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David v. Nicholas Zito Racing Stable

March 28, 2012


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:



David Berrios ("Berrios") and Ignacio Chavez ("Chavez") bring this action on behalf of themselves, and others similarly situated (collectively, the "Plaintiffs"), against Nicholas Zito Racing Stable, Inc. ("Zito Racing") and its principal, Nicholas Zito ("Zito") (collectively, the "Defendants"), alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and the New York Labor Law ("NYLL"), N.Y. Lab. L. § 190, et seq. Specifically, Plaintiffs allege that Defendants failed to pay them, and other workers similarly situated, appropriate overtime compensation. Plaintiffs also allege that Defendants failed to pay "spread of hours" wages under New York law.

Presently before the Court are the parties' cross-motions for partial summary judgment.*fn1

For the reasons stated below, Plaintiffs' motion is GRANTED, in part, and Defendants' motion is DENIED, with the exception of dismissing those claims brought on behalf of exercise riders.


A. Facts

The following facts are taken from the parties' depositions, declarations, exhibits and respective Rule 56.1 statements of facts. Unless otherwise noted, the following facts are not in dispute.

Defendants are in the business of training thoroughbred racehorses. Zito Racing is a corporation, with an office located at Belmont Race Track. Nick Zito serves as head trainer and is the sole shareholder and president of Zito Racing. The horses trained by Defendants race year-round at such New York race tracks as Aqueduct, Belmont and Saratoga. In addition to racing at Belmont and Saratoga, Zito Racing maintains barns at these locations. At each barn, an assistant trainer serves as the direct supervisor for the employees located there. Employees are hired as either grooms, hot walkers, foremen, watchmen or exercise riders, with each position carrying a distinct set of responsibilities.

Plaintiffs Berrios, Chavez, Eleazar Hernandez and Luis Hernandez were employed by Zito Racing as grooms.*fn2 Generally speaking, grooms are responsible for getting the horses ready for the day's training sessions. This job includes rubbing the horse with liniment, brushing the horse, removing leg wraps and cleaning the stalls. After the training session is over, grooms also clean off the horse, apply leg bandages and prepare the stalls for the horses. Grooms work in pairs and are usually assigned to take care of three horses. According to the Plaintiffs, grooms work seven days a week, typically working anywhere from 4:00-5:00 a.m. until 11:00-11:30 a.m. and from 3:00 p.m. to 4:30 p.m. again every other afternoon. Defendants, however, claim that grooms have regular hours from 5:00 a.m. to 11:00 a.m. each day and are required to return to work every other afternoon from 3:00 p.m. to 4:30 p.m. In addition, grooms are required to accompany the horses they care for to Aqueduct when those horses are scheduled to race. Prior to 2003, grooms were paid a weekly salary of $375, but that amount was subsequently increased to $400.

Plaintiffs Ernestine Gooden and Adrianna Ceragioli were employed as hot walkers. The main responsibility of a hot walker is to slowly walk horses after they have run, either in training or at a race. According to the Plaintiffs, hot walkers worked seven days a week, typically working anywhere from 5:00-5:30 a.m. to 11:00-11:15 a.m. and every afternoon for at least one hour. Defendants maintain that hot walkers, at most, work from 5:30 a.m. to 10:00 a.m. every morning and have the option of returning in the afternoon for one additional hour. Hot walkers are also required to accompany horses to Aqueduct Racetrack. Depending on the year, hot walkers have been paid a weekly salary between $185 and $210.

B. Procedural History

The initial Complaint was filed by then Plaintiff Domingo Gonzalez on January 6, 2004. On July 23, 2004, Magistrate Judge Orenstein certified this action as a collective action pursuant to the FLSA.*fn3 See DE 12. Initially, twelve individuals filed consent to joinder forms. See DE 5-6, 20-23, 30, 33-34, 41-43. However, only six individuals remain in this action.*fn4

The remaining opt-in Plaintiffs are: (1) Eleazar Hernandez; (2) Luis Hernandez; (3) Ernestine Gooden; (4); Adrianna Ceragioli; (5) David Berrios; and (6) Ignacio Chavez. On March 31, 2008, Judge Townes granted then Plaintiff Gonzalez's request to certify this action as a class action pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, for a class consisting of:

The plaintiffs and all individuals including past or present employees of Nicholas Zito Racing Stables who worked as watchmen, grooms, hot walkers, and in other occupations related to the horse racing industry within the state of New York from 1999 through the present.*fn5 See DE 86. Judge Townes also allowed for the amendment of the Complaint to change the class representative from Domingo Gonzalez to David Berrios and Ignacio Chavez, and to seek recovery of unpaid wages pursuant to New York's "spread of hours" statute. See DE 86. The Amended Complaint was filed on September 11, 2008, dropping Gonzalez from the case and adding Berrios and Chavez as named Plaintiffs. See DE 97. The Amended Complaint was thereafter amended two additional times, with the final operative pleading, the Third Amended Complaint, being filed on December 10, 2010. See DE 124.


Rule 56(a) of the Federal Rules of Civil Procedure dictates that a "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of establishing the absence of any genuine issue of material fact.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). To determine whether the moving party has satisfied this burden, the Court is required to view the evidence and all factual inferences arising from that evidence in the light most favorable to the non-moving party. Doro v. Sheet Metal Workers' Int'l Ass'n, 498 F.3d 152, 155 (2d Cir. 2007); Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005).

Where the movant shows a prima facie entitlement to summary judgment, "the burden shifts to the non-movant to point to record evidence creating a genuine issue of material fact." Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). "[T]he non-movant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment." Id.; see also McPherson v. N.Y. City Dep't of Educ., 457 F.3d 211, 215 n.4 (2d Cir. 2006) ("[S]peculation alone is insufficient to defeat a motion for summary judgment."); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001) ("Even where facts are disputed, in order to defeat summary judgment, the non-moving party must offer enough evidence to enable a reasonable jury to return a verdict in its favor."). Summary judgment is mandated if the non-moving party fails 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 Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Dobbs v. Dobbs, No. 06-CV-6104, 2008 WL 3843528, at *1 (S.D.N.Y. Aug. 14, 2008) ("The Court's goal should be to isolate and dispose of factually unsupported claims.") (internal quotation marks omitted). However, if "there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Fischl v. Armitage, 128 F.3d 50, 56 (2d Cir. 1997) (citing Hetchkop v. Woodlawn at Grassmere, Inc., 116 F.3d 28, 33 (2d Cir. 1997)).


At the outset, the Court is compelled to address an evidentiary issue raised in the parties' motion papers. Specifically, Plaintiffs take issue with the declarations submitted by assistant trainers Timothy Poole ("Poole") and Ricardo Troncozo ("Troncozo"). Plaintiffs assert that these declarations, which were submitted with Defendants' summary judgment papers, contradict critical prior testimony and should therefore be disregarded. The rule in the Second Circuit is well-settled that "a party may not, in order to defeat a summary judgment motion, create a material issue of fact by submitting an affidavit disputing his own prior sworn testimony." Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 925 F.2d 566, 572 (2d Cir. 1991). The fact that the affiant at issue is not a party to the action will not permit him from defeating a motion for summary judgment by contradicting his deposition testimony. See Hayes v. N.Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996) ("[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony."); see also Martin v. City of N.Y., 627 F. Supp. 892, 896 (E.D.N.Y. 1985). The Court notes that while Troncozo was previously deposed, Poole was not. Therefore, to the extent Troncozo's declaration contradicