Pogil v. KPMG L.L.P. et al

Filing 107

MEMORANDUM ORDER granting 73 Motion for Summary Judgment; denying as moot 94 Motion to Set Aside. Counts One and Two must be dismissed because of the res judicata effect of a final New York state court decision in Plaintiff's earlier, re lated litigation. On Count Three, Defendant is entitled to judgment as a matter of law dismissing Plaintiff's FLSA and NYLL claims because the undisputed record establishes that was an exempt professional under both the FLSA and the NYLL. Def endant's motion to set aside pursuant to Federal Rule of Civil Procedure 72(a) is denied as moot. The Clerk of Court is respectfully directed to enter judgment dismissing he complaint in its entirety, and to close this case. This Memorandum Order resolves Docket Entry Nos. 40, 73, and 94. SO ORDERED. (Signed by Judge Laura Taylor Swain on 9/24/2024) (vfr) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
BORIS POGIL,
Plaintiff,
-v-

No. 21-CV-07628-LTS-BCM

KPMG LLP,
Defendant.
-------------------------------------------------------x
MEMORANDUM ORDER
In this action, Plaintiff Boris Pogil (“Plaintiff”) brings three claims against
KMPG, LLP (“KPMG” or “Defendant”). (See docket entry no. 40 (“Am. Compl.”).) Count One
asserts a claim for gender discrimination under 42 U.S.C. section 2000e-2 (“Title VII”). (Id.
¶¶ 114-25.) Count Two asserts a retaliation claim under Title VII. (Id. ¶¶ 126-35.) Finally,
Count Three seeks overtime pay under New York Labor Law Article 19 and New York Codes,
Rules, and Regulations title 12 section 142-2.14 (collectively, “NYLL”), as well as 29 U.S.C.
section 201 et seq. (the “FLSA”). (Id. ¶¶ 136-39.)
This Memorandum Order addresses Defendant’s motion for summary judgment.
(Docket entry no. 73.) The Court has jurisdiction of this action under 28 U.S.C. sections 1331
and 1367(a). The Court has considered carefully the parties’ submissions—(docket entry no. 74
(“Def. Mem.”); docket entry no. 84 (“Pl. Mem.”); docket entry no. 87 (“Def. Reply”); docket
entry no. 100 (“Def. Supp. Mem.”); docket entry no. 102 (“Pl. Supp. Mem.”); docket entry no.
103 (“Def. Supp. Reply”))—and, for the reasons set forth below, Defendant’s motion for
summary judgment is granted. Counts One and Two must be dismissed because of the res

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judicata effect of a New York state court decision. With respect to Count Three, Defendant has
met its burden of proving that Plaintiff is not entitled to overtime pay because he was an exempt
professional. Accordingly, judgment will be entered dismissing the complaint in its entirety.
The Court’s disposition of Plaintiff’s claims renders moot Defendant’s Federal Rule of Civil
Procedure 72(a) motion (docket entry no. 94), to set aside Magistrate Judge Barbara C. Moses’s
March 21, 2024 Order (docket entry no. 93), and that motion is denied.

BACKGROUND
Plaintiff’s Employment and Termination
Plaintiff joined KPMG on April 2, 2018, as a Senior Tax Associate in the M&A
Tax Practice in the New York Metro office. (Docket entry no. 73-1 (“Def. 56.1 St.”) ¶ 1; docket
entry no. 84-1 (“Pl. 56.1 St.”) ¶ 1.) Plaintiff has a Master’s Degree in Taxation, which he
received in 2011. (Def. 56.1 St. ¶ 2; Pl. 56.1 St. ¶ 2.) Before joining KPMG, Plaintiff had five
years’ experience as a Senior Associate at other firms. (Def. 56.1 St. ¶ 3; Pl. 56.1 St. ¶ 3.)
On March 14, 2020, due to the COVID-19 pandemic, KPMG directed all
employees who could work remotely to do so. (Def. 56.1 St. ¶ 32; Pl. 56.1 St. ¶ 32.) KPMG’s
offices closed fully a week later. (Def. 56.1 St. ¶ 32; Pl. 56.1 St. ¶ 32.)
On April 21, 2020, the New York Metro M&A Tax group had its
regularly-scheduled Interim Review process. (Def. 56.1 St. ¶ 35; Pl. 56.1 St. ¶ 35.) After that
Interim Review, on May 26, 2020, Plaintiff was presented with a Low Performer Memo. (Def.
56.1 St. ¶ 42; Pl. 56.1 St. ¶ 42; docket entry no. 73-27 (“LPM”).) The Low Performer Memo
stated that Plaintiff’s “performance is below expectations and below what we expect for a
professional at your level.” (LPM at 1.)

