United States District Court, S.D. New York
September 17, 2004.
JACQUELINE ASTUDILLO, Plaintiff,
US NEWS & WORLD REPORT and MORTIMER ZUCKERMAN, Defendants.
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
Plaintiff Jacqueline Astudillo brings this action against
defendants U.S. News and World Report ("U.S. News") and Mortimer
Zuckerman (collectively, "defendants") to recover overtime pay
under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et
seq. (2000), and the New York State Labor Law ("New York Labor
Law"), N.Y. Lab. Law § 190, et seq. (McKinney 2003). Plaintiff
also seeks to recover damages for U.S. News' failure to reinstate
her pursuant to the Family and Medical Leave Act ("FMLA"),
29 U.S.C. § 2601, et seq. (2000). By Order dated December 5, 2003,
this Court dismissed plaintiff's claim for unjust enrichment and
plaintiff's FMLA claim against defendant Zuckerman. (See Order,
dated Dec. 5, 2003.) Defendants now move for summary judgment,
pursuant to Rule 56 of the Federal Rules of Civil Procedure, on
the remaining federal claims. For the following reasons, defendants' motion is denied.
In August 2000, Zuckerman's executive assistant, Wayne Osborne,
hired plaintiff to work as a personal assistant and house manager
in Zuckerman's private residence in Manhattan. (Defendants' Rule
56.1 Statement of Undisputed Facts ("Defs. 56.1 Stmt.") ¶ 1;
Plaintiff's Rule 56.1 Counter-Statement of Undisputed Facts ("Pl.
56.1 Stmt.") ¶ 1; Deposition of Jacqueline Astudillo, dated
October 30, 2003 ("Astudillo Dep.") at 69, 95.)*fn1
Plaintiff was paid approximately $70,000 per year and resided
free of charge in Zuckerman's guestroom. (Defs. 56.1 Stmt. ¶ 4;
Pl. 56.1 Stmt. ¶ 4; Declaration of P. Wayne Osborne, dated
January 28, 2004 ("Osborne Decl.") ¶ 6; Declaration of Mortimer
Zuckerman, dated January 28, 2004 ("Zuckerman Decl.") ¶ 2.)
Plaintiff maintains that she acted as Zuckerman's "receptionist"
answering the phone and taking messages, maintaining files,
confirming Zuckerman's schedule and, occasionally, returning
calls on his behalf. (Pl. 56.1 Stmt. ¶ 2; Astudillo Dep. at 100.) She also acknowledges that she
performed domestic functions such as ordering Zuckerman's
medications, fixing fruit bowls, walking his dog, making beds,
maintaining food supplies, polishing silver, organizing closets
and doing laundry. (Astudillo Dep. at 115-16, 171-2, 174, 176.)
During this time, plaintiff received instructions from Osborne,
who helped her coordinate the work to be performed in Zuckerman's
residence.*fn2 (Defs. 56.1 Stmt. ¶ 1; Astudillo Dep. at 96.)
Initially, Zuckerman paid plaintiff with a personal check.
(Def. 56.1 Stmt. ¶ 13.) Beginning in November 2000, Zuckerman
began to pay his residential staff, including plaintiff, through
the Boston Properties payroll. (Def. 56.1 Stmt. ¶ 13; Zuckerman
Decl. ¶ 5; Osborne Decl. ¶ 10.) In January 2001, plaintiff began
to receive her paychecks from U.S. News. (Def. 56.1 Stmt. ¶ 13;
Zuckerman Decl. ¶ 5; Osborne Decl. ¶ 10.) Zuckerman asserts that
the decision to pay household staff from corporate accounts was
an administrative decision and that he personally reimbursed
Boston Properties and U.S. News for his residence staff's
salaries. (Def. 56.1 Stmt. ¶ 13; Zuckerman Decl. ¶ 5; Osborne
Decl. ¶ 10.) In or around October 2001, plaintiff informed Osborne that she
was pregnant and would need to take maternity leave. (Defs. 56.1
Stmt. ¶ 20; Astudillo Dep. at 192-93.) Plaintiff subsequently
requested, and was granted, eight weeks' maternity leave from
U.S. News under its family leave policy. (Pl. 56.1 Stmt. ¶ 20;
Pl. Ex. 3 (U.S. News Request for Family Leave form); Astudillo
Dep. at 195, 239-41; Defs. 56.1 Stmt. ¶ 20.)*fn3
Plaintiff asked whether she could live in Zuckerman's residence
with her newborn child when she returned to work. (Defs. 56.1
Stmt. ¶ 21; Pl. 56.1 Stmt. ¶ 21.) Zuckerman denied her request.
