Lawtone-Bowles et al v. City of New York, New York
Filing
126
MEMORANDUM AND ORDER. For the foregoing reasons, Plaintiffs' motion for summary judgment is granted with respect to its claims that Defendant improperly calculated the rate of overtime compensation (Count 2 of the Amended Complaint in 16-cv-4240 and Counts 2 and 4 of the Complaint in 18-cv-4338). Plaintiffs' motion is otherwise denied. Defendant's motion for summary judgment is denied in its entirely. Within two weeks of the date of this order, the parties should submit a joint le tter proposing trial dates for December of 2019 and January of 2020. Their letter should also include an estimated length of trial and advise whether the parties seek referral to the S.D.N.Y.'s mediation program or to the Magistrate Judge for a settlement conference. This resolves Dkt. Nos. 100 and 104 in 16-cv-4240, and Dkt. Nos. 46 and 50 in 18-cv-4338. Granting in part and denying in part 100 Motion for Summary Judgment; Denying 104 Motion for Summary Judgment. (Signed by Judge Alison J. Nathan on 67/1/2020) (rjm)
Case 1:16-cv-04240-AJN Document 126 Filed 06/01/20 Page 1 of 12
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
6/1/2020
Nicole Lawtone-Bowles, et al.,
Plaintiffs,
16-CV-4240 (AJN)
–v–
MEMORANDUM AND
ORDER
City of New York,
Defendant.
James Bookman, et al.,
Plaintiffs,
18-CV-4338 (AJN)
–v–
MEMORANDUM AND
ORDER
City of New York,
Defendant.
ALISON J. NATHAN, District Judge:
Plaintiffs bring these related actions against Defendant City of New York (“the City”) for
violations of the Fair Labor Standard Act (“FLSA”). The parties have now cross-moved for
summary judgment. For the reasons stated below, Plaintiffs’ motion is GRANTED in part and
DENIED in part. Defendant’s motion is DENIED.
I.
BACKGROUND
The following facts are drawn from the parties’ statements made pursuant to Local Civil
Rule 56.1 and are undisputed unless otherwise noted.
Plaintiffs in these matters are nineteen current or former employees of the City’s
Department of Homeless Services (“DHS”). Plaintiffs’ Response to Defendant’s Local Rule
Case 1:16-cv-04240-AJN Document 126 Filed 06/01/20 Page 2 of 12
56.1 Statement of Undisputed Materials Facts (“Pl. 56.1 Resp.”), Dkt. No. 109, ¶ 1.1 Each
worked as Motor Vehicle Operators. Id. ¶ 4. The duties of a Motor Vehicle Operator include
“operating passenger cars vans and trucks; transporting DHS employees and materials to and
from work locations; and transporting DHS clients and their belongings to or from shelters and
permanent housing.” Defendant’s Response to Plaintiffs’ Local Rule 56.1 Statement of
Undisputed Materials Facts (“Def. 56.1 Resp.”), Dkt. No. 112, ¶ 4. Motor Vehicle Operators are
scheduled for 8.5-hour shifts, which include a 30-minute unpaid meal break. Id. ¶ 3.
The City uses the electronic platform CityTime as its timekeeping system. Pl. 56.1 Resp.
¶ 6. Time recorded on the platform outside of an employee’s regular schedule for which there is
no approved overtime request is deemed in CityTime to be “noncompensable.” Id. ¶ 55. DHS’s
official policy states that “[a]ll overtime work . . . must be pre-authorized before it is worked.”
Id. ¶ 8. Employees cannot get paid unless they electronically certify that the timesheet in
CityTime is accurate. Id. ¶ 40; Def. 56.1 Resp. ¶ 133.
Plaintiffs bring a number of FLSA claims. First, Plaintiffs allege that the City illegally
failed to compensate them for overtime worked before and after their shifts, as well as during
their meal periods. Second, Plaintiffs claim that the City delayed payment for overtime work.
Third, Plaintiffs allege that when they were compensated for overtime the City would
miscalculate the proper rate of pay. Plaintiffs also seek liquidated damages and a finding of
willfulness, which would entitle them to a three-year statute of limitations. Each of these claims
will be discussed in further detail below.
II.
LEGAL STANDARD
1
Docket numbers will refer to Lawtone-Bowles except when otherwise noted.
