Perry et al v. City of New York et al

Filing 307

OPINION & ORDER re: #301 MOTION for Judgment . filed by Chaz Perry. Accordingly, it is hereby: ORDERED that, within thirty days of this Opinion & Order and in accordance with the parties' November 7, 2019 letter, (Doc. 299), the parties shall submit a joint letter regarding the issue of attorney's fees and costs under 29 U.S.C. 216(b), including whether the parties have been able to resolve the issue without court intervention or, alternatively, a proposed briefing schedule. IT IS FURTHER ORDERED that I will refrain from ordering entry of final judgment in accordance with this Opinion & Order until resolution of the attorney's fees and costs issue. Similarly, I will refrain from holding a settlement approval conference in connection with the Fire Inspectors settlement until resolution of the attorney's fees and costs issue. The Clerk of Court is respectfully directed to terminate the open motion at Document 301. SO ORDERED. (Signed by Judge Vernon S. Broderick on 12/23/2019) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
CHAZ PERRY, et al.,
:
:
Plaintiffs,
:
:
- against :
:
CITY OF NEW YORK, et al.,
:
:
Defendants. :
:
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12/23/2019

13-CV-1015 (VSB)
OPINION & ORDER

Appearances:
David William Ricksecker
Molly Ann Elkin
Gregory K. McGillivary
Sara L. Faulman
Diana J. Nobile
Sarah M. Block
McGillivary Steele and Elkin
Washington, DC
Counsel for Plaintiffs
Felice B. Ekelman
Jeffrey W. Brecher
Jackson Lewis P.C.
New York, New York
Andrea Mary O'Connor
Benjamin Welikson
Kerrin Ann Bowers
New York City Law Department
New York, New York
Counsel for Defendants
VERNON S. BRODERICK, United States District Judge:
Before me is Plaintiffs’ motion for entry of final judgment. (Doc. 301.) Because I find
that the jury’s determination that Defendants violation of the Fair Labor Standards Act was

willful is dispositive on the issue of the imposition of liquidated damages, Plaintiffs’ motion is
GRANTED.
Background
Plaintiffs are 2,519 current or former Emergency Medical Technicians (“EMTs”),
Paramedics, and Fire Safety Inspectors below the rank of lieutenant in the New York City Fire
Department (the “FDNY”), and brought this action against Defendants the City of New York and
the FDNY (collectively, “Defendants”) to recover unpaid compensation under the Fair Labor
Standards Act (the “FLSA”), 29 U.S.C. § 201 et seq. (Doc. 115.) 1 Pursuant to an August 26,
2019 stipulation, the parties agreed that “[f]ollowing trial, and irrespective of the jury verdict, the
parties [would] work together to determine the precise amount of damages that may be owed to
each plaintiff,” and further agreed that “[t]o the extent the parties are unable to come to an
agreement . . . the parties [would] submit all unresolved issues that affect calculation of damages,
including the issue of whether liquidated damages are owed pursuant to 29 U.S.C. § 216(b) . . .
to the Court for determination without a jury.” (Doc. 233 at 2.)
On October 24, 2019, after a three-week trial, an eight-member jury returned a
unanimous verdict in Plaintiffs’ favor, finding that Defendants violated the FLSA by failing to
compensate Plaintiffs for work done before and after their compensated shifts. (Doc. 269.) The
special verdict form used by the jury to render its verdict included a question that asked whether
“Plaintiffs prove[d] by a preponderance of the evidence that the Defendants willfully violated the

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Twenty-seven Fire Protection Inspector and Associate Fire Protection Inspector Plaintiffs settled with Defendants
and did not proceed to trial. (Doc. 222.) These Plaintiffs have submitted their settlement to the Court for separate
approval. (Doc. 274.) Because trial was limited to the issue of compensation for Plaintiffs’ unpaid pre-shift and
post-shift overtime, trial in this case involved only 2,519 of the 2,524 original Plaintiffs. (See October 4, 2019 Final
Pretrial Conference Transcript, at 16:18-19.)

