Perkins v. 199 SEIU United Healthcare Workers East et al

Filing 76

OPINION & ORDER: For the foregoing reasons, the Hospital's motion to dismiss, or in the alternative for partial summary judgment, is denied. However, Perkins's NYLL claim is barred to the extent it pertains to the time period up to and including March 21, 2013. The Clerk of Court is directed to terminate the motion pending at docket number 63. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 6/11/2015) (kl) Modified on 6/11/2015 (kl).

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

LINITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC

DATEFILED:

Col*lzati

CRAIG PERKINS,
Plaintiff,
14

Civ. 1681 (PAE)

OPINION & ORDER
BRONX LEBANON HOSPITAL,
Defendant.

X
PAUL A. ENGELMAYER, District Judge:
In his Third Amended Complaint ("TAC"), plaintiff Craig Perkins alleges that his
employer, Bronx Lebanon Hospital (the "Hospital"), failed to pay him overtime compensation in

violation of the Fair Labor Standards Act ("FLSA"),29 U.S.C.

$ 216(b), and the

New York

Labor Law ("NYLL"), N.Y. Lab. Law $ 663, This Court previously dismissed Perkins's
overtime claims as pled in an earlier complaint but granted leave to amend; it also dismissed with
prejudice various other claims asserted against the Hospital and Perkins's union.
The Hospital now moves to dismiss the TAC pursuant to Federal Rule of Civil Procedure

I2(b)(6), arguing that it fails to state a claim upon which relief can be granted. In the alternative,
the Hospital moves for partial summary judgment under Rule 56, claiming that its records
establish that Perkins was paid for many of the overtime hours in question. For the following
reasons, the Hospital's motions are denied, except that the Court dismisses Perkins's

claim to the extent it is based on events occurring on or before March 21,2013.

NYLL

I.

Background

A.

Documents Considered

oany
o'may
written instrument
consider
In resolving a motion to dismiss, the Court

attached to fthe Complaint] as an exhibit or any statements or documents incorporated in

it by

reference, as well as . . . documents that the plaintiffs either possessed or knew about and upon

which they relied in bringing the suit."' City of Pontiac Policemen's & Firemen's Ret. Sys.
UBS

v.

AG,752F.3d173,179 (2dCir.2014) (quoting Rothmanv. Gregor,220F.3d 81,88 (2d Cir

2000)). In addition, "it is 'well established that

a

district court may rely on matters of public

record in deciding a motion to dismiss under Rule 12(b)(6),"' Burfeindt v. Postupack,509 F.

App'x

65, 67 (2d

1s2 F.3d 67,75

Cir. 2013) (summary order) (quoting Pani v. Empire Blue Cross Blue Shield,

(2dCir.1998)).

Under these principles, the Court may properly consider the tables attached to the TAC,

which purport to document the hours Perkins worked and the wages he was paid, See Dkt. 61

(.'TAC"), Exs. A-8.
The Hospital asks the Court to consider three documents attached to the Declaration of

Philip Repash in support of the motion to dismiss, Dkt. 65 ("Repash Decl."), and six documents
attached to the Declaration of Jasen Nhambiu in support of the same motion, Dkt. 66 ("Nhambiu

Decl."), Exhibits A and B of the Repash Declaration consist of the Hospital's payroll records
and time clock records, respectively.

Plaintiffs counsel represents, however,thathe did not rely

on the documents attached to the Repash Declaration in drafting the TAC, but instead relied on

"limited records" voluntarily produced by the Hospital. Dkt. 72 ("P1. Br."), at 8, I 1.
Corroborating this claim, the pay periods in the tables attached to the TAC do not correspond to
the pay periods in Exhibit

A of the Repash Declaration. Compare TAC Ex. A, at 1, withRepash

2

Decl., Ex. 1, at 1. Accordingly, the Court cannot consider Exhibits A and B of the Repash
Declaration in resolving the motion to dismiss.

