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Strohl v. Brite Adventure Center

August 13, 2010


The opinion of the court was delivered by: Levy, Magistrate Judge


This action is before me on the consent of the parties pursuant to 28 U.S.C. § 636(c). It arises out of the termination of Yajaira Strohl ("plaintiff") from her job as a teacher's assistant with defendant Brite Adventure Center, Inc. a/k/a Bright Beginnings Pre-School ("Brite"). In her Amended Complaint, plaintiff alleges that Brite and defendant Adventureland Child Care Center, Inc. ("Adventureland") (collectively, "defendants") (1) fired her in violation of the Family and Medical Leave Act of 1993 ("FMLA") (Amended Complaint, filed July 23, 2008 ("Am. Compl."), ¶¶ 13-17), (2) violated the New York City Human Rights Law ("NYCHRL") by not reasonably accommodating her disability (Am. Compl. ¶¶ 18-20), and (3) failed to pay her promptly for all hours worked, in violation of New York Labor Law sections 191 and 193 (Am. Compl. ¶¶ 21-23). I previously granted defendants summary judgment on the New York Labor Law section 193 claim. (Order, dated Aug. 28, 2009 ("Summary Judgment Order").)

I held a bench trial on January 13 and 14, 2010, at which seven witnesses testified: plaintiff; Sylvia Soler ("Soler"), a former Brite teacher; Glenn Schroter, the defendants' Chief Operating Officer; Norma Perez Gonzalez ("Gonzalez"), a teacher at Brite; Annette Schroter, the Executive Educational Director of Brite and a one-third owner of Adventureland; Joan Lawless, the sole owner of Brite and a one-third owner of Adventureland; and Nancy Picart ("Picart"), formerly the site director of the school where plaintiff worked. For the reasons stated below, I find in favor of defendants on the FMLA and NYCHRL claims, and I find in favor of plaintiff on the New York Labor Law claim in the amount of $607.00 plus fees and costs.


I will consider each of plaintiff's causes of action in turn.


Plaintiff was a teacher's assistant who worked with toddlers at Brite. (See, e.g., Trial Transcript ("Tr."), at 52, 237.) In addition to working directly with the children, her daily responsibilities included helping the head teachers set up the classroom, ensuring that the necessary supplies were available, and keeping the tables, floor, and bathroom clean. (See, e.g., Ex. A (Employee Handbook, dated June 8, 2005), at 5-6; Tr. at 240.) Defendants do not take issue with plaintiff's performance; indeed, her site director, Picart, described her as "very attentive to the children" and stated that "she really seemed to care a lot about them." (Tr. at 237.) Rather, the threshold dispute is jurisdictional and centers on the hours plaintiff worked in this position in the twelve months prior to January 23, 2007.

The FMLA covers only employees who worked for their employer "for at least 1,250 hours of service . . . during the previous 12-month period." 29 U.S.C. § 2611(2)(A)(ii). As discussed in the Summary Judgment Order, plaintiff's timesheets for the twelve months preceding her termination credit her for 1174.75 hours, or 75.25 hours too few. (See Summary Judgment Order at 14.) Plaintiff alleges, however, that she performed well over 75.25 hours of uncompensated work in that year, by (1) routinely beginning work duties before the official start time of classes, (2) occasionally covering for co-workers during her lunch break or after hours, and (3) typing child observation records at home. (See, e.g., Plaintiff's Post-Trial Memorandum, dated Feb. 16, 2010 ("Pl.'s Mem."), at 3-5.) After summarizing the relevant law, I will consider each of these allegations.

Under the FMLA, "the legal standards established under" Section 7 of the Fair Labor Standards Act ("FLSA") govern "whether an employee meets the hours of service requirement." 29 U.S.C. § 2611(2)(C); accord Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 720 (2d Cir. 2001). In particular, an employee must be compensated for time she works outside of her scheduled shift, even if the employer did not ask that the employee work during that time, so long as the employer "knows or has reason to believe that [the employee] is continuing to work" and that work was "suffered or permitted" by the employer.

Kosakow, 274 F.3d at 718 (citing 29 C.F.R. § 785.11) (alteration in original); see also Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008) ("An employer who has knowledge that an employee is working, and who does not desire the work be done, has a duty to make every effort to prevent its performance. This duty arises even where the employer has not requested the overtime be performed or does not desire the employee to work, or where the employee fails to report his overtime hours." (citations omitted)).

To make out a prima facie case, "an employee [must] prove[] that he has in fact performed work for which he was improperly compensated and produce[] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).

It then falls upon the employer to rebut the employee's prima facie case by providing evidence of the precise amount of work performed or evidence to negative the reasonableness of the inference to be drawn from the employee's evidence, and if the employer fails to do so the court may then award damages to the employees, even though the result be only approximate.

Harold Levinson Assocs. v. Chao, 37 F. App'x 19, 21 (2d Cir. 2002) (internal quotation marks, citations, and brackets omitted).

1. Plaintiff's Start Time

According to defendants, plaintiff's working day began at 8:00 each morning. (E.g., Tr. at 199, 221, 227.) Plaintiff contends that while her official start time was 8:00, in reality she was required to be at work earlier. (See Pl.'s Mem. at 4.) She explained that her work-related tasks before 8:00 included "setting the classes up" and "[s]ometimes ...

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