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On May 31, 2020, Plaintiff challenged the Low Performer Memo. (Def. 56.1 St.
¶ 43; Pl. 56.1 St. ¶ 43; docket entry no. 73-34 (“E&C Report”) at 2.) The Ethics & Compliance
Group investigated Plaintiff’s challenge and prepared a final report on September 14, 2020 (the
“E&C Report”). (Def. 56.1 St. ¶ 43; Pl. 56.1 St. ¶ 43; E&C Report at 2.) The E&C Report
stated that “[t]he investigation determined that Reporter’s [Plaintiff’s] allegations were
unsubstantiated.” (E&C Report at 10.)
A Low Performance Justification Memo was filed on September 21, 2020. (Def.
56.1 St. ¶ 53; Pl. 56.1 St. ¶ 53; docket entry no. 73-30 (“Justification Memo”).) The Justification
Memo stated that Plaintiff would “continu[e] to be designated as a low performer for FY20, as
he was at Interim [Review].” (Justification Memo at 2.) The Justification Memo concluded that,
“[a]s a FY20 LP [Low Performer], his [Plaintiff’s] employment will be separated in connection
with the upcoming reduction in force.” (Id. at 3.)
Plaintiff’s employment with KPMG was terminated on October 16, 2020. (Def.
56.1 St. ¶ 54; Pl. 56.1 St. ¶ 54.)
The BOA PPP Project
From April 2020 until his employment was terminated in October of that year,
Plaintiff did little M&A Tax work. (Def. 56.1 St. ¶ 45; Pl. 56.1 St. ¶ 45.) Instead, from
April 11, 2020, through July 31, 2020, Plaintiff spent most of his time on a non-M&A Tax
project for Bank of America (“BOA”) involving the federal Paycheck Protection Program (the
“PPP”). (Def. 56.1 St. ¶¶ 45, 60-61; Pl. 56.1 St. ¶¶ 45, 60-61.) The PPP provided forgivable,
interest-free loans to certain small businesses. (Def. 56.1 St. ¶ 55; Pl. 56.1 St. ¶ 55.) BOA was
involved in issuing loans under the PPP and retained KPMG to assist with the process. (Def.
56.1 St. ¶ 56; Pl. 56.1 St. ¶ 56.) KPMG asked for volunteers among its employees to work on

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the BOA PPP project, and Plaintiff volunteered. (Def. 56.1 St. ¶¶ 56, 58; Pl. 56.1 St. ¶¶ 56, 58.)
Plaintiff worked on the BOA PPP project from his home and performed all of the work on
computers. (Def. 56.1 St. ¶ 59; Pl. 56.1 St. ¶ 59.) Plaintiff claims that the PPP project was the
only working arrangement that would accommodate his childcare responsibilities during the
COVID-19 pandemic. (Pl. 56.1 St. ¶¶ 45-46.)
The New York State Court Actions
On January 20, 2021, following his October 2020 termination, Plaintiff filed a
five-count complaint in New York state court against KPMG and six KPMG employees,
asserting claims of: defamation; discrimination and retaliation under N.Y. Executive Law section
296 et seq. (“NYSHRL”); discrimination and retaliation under New York City Human Rights
law section 8-107 et seq. (“NYCHRL”); breach of contract; and entitlement to overtime pay
under the FLSA and NYLL. Pogil v. KPMG LLP, Index No. 150640/2021, docket entry no. 2
(N.Y. Sup. Ct. N.Y. Cnty. Jan. 20, 2021). On February 19, 2021, defendants in the New York
state court action removed the state court action to this Court based on federal question
jurisdiction of the FLSA claim. Pogil v. KPMG LLP, No. 21-CV-01528-JPO, docket entry no. 1
(S.D.N.Y. February 19, 2021).
Following the removal to this Court, Plaintiff filed a First Amended Complaint,
which excised the FLSA and NYLL claims but added claims for intentional infliction of
emotional distress and vicarious liability. Pogil v. KPMG LLP, No. 21-CV-01528-JPO, docket
entry no. 12 (S.D.N.Y. Mar. 10, 2021). Because the First Amended Complaint no longer
asserted any federal law claims, the case was remanded to state court pursuant to a so-ordered
stipulation. Pogil v. KPMG LLP, No. 21-CV-01528-JPO, docket entry no. 25 (S.D.N.Y. Mar.
16, 2021).