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Fair Labor Standards Act,” to which the jury answered “YES.” (Id.) 2 In light of the verdict, and
in accordance with the August 26, 2019 stipulation, the parties conferred and came to an
agreement that the total amount of backpay damages owed to Plaintiffs under the FLSA equaled
$7,238,513.00. (Doc. 299.) Although the parties were able to reach agreement concerning the
total amount of backpay damages owed to Plaintiffs under the FLSA, the parties could not come
to an agreement as to whether, in light of the jury’s willfulness finding, the Court should award
liquidated damages in an amount equal to the backpay damages. (Id.)
Because of the disagreement between the parties concerning whether liquidated damages
are appropriate, on November 12, 2019, Plaintiffs filed the instant motion for entry of final
judgment. (Doc. 301.) The motion seeks the award of $7,238,513.00 to Plaintiffs in backpay
damages, as well as $7,238,513.00 in liquidated damages. (Doc. 302, at 18.) On November 19,
2019, Defendants filed a memorandum of law in opposition to Plaintiffs’ motion, arguing that
“[w]hether liquidated damages are appropriate is a matter of law within the Court’s discretion.”
(Doc. 303, at 5.) On November 25, 2019, Plaintiffs filed a reply memorandum of law in further
support of their motion, stating that “the Second Circuit has unequivocally held that a court has
no discretion whatsoever to deny liquidated damages where a jury has concluded that an
employer willfully violated the FLSA.” (Doc. 304.)
Discussion
Because the jury in this case has already determined that Defendants committed a willful
violation of the FLSA, I reject Defendants’ request to deny liquidated damages in this case. The
majority of Circuits have concluded that a district court’s discretion to deny liquidated damages

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Both parties included variations of this question in their proposed verdict form submissions, and neither party
objected to the inclusion of this question on the final verdict form. (Docs. 237, 245, 247.)