(Defs. 56.1 Stmt. ¶ 21; Pl. 56.1 Stmt. ¶ 21.) Plaintiff never
returned to work. (Astudillo Dep. at 201-02; Pl. 56.1 Stmt. ¶
I. Summary Judgment Standard
Courts may grant summary judgment only if "there is no genuine
issue as to any material fact" and "the moving party is entitled to summary judgment as a matter of law." Fed.R. Civ. P.
56(c). The movant bears the burden of establishing that no
genuine issues of material fact exist. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986); accord McLee v.
Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). Once the
movant satisfies this requirement, the burden shifts to the
nonmoving party "to make a showing sufficient to establish the
existence of an element essential to that party's case, and on
which that party will bear the burden of proof at trial."
Celotex, 477 U.S. at 322. The court is required to resolve any
ambiguities and to make all reasonable inferences in favor of the
nonmoving party. Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83
(2d Cir. 2001). A genuine issue of material fact exists when "a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
II. The FLSA "Domestic Service" Exemption
Defendants contend that plaintiff was a domestic employee and
is precluded from recovering overtime compensation by the FLSA's
exception for domestic servants. This argument is unavailing.
Under the FLSA, workers are entitled to receive overtime
compensation of 1½ times their hourly rate for each hour worked
in excess of 40 hours per week. 29 U.S.C. § 207(a)(1). However, this provision does not apply to "any
employee who is employed in domestic service in a household and
who resides in such household." 29 U.S.C. § 213(h)(21). "Domestic
service" consists of "services of a household nature performed by
an employee in or about a private home (permanent or temporary)
of the person by whom he or she is employed. . . . The term
includes, but is not limited to, employees such as cooks,
waiters, butlers, valets, maids, housekeepers, governesses,
nurses, janitors, laundresses, caretakers, handymen, gardeners,
footmen, grooms, and chauffeurs." 29 C.F.R. § 552.3 (explaining
that the list is "illustrative and non-exhaustive."). Where an
employee performs both exempt and non-exempt duties, all of the
work is treated as non-exempt. See McCune v. Oregon Sr. Servs.
Div., 894 F.2d 1107, 1113-14 (9th Cir. 1990) ("A general rule of
FLSA construction holds that an employees' performance of both
exempt and non-exempt activities during the same work week
defeats any exemption that would otherwise apply.") (citation and
internal quotations omitted); Adkins v. Mid-Am. Growers, Inc.,
831 F. Supp. 642, 645 (N.D. Ill. 1993) ("If . . . during a given
work-week employees are engaged in both exempt and non-exempt
work, the overtime requirements of the FLSA apply to all work
performed during that week."); Marshall v. Intraworld
Commodities Corp., No. 79 C. 918, 1980 WL 2097, at *4 (E.D.N.Y.
June 9, 1980) (same). While plaintiff devoted substantial time to domestic functions
such as walking Zuckerman's dog, making beds and polishing
silver, she offers some evidence that she also performed clerical
duties such as acting as Zuckerman's receptionist by answering
his phones, recording messages for him, keeping files of those
messages and confirming his schedule. (Astudillo Dep. at 100,
115-16, 171-2, 174, 176; Pl. 56.1 Stmt. ¶ 2.) See
29 C.F.R. § 552.3. Defendants do not address this evidence. It is unclear
what plaintiff's actual responsibilities were. While defendants
maintain that plaintiff was responsible for domestic duties
(Defs. 56.1 Stmt. ¶ 2), plaintiff testified that she only
occasionally performed them as a convenience to Zuckerman. (Pl.
