). Put simply, Defendant is wrong. See, e.g., Hart, 2013 WL
4822199, at *17 (stating that in both inquiries “it is not significant . . . how the worker identified
herself on tax forms”); Deboissiere v. Am. Modification Agency, 2010 WL 4340642, at *3
(E.D.N.Y. Oct. 22, 2010) (holding that classifying oneself as an independent contractor for tax
purposes does “not quite ris[e] to the level of estoppel,” but that it could “impede [one’s] ability
to claim employee status”); In re Stuckelman, 791 N.Y.S.2d 225, 226 (3d Dep’t 2005) (affirming
ruling that claimant was an employee despite “[t]he fact that the . . . claimant deducted expenses
on her federal tax return as if she were self-employed”). Plaintiffs’ tax filings are plainly
relevant to the independent contractor versus employee inquiries — and may well make it
difficult for Plaintiffs to prevail on the issue come trial — but they do not preempt the inquiries
altogether. With that, the Court turns to address the FLSA and then the NYLL.
1. FLSA Claims
First, Defendant is not entitled to summary judgment on the FLSA claims because there
are genuine disputes over the “existence and degree” of some of the Brock factors. For instance,
the parties dispute the degree of the second factor, Plaintiffs’ “opportunity for profit or loss.”
Although Defendant notes that, on their tax returns, Plaintiffs subtracted business expenses from
gross receipts in order to calculate their profits (Def.’s Mem. 17), Plaintiffs correctly point out
that they had no investment in the Hospital, could not profit beyond their hourly rates, and could
not lose money providing interpreter services. See Brock, 840 F.2d at 1059-60 (affirming district
court’s finding that nurses had no opportunity for profit or loss where “their investment in the
business was negligible” and the putative employer “unilaterally dictated the nurses’ hourly
wage”); compare, e.g., Browning, 885 F. Supp. 2d at 608 (finding that delivery drivers had the
opportunity for profit and loss because “whether [they] made more money or less money
depended largely on their investment in bigger vehicles and hiring additional employees in order
to increase their efficiency and capacity”). There are also material disputes over the
“permanence and duration of the working relationship”: Although Defendant notes that Plaintiffs
were free to take on other employment if they wished (Def.’s Mem. 19), the reality is that
Plaintiffs worked exclusively or primarily for the Hospital for at least seven years (Pls.’ Mem.
18; see also Rocha-Waid Dep. 18:14-21; Kelly Affidavit, Ex. B, at 1; Landaeta Decl. ¶ 19). And
the parties present a genuine disagreement over the final factor — the “extent to which the work
is an integral part of the employer’s business” — as well. Although Plaintiffs may well not have
been irreplaceable or integral to the Hospital’s mission writ large, see Velu v. Velocity Express,
Inc., 666. F. Supp. 2d 300, 307 (E.D.N.Y. 2009), they are surely correct that “[m]edical care
cannot be provided to non-English speakers without medical interpreters.” (Pls.’ Mem. 18).
More fundamentally, the evidence does not clearly establish that, as a matter of
“economic reality,” the Plaintiffs were “in business for themselves.” Brock, 840 F.2d at 1059.
To the contrary, a reasonable fact finder could conclude that Plaintiffs were “depend[ent] upon
[the Hospital] . . . for the opportunity to render service.” Id. Among other things, most of
Plaintiffs’ income over the past decade was derived from their work at the Hospital, and any
efforts they made to solicit outside business were minimal. (Pls.’ SOF ¶ 7; Kelly Affidavit, Ex.
R; Rocha-Waid Decl. ¶¶ 16-17; Washington-Cohen Decl. ¶¶ 22-23; Landaeta Decl. ¶ 19).