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Summary judgment shall be granted “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The court must “construe the facts in the light most favorable to the non-moving party
and resolve all ambiguities and draw all reasonable inferences against the movant.” Delaney v.
Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (internal quotation marks and alterations
omitted). If the court determines that “the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial” and summary
judgment should be granted to the moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks and citation omitted).
It is the initial burden of the movant to present evidence on each material element of its
claim or defense and demonstrate that he is entitled to relief as a matter of law. See Vt. Teddy
Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). However, when the burden
of proof at trial would fall on the non-moving party, the moving party may meet its burden by
“point[ing] to a lack of evidence . . . on an essential element” of the non-moving party’s claim.
Simsbury-Avon Preservation Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.
2009). There is a genuine issue of material fact if a reasonable jury could decide in the nonmoving party’s favor. Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000).
The court “is not to weigh the evidence but is instead required to view the evidence in the light
most favorable to the party opposing summary judgment, to draw all reasonable inferences in
favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks omitted).
To survive a summary judgment motion, the non-moving party “must come forward with
specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown v.
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Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011). In doing so, the non-moving party “must do
more than simply show that there is some metaphysical doubt as to the material facts . . . and
may not rely on conclusory allegations or unsubstantiated speculation.” Id. (internal quotation
marks and citation omitted). When there are cross-motions for summary judgment, “each party's
motion must be examined on its own merits, and in each case all reasonable inferences must be
drawn against the party whose motion is under consideration.” Morales v. Quintel Entm’t, Inc.,
249 F.3d 115, 121 (2d Cir. 2001).
III.
DISCUSSION
A.
Unpaid Overtime Claims
In order to establish liability for unpaid overtime under the FLSA, a plaintiff must do two
things. First, “a plaintiff must prove that he performed work for which he was not properly
compensated.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011). Second, a
plaintiff must show “that the employer had actual or constructive knowledge of that work.” Id.
Both of these elements are questions of fact. See Holzapfel v. Town of Newburgh, 145 F.3d 516,
521 (2d Cir. 1998).
1.
Plaintiffs’ Motion for Summary Judgment Is Denied
In their motion, Plaintiffs argue that to receive summary judgment, they do not have to
show all of the unpaid overtime they worked or that Defendant had actual or constructive
knowledge of all of that time, because these are “damages” questions to be resolved later on.
Instead, Plaintiffs argue that they are entitled to summary judgment if they “make an adequate
showing that some amount of uncompensated work was performed with defendants’
knowledge,” and their motion purports to do no more than that. Plaintiffs’ Memorandum of Law
in Support of Summary Judgement, Dkt. No. 101, at 13-14 (emphasis added) (quoting Sherald v.
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Embrace Techs. Inc., No. 11-cv-939, 2013 U.S. Dist. LEXIS 4133, at *19 n.11 (S.D.N.Y. Jan.
10, 2013)). They cite both the Second Circuit’s decision in Kuebel and this District’s decision in
Sherald for this position. However, these opinions were discussing what was required for a
plaintiff to survive summary judgment, not receive it. And neither involved a plaintiff’s motion
for summary judgment on a FLSA unpaid overtime claim.
Kuebel addressed “the extent to which [a plaintiff] must show the amount of his
uncompensated work” when opposing summary judgment, particularly when the employer’s
records are “inaccurate” or “inadequate.” Kuebel, 643 F.3d at 361. To answer this question, the
Second Circuit looked to the Supreme Court’s burden shifting framework from Anderson v. Mt.
Clemens Pottery Co., 328 U.S. 680 (1946). Anderson dealt with the showing a plaintiff needed
to make in order to prevail on a FLSA unpaid overtime claim when the employer’s records are
“inaccurate” or “inadequate.” As the Court explained: “[A]n employee has carried out his
burden if he proves that he has in fact performed work for which he was improperly
compensated and if he produces sufficient evidence to show the amount and extent of that work
as a matter of just and reasonable inference.” Kuebel, 643 F.3d at 362 (quoting Anderson, 328
U.S. at 687). If this is accomplished, “the burden then shifts to the employer to come forward
with evidence of the precise amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s evidence.” Id. (quoting
Anderson, 328 U.S. at 687-88).