Exhibit C of the Repash Declaration is a decision by an Administrative Law Judge

("ALJ") resolving Perkins's 201I application for unemployment insurance benefits. Because
this decision was publicly filed, the Court may consider

it.

See

Burfeindt,509 F, App'x at 67.

The ALJ decision is, however, minimally relevant to the pending motion to dismiss.

Exhibits A through F of the Nhambiu Declaration pertain to Perkins's termination in
August 2011,the grievances he filed thereafter, and the settlement agreement reached by the
parties to resolve those grievances. Because Exhibits B and F, the settlement agreement and an

arbitral decision, are matters of public record, the Court may consider them. See id. As to the
balance of the exhibits, the Court can

fairly

assume that Perkins was aware of the documents

when his counsel drafted the TAC. However, 'omers notice or possession" of documents does
not suffice; "a plaintiff s reliance on the terms and effect of a document in drafting the complaint
is a necessary prerequisite to the court's consideration of the document on a dismissal motion."

Chambersv, Time Warner, 1nc,,282F.3dI47,153 (2dCir.2002), There is no indicationthat
Perkins relied on the documents labeled as Exhibits A, C, D, and E in drafting his pleadings, and
so the Court may not consider

them. See id. at 153-54.

Substantively, the six documents attached to the Nhambiu Declaration are relevant only

insofar as they suggest that Perkins signed a binding settlement agreement releasing all claims
against the Hospital that had accrued as of March27,2013, the date that the settlement
agreement was executed. See Nhambiu Decl. J[fl 5-8. Because Perkins concedes this point, see

Pl. Br. 5*6, the Court has no need to consider any of the documents.

J

Finally, Perkins asks the Court to consider an affidavit he submitted in opposition to the
Hospital's motion to dismiss, which contains various new factual allegations and attaches
exhibits four sets of documents. Dkt. 71 ("Perkins

Exhibit A,

a letter

Aff."). Of these, the Court

as

may consider

motion Perkins's counsel submitted to the Court via ECF on December 10,

2014, Dkt. 59. The Court may also consider page 4 of Exhibit C, a description of Perkins's job
responsibilities that is explicitly incorporated into the TAC by reference. See TAC

1[

1

1

("[T]he

description of the duties of the Fire Safety Officer job classification was and is contained in a
manual published by the Hospital and known as the Bronx-Lebanon Hospital Center Safety and
Security Manual,"). However, becauseooit is axiomatic that the Complaint cannot be amended
by the briefs in opposition to a motion to dismiss," Weir v. City of New York,No.05 Civ. 9268

(DFE), 2008 WL 3363129, at *9 (S.D,N.Y. Aug. 11, 2008) (citation omitted), the Court
disregards the balance of the affidavit and its attachments.

B.

Factual Backgroundl

On August 4,2004,the Hospital hired Perkins as a Fire Safety Officer. TAC 1J7. His

responsibilities include conducting fire and evacuation drills, selecting and training members of
the fire brigade, and directing evacuations in the event of a fire. Perkins Aff., Ex. C, at

4. His

regular wage rate is $26 per hour. Id, n rc.
Starting in 2005, Perkins's supervisor began assigning Perkins the duties of a Cashier

Officer-a

separate position with different responsibilities-and informed Perkins that he was

expected to simultaneously perform the duties of a Fire Safety Officer and a Cashier Offtcer. Id.

I As noted, these facts are drawn from the TAC and the tables attached thereto, Exhibit C of the
Repash Declaration, and page 4 of Exhibit C of the Perkins Affrdavit. In resolving the motion to
dismiss, the Court assumes all well-pled facts to be true, drawing all reasonable inferences in

favorof theplaintiff.

See

Kochv. Christie's Int'l PLC,699 F.3d
4

141

,145 (2dCir.2012).

f']T

13-15. Despite Perkins's increased duties, the Hospital has not increased his pay and

continued to pay him only the wage rate for a Fire Safety Officer. Id.nn rc-I7

'

In approximately 2008, Perkins's supervisor informed him that he was no longer
permitted to take a lunch break. Id. n 18. Rather, Perkins is expected either to eat lunch at his

job post while continuing his work or not to eat lunch at all. 1d, Although Perkins has complied
with that instruction and remains on duty during his lunch, the Hospital has not compensated
Perkins for that lime. Id.