Additionally, Plaintiffs did not form corporate entities to take on additional business, let alone
maintain business websites, procure business stationery, or carry liability insurance. (RochaWaid Decl. ¶ 17; Washington-Cohen Decl. ¶ 22; Landaeta Decl. ¶ 19). For these reasons, this
case is a far cry from Browning, where the “Plaintiffs were essentially small businessmen who
owned their trucks; hired their own helpers; and had responsibility for their own investment and
management.” Browning, 885 F. Supp. 2d at 610. Instead, a jury could find that Plaintiffs’
“work done, in its essence, follow[ed] the usual path of an employee.” Irizarry, 722 F.3d at 104
(internal quotation marks omitted).
2. NYLL Claims
Turning to the NYLL claims, Plaintiffs also raise material questions as to the “existence
and degree” of some of the Bynog factors. For instance, it is not clear that Plaintiffs truly did
work at their own convenience or set their own schedules. Although Defendant argues that
Plaintiffs were never required to work a set number of hours (Ramos Affidavit ¶ 15), the lack of
a formal policy is not dispositive. For example, penalizing workers for refusing assignments can
support a finding that the workers are, in fact, employees, see, e.g., In re Westney, 692 N.Y.S.2d
501, 503 (3d Dep’t 1999) (“[C]laimant testified that he could not refuse work without suffering
the loss of future assignments. Such testimony, coupled with other evidence in the record,
supports the Board’s conclusion that [the putative employer] exercised sufficient direction and
control over claimant and others similarly situated to establish an employment relationship.”),
and there is evidence suggesting that Plaintiffs could or would be penalized for declining
assignments. Landaeta testified that, in the course of her administrative work for the ISO,
Lenarduzzi instructed her to place interpreters “at the bottom of the list” or “remove [them] from
the list altogether” if they turned down assignments. (Landaeta Decl. ¶ 11). In addition,
although Defendant claims that Plaintiffs would advise the ISO of their availability for each
week, and would only be given assignments according to their availability (Ramos Affidavit ¶¶ 5,
15), Plaintiffs contend that they were “assumed” to be “available to receive assignments at all
times,” and if they were not, it was their obligation to notify the ISO. (Landaeta Decl. ¶ 9;
Rocha-Waid Decl. ¶ 9; Washington-Cohen Decl. ¶ 10). Further, at least one of the Plaintiffs —
Landaeta — appears to have had a fixed schedule, interpreting from 9:00 a.m. to 3:00 p.m., and
performing administrative tasks from 3:00 p.m. to approximately 6:30 or 7:00 p.m each and
every work day. (Landaeta Decl. ¶ 10).
Beyond the specific Bynog factors, the evidence raises questions about the more
fundamental inquiry into the “degree of control exercised by the purported employer over the
results produced or the means used to achieve the results.” Bynog, 1 N.Y.3d at 198. Specifically,
although Defendant contends that the Hospital did not supervise or evaluate Plaintiffs in their
work (Reply Mem. Law Further Supp. Mot. Summ. J. (“Def.’s Reply Mem.”) (Docket No. 53) 45), there is evidence suggesting otherwise. Plaintiffs have shown that the Hospital administered
surveys to monitor their performance (Landaeta Decl. ¶ 16), that the ISO fielded calls from
health care providers regarding interpreters’ performance (id. ¶ 17), and that Landaeta and
Rocha-Waid had to pass a test that assessed their interpretation skills as a precondition of
employment (Landaeta Decl. ¶ 4; Rocha-Waid Decl. ¶ 4). Additionally, the record suggests the
Hospital could and did discipline interpreters for unsatisfactory performance, including one
instance when Lenarduzzi suspended Washington-Cohen for interacting with patients
inappropriately. (Ramos Dep. 105:13-106:6). Although the Hospital may not have monitored
Plaintiffs’ performance in person, as was the case in Brock, 840 F. 2d at 1060, the evidence does
suggest more than “minimal or incidental control over an employee’s work product,” Bhanti v.
Brookhaven Mem. Hosp. Med. Ctr., 687 N.Y.S.2d 667, 669 (2d Dep’t 1999). Accordingly,
Defendant has not established as a matter of law that Plaintiffs are independent contractors.