Based on Anderson, the Second Circuit held in Kuebel that in order to survive summary
judgment, a plaintiff need only satisfy the initial burden of the Anderson test. Sherald merely
restates the holding from Kuebel. As Judge Castel recently noted in rejecting the same, “some
amount” argument made by Plaintiffs’ counsel, “[t]he limited burden of the non-movant in
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Kuebel is consistent with the burden customarily applied to a non-movant who bears the ultimate
burden of proof at trial.” Murray v. City of New York, No. 16-cv-8072, 2020 U.S. Dist. LEXIS
22783, at *36 (S.D.N.Y. Feb. 10, 2020). Satisfying it does not entitle Plaintiffs to summary
judgment.
Kuebel and Sherald thus do not stand for the proposition that a plaintiff can receive
summary judgment by making an “adequate showing” that both elements of a FLSA unpaid
overtime claim are met for only some amount of work. Plaintiffs’ motion for summary judgment
on their unpaid overtime claims is denied.
2.
Defendant’s Motion for Summary Judgment Is Denied
In moving for summary judgment on the unpaid overtime claim, Defendant does not
focus on whether Plaintiffs actually worked uncompensated overtime. Indeed, Plaintiffs’ own
deposition testimony on this point buttressed, by CityTime records of their “noncompensable”
time, provide evidence from which a reasonable factfinder could conclude that Plaintiffs worked
unpaid overtime. Defendant instead argues that there is no genuine dispute that it lacked actual
or constructive knowledge of Plaintiffs’ work. The Court disagrees.
The standard for employer knowledge in FLSA unpaid overtime cases is straightforward:
“once an employer knows or has reason to know that an employee is working overtime, it cannot
deny compensation even where the employee fails to claim overtime hours.” Holzapfel, 145
F.3d at 524. Plaintiffs produce extensive testimony, which if credited, could support a finding of
actual or constructive knowledge of unpaid overtime work. This includes testimony from
Plaintiffs that their supervisors gave them keys and assigned them work outside of their regular
shifts, observed them working outside of their scheduled shifts, informed their supervisors when
they could not take meal breaks, informed their supervisors when they were working overtime
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that was not pre-approved, had requests for overtime that was not pre-approved denied, and
turned in paperwork and keys to their supervisors at times past when their scheduled shift has
been completed. Plaintiffs argue that their supervisors should have been aware that this overtime
was uncompensated because the supervisors are responsible for pre-authorizing time sheets.
They further contend that they were discouraged from submitting overtime requests that were not
pre-approved, and that their supervisors should have been put on notice by the accumulation of
noncompensable time in CityTime, which, as noted above, was reviewed by their supervisors.
This evidence is sufficient for a reasonable factfinder to conclude that Defendant had actual or
constructive knowledge of unpaid overtime. Defendant counters with evidence that CityTime
records physical presence at work, not necessarily compensable work; and that it can be difficult
for supervisors to monitor Plaintiffs because they are out driving and not always present at a
workplace. While this evidence might be sufficient to create a genuine dispute of material fact
as to Defendant’s knowledge of unpaid overtime, it is not enough to entitle Defendant to
summary judgment on this claim. See Perry v. City of New York, No. 13-cv-1015, 2018 U.S.
Dist. LEXIS 49773, at *15-*19 (S.D.N.Y. Mar. 26, 2018).
Defendant’s principal argument in favor of its summary judgment motion is that
Plaintiffs failed to report the unpaid overtime, and in fact certified that the timesheets they
submitted were accurate on CityTime. The City has made this argument repeatedly in FLSA
overtime litigation in this District and it has been unanimously rejected. See, e.g., Murray, 2020
U.S. Dist. LEXIS 22783, at *41-*42; Perry, 2018 U.S. Dist. LEXIS 49773, at *16-*17; Lynch v.
City of New York, 291 F. Supp. 3d 537, 550-51 (S.D.N.Y. 2018); Foster v. City of New York, No.
14 Civ. 4142, 2017 U.S. Dist. LEXIS 227758, at *112-*116 (S.D.N.Y. Sept. 30, 2017); Perez v.
City of New York, No. 12-cv-4914, 2017 U.S. Dist. LEXIS 159473, at *58-*63 (S.D.N.Y. Sept.
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27, 2017). Defendant’s argument would seem to violate one of the bedrock principles of FLSA
overtime law in this Circuit: that “an employer’s duty under the FLSA to maintain accurate
records of its employees’ hours is non-delegable.” Kuebel, 643 F.3d at 363. As Judge Friendly
explained, the employer’s obligation to pay overtime is “absolute. He cannot discharge it by
attempting to transfer his statutory burdens of accurate record keeping . . . and of appropriate
payment, to the employee.” Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 946 (2d Cir.