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Following motion practice, Plaintiff filed a Second Amended Complaint in New
York state court on December 22, 2022. Pogil v. KPMG LLP, Index No. 150640/2021, docket
entry no. 42 (N.Y. Sup. Ct. N.Y. Cnty. Dec. 22, 2022) (“N.Y. Compl.”). This Second Amended
Complaint, which was the operative complaint in the state court action, asserted three claims:
defamation, discrimination and retaliation under NYSHRL, and discrimination and retaliation
under NYCHRL. Id. ¶¶ 115-45.
The Instant Action
On September 13, 2021, after Plaintiff had facilitated the remand to state court by
dropping his federal claims from the state court action, Plaintiff filed the instant action against
KPMG and the same six KPMG employees. (Docket entry no. 1.) Plaintiff brought three
claims: discrimination under Title VII, retaliation under Title VII, and failure to pay overtime
compensation under the FLSA and NYLL. (Id. ¶¶ 114-30.) The individual defendants were
dismissed from this action on February 7, 2022. (Docket entry no. 11.) Plaintiff filed the
Amended Complaint, which is the operative complaint in this action, on June 28, 2022, raising
the same three claims. (Am. Compl. ¶¶ 114-39.)
The New York Supreme Court Decision
Litigation in the New York state court proceeded in parallel with litigation in this
Court. On January 30, 2024, the New York Supreme Court, New York County granted summary
judgment for defendants on all three counts (defamation, discrimination and retaliation under
NYSHRL, and discrimination and retaliation under NYCHRL). Pogil v. KPMG LLP, Index No.
150640/2021, 2024 WL 343937, at *13 (N.Y. Sup. Ct. N.Y. Cnty. Jan. 29, 2024).
The Supreme Court analyzed Plaintiff’s NYSHRL and NYCHRL discrimination
claims under the three-step McDonnell Douglas framework. Id. at *9; see McDonnell Douglas

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Corp. v. Green, 411 U.S. 792, 802-803 (1973). First, the court held that Plaintiff “did not make
out a prima facie case of discrimination under the McDonnell Douglas standard” because
“plaintiff could not show any employees under materially similar circumstances who were
treated more favorably than plaintiff.” Pogil, 2024 WL 343937, at *11. The court continued to
the second step, holding that, “[e]ven assuming plaintiff did meet his burden [to make a prima
facie case], defendants offer legitimate, nondiscriminatory reasons for terminating plaintiff’s
employment in the RIF [reduction-in-force].” Id. Finally, on the third step, the court held that
“Plaintiff did not provide evidence to demonstrate that there are triable issues of fact that the
reasons proffered by defendants were pretextual or even that the decision to terminate plaintiff
was partially motivated by gender and/or childcare status discrimination.” Id. at *12.
With respect to the retaliation claim, the Supreme Court held that Plaintiff failed
to make a showing that he engaged in “protected activity.” Id. at *13. According to the court,
Plaintiff’s only allegation of “protected activity” was challenging the Low Performance Memo
and Plaintiff failed to “prove a causal connection between the investigation [into Plaintiff’s
challenge] and [the adverse action,] his inclusion in the RIF [reduction in force].” Id.
The Appellate Division, First Department Decision
Plaintiff appealed, and the state Supreme Court’s Appellate Division, First
Department unanimously affirmed the trial court’s decision on June 11, 2024. Pogil v. KPMG
LLP, 212 N.Y.S.3d 629, 631 (N.Y. App. Div. 1st Dep’t 2024). The Appellate Division affirmed
the dismissal of Plaintiff’s defamation claim as well as the Supreme Court’s analysis and
disposition of his discrimination claim. With respect to the discrimination claim, the Appellate
Division held that Plaintiff had “failed to establish a prima facie case that his employer,
defendant KPMG LLP, discriminated against him because he is a male with childcare

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responsibilities” and that Plaintiff “failed to show that he was treated differently from similarly
situated female employees.” Id. “Even if plaintiff had made out a prima facie case,” the court
explained, “defendants set forth documented, nondiscriminatory grounds for having terminated
him: utilization rates well below target levels and a habit of declining or delegating work.” Id.
Further, Plaintiff failed to show that these performance grounds were “pretextual.” Id.
On the retaliation claim, the Appellate Division concluded that “Plaintiff’s
retaliation claim was correctly dismissed” because “the acts he categorizes as retaliatory predate
[his May 31, 2020 appeal of the Low Performer Memo] and thus cannot support a retaliation
claim.” Id. at 632.
After the Appellate Division’s decision, Plaintiff moved for reargument, or in the
alternative, for leave to appeal to the New York Court of Appeals. On August 15, 2024, the
Appellate Division denied Plaintiff’s motion. Pogil v. KPMG LLP, Case No. 2024-00752,
docket entry no. 17 (N.Y. App. Div. 1st Dep’t Aug. 15, 2024).