B. De Minimis Exception to FLSA Wage Claims
The Court also rejects Defendant’s argument that Plaintiffs’ unpaid wage claims are de
minimis as a matter of law. The de minimis doctrine permits employers to disregard otherwise
compensable hours under the FLSA “[w]hen the matter in issue concerns only a few seconds or
minutes of work beyond the scheduled working hours.” Singh v. City of New York, 524 F.3d 361,
370-71 (2d Cir. 2008) (internal quotation marks omitted). Specifically, courts examine three
factors to determine whether the de minimis doctrine applies: “(1) the practical administrative
difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether
the claimants performed the work on a regular basis.” Id. Applying those factors here,
Defendant has not met its burden of demonstrating that the doctrine applies. First, the Hospital
required Plaintiffs to record the times they arrived at the ISO prior to their first assignments
(Washington-Cohen Dep. 37:24-38:7), so it could have easily required Plaintiffs to record the
amount of time they spent at the ISO after their final assignment. (Pls.’ Mem. 20). Second,
Plaintiffs claim to have not been compensated for between twenty and forty-five minutes each
day (Pls.’ Mem. 20; Rocha-Waid Decl. ¶¶ 9, 11; Washington-Cohen Decl. ¶¶ 10-11), far more
than the claims that the Court found to be “quite small” in Singh. Singh, 524 F.3d at 371 (claims
“generally amount[ed] to only a few minutes on occasional days”). Finally, the allegedly unpaid
work occurred each work day. (Rocha-Waid Decl. ¶¶ 9, 11; Washington-Cohen Decl. ¶¶ 10-11).
Accordingly, Defendant is not entitled to summary judgment on this basis either.
C. Retaliation Claims
Finally, the Court turns to Plaintiffs’ retaliation claims. The anti-retaliation provision of
the FLSA prohibits the “discharge or . . . other . . . discriminat[ion] against any employee
because such employee has filed any complaint or instituted or caused to be instituted any
proceeding under or related to this chapter.” 29 U.S.C. § 215(a)(3); see also N.Y. Labor Law §
215 (anti-retaliation statute). To establish a prima facie claim of retaliation under the FLSA and
its New York State analogue, a plaintiff must show: “(1) participation in protected activity
known to the defendant, like the filing of a FLSA lawsuit; (2) an employment action
disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the
adverse employment action.” Mullins v. City of N.Y., 626 F.3d 47, 53 (2d Cir. 2010); see also
Kassman v. KPMG LLP, 925 F. Supp. 2d 453, 472 (S.D.N.Y. 2013). Defendant argues that
Plaintiffs claims should be dismissed because they have not made a sufficiently specific
complaint to satisfy the first prong of this test. (Def.’s Mem. 23-24). Plaintiffs, on the other
hand, contend that Washington-Cohen’s complaint to Evelyn Ramos, the Director of Volunteer
and Interpreter Services, meets this standard. (Pls.’ Mem. 26-27).
To satisfy the first prong of the test for a prima facie claim of retaliation, “a complaint
must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both
content and context, as an assertion of rights protected by the statute and a call for their
protection.” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335 (2011).
Similarly, under the New York Labor Law, Plaintiffs must show that they “complained about a
specific violation of the Labor Law.” Castagna v. Luceno, No. 09 Civ. 9332 (CS), 2011 WL
1584593, at *12 (S.D.N.Y. Apr. 26, 2011) (quoting Epifani v. Johnson, 882 N.Y.S.2d 234, 244
(2d Dep’t 2009)) (internal quotation marks omitted). Although an employee “need not cite a
specific statute,” Kassman, 925 F. Supp. 2d at 473, the complaint to the employer must “be of a
colorable violation of the statute.” Castagna, 2011 WL 1584593, at *12 (quoting Weiss v.
Kaufman, No. 103473/2010, 2010 WL 4858896 (Sup. Ct. N.Y. Cty. Nov. 18, 2010)) (internal
quotation mark omitted).