Also beginning in 2008, Perkins's supervisors directed him to work more than 40 hours
per week. Id. n 19. Perkins alleges that he has not been

overtime hours he worked.

Id fln 19-25,

Exs.

fully compensated for all of the

A-8. For example, between August

19 and

3

1,

2013, Perkins worked a total of 152.18 hours, comprised of 80 regular hours and 72.18 overtime

hours. Id. Ex.B, al2. He therefore should have been paid $4,895.02: $2,080 for the first 80
hours and $2,815.02 in overtime wages. Because Perkins was actually paid only $4,468.80, the

Hospital owes him a balance of $426.22. The unpaid overtime wages for other two-week pay
periods range from $0 to just over $400 and average approximately $180. See id.
Perkins further alleges that he has repeatedly complained to his supervisors about his lack

of lunch breaks and inadequate overtime compensation. Id.

J[

26. Their failure to correct the

problem is therefore, in his view, willful. Id. n36.

C.

Procedural History

On February 74,2014, Perkins filed the original pro se Complaint in the New York
Supreme Court in the

Bronx.

See

Dkt.

l.

That Complaint brought claims against the Hospital

and against Perkins's union, 199 SEIU United Healthcare Workers East (theooUnion"). On

March 11,2014, the Union removed the case to this Court. Id. The next day, the Hospital

5

consented to removal. Dkt.

4. On March 18,2014, both the Hospital

and the Union moved to

dismiss. Dkt. 9, 13. In response, this Court issued an order granting Perkins leave to file an
amended complaint. See

Dkt. 17,21.

On May 2,2014, Perkins, through newly retained counsel, filed the First Amended

Complaint ("FAC"), Dkt, 19, which brought six claims: two for breach of contract, two for
breach of the Union's duty of fair representation, and two for failure to pay overtime

compensation. FAC

T'1T

36-30. On June 4,2014, the Hospital moved to dismiss. Dkt.28-29.

On June 16,2074, the Union did the same. Dkt. 33-35,
On September 17,2014, after full briefing, the Court granted both motions to dismiss.

Dkt. 41 ("Sept. I 7 Opinion"); reported at Perkins v. I99 SEIU United Healthcare Workers 8.,

No,

14

Civ, 1681 (PAE), 2014WL 4651951 (S,D,N.Y, Sept. 17,2014), The Court held that the

FAC failed to state a claim against the Hospital for breach of contract, or against the Union for
breach of the duty of fair representation, and that those claims were, in any event, time-barred.

Id. at 5-15, Accordingly, the Court dismissed those claims with prejudice. As to Perkins's
overtime claims, the Court found that the FAC failed to state a claim because it contained only
o'vague

legal conclusions" and did not "identify[] any specific week or time period in which

Perkins worked overtime but was not lawfully paid for

it."

v. Catholic Health Sys. of Long Island lnc.,777 F.3d 106,

Id. at 16-17 (citing, inter alia, Lundy

II4

(2d Cir. 2013)). However, the

Court dismissed those claims without prejudice because the recitation of facts in the FAC was
"so sparse" that the Court was unable to "assess whether Perkins could have stated a claim in a
more thorough pleading." Id. at 19.
On October 28,2074, Perkins filed the Second Amended Complaint ("SAC"), which
asserts overtime compensation claims under the FLSA and

6

NYLL. Dkt. 54.

On December 10,

2014, Perkins's counsel informed the Court that the Hospital had voluntarily turned over certain

wage records that cast doubt on the viability of Perkins's claims. Dkt. 59. At the parties'
request, the Court granted a 45-day stay to permit Perkins's counsel to review the records in

question. By the end of that period, Perkins was directed to notify the Court of his intention to
proceed with the SAC,

file

a

TAC, or voluntarily dismiss the case. Dkt. 60.