56.1 Stmt. ¶ 2; Astudillo Dep. at 116, 171-75.)
Because all reasonable inferences must be drawn in plaintiff's
favor, Flanigan, 242 F.3d at 83, this Court cannot conclude
that her duties were solely domestic and thus exempt under
Section 207(a)(1) of the FLSA. See McCune,
894 F.2d at 1113-14; Marshall, 1980 WL 2097, at *4 ("where both exempt and
non-exempt work are performed during the work week the entire
work is treated as non-exempt."). In sum, material issues of fact
exist as to whether plaintiff was employed exclusively in a
domestic capacity. Therefore, defendants' motion for summary judgment based on the FLSA's domestic service exemption is
III. U.S. News as an "Employer" Under the FLSA and FMLA
U.S. News argues that it is entitled to summary judgment on
plaintiff's FLSA and FMLA claims because it was not her employer
within the meaning of either statute.
A person or entity must be an "employer" within the meaning of
the FMLA and FLSA to be held liable under either statute. See
29 U.S.C. § 2611(4)(A)(ii)(I); 29 U.S.C. § 203(d). In determining
whether an entity is an employer under these statutes, the
primary consideration is whether it "possessed the power to
control the worker in question." Herman v. RSR Sec. Servs.,
Ltd., 172 F.3d 132, 139 (2d Cir. 1999). To this end, the Second
Circuit employs an "economic realities" test under which a number
of factors should be considered, including whether the alleged
employer: (1) had the power to hire and terminate the employee;
(2) supervised and controlled the employee's work schedule or
conditions of employment; (3) set the rate and method of payment;
and (4) maintained employment records. See Herman,
172 F.3d at 139. No single factor is controlling. Rather, courts should
take into consideration the totality of the circumstances. See
Zheng v. Liberty Apparel Co., Inc., 355 F.3d 61, 72 (2d Cir.
2003) (courts are permitted to consider any other factors they deem relevant to the economic
Here, it is clear that plaintiff was hired and supervised by
Zuckerman. (Astudillo Dep. at 71, 73, 97, 182 ("I used to discuss
everything with Mr. Zuckerman about what I did for him.").)
Although plaintiff was on the corporate payroll (Def. 56.1 Stmt.
¶ 13), U.S. News contends that under Hatcher v. Augustus, this
function was simply "ministerial" and not indicative of any
control over the conditions of her employment. 956 F. Supp. 387,
390-92 (E.D.N.Y. 1997) (defendant corporation held not to be an
employer under Title VII even though it issued paychecks for
plaintiff because such functions are simply ministerial).
However, plaintiff has proffered evidence indicating that U.S.
News did, in fact, exercise a degree of control over her
employment. First, plaintiff requested and was granted maternity
leave from U.S News under its family leave policy. (Pl. 56.1
Stmt. ¶ 20; Pl. Ex. 3; Astudillo Dep. at 195, 239-41; Defs. 56.1
Stmt. ¶ 20.) See Johnson v. A.P. Prods., Inc.,
934 F. Supp. 625, 629 (S.D.N.Y. 1996) ("Employer," as defined in FMLA,
"extends to all those who controlled in whole or in part
[plaintiff's] ability to take a leave of absence and return to her position.") (internal citations omitted).*fn4
Further, plaintiff received some of her instructions from Osborne
who worked for, and was paid by, U.S. News. (Defs. 56.1 Stmt. ¶
1; Astudillo Dep. at 96; Zuckerman Decl. ¶ 9; Osborne Decl. ¶ 4.)
See Zheng, 355 F.3d at 72 (degree to which alleged employer
or its agents supervised plaintiff's work is a factor to be
considered under economic realities test).
Accordingly, there are disputed issues of material fact as to
whether, and to what degree, U.S. News exercised control over
plaintiff's employment, which preclude summary judgment. CONCLUSION
For the foregoing reasons, defendants' motion for summary
judgment on plaintiff's claims under the FMLA and FLSA is denied.