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is negated by a jury’s finding of willfulness, and the Second Circuit’s opinion in Pollis v. New
School for Social Research, 132 F.3d 115 (2d Cir. 1997), seems to provide guidance consistent
with these decisions requiring that I impose liquidated damages. Thus, I grant Plaintiffs’ motion
for entry of final judgment.
A. Title 29 United States Code § 260 and 29 United States Code § 255(a)
Title 29 United States Code § 216(b) states that “[a]ny employer who violates the
provisions of section 206 or section 207 of this title shall be liable to the employee or employees
affected in the amount of their unpaid . . . overtime compensation . . . , and in an additional
equal amount as liquidated damages.” A district court is generally required to award liquidated
damages equal in amount to actual damages. Barfield v. New York City Health and Hospitals
Corp., 537 F.3d 132, 150 (2d Cir. 2008). Double damages are the norm and single damages are
the exception. Id. However, “[t]he Portal–to–Portal Act, 29 U.S.C. § 251 et seq., which
amended the FLSA, affords district courts discretion to deny liquidated damages where the
employer shows that, despite its failure to pay appropriate wages, it acted in subjective ‘good
faith’ with objectively ‘reasonable grounds’ for believing that its acts or omissions did not
violate the FLSA.” Id. (citing 29 U.S.C. § 260). “To establish the requisite subjective ‘good
faith,’ an employer must show that it took active steps to ascertain the dictates of the FLSA and
then act[ed] [sic] to comply with them.” Id. (internal quotation marks omitted). The Second
Circuit has described the employer’s burden in meeting this standard as a “heavy” one. Id. at
151.
Although the good faith determination is a question of law for the court to decide “in its
sound discretion,” 29 U.S.C. § 260, a court’s determination of good faith often involves the same
evidence underlying another key issue in FLSA cases: the statute of limitations. The statute of
limitations for claims seeking unpaid overtime wages is generally two years, but if the claim is
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one “arising out of a willful violation,” the limitations period becomes three years. 29 U.S.C. §
255(a). “An employer willfully violates the FLSA when it ‘either knew or showed reckless
disregard for the matter of whether its conduct was prohibited by’ the Act.” Young v. Cooper
Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009) (quoting McLaughlin v. Richland Shoe
Co., 486 U.S. 128, 133 (1988)). District courts have generally left the question of willfulness to
the trier of fact. See, e.g., Ramirez v. Rifkin, 568 F. Supp. 2d 262, 268 (E.D.N.Y.2008)
(collecting cases). Thus, the jury is often tasked with resolving factual questions regarding a
defendant’s willfulness that are also central to the court’s good faith determination under 29
U.S.C. § 260.
B. Relevant Precedent
Recognizing the overlap between good faith and willfulness determinations, the majority
of circuits have foreclosed a district court’s discretion to deny liquidated damages under Title 29
United States Code § 260 when a jury returns a finding of willfulness under Title 29 United
States Code § 255(a). Compare Alvarez Perez v. Sanford-Orlando Kennel Club, Inc., 515 F.3d
1150, 1166 (11th Cir. 2008) (“We conclude . . . that in an FLSA case a jury’s finding in deciding
the limitations period question that the employer acted willfully precludes the court from finding
that the employer acted in good faith when it decides the liquidated damages question.”), and
Singer v. City of Waco, Tex., 324 F.3d 813, 823 (5th Cir. 2003) (affirming an award of liquidated
damages and stating: “In this case, the jury found the City’s actions to be willful. As a result,
the City could not show that it acted in good faith.”), and Chao v. A–One Med. Servs., Inc., 346
F.3d 908, 920 (9th Cir. 2003) (affirming an award of liquidated damages under the FLSA where
there had been a finding of willfulness, and noting that “a finding of good faith is plainly
inconsistent with a finding of willfulness”), and Herman v. Palo Group Foster Home, Inc., 183
F.3d 468, 474 (6th Cir. 1999) (affirming a district court’s award of liquidated damages for
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violations of the FLSA and concluding that “a finding of willfulness is dispositive of the
liquidated-damages issue”), and Brinkman v. Dep't of Corr., 21 F.3d 370, 372–73 (10th Cir.
1994) (determining that the district court “properly awarded liquidated damages based upon the
jury’s finding of willfulness” because “when fact issues central to a claim are decided by a jury
upon evidence that would justify its conclusion, the Seventh Amendment right to a jury trial
prohibits the district court from reaching a contrary conclusion”), with Broadus v. O.K. Indus.,
Inc., 226 F.3d 937, 944 (8th Cir. 2000) (noting in an EPA case that the “jury’s decision on
willfulness is distinct from the district judge’s decision to award liquidated damages” (citation
omitted)), and Fowler v. Land Mgmt. Groupe, Inc., 978 F.2d 158, 163 (4th Cir. 1992)
(determining in an EPA case that in light of “the explicit language of section 260, expressly
vesting discretion to award liquidated damages in the hands of the trial judge . . . Congressional
intent would [not] be effectuated by a scheme in which, in every case, the trial court’s discretion
to award liquidated damages would be completely constrained by the jury’s determination on
‘willfulness’ for purposes of the statute of limitations”).
I now turn to the Second Circuit’s opinion in Pollis, which is instructive concerning how
I should resolve the issue of willfulness. Pollis concluded that because there was evidence
“sufficient to support the jury’s finding of a reckless or willful violation of the Equal Pay Act, . .
. [u]nder 29 U.S.C. § 206(d), therefore, compensatory damages . . . should have been calculated
by reference to the three-year limitations period for willful violations, and the resulting
compensatory award should be doubled pursuant to the Fair Labor Standards Act’s liquidated
damages provision, 29 U.S.C. § 260.” Pollis, 132 F.3d at 120. 3 Although Pollis did not

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The Equal Pay Act amended § 206 of the FLSA to prevent pay discrimination based on sex, and the FLSA’s
statute of limitations and liquidated damages provisions apply to Equal Pay Act claims in the same way they apply
to overtime compensation claims. See McLaughlin, 486 U.S. at 131; see also 29 U.S.C. §§ 206(d)(3), 207, 216(b),

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explicitly state that this conclusion is appropriate as a matter of law whenever a jury determines
that an FLSA violation is willful, in rendering the above conclusion, Pollis favorably cited
E.E.O.C. v. Detroit Health Department, 920 F.2d 355, 358 (6th Cir. 1990), and Brinkman, 21
F.3d at 373. Both of these cases did conclude as a matter of law that the district court’s
discretion to deny liquidated damages is negated by a jury’s finding of willfulness. E.E.O.C.,
920 F.2d at 358 (“Since the jury determined that the City’s violation of the Equal Pay Act was
willful, and since the district court was, in determining whether the violation was in good faith
and with reasonable grounds, presented with the same issue, the district court was bound by the
jury finding.”); Brinkman, 21 F.3d at 372–73 (adopting E.E.O.C.’s conclusion and stating that
the “same willfulness standard for the statute of limitations issue applies to the liquidated
damages issue” as a matter of law).
District courts in the Second Circuit have applied Pollis and found that the court’s
discretion to deny liquidates damages is negated by a jury’s finding of willfulness. For example,
in Banford v. Entergy Nuclear Operations, Inc., 74 F. Supp. 3d 658, 682 (D. Vt. 2015), aff’d in
part, rev’d in part on other grounds, 649 F. App’x 89 (2d Cir. 2016), the court discussed the
above precedent and concluded that it felt “obligated to follow suit and hold that a finding of
willfulness necessitates an award of liquidated damages.” Similarly, in Scott v. City of New
York, No. 02 Civ. 9530(SAS), 2009 WL 1138719, at *1 (S.D.N.Y. Apr. 27, 2009), the court