On January 26,2015, Perkins filed the TAC, the current iteration of his complaint. Dkt.

61. The TAC brings the same claims

as the SAC, but

its allegations as to Perkins's hours and

compensation are more detailed, Like the earlier complaints, the TAC seeks compensatory
damages for Perkins's lost wages and benefits with interest, liquidated damages, attorneys' fees,
and costs;

conduct,

it also

seeks an order enjoining the Hospital from engaging

in further wrongful

Id fl\ (1)*(5).

On February 13,2015, the Hospital filed a motion to dismiss, or in the alternative for

partial summary judgment, Dkt. 63, along with a memorandum of law, Dkt. 64 ("Def. Br."), and
the two declarations discussed above, Dkt. 65-66. The Hospital argues there that the TAC's
allegations are too general and conclusory to state a claim, Def. Br. 13-23. In the alternative,
the Hospital challenges as meritless some of Perkins's claims of unpaid overtime wages based on
its payroll and time-card records; it argues that it is entitled to summary judgment as to such pay

periods, Id. at 12-13. On March20,2015, Perkins filed his opposition, including the affidavit
discussed above. Dkt. 71 ("P1. Br."),

72-74. On March 27,2015, the Hospital submitted its

reply, Dkt. 75 ("Def. Reply").

7

II.

Discussion

A.

Applicable Legal Standards

To survive a motion to dismiss under Rule l2(b)(6), a complaint must plead "enough
facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v, Twombly,550 U.S.

544,570 (2007). A claim will only have "facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal,556 U,S. 662,678 (2009). A complaint is properly
dismissed, whereo as a matter of law, "the allegations in a complaint, however true, could not
raise a claim of entitlement to

relief." Twombly,550 U.S.

at 558. Accordingly, a district court

must accept as true all well-pleaded factual allegations in the complaint, and draw all inferences

in the plaintiff s favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.

2001). However, that tenet "is inapplicable to legal conclusions." Iqbal,556 U.S. at 678. A
pleading that offers only "labels and conclusions" or "a formulaic recitation of the elements of a
cause

of action will not do," Twombly,550 U.S. at 555.

B.

Failure to State a Claim

The FLSA requires that for all hours an employee works in excess of 40 hours per week,
the employer pay overtime "at arate not less than one and one-half times the regular rate at
o'To plead
a
which he is employed." 29 U.S.C. $ 207(aX1). The NYLL is to the same effect.z

plausible FLSA overtime claim, plaintifß must provide suff,rcient detail about the length and

N.Y. Lab.L. $ 663; see also Dejesus v, HF Mgmt. Servs., LLC,726 F.3d 85,89 n.5 (2dCir
2013) ("ln light of the fact that the relevant portions of New York Labor Law do not diverge
from the requirements of the FLSA, our conclusions below about the FLSA allegations apply
equally to the NYLL state law claims." (citations and alterations omitted)); Lundy,711 F,3d at
o'the
same standard appliefs] to FLSA and NYLL
I 18 (agreeing with the district court that
claims"). For purposes of the ensuing analysis, the Court refers solely to the FLSA, but its
2,See

analysis runs to both counts.
8

frequency of their unpaid work to support a reasonable inference that they worked more than

forty hours in a given week." Nakahata v. N.Y.-Presbyterian Healthcare Sys.,723 F.3d 192,201
(2d Cir,2013); see also Lundy,7l

1

F.3d al

ll4 ("lAl plaintiff

must sufficiently allege 40 hours

of work in a given workweek as well as some uncompensated time in excess of the 40 hours.");
Dejesus v. HF Mgmt. Servs., LLC,726 F.3d 85, 89 (2d Cir. 2013) (similar)'
The gist of Perkins's claim is that the Hospital: (1) required him to continue working
through his scheduled lunch breaks but did not compensate him for that time, see TAC

I

18, and

(2) assigned him duties of two separate positions, Fire Safety Officer and Cashier Officer, and
thereby directed him to work more than 40 hours per week, but failed to pay all of his overtime
wages, id. nn 75, 17, 79, 2I-25, Exs.