DISCUSSION
Defendant moves for summary judgment. Summary judgment is to be granted in
favor of a moving party 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). A fact is
considered material if it “might affect the outcome of the suit under the governing law,” and an
issue of fact is a genuine one where “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Holtz v. Rockefeller & Co. Inc., 258 F.3d 62, 69 (2d Cir.
2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To defeat a
summary judgment motion, the nonmoving party “must do more than simply show that there is

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some metaphysical doubt as to the material facts.” Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87,
(1986)). The nonmoving party “may not rely on mere conclusory allegations nor speculation,
but instead must offer some hard evidence showing that its version of the events is not wholly
fanciful.” Golden Pac. Bancorp v. FDIC, 375 F.3d 196, 200 (2d Cir. 2004) (citation omitted).
“When the burden of proof at trial would fall on the nonmoving party, it
ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an
essential element of the nonmovant’s claim.” Simsbury-Avon Pres. Soc’y, LLC v. Metacon Gun
Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986)). In that event, “the nonmoving party must come forward with admissible
evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.”
Id. (citing Celotex, 477 U.S. at 322-23). “Where no rational finder of fact ‘could find in favor of
the nonmoving party because the evidence to support its case is so slight,’ summary judgment
must be granted.” Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (citation omitted).
In determining whether there is a genuine issue of material fact, the Court is
“required to resolve all ambiguities and draw all permissible factual inferences in favor of the
party against whom summary judgment is sought.” Johnson v. Killian, 680 F.3d 234, 236 (2d
Cir. 2012) (citation omitted). In employment discrimination cases, where direct evidence of
intentional discrimination is rare, “affidavits and depositions must be carefully scrutinized for
circumstantial proof” of discrimination. Turner v. NYU Hosps. Ctr., 784 F. Supp. 2d 266, 275
(S.D.N.Y. 2011) (citing Gallo v. Prudential Residential Servs., Ltd., P’ship, 22 F.3d 1219, 1224
(2d Cir. 1994)), aff’d, 470 F. App’x 20 (2d Cir. 2012).

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Res Judicata
Defendant argues that summary judgment is appropriate because Plaintiff’s
claims are barred by res judicata as a result of the Appellate Division’s decision. “To determine
the effect of a state court judgment, federal courts . . . are required to apply the preclusion law of
the rendering state.” Conopco, Inc. v. Roll Int’l, 231 F.3d 82, 87 (2d Cir. 2000); see also 28
U.S.C. § 1738. “Under New York law, a final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were or could have been raised in that action.”
Giannone v. York Tape & Label, Inc., 548 F.3d 191, 193 (2d Cir. 2008) (citation omitted). “To
establish claim preclusion, a party must show: (1) a final judgment on the merits, (2) identity or
privity of parties, and (3) identity of claims in the two actions.” Belton v. Borg & Ide Imaging,
P.C., 197 N.Y.S.3d 399, 401 (N.Y. App. Div. 2023).
First, there is no dispute that the Appellate Division decision was a final judgment
on the merits, and Plaintiff has exhausted further appellate review. See Pogil v. KPMG LLP,
Case No. 2024-00752, docket entry no. 17 (N.Y. App. Div. 1st Dep’t Aug. 15, 2024) (denying
Plaintiff’s motion for reargument, or in the alternative, for leave to appeal to the Court of
Appeals). Second, it is undisputed that there was privity between the parties here and in the New
York state courts.
With respect to the third element, New York courts “have consistently applied a
‘transactional analysis approach.’” Simmons v. Trans Express Inc., 37 N.Y.3d 107, 111 (N.Y.
App. Div. 2021) (quoting O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357 (N.Y. App. Div.
1981)). “[T]o determine whether two claims arise out of the same transaction or series of
transactions,” New York courts consider whether “the claims turn on facts that ‘are related in
time, space, origin, or motivation, whether they form a convenient trial unit, and whether their

