United States District Court, S.D. New York
January 6, 2005.
JACQUELINE ASTUDILLO, Plaintiff,
US NEWS & WORLD REPORT and MORTIMER ZUCKERMAN, Defendants.
The opinion of the court was delivered by: WILLIAM PAULEY, District Judge
On September 17, 2004, this Court denied U.S. News & World
Report's ("U.S. News") and Mortimer Zuckerman's (collectively,
"defendants") motion for summary judgment. See Order, dated
Sept. 17, 2004. Specifically, this Court held that there were
disputed issues of material fact as to whether Jacqueline
Astudillo was covered by the domestic service exemption and thus
precluded from recovering overtime pay under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 213(b) (21). See Order at
7. This Court also determined that triable issues of fact exist
as to whether U.S. News was Astudillo's employer within the
meaning of the FLSA and the Family and Medical Leave Act
("FMLA"), 29 U.S.C. § 2601, et seq. See Order at 8-10.
U.S. News moves for partial reconsideration of that portion of
the September 17, 2004 Order that found a material issue of fact
as to whether U.S. News was Astudillo's employer. For the following reasons, U.S. News' motion for reconsideration
Rule 6.3 of the Local Rules of the Southern District of New
York provides in pertinent part: "There shall be served with the
notice of motion a memorandum setting forth concisely the matters
or controlling decisions which counsel believes the court has
overlooked." Accordingly, a movant must demonstrate that the
court overlooked controlling decisions or factual matters that
were put before it on the underlying motion, which, had they been
considered, "might reasonably have altered the result reached by
the court." Consol. Gold Fields v. Anglo Am. Corp.,
713 F. Supp. 1457, 1476 (S.D.N.Y. 1989). "The decision to grant or deny
the motion for reconsideration is within the sound discretion of
the court." See Dietrich v. Bauer, 76 F. Supp. 2d 312, 327
(S.D.N.Y. 1999); AT&T Corp. v. Microsoft Corp., No. 01 Civ.
4872 (WHP), 2004 WL 309150, at *1 (S.D.N.Y. Feb. 19, 2004).
Although U.S. News filed its motion eleven business days after
the September 17, 2004 Order, this Court may nevertheless
consider the motion on its merits. See EUA Cogenex Corp. v.
Bankers Trust Co., No. 91 Civ. 6912 (KC), 1993 WL 454205, at *1
(S.D.N.Y. Nov. 2, 1993).
An entity can only be liable under the FMLA and FLSA if it is
an "employer" within the meaning of either statute. See 29 U.S.C. § 2611(a) (A) (ii) (I); 29 U.S.C. § 203(d). To
determine whether a person or entity is an employer, courts apply
an "economic realities test" which considers whether the alleged
employer: "(1) had the power to hire and fire the employees, (2)
supervised and controlled employee work schedules or conditions
of employment, (3) determined the rate and method of payment, and
(4) maintained employment records." Herman v. RSR Sec. Servs.,
Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (internal quotations
omitted). Under the economic realities test, the totality of the
circumstances must be considered to "avoid having the test
confined to a narrow legalistic definition." Herman,
172 F.3d at 139 (citing Rutherford Food Corp. v. McComb, 331 U.S. 722,
730 (1947)). The key question is whether the person or entity
"possessed the power to control [the] workers in question."
Herman, 172 F.3d at 139.
U.S. News moves for partial reconsideration arguing, inter
alia, that it played a "purely ministerial role in
administering plaintiff's benefits" and did not exercise any
control over the terms or conditions of her employment.
(Memorandum of Law in Support of U.S. News' Motion for
Reconsideration, at 3.) Relying on Hatcher v. Augustus,
956 F. Supp. 387, 392 (E.D.N.Y. 1997), U.S. News maintains that its
administration of Astudillo's benefits was a ministerial
function. (Memorandum of Law in Further Support of U.S. News' Motion for Reconsideration, at 2.) Hatcher makes clear that the
mere provision of a payroll service does not make that entity an
employer. See 956 F. Supp. at 392. Here, however, U.S. News was
more than a payroll service for Astudillo. She requested and
received her maternity leave from U.S. News pursuant to its
family leave policy. (Plaintiff's Rule 56.1 Statement ¶ 20, Ex.
3; Defendants' Rule 56.1 Statement ¶ 20; Deposition of Jacqueline
Astudillo, dated Oct. 30, 2003, at 195, 239-41.) That indicates
some control over Astudillo's employment by U.S. News. See
Johnson v. A.P. Prods., Inc., 934 F. Supp. 625, 628-29
(S.D.N.Y. 1996) ("Employer," under FLSA and 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").
Hatcher is also distinguishable because it involved
employment of the plaintiff through an independent contractor
franchisee with full responsibility for labor relations issues.
See 956 F. Supp. at 392-93. Therefore, the Hatcher court
determined that the defendant-franchisor "was not responsible for
compensating the plaintiff for his hourly wage or salary, or
providing any employment benefits." 956 F. Supp. at 392.
Because no single factor is determinative under the economic
realities test, this Court may accord weight to the fact that
U.S. News granted Astudillo's FMLA leave. See Herman,
172 F.3d at 139; Johnson, 934 F. Supp. at 629. Since all reasonable inferences must be resolved in Astudillo's favor,
see Flanigan v. Gen. Elec. Co., 242 F.3d 78, 83 (2d Cir.
2001), this Court cannot conclude that there are no material
issues of fact concerning whether U.S. News was her employer
under the FLSA and FMLA.
For the foregoing reasons, defendant U.S. News' motion for
partial reconsideration of this Court's September 17, 2004 Order
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