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September 17, 2004.


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. ¶ 22.)


  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 ...

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