A-8.

In its September 17, 2014 Opinion, the Court found that the FAC did not state a claim for
unpaid overtime compensation because it did not "identify[] any specific week or time period in

which Perkins worked overtime but was not lawfully paid for
inter alia, Lundy,7l1 F.3d at

Il4),

it."

Sept. 17 Opinion, at 17 (citing,

The TAC has more than remedied this defect. In two tables

that span a total of eight pages, the TAC identifies 27 distinct two-week pay periods in which
Perkins allegedly worked more than 40 hours per week but was not fully paid for his overtime

hours. See TÃC, Exs.

A-8.

These periods

fall between February 7,2011 and February 15,

2014; the amounts of unpaid wages range from $49.4 4 to $426,35 for a single pay period.3

3

For avoidance of doubt, such comprehensive calculations, although welcome, are not required
at this early stage. Rather, as the Court explained, the Second Circuit's decision in Lundy
obliges a plaintiff to suffîciently allege uncompensated time in a given workweek in which the
employee worked more than 40 hours. See Lundy,711 F.3d at ll4. To do so, a plaintiff may
'odraw on [his] own 'memory and experience' to provide 'developed factual allegations,' . . .
such as when he worked overtime; whether he came to work early, stayed late, or took on
additional shifts; approximately how many extra hours he worked per week; and the types of
tasks he performed during his overtime hours." Sept. 17 Opinion, at 18 (quoting DeJesus,726
F.3d at 90). Prior to discovery, however, plaintiffs often will not be able to provide the precise
tabular data recited in the TAC by Perkins, who was able to do so here only because the Hospital
9

To be sure, the TAC does not explain why Perkins worked so many overtime hours, or
what tasks he completed during that time. But such detail is not required. The TAC states an

FLSA-and

a

NYLL-claim

against the Hospital for failure to pay Perkins the overtime

compensation he was due. It alleges, in great detail, that Perkins completed"40 hours of work in
a given workweek as

well as some uncompensated time in excess of the 40 houts," Lundy,77l

F.3d at 174, and it explains, in general terms, that Perkins's work during these hours had been as
a

Fire Safety Officer and a Cashier Officer. As pled, Perkins's unpaid meal breaks and pre- and

post-shift hours were comprised of the same work as the hours for which he was compensated,
SeeTAC flfl 15 (Perkins "was expected simultaneously to perform all of the duties of both job
classifications during all of his hours."), 18 (Perkins "was expected to either not take a lunch
break, or to eat his lunch at his post while performing duties for his employer."). The TAC's
o'fair notice" of Perkins's claim and "the ground
allegations therefore suffice to give the Hospital

upon which it rests." Matsonv. Bd. of Educ. of City Sch. Dist. of N,Y,, 631 F,3d 57 (2dCir.

20ll)

(quoting Twombly,550 U.S. at 555). Theoonotice pleading standard of the Federal Rules

of Civil Procedure" requires nothing more. Id.
The Hospital argues that Perkins may not have performed compensable work during his
pre- and post-shift hours, see Def , Br. 15-17 ,20-21; Repash Decl. Ex. C, and that he cannot
Íecover for work performed during his lunch breaks because the FLSA does not provide a cause

of action for unpaid gap time, seeDef.Br.2I-22. Discovery may well vindicate these defenses.
As pled, however, Perkins simultaneously performed the duties of a Fire Safety Officer and a
Cashier Officer from the time he clocked in until the time he clocked out. See TAC'lT 15. And
depending on the hours worked in a given week, Perkins's lunch breaks may qualify as non-

voluntarily turned over certain records in hopes of resolving this case. Plaintiffs in future
should not regard the tables included in the TAC as a pleading requirement.

l0

cases

compensable straight-time or as compensable overtime. Id. Exs.
those factual disputes at this stage. It must instead

oodraw

A-8.