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treatment as a unit conforms to the parties’ expectations or business understanding or usage.’”
Id. at 111-12 (quoting Xiao Yang Chen v. Fischer, 6 N.Y.3d 94, 100-101 (N.Y. App. Div.
2005)). “‘[O]nce a claim is brought to a final conclusion, all other claims arising out of the same
transaction or series of transactions are barred, even if based upon different theories or if seeking
a different remedy.’” Id. at 111 (quoting O’Brien, 54 N.Y.2d at 357)). The Title VII
discrimination and retaliation claims (Counts One and Two of the Amended Complaint) are
identical to the NYSHRL and NYCHRL discrimination and retaliation claims that Plaintiff
raised before the New York state courts and are therefore dismissed. The overtime claims
(Count Three), however, do not satisfy the transactional test and therefore cannot be dismissed
on claim preclusion grounds.
Counts One and Two
The Title VII discrimination and retaliation claims in this action “arise out of the
same set of operative facts” as the NYSHRL and NYCHRL discrimination and retaliation claims
in the New York state action. Belton v. Borg & Ide Imaging, P.C., 197 N.Y.S.3d 399, 402-403
(N.Y. App. Div. 2023). In the state court action, Plaintiff claimed that Defendants
“discriminated against him because he is a male with childcare responsibilities.” Pogil v. KPMG
LLP, 212 N.Y.S.3d 629, 629 (N.Y. App. Div. 1st Dep’t 2024); (see also N.Y. Compl. ¶ 129
(alleging that “Defendants discriminated against Plaintiff, in whole or in part, because he was a
male with child caregiving responsibilities”)). He makes the same claim here. (Am. Compl.
¶ 122 (alleging that “Defendants discriminated against Plaintiff, in whole or in part, because he
was a male with child caregiving responsibilities”).) Plaintiff also asserted the same retaliation
claims before the New York state courts that he pursues here. (Compare N.Y. Compl. ¶¶ 133-41
with Am. Compl. ¶¶ 126-35.) Accordingly, res judicata compels dismissal of Counts One and

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Two of the Amended Complaint. See Belton, 197 N.Y.S.3d at 402-403 (dismissing on res
judicata grounds NYSHRL claims after federal court dismissed Title VII claims); Barnes v.
Royal Health Care LLC, 357 F. App’x 375, 377 (2d Cir. 2009) (dismissing on res judicata
grounds Title VII claims after state court dismissed tort claims also “arising from [plaintiff’s]
employment and subsequent termination”).
Plaintiff resists dismissal, alleging that Defendant submitted false evidence to the
New York state courts. Plaintiff points to purported inconsistencies between an affidavit
submitted in this action and an affidavit submitted in the New York state action. (Pl. Supp.
Mem. at 1-2; see also Pl. Mem. at 4-5.) Even if this allegation of falsified evidence were true,
“assertions that the state court judgment was procured by perjury and misrepresentations does
not take the claims asserted in this case out of the purview of res judicata.” Marshall v. Grant,
521 F. Supp. 2d 240, 246 (E.D.N.Y. 2007) (citing Karaha Bodas Co., L.L. C. v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara, 500 F.3d 111, 122 (2d Cir. 2007); Campaniello
Imports, Ltd. v. Saporiti Italia, S.p.A., 117 F.3d 655, 661-63 (2d Cir. 1997)). “Indeed, the law in
New York is that ‘[t]he remedy for fraud allegedly committed during the course of a legal
proceeding must be exercised in that lawsuit by moving to vacate the civil judgment (CPLR
5015(a)(3)), and not by another plenary action collaterally attacking that judgment.’” Id.
(quoting St. Clement v. Londa, 779 N.Y.S.2d 460, 461 (N.Y. App. Div. 2004)).
Plaintiff also argues that the New York state courts erred by failing to consider the
mixed-motive framework. (Pl. Supp. Mem. at 2-4.) Plaintiff’s contention, whatever its merit,
“is irrelevant.” Male v. Tops Markets, LLC, 354 F. App’x 514, 515 (2d Cir. 2009). “[I]t is well
established that ‘[r]es judicata protects wrong decisions as fully as right ones.’” Id. (quoting
Friarton Estates Corp. v. City of New York, 681 F.2d 150, 158 (2d Cir. 1982)). “Res judicata . . .

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appl[ies] even in the face of a claim that the prior judgment was erroneous as long as that
judgment stands.” Archie Comic Publ’ns, Inc. v. DeCarlo, 258 F. Supp. 2d 315, 327 (S.D.N.Y.
2003), aff’d, 88 F. App’x 468 (2d Cir. 2004).
Count Three
In Count Three, Plaintiff claims that he should be compensated for the overtime
hours he worked during the BOA PPP project. (Am. Compl. ¶¶ 136-39.) Defendant contends
that res judicata precludes this claim because it “could have been raised”—and was indeed
initially raised—in the New York state court action. (Def. Supp Mem. at 3.) This
misapprehends the governing standard. The “‘could have been’ language of the third
requirement is something of a misnomer.” Pike v. Freeman, 266 F.3d 78, 91 (2d Cir. 2001).
“The question is not whether the applicable procedural rules permitted assertion of the claim in
the first proceeding; rather, the question is whether the claim was sufficiently related to the
claims that were asserted in the first proceeding that it should have been asserted in that
proceeding.” Id. (emphasis in original). The overtime claim does not meet this test.
The overtime claim turns on the number of hours Plaintiff worked, and the nature
of Plaintiff’s job duties during the relevant time—issues not squarely addressed by the New York
state courts in Plaintiff’s prior lawsuit. Tellingly, Defendant implicitly concedes as much—its
Rule 56.1 Statement addresses the “Facts Relevant to Plaintiff’s FLSA and NYLL Overtime
Claim” as a separate section from the “Facts Relevant to Plaintiff’s Title VII Claim.” (Def. 56.1
St. at 1, 10). The factual narrative in Defendant’s Opening Brief in Support of Summary
Judgment similarly sets the facts underlying the overtime claim separate and apart from the facts
underlying the discrimination and retaliation claims. (Def. Mem. at 8-15.)

