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Park v. Seoul Broadcasting System Co.

March 6, 2008


The opinion of the court was delivered by: Barbara S. Jones United States District Judge

Opinion and Order

Plaintiff, Shin Park*fn1 ("Plaintiff"), brings this action against Defendants Seoul Broadcasting System Company ("SBS") and Seong Koo Park ("SK Park") (collectively, "Defendants"), alleging (1) that Defendants failed to compensate him for overtime wages to which he is entitled in violation of the Fair Labor Standards Act of 1938 ("FLSA"), as amended 29 U.S.C. § 201 et seq. and the New York Minimum Wage Act ("NYMWA"), as amended, N.Y. Labor Law § 190 et seq., and § 650 et seq., and (2) that the Defendants discriminated against him on the basis of his age in violation of the New York City Human Rights Law ("NYCHRL"), and N.Y.C. Admin. Code § 8-107 et seq.*fn2 Plaintiff has moved for partial summary judgment on the issue of Defendants' liability under the FLSA and New York Labor Law. Defendants have cross-moved for summary judgment dismissing Plaintiff's claims in their entirety. For the reasons set forth below, all motions are DENIED.


As an initial matter, Plaintiff has moved for sanctions pursuant to Rule 11*fn3 of the Federal Rules of Civil Procedure on the ground that Defendants' motion for summary judgment is frivolous and constitutes "a sanctionable waste of the Plaintiff's and Court's time." Mem. of Law in Supp. of Pl.'s Mot. for Sanctions at 2. A party violates Rule 11 "where it is patently clear that a claim has absolutely no chance of success under the existing precedents, and where no reasonable argument can be advanced to extend, modify or reverse the law as it stands..." Eastway Const. Corp. v. City of New York, 762 F.2d 243, 254 (2d Cir. 1985). Courts have cautioned litigants that Rule 11 sanctions are reserved for extraordinary circumstances. See Morristown Daily Record, Inc. v. Graphic Commc'ns, 832 F.2d 31, 32 n.1 (3d Cir. 1987).

Here, Defendants have raised colorable arguments supporting their motion for summary judgment. There is no evidence indicating that Defendants' submissions have been "interposed for any improper purpose," or that "after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law." Eastway Const. Corp, 762 F.2d at 254. Therefore, the Court denies Plaintiff's motion for sanctions.


SBS is a radio and television broadcasting company incorporated in Seoul, Korea, which maintains offices throughout Korea as well as in New York, Washington DC, and Los Angeles. Defs.' Rule 56.1 Statement ¶¶ 1-4. Defendant SK Park has worked for SBS for approximately twelve years, but served as the Bureau Chief of SBS's New York office from 2004 until 2007.*fn4 Id. ¶ 8; Affadavit of Seong Koo Park, dated April 24, 2007 ("SK Park Aff.") ¶ 3. Plaintiff was employed by SBS in the New York office from November 2, 1998 until January 31, 2005 as a cameraman.*fn5 Beginning in 2002, Dowon Lee worked as the assistant cameraman for SBS.*fn6 Defs.' Rule 56.1 Statement ¶ 21; Dowon Lee Dep. 15:19-20, Nov. 10, 2006. James Lee was also employed as an audio person by SBS' New York office for two and a half years from 2001 until 2003. Declaration of James Lee, dated December 29, 2006, ("Lee Decl.") ¶ 2.

A. The Work Duties at the SBS New York Office

The SBS office in New York prepares and sends to Korea recorded news packages and live news reports for broadcasting. SK Park Aff. ¶ 9. To create the recorded news packages, a member of the New York SBS office videotapes a story and, if necessary, conducts interviews. Id. at ¶ 12. For the live news report, a transcript is written and recorded. Id. at ¶ 10. This voice over is then added to corresponding video footage taken from CNN, NY1, or SBS's own recordings. Id. Once the editing is complete and any computer graphics have been added, a member of the New York office sends the transmission to Korea using Telestream (a video encoding system that delivers media) or by satellite. Park Aff. ¶ 10. The person transmitting the newscast to Korea has to confirm that the office in Korea received it properly, and this process takes anywhere from two minutes to twenty minutes depending on whether the transmission includes audio and video. Id. at ¶ 11.

B. The Plaintiff's Employment Contract with SBS

On November 1, 1998, Plaintiff entered into a written employment contract (the "Contract") with SBS, which provided that Plaintiff would work as a cameraman in the New York office for a one-year term.*fn7 Defs.' Rule 56.1 Statement ¶¶ 12, 14-16. Article 4 of the Contract provided that Plaintiff's "hours of duty shall be from 9:00 a.m. to 6:00 p.m., and in cases where it is necessary due to the work performed or special circumstances, the hours can be adjusted through alternate shifts or flexible shifts." Id. at ¶ 18. The contract further indicated that "[w]hen necessary due to '[SBS]'s work circumstances '[Plaintiff]' agrees to work overtime and on holidays." Id. The contract also provided that Shin Park was entitled to a daily hour break or several shorter breaks equaling one hour. Shin Park Decl., dated May 22, 2007, ("Park Decl.") Ex. 1, § 4.

Article 7 of the Contract provided a "Right to Terminate" clause, which provided in relevant part that "'[SBS]' can, when any of the following is applicable, terminate this agreement after giving 30 days advance notice, or refuse to renew this agreement: [i]n the event of a breach in responsibilities in Article 3*fn8 ; [w]hen it is deemed that work performance has decreased considerably due to reasons of dereliction of duty by '[Plaintiff]' or similar causes... [or] [w]hen the duties [Plaitniff] is charged with are terminated due to [SBS'] circumstance, or when continued employment is no longer necessary due to other reasons." Defs.' Rule 56.1 Statement ¶ 19. Article 8 of the Contract provided Plaintiff with a right to terminate: "When reasons arise where "[Plaintiff]" must terminate this agreement due to personal circumstances, he must present his right to terminate the agreement 30 days in advance." Id. ¶ 20.

C. The Overtime Claims

Plaintiff and Defendants sharply dispute whether Plaintiff is entitled to overtime compensation. Plaintiff claims that he is entitled to compensation for working overtime hours throughout the entire period of his employment at SBS.*fn9

Plaintiff claims that his work regularly required that he work at night and on weekends and that any adjustment made to his regular schedule "would usually not make up for the overtime hours I had worked." Park Decl. ¶ 9; see also id. at ¶ 10 (stating that he "regularly" worked at night in 2004). Plaintiff also claims that his duties required that he travel on overnight trips and that he did not receive overtime compensation for the additional hours worked during those trips. Park Decl. at ¶¶ 19-20.

It is difficult for the Court to ascertain on the basis of his submissions the amount of unpaid overtime which Plaintiff believes he is entitled. Plaintiff has testified that he maintained a personal calendar in which he reliably tracked his hours, including those for which he is entitled to overtime compensation. However, Plaintiff did not submit these calendar entries as evidence but rather only used them to aid his deposition testimony. See, e.g., Shin Park Dep., June, 1, 2006, 38:24-41:13; 48:8-23. Nevertheless, in the record currently before the Court, Plaintiff has alleged some specific instances of unpaid overtime. Plaintiff has testified:

* That his regular hours were from 9 a.m. to 6 p.m. Park Dep., 86:5-8; 87:6-9.

* That on June 2, 2004 he worked until 2:00 a.m. Park Dep., 143:21-146:19.

* That in June 2004, he worked 42 hours in one week. Park Dep., 149:23-151:6.

* That he worked from 9:00 a.m. on August 12, 2004 until 6:00 a.m. the following ...

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