1959). An employer “cannot deny compensation even where the employee fails to claim
overtime hours.” Holzapfel, 145 F.3d at 524; see also Chao v. Gotham Registry, Inc., 514 F.3d
280, 288 (2d Cir. 2008).
Defendant would limit the reach of these precedents to situations where the employees
were discouraged from reporting overtime. But assuming this is correct, a reasonable factfinder
could conclude that the Plaintiffs were in fact discouraged from reporting overtime. It is
undisputed that it is the City’s policy that all overtime must be pre-approved before it is worked.
See Pl. 56.1 Resp. ¶ 8. Plaintiffs testified that they understood this to be the policy. The City
provides evidence that its policy is to nevertheless compensate employees for overtime they
reported, even if it was not pre-approved, and that this occurred on occasion for some Plaintiffs.
But Plaintiffs testified that they were never made aware of nor informed that this was the real
policy, and in some cases were explicitly told the opposite by their supervisors. Even if
compensation for overtime that was not pre-approved was not entirely forbidden, that does not
necessarily mean that a reasonable factfinder would have to conclude that reporting it was not
discouraged.
A reasonable factfinder could conclude that Plaintiffs worked uncompensated overtime,
that Defendant had actual or constructive knowledge of this time, and that Defendant
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discouraged the reporting of accurate overtime that was not pre-approved. Defendant’s motion
for summary judgment on this claim is denied.
B.
Delayed Payment of Overtime Claims
The FLSA also obliges an employer to pay wages, including overtime, in a “timely
fashion.” Rogers v. City of Troy, 148 F.3d 52, 57 (2d Cir. 1998). Based on the relevant
regulation, this “is generally considered to be within two pay periods.” Lynch, 291 F. Supp. 3d
at 552; see 9 C.F.R. § 778.106. However, “an inquiry into an employer’s liability for late
payment of overtime focuses not only on how often late payments were made or how late they
were, but also on whether the payments were made as soon as practicable.” Conzo v. City of
New York, 667 F. Supp. 2d 279, 288 (S.D.N.Y. 2009). “[W]hat constitutes timely payment must
be determined by objective standards.” Rogers, 148 F.3d at 57.
Here, Plaintiffs submitted deposition testimony about instances when it took longer than
two pay periods to receive overtime. This evidence was supplemented by a declaration from
Plaintiffs’ expert, Louis Lanier, finding instances in the payroll data where overtime was paid
past the two-pay period standard.2 Defendant does not dispute that some overtime was paid later
than two pay periods after it was worked, but argues that these represent only a small portion of
overtime payments, and that it may have been impractical to pay Plaintiffs sooner due to error on
the part of Plaintiffs or some other reason. Plaintiffs did provide testimony that could be read as
suggesting that they were told that the delays were due to errors or lethargy on the part of their
supervisors or the City’s timekeeping department. However, much of the testimony is vague and
equivocal and it is unclear whether it addresses all of the late payments for which Plaintiffs seek
2
Defendant objects to the admissibility of this declaration. However, it is admissible as an expert
declaration under Rule 702, because it identifies Dr. Lanier’s specialized knowledge, the data he is relying upon, the
reliable principles and methods he has used, and how those methods have been applied to the data at issue. See
Declaration of Louis R. Lanier, Ph.D., Dkt. No. 103-9.
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to recover. Furthermore, Defendants have submitted evidence that they made timely payments
over 96% of the time. Viewed in the light most favorable to Defendant, this high rate of timely
payment provides circumstantial support that the untimely payments were flukes, caused by
unusual issues that made faster payment “impracticable.” Based on this record, a genuine
dispute of fact remains on whether it would have been impracticable to pay Plaintiffs earlier. See
Worley v. City of New York, No. 17-cv-4337, 2020 U.S. Dist. LEXIS 26398, at *84-*85
(S.D.N.Y. February 12, 2020); Lynch, 291 F. Supp. 3d at 552. The parties’ cross-motions on this
claim are both denied.
C.
Improper Calculation of the Rate of Overtime Compensation
Plaintiffs claim that Defendant improperly calculated the rate of overtime in two ways:
by failing to include night shift differentials and meal allowance payments in the base rate of
pay, and by only compensating Plaintiffs at a straight rate when they elected to receive
compensatory time instead of cash. Defendant does not dispute that both of these practices, if
proved, would violate the FLSA.