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Whether Plaintiff Is Entitled to Overtime Pay
While Count Three escapes the res judicata bar, Defendant is nonetheless entitled
to summary judgment on that claim because Plaintiff was not, as a matter of law, entitled to
overtime pay as an exempt professional under both the FLSA and the NYLL.
FLSA Professional Exemption
Under 29 U.S.C. section 207, an employee who works more than forty hours a
week is entitled to overtime pay at a rate of one and one-half times her regular rate. Section
213(a)(1), however, exempts “any employee employed in a bona fide executive, administrative,
or professional capacity” from the overtime pay requirement. The Secretary of Labor—
exercising power conferred by section 213(a)(1)—has defined “employee employed in a bona
fide professional capacity” to include a “learned professional”: an employee who is (1)
“[c]ompensated on a salary . . . basis . . . at a rate of not less than $685 per week,” (2) “[w]hose
primary duty is the performance of . . . ,” (3) work “[r]equiring knowledge of an advanced type
in a field of science or learning customarily acquired by a prolonged course of specialized
intellectual instruction.” 29 C.F.R. § 541.300(a); see also 29 C.F.R. § 541.301. “[W]ork
requiring advanced knowledge” is “work which is predominantly intellectual in character, and
which includes work requiring the consistent exercise of discretion and judgment.” 29 C.F.R.
§ 541.301(b). The term “field of science or learning,” as used in the regulation, includes
accounting. 29 C.F.R. § 541.301(c). The requirement that the field of knowledge be one
“customarily acquired by a prolonged course of specialized intellectual instruction” “restricts the
exemption to professions where specialized academic training is a standard prerequisite for
entrance into the profession.” 29 C.F.R. § 541.301(d). “The best prima facie evidence that an
employee meets this requirement is possession of the appropriate academic degree.” Id.

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The undisputed factual record establishes that Plaintiff qualified as a learned
professional and was therefore not entitled to overtime pay. First, it is undisputed that Plaintiff,
who earned an annual salary of $160,000 (weekly salary of $3,077), was “[c]ompensated on a
salary . . . basis . . . at a rate of not less than $685 per week.” (Def. 56.1 St. ¶ 18; Pl. 56.1 St.
¶ 18.)
The educational element of the learned professional exemption is also satisfied.
Plaintiff’s role as an M&A Senior Tax Associate “[r]equir[ed] knowledge of an advanced type in
a field of science or learning customarily acquired by a prolonged course of specialized
intellectual instruction.” 29 C.F.R. § 541.300(a). Plaintiff has a Bachelor of Science Degree in
Accounting and a Master’s Degree in Tax. (Def. 56.1 St. ¶ 2; Pl. 56.1 St. ¶ 2; docket entry no.
73-3.) Furthermore, it is clear that Plaintiff’s work was primarily intellectual. As Plaintiff
explained in his deposition, he “did M&A Advisory work, tax due diligence, tax restructuring,
tax modeling,” and had “calls with bankers and attorneys discussing purchase agreements,
commenting on those purchase agreements, amongst other things.” (Docket entry no. 105-1
(“Pogil Dep.”) at 171.) Plaintiff also provided oversight to other tax professionals on client
engagements and delegated work to them. (Id. at 83-84.) Plaintiff himself has asserted that he
was acting as a “manager” on several deals. (Id. at 73; see also Am. Compl. ¶¶ 17, 21, 46, 47,
86.)
Indeed, Plaintiff does not argue that he was entitled to overtime pay as an M&A
Senior Tax Associate. Rather, Plaintiff contends that his work on the BOA PPP project was not
of the same character such that, once he was assigned to such work, he was no longer exempt—
and was entitled to be paid overtime. (Pl. Mem. at 24-26; docket entry no. 85-48 (“Pogil Decl.”)
at 2.) Plaintiff worked almost exclusively on the BOA PPP project from April 11, 2020, until