255(a), 260. 29 U.S.C.A. § 206 states, for example, that “[f]or purposes of administration and enforcement, any
amounts owing to any employee which have been withheld in violation of this subsection shall be deemed to be
unpaid minimum wages or unpaid overtime compensation under this chapter.” In addition, 29 U.S.C.A. § 216(b),
the FLSA’s penalty provision, refers back to sections 206 and 207, the overtime compensation provision, when
outlining the provisions triggering the penalty provision. 29 U.S.C. § 260, the liquidated damages provision, refers
back not to section 207, but section 216, and therefore prescribes liquidated damages in Equal Pay Act cases in the
same way that it does in overtime compensation cases. Lastly, 29 U.S.C. § 255(a), the statute of limitations
provision, generally refers to “any cause of action for unpaid minimum wages, unpaid overtime compensation, or
liquidated damages, under the Fair Labor Standards Act,” and “the statute applies not only to actions to enforce the
overtime and recordkeeping provisions of the FLSA, but also to the Equal Pay Act . . . .” McLaughlin, 486 U.S. at
131.

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suggested that the “Second Circuit has squarely held––along with the majority of other
Circuits—that a district court may not find good faith after a jury has concluded that the
employer willfully violated the FLSA.” See also Yu Y. Ho v. Sim Enterprises, Inc., No. 11 Civ.
2855(PKC), 2014 WL 1998237, at *17 (S.D.N.Y. May 14, 2014) (noting in a bench trial that
although the defendants did not attempt to establish good faith, any attempt to do so would have
been unsuccessful because their violations were willful); Lanzetta v. Florio’s Enterprises,
Inc., No. 08 Civ. 6181(DC), 2011 WL 3209521, at *6 (S.D.N.Y. July 27, 2011) (stating, in a
bench trial, that “once the employer’s willfulness has been established . . . the FLSA seem[s] to
require that a plaintiff be awarded liquidated damages.”). Considering the holding in Pollis for
myself, I agree with Banford and Scott, and conclude that Pollis constrains my discretion to deny
liquidated damages under 29 U.S.C. § 260 in light of the jury’s willfulness finding.
C. Additional Considerations
In addition to case law precedent, other considerations counsel in favor of following the
position articulated by the majority of circuits. I instructed the jury as follows concerning the
issue of willfulness:
Ordinarily the FLSA provide for a two-year period of damages. That means that a
plaintiff may recover for all damages incurred for two years before he or she joined
the lawsuit and then for damages suffered while the lawsuit was pending. However,
if plaintiffs demonstrate by a preponderance of the evidence that defendants acted
willfully, each plaintiff is entitled to damages dating back three years before that
plaintiff joined the lawsuit, as well as damages suffered while the lawsuit was
pending. An employer acts willfully when the employer knew that or showed
reckless disregard for whether its conduct was prohibited by the FLSA. An
employer acts with reckless disregard when it acts or fails to act with a conscious
lack of concern for the consequences. Examples of such recklessness are an
employer’s failure to make a good faith effort to determine whether it is complying
with the statute or whether to inquire into the legality of the policies after being
confronted with clear evidence of illegality.

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(Doc. 293, at 134:11–135:2.) 4 As noted, in order to make the good faith determination, I would
have to find that Defendants “acted in subjective ‘good faith,’” meaning that Defendants “took
active steps to ascertain the dictates of the FLSA and then act[ed] [sic] to comply with them.”
Barfield, 537 F.3d at 151 (internal quotation marks omitted). Given my instruction on
willfulness, “to find ‘good faith’ after a finding of ‘willful[ness]’ [would be] illogical; the two
terms are [] mutually exclusive.” Alvarez Perez, 515 F.3d at 1165. 5 In addition to being
illogical, entering final judgment that denies liquidated damages after the jury answered “YES”
to my willfulness question would arguably run afoul of the Seventh Amendment. See
Brinkman, 21 F.3d at 372–73 (determining that the district court “properly awarded liquidated
damages based upon the jury’s finding of willfulness” because “when fact issues central to a
claim are decided by a jury upon evidence that would justify its conclusion, the Seventh
Amendment right to a jury trial prohibits the district court from reaching a contrary conclusion”);