In support of their summary judgment motion, Plaintiffs cite deposition testimony from
Defendant’s own 30(b)(6) witnesses admitting that Defendant failed to properly calculate the rate
of overtime compensation in the manner described above. See Pestana Tr. 174, 178-79; Wright
Tr. 224. Additionally, the declaration of Plaintiffs’ expert states that he found that the rate of
overtime was miscalculated in the relevant payroll data. Defendant’s only answer is to note that
Plaintiffs received night-shift differentials and compensatory time. But this is not responsive to
Plaintiffs’ argument, which is directed to the rate of overtime pay. It also does not contradict
Plaintiffs’ evidence in support of these claims. Accordingly, Plaintiffs’ motion for summary
judgment on the claims based on improper calculation of overtime pay (Count 2 of the Amended
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Complaint in 16-cv-4240 and Counts 2 and 4 of the Complaint in 18-cv-4338) is granted and
Defendant’s is denied. See Lynch, 291 F. Supp. 3d at 551-52.
D.
Liquidated Damages and Willfulness
Plaintiffs seek liquidated damages and a finding of willfulness with regard to their unpaid
overtime claims. “Under the FLSA, a district court is generally required to award a plaintiff
liquidated damages equal in amount to actual damages.” Barfield v. N.Y. City Health & Hosps.
Corp., 537 F.3d 132, 150 (2d Cir. 2008). But “[t]he Portal-to-Portal Act . . . 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. (quoting 29 U.S.C. § 260).
The employer’s burden in avoiding liquidated damages is “a difficult one.” Herman v. RSR Sec.
Servs., 172 F.3d 132, 142 (2d Cir. 1999). Furthermore, if a defendant is found to have willfully
violated the FLSA, then a plaintiff is entitled to a three-year statute of limitations, instead of the
default two years. 29 U.S.C. § 255(a). “Courts in this Circuit have generally left the question of
willfulness to the trier of fact.” Ramirez v. Rifkin, 568 F. Supp. 2d 262, 268 (E.D.N.Y. 2008).
Because Plaintiffs’ motion for summary judgment is denied on the underlying unpaid
overtime violations, their motion for summary judgment on liquidated damages and willfulness
is also denied. As to Defendant’s motion, it fails as well. It is undisputed that the City’s chief
employment lawyer was informed by the Department of Investigation that “the CityTime
certification language is not accurate because employees, certain employees, especially
managers, may work various hours but did not receive compensation even though they are, in
fact, working.” Def. 56.1 Resp. ¶ 136. Furthermore, as noted above, Plaintiffs have adduced
evidence that their supervisors observed them working overtime and had reason to know that this
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time was not being compensated. Plaintiffs further accumulated substantial amounts of
noncompensable time on CityTime. Additionally, Defendant has been sued several times before
regarding nearly identical allegations. See, e.g., Lynch v. City of New York, 291 F. Supp. 3d 537
(S.D.N.Y. 2018); Foster v. City of New York, No. 14 Civ. 4142, 2017 U.S. Dist. LEXIS 227758
(S.D.N.Y. Sept. 30, 2017); Martin v. City of New York, No. 14-cv-8950 (S.D.N.Y.). From this
evidence, a reasonable factfinder could conclude that Defendant lacked the requisite subjective
good faith and objective reasonableness, and willfully violated the FLSA. Defendants’ motion
for summary judgment is denied.
IV.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for summary judgment is granted with
respect to its claims that Defendant improperly calculated the rate of overtime compensation
(Count 2 of the Amended Complaint in 16-cv-4240 and Counts 2 and 4 of the Complaint in 18cv-4338). Plaintiffs’ motion is otherwise denied. Defendant’s motion for summary judgment is
denied in its entirely.
Within two weeks of the date of this order, the parties should submit a joint letter
proposing trial dates for December of 2019 and January of 2020. Their letter should also include
an estimated length of trial and advise whether the parties seek referral to the S.D.N.Y.’s
mediation program or to the Magistrate Judge for a settlement conference.
This resolves Dkt. Nos. 100 and 104 in 16-cv-4240, and Dkt. Nos. 46 and 50 in 18-cv4338.
Dated: June 1, 2020
New York, New York
__________________________________
ALISON J. NATHAN
United States District Judge
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