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July 31, 2020. (Def. 56.1 St. ¶¶ 45, 60-61; Pl. 56.1 St. ¶¶ 45, 60-61.) According to Plaintiff, his
duties on the BOA PPP project differed dramatically from those he had performed in his M&A
Tax capacity. (Pogil Decl. at 2-3.) Plaintiff claims that the BOA PPP project was not “work
requiring knowledge of an advanced type in a field of science or learning customarily acquired
by a prolonged course of specialized intellectual instruction.” (See id.) Defendant does not
object to Plaintiff’s characterization of the BOA PPP project as non-exempt work. For its part,
Defendant argues that Plaintiff was still an exempt learned professional because his “primary
duty” remained M&A Senior Tax Associate work.
The second element of the learned professional exemption requires “an
employee’s ‘primary duty’ [to] be the performance of exempt work.” 29 C.F.R. § 541.700(a).
According to the Secretary of Labor, “[t]he term ‘primary duty’ means the principal, main, major
or most important duty that the employee performs.” Id. “Determination of an employee’s
primary duty must be based on all the facts in a particular case, with the major emphasis on the
character of the employee’s job as a whole.” Id. Furthermore, “temporary periods of
non-exempt work do not necessarily alter the overall status of an otherwise exempt employee.”
Levine v. Vitamin Cottage Nat. Food Mkts., Inc., No. 20-CV-00261-STV, 2023 WL 6929402, at
*17 (D. Colo. Oct. 19, 2023); see Counts v. S.C. Elec. & Gas Co., 317 F.3d 453, 456 (4th Cir.
2003) (holding that “the performance of nonexempt work for five or six weeks out of every
eighteen months could not alter the plaintiffs’ exempt status”); Renfro v. Ind. Mich. Power Co.,
370 F.3d 512, 517 (6th Cir. 2004) (holding that employees were not “preclude[d] from otherwise
meeting the [administrative] exemption” by virtue of performing one to two months of
nonexempt work during the year); Wingerd v. Kaabooworks Servs., LLC, No. 18-CV-2024JAR-KGG, 2019 WL 1171700, at *16 (D. Kan. Mar. 13, 2019) (holding that a seventeen-day

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“demotion” which did not alter an employee’s salary or job title “d[id] not destroy [the
employee’s] classification as an exempt employee”); Dept. of Labor Wage & Hour Div., Opinion
Letter FLSA2008-19, available at https://perma.cc/CL3A-VWD3 (December 19, 2008), at 2-3
(stating that “temporar[y] reassign[ment] to training” would not result in the loss of a long-held
exemption when the employees’ “primary duty continues to be that of an exempt [employee]”).
Plaintiff only worked on the BOA PPP project for 14 weeks out of his 2.5 years of
employment with KPMG. (Def. 56.1 St. ¶¶ 45, 60-61; Pl. 56.1 St. ¶¶ 45, 60-61.) “[E]mployees
who spend more than 50 percent of their time performing exempt work will generally satisfy the
primary duty requirement,” C.F.R. § 541.700(b), and Plaintiff spent about 89% of his total time
with KPMG not working on the BOA PPP project.1 Furthermore, while he worked on the BOA
PPP project, Plaintiff received the same $160,000 salary and his job title remained unchanged.
(Docket entry no. 81 (“Bede Decl.”) ¶ 3.) The undisputed factual record indicates that Plaintiff’s
role on the BOA PPP project was temporary, and that Defendant wanted Plaintiff to return to
M&A Tax work. For example, in a July 14, 2020 email, one of Plaintiff’s supervisors explained
to Plaintiff that “you should start to work on getting integrated back into the group in advance of
rolling off BOA so you can have the opportunity to work on as many M&A engagements before

1

Using Plaintiff’s total 2.5-year employment as the denominator in this calculation is
appropriate because “[c]alculating an employee’s primary duties is based on the totality
of the circumstances, and not on a weekly basis.” Chart v. Mars, Inc., No. 08-CV086598-RSWL-JCX, 2010 WL 11508334, at *2 (C.D. Cal. Oct. 28, 2010) (citing Counts,
317 F.3d at 456)); see also Marshall v. Western Union Telegraph Co., 621 F.2d 1246,
1250-52 (3d Cir. 1980); Holt v. City of Battle Creek, 925 F.3d 905, 911 n.2 (6th Cir.
2019).

