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Natastha Severin and Galina Cotova v. Project Ohr

September 2, 2011


The opinion of the court was delivered by: Denise Cote, District Judge:


Natasha Severin ("Severin") and Galinao Cotova ("Cotova") bring the above-captioned action on behalf of themselves and a putative class of similarly situated persons (the "plaintiffs") who are employed by Project OHR, Inc. ("Project OHR"), the Metropolitan Council on Jewish Poverty ("Met Council"), and D'Vorah Kohn ("Kohn") (collectively, the "defendants"), as providers of home health care for the elderly and infirm in and around the City of New York. Plaintiffs allege that defendants failed to pay them the minimum wage and overtime, in violation of various provisions of the Fair Labor Standards Act ("FLSA"),

29 U.S.C. § 206 et seq., and New York Labor Law ("NYLL"), Art. 6 § 190 et seq., and Art. 19 § 650 et seq. Defendants have moved pursuant to Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P., to dismiss the complaint for the following four reasons: (1) lack of subject matter jurisdiction; (2) failure to sufficiently plead claims for minimum wage and overtime violations; (3) failure to sufficiently plead that Met Council and Kohn are "employers"; and, (4) that Cotova's FLSA claims are time-barred and the Court should decline to exercise supplemental jurisdiction over her remaining NYLL claims. For the following reasons, only defendants' motion to dismiss the claims against Met Council is granted. All of the defendants' other requests are denied.


Unless otherwise specified, the following facts are taken from the plaintiffs' Second Amended Complaint filed on May 27, 2011 (the "Complaint") and are assumed to be true for the purposes of this motion. Project OHR provides home health care services in and around New York City to disabled, frail and elderly individuals who qualify for government assistance. Plaintiffs were employed as "home attendants . . . providing personal home health care and assistance" to Project OHR's clients. Severin was employed from approximately January 2005 through December 2010, and Cotova was employed from approximately late 2004 through early 2007.

Plaintiffs regularly worked more than forty hours per week. Additionally, they often worked 24-hour shifts, which were referred to as "sleep-in" shifts. Plaintiffs were regularly required to work two or three 24-hour shifts consecutively.

Defendants paid plaintiffs who worked sleep-in shifts a different hourly rate for daytime and nighttime hours: between $10 and $12 per hour for daytime hours, and a flat rate of between $16 and $18 for a full 12-hour night shift. Defendants did not pay plaintiffs one and one half times their regular hourly rate for hours worked in excess of 40 hours per week and defendants failed to post and/or keep posted a notice explaining employees' rights under the FLSA.

Plaintiffs' employment is governed by a collective bargaining agreement entered into in 2001 between Project OHR and 1199/SEIU New York's Health and Human Service Union, which was subsequently extended by Memoranda of Agreement (collectively the "CBA").*fn1 Two provisions of the CBA are relevant. First, Article VIII (the "Wages Provisions") establishes that "Employees assigned to clients designated as 'Sleep-in' cases shall receive" a "Per Diem Rate of Pay . . . for each day of work."*fn2 The per diem rate paid to sleep-in employees varies based on: (1) the number of hours that the employee has worked with Project OHR; (2) the number of Project OHR clients with whom the employee works, during the same work hours, in the same or in different homes.

Second, Article XXV ("Grievance and Arbitration Provision") sets out a four-step process for the resolution of grievances, which it defines "as any dispute . . . involving the proper application, interpretation, or compliance with the specific written provisions of the [CBA]." If a grievance remains unresolved after three levels of internal review, the CBA provides that "the matter be submitted to final and binding arbitration pursuant to the Labor Arbitration Rules of the American Arbitration Association."


On December 30, 2010, Severin filed this action. On March 3, 2011, the first amended complaint was filed, which included Cotova's claims. On May 11, defendants filed a motion to dismiss. By Order of May 16, and to accommodate plaintiffs' request for an additional opportunity to amend their complaint, the May 11 Motion was terminated as moot. The second amended complaint (the "Complaint") was filed on May 27. On June 17, defendants renewed their motion to dismiss. The June 17 motion became fully submitted on July 22.


While the Complaint states four causes of action -- two under federal law and two under state law -- there are two substantive claims: (1) that the defendants failed to pay overtime to the plaintiffs as required by both the FLSA and NYLL; and, (2) that the defendants failed to pay the plaintiffs the minimum hourly wage required by the FLSA and NYLL. As described below, plaintiffs are not obligated to arbitrate their FLSA claims and their NYLL claims are not preempted. Of their remaining requests, only defendants' motion to dismiss the claims against Met Council is granted.

I. Subject Matter Jurisdiction

1. FLSA Claims Defendants contend that plaintiffs should be compelled to arbitrate their FLSA claims. When a party seeks to compel arbitration of a federal statutory claim, courts must "consider whether Congress intended those claims to be non-arbitrable." JLM Industries, Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 169 (2d Cir. 2004) (citation omitted). It is well-established that FLSA claims are susceptible to arbitration and plaintiffs do not suggest otherwise. See Reynolds v. de Silva, 09 Civ. 9218 (CM), 2010 WL 743510, at *5 (S.D.N.Y. Feb. 24, 2010) (collecting cases). See also 14 Penn Plaza LLC v. Pyett, 129 S.Ct. 1456, 1474 (2009) (ADEA claims are arbitrable).

Where statutory claims are susceptible to arbitration, the next inquiry is whether the parties intended to arbitrate such claims, as indicated by the terms of their agreement to arbitrate, in this case the CBA. In Wright v. Universal Mar. Serv. Corp., 525 U.S. 70 (1998), the Supreme Court rejected any presumption of the arbitrability of federal statutory claims pursuant to a CBA, id. at 78-79, and required instead that "any CBA requirement to arbitrate [statutory claims] must be particularly clear." Id. Since the CBA at issue in Wright did not "clear[ly] and unmistakab[ly] waive[] . . . the covered employees' rights to a judicial forum for federal claims," the plaintiff was permitted to litigate his federal claim in court despite the CBA's broad arbitration clause. Id. at 82. See also ...

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