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Defendants’ proposed a willfulness jury instruction that was similar to the above charge. Specifically, Defendants’
proposed instruction stated: “To establish entitlement to this expanded recovery period, there must be a
determination that Defendants knew or showed reckless disregard for whether their conduct was prohibited by the
FLSA. Conduct is not willful if the employer acted reasonably and in good faith in determining its legal obligations
and honestly believed that it was not required to pay overtime compensation to Plaintiffs. If you find that Plaintiffs
have proven, by a preponderance of the evidence, that Defendants’ conduct was willful, i.e., that they did not act in
good faith and that they did not take steps to ensure compliance with the FLSA, then each Plaintiff is entitled to
damages based upon Defendants’ violations dating back three years . . . .” (Doc. 235, at 56.) In any event, neither
party objected to my final instruction on willfulness. (Doc. 291, at 88:13–16.)

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Defendants’ reliance on Soler v. G & U, Inc., 628 F. Supp. 720 (S.D.N.Y. 1986), is inapposite given the Supreme
Court’s articulation of a narrower willfulness standard in McLaughlin, 486 U.S. at 133 (defining willfulness to
require “that the employer either knew or showed reckless disregard for the matter of whether its conduct was
prohibited by the [FLSA]”). Defendants cite Soler for the proposition that “[i]f the employer satisfies the burden of
proving good faith, then it is within the sound discretion of the court to decide whether or not liquidated damages
should be awarded.” (Doc. 303, at 6.) As Plaintiffs note, however, Soler applied a broader definition of willfulness
charging that “a violation is willful if the employer (1) knows or has reason to know that his business is subject to
the provisions of the FLSA, and (2) his practice does not conform to FLSA requirements.” Soler, 628 F. Supp. at
723. Given such an instruction, a jury need not render factual findings that necessarily overlap with the court’s good
faith determination, because the instruction merely asks if an employer “knew or suspected that the conduct might
violate the Act,” Alvarez Perez, 515 F.3d at 1166 n.4, and does not delve into whether an employer recklessly
disregarded the FLSA. Under the standard articulated in McLaughlin, however, the Supreme Court’s “narrowing of
the definition of willfulness made it and good faith mutually exclusive,” Alvarez Perez, 515 F.3d at 1166 n.4,
because the more restrictive instruction post-McLaughlin requires a jury to answer whether an employer acted with
at least reckless disregard for its obligations under the FLSA.

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cf. Auwood v. Harry Brandt Booking Office, Inc., 850 F.2d 884, 890–91 (2d Cir. 1988) (“[I]t is
plain that proper deference to the parties’ Seventh Amendment rights to a jury trial precludes
entry of a judgment that disregards any material jury finding.”); see also U.S. Const. amend. VII
(“In Suits at common law, where the value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in
any Court of the United States, than according to the rules of the common law.”). I do not find
any of the arguments articulated by Defendants sufficiently persuasive to convince me that it is
necessary or prudent to reexamine a conclusion unanimously reached by the eight jurors who
already decided the question of willfulness.
Conclusion
For the foregoing reasons, Plaintiffs’ motion for entry of final judgment, (Doc. 301), is
GRANTED. Accordingly, it is hereby:
ORDERED that, within thirty days of this Opinion & Order and in accordance with the
parties’ November 7, 2019 letter, (Doc. 299), the parties shall submit a joint letter regarding the
issue of attorney’s fees and costs under 29 U.S.C. § 216(b), including whether the parties have
been able to resolve the issue without court intervention or, alternatively, a proposed briefing
schedule.
IT IS FURTHER ORDERED that I will refrain from ordering entry of final judgment in
accordance with this Opinion & Order until resolution of the attorney’s fees and costs issue.
Similarly, I will refrain from holding a settlement approval conference in connection with the
Fire Inspectors settlement until resolution of the attorney’s fees and costs issue.

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The Clerk of Court is respectfully directed to terminate the open motion at Document
301.
SO ORDERED.
Dated: December 23, 2019
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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