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year end as possible.” (Docket entry no. 85-31 at 5.) Indeed, the Appellate Division, First
Department, found as much, noting:
As the record makes clear, the BOA project meant a departure from the
Mergers and Acquisitions (M&A) tax work that plaintiff had been hired to
do, and rather than request or try to negotiate an end date to such
arrangement, plaintiff appears to have summarily expected defendants to
be amenable to his doing such work, apparently to the exclusion of all
else.
Pogil v. KPMG LLP, 212 N.Y.S.3d 629, 632 (N.Y. App. Div. 1st Dep’t 2024).
In his opposition papers, Plaintiff attempts—but fails—to raise several factual
issues. First, Plaintiff contends that he “was never integrated back” into the M&A Tax group
and that the move to the BOA PPP project was permanent. (Pl. Mem. at 23.) Plaintiff’s only
evidence in support of this assertion is that he was omitted from a September 8, 2020 “M&A
Availability” email that listed the hours each M&A Tax team member was available to work.
(Id. (citing docket entry no. 85-50).) Plaintiff misrepresents the content of the communication.
Plaintiff was a recipient of the email, which was sent to all of the members of the M&A Tax
group, including Plaintiff. (Docket entry no. 85-50.) The email also tells each recipient that, if
their hours listed in the email are incorrect, the recipient should “update your availability.” (Id.
at 2-3.) Plaintiff did not respond that he was available. (See id.) Indeed, the previous month, on
August 10, 2020, Plaintiff had said that he would not be available for M&A Tax projects for
“about [the next] 4-6 weeks” “while I figure out my childcare situation.” (Docket entry no. 87-5
at 2.) Plaintiff restricted himself to BOA PPP work instead of the M&A Tax work he had been
hired to do. (See id.)
Next, Plaintiff contends that he “expect[ed to] be compensated” for overtime
because his BOA PPP project team leader said he was “welcome to work overtime.” (Pogil
Decl. at 3.) Plaintiff misleadingly quotes the relevant evidence. In the full message chain,
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Plaintiff’s team leader says, “team members are able to work overtime if they want to.” (Docket
entry no. 85-49 at 6.) Immediately below that message, Plaintiff’s co-worker asked whether that
meant “we get paid for overtime?” and Plaintiff’s team leader responded, “There is no OT pay.”
(Id.)
There is no genuine dispute of material fact that Plaintiff was a learned
professional, that his work was primarily of a type consistent with that status, and that his
compensation consistently exceeded the federal regulatory threshold. Therefore, he was, as a
matter of law, exempt from overtime pay requirements during his temporary assignment to the
BOA PPP project. Summary judgment in favor of Defendant on Plaintiff’s FLSA claim is
warranted as a matter of law.
NYLL Professional Exemption
Like the FLSA, the NYLL generally requires overtime pay for employees who
work more than forty hours a week. N.Y. COMP. CODES R. & REGS. tit. 12 § 142-2.2. Also, like
the FLSA, the NYLL exempts those employees who work in a “bona fide” “professional
capacity.” N.Y. COMP. CODES R. & REGS. tit. 12 § 142-2.14(c)(4)(iii). A professional is defined
by the NYLL as an employee:
(a) whose primary duty consists of the performance of work: requiring
knowledge of an advanced type in a field of science or learning
customarily acquired by a prolonged course of specialized intellectual
instruction and study . . . and from training in the performance of routine
mental, manual or physical processes . . . [and] (b) whose work requires
the consistent exercise of discretion and judgment in its performance; . . .
[or] (c) whose work is predominantly intellectual and varied in character .
. . and is of such a character that the output produced or the result
accomplished cannot be standardized in relation to a given period of time.
Id. The NYLL professional exemption is “nearly identical” to the FLSA professional exemption.
Sethi v. Narod, 974 F. Supp. 2d 162, 185 (E.D.N.Y. 2013). The only difference is that the

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NYLL exemption does not have a salary requirement. Id. Courts interpreting the NYLL
routinely look to FLSA precedents. E.g., id.; Frazier v. FCBC Cmty. Dev. Corp., No. 22-CV5270-AS, 2023 WL 8602914, at *2 (S.D.N.Y. Dec. 12, 2023); Davis v. Lenox Hill Hosp., No.
03-CV-3746-DLC, 2004 WL 1926087, at *5 (S.D.N.Y. Aug. 31, 2004); Clougher v. Home
Depot U.S.A., Inc., 696 F. Supp. 2d 285, 290 (E.D.N.Y. 2010). Because Plaintiff satisfies the
professional exemption under the FLSA, he also satisfies the professional exemption under the
NYLL. Summary judgment in favor of Defendant dismissing Plaintiff’s NYLL claim is
warranted as a matter of law.

CONCLUSION
Counts One and Two must be dismissed because of the res judicata effect of a
final New York state court decision in Plaintiff’s earlier, related litigation. On Count Three,
Defendant is entitled to judgment as a matter of law dismissing Plaintiff’s FLSA and NYLL
claims because the undisputed record establishes that was an exempt professional under both the
FLSA and the NYLL. Defendant’s motion to set aside pursuant to Federal Rule of Civil
Procedure 72(a) is denied as moot.

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The Clerk of Court is respectfully directed to enter judgment dismissing he
complaint in its entirety, and to close this case. This Memorandum Order resolves Docket Entry
Nos. 40, 73, and 94.
SO ORDERED.
Dated: New York, New York
September 24, 2024
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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