Applying those standards here, there is no genuine dispute that Washington-Cohen failed
to assert her rights under either statute. Plaintiffs ground their theory of retaliation on the
conversation (or conversations) that took place between Washington-Cohen and Ramos in
December of 2011. (Pls.’ Mem. 12, 26-27). In particular, Plaintiffs contend that WashingtonCohen told Ramos that she was a “de facto employee,” and explained that a “de facto employee”
is “when an employer misclassifies an employee as an independent contractor.” (Washington-
Cohen Decl. ¶ 25). But such allegations are not sufficient to have put the Hospital on notice that
Washington-Cohen was asserting claims under either the FLSA or NYLL. Washington-Cohen
used the term in the course of complaining that the Hospital was not assigning her enough work.
Moreover, at no point did she say anything about minimum wages or overtime pay — or indeed,
anything whatsoever about her compensation for the hours that she worked or about the
Hospital’s pay practices generally. That is, the gravamen of Washington-Cohen’s complaint was
that she did not get enough work — not that she had been unlawfully paid for the work that she
had done, which might have put the Hospital on notice of a claim under the FLSA or NYLL.
Construing the evidence in the light most favorable to Plaintiffs, Washington-Cohen
complained to Ramos that she should have been classified as an employee rather than an
independent contractor. But misclassification merely means that she was covered by the FLSA
or NYLL. More is needed — such as an allegation that one has been deprived of pay — to make
an affirmative “assertion of rights protected by the statute[s],” and Plaintiffs adduce no evidence
that Washington-Cohen made any such assertions. See, e.g., Kassman, 925 F. Supp. 2d at 473
(dismissing FLSA and NYLL retaliation claims where “none of the complaints rises to the
level of specificity required to state a retaliation claim under the FLSA or the New York Labor
Law”); Epifani v. Johnson, 882 N.Y.S.2d 234, 236 (2d Dep’t 2009) (holding that lower court
should have dismissed retaliation claim based on complaint that did not clearly “pertain to any
section of the [New York] Labor Law”); compare Duarte v. Tri-State Physical Med. &
Rehabilitation, No. 11 Civ. 3765 (NRB), 2012 WL 2847741, at *3 (denying a motion to dismiss
a New York Labor Law retaliation claim where plaintiff had allegedly been “inquiring about not
being paid her overtime hours”) (internal quotation marks omitted). Accordingly, Plaintiffs’
retaliation claims fail as a matter of law, and Defendant’s motion for summary judgment on these
claims is GRANTED. 3
For the reasons stated above, Defendant’s motion for summary judgment is GRANTED
in part and DENIED in part. Specifically, Plaintiffs’ retaliation claims are dismissed, but
Plaintiffs’ unpaid wage and overtime claims survive.
The parties are reminded that their Joint Pretrial Order and all related filings required by
the Court’s Individual Rules and Practices for Civil Cases must be submitted within thirty days.
(Docket No. 13). The parties should be prepared to go to trial approximately two weeks
thereafter. The parties shall immediately advise the Court by joint letter if they are interested in
a referral to the assigned Magistrate Judge for purposes of settlement.
The Clerk of the Court is directed to terminate Docket No. 33.
Dated: March 4, 2014
New York, New York
In light of the foregoing, the Court need not, and does not, reach Defendant’s argument
that Rocha-Waid and Landaeta lack standing to bring retaliation claims based upon WashingtonCohen’s complaint. The Court notes, however, that Plaintiffs’ FLSA retaliation claims also fail
because Washington-Cohen did not complain to a governmental authority, but only to her
employer. See Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir. 1993). Although the
Supreme Court held in Kasten that oral complaints constituted protected activity under the FLSA,
it expressly refrained from deciding whether intra-company complaints did as well. See Kasten,
131 S.Ct. at 1336. Accordingly, Lambert remains controlling precedent in this Circuit. See
Kassman, 925 F. Supp. 2d at 473 n.6.
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