The Court cannot resolve

all reasonable inferences in favor of the

plaintiff," Koch,699 F.3d at145.
The Hospital also objects that certain allegations in the TAC contradict allegations in
Perkins's prior pleadings. Def. Br. 17-20. The Hospital is correct that Perkins's theory of the
case has

shifted: The SAC alleged that Perkins worked an even eight or 16 hours per day and

was not compensated for anyhours he worked in excess of 40 hours per week. See Dkt. 54, at

nn29-31,37-39, Ex. A. In contrast, the TAC pleads that Perkins's daily hours varied-eight
hours and l0 minutes one day, 10 hours and23 minutes the next-and that he was paid for some,
but not all, of his overtime hours. See T AC fln 32-33, Ex.
however, have remained the same:

All complaints

B. Perkins's core allegations,

have alleged that Perkins worked significant

overtime hours and was not fully compensated for them. And the differences between the TAC
and the previous complaints, although giving the Court some pause, are understandable: After

the SAC was filed, the Hospital voluntarily turned over certain payroll and time-card records to

Perkins's counsel, who relied on those documents in drafting the TAC. Accordingly, rather than
having to estimate hours worked based on Perkins's recollections and any records he may have
retained, Perkins's counsel was able, for the first time, to plead Perkins's hours with precision.

Notably, Perkins's counsel made the responsible decision to concede that the Hospital appears to
have paid some, albeit not all, of the overtime wages Perkins had earned. Especially in light

of

Federal Rule of Civil Procedure 8(d)(2)-(3), which 'opermits pleading inconsistent theories in the

alternative," the inconsistencies across Perkins's complaints do not provide a basis for

dismissingtheTAC. Benefieldv.Pfizer.lnc,,No. 14Civ,3394(JPO),2015 WL1958929,at *8

l1

(S.D,N.Y, May 1 ,2015) (quoting Kruse v. llells Fargo Home Mortg., lnc.,383 F.3d 49, 55 n.3
(2d Cir.2004)).
Finally, the Hospital argues that Perkins's NYLL claim must be dismissed to the extent
that cause of action arose on or before March

2I,2073.

On that point, the Hospital is correct.

Pursuant to a settlement agreement the parties entered in a separate arbitration proceeding,

Perkins released all claims that had accrued against the Hospital as of that date. Def. Br. 8-1 1;
see also Nhambui Decl., Ex. B (settlement agreement). In fact, Perkins concedes that the

prior

settlement agreement bars part of his NYLL claim, and states that he seeks to recover damages

only for claims arising after March 21,2013. Pl. Br. 5-6. Accordingly, the Court sustains the

TAC's NYLL claim only

C.

as

to that later time period.a

Summary Judgment

In the alternative, the Hospital moves for partial summary judgment, arguing that the
employment records attached to the Repash Declaration prove that Perkins received all due
compensation during many pay periods. Def. Br. 12-13. Where a plaintiff has not had an
adequate opportunity to conduct discovery, however, a granf of summary judgment to the

defendant is premature and inappropriate. See Miller v. llolpoff & Abramson, L.L.P.,321 F.3d

292,307 (2dCir.2003); Hellstrom v. tlS. Dep't of Veterans Affairs,20l F.3d 94,98 (2dCir,
2000). The Hospital's motion for partial summary judgment is therefore denied without
prejudice to renewal following the close of discovery.

a

It appears to the Court that the same agreement would logically bar Perkins's FLSA claims that
arose on or before March 21,2013. The parties do not, however, explicitly address this point.
The Court invites them to do so.

t2

CONCLUSION
For the foregoing reasons, the Hospital's motion to dismiss, or in the alternative for

partial summary judgment, is denied. However, Perkins's NYLL claim is barred to the extent it
pertains to the time period up to and including March 2I,2013.
The Clerk of Court is directed to terminate the motion pending at docket number 63.

SO ORDERED.

P^I Å.
Paul A. Engelmayer
United States District Judge

Dated: June 1I,2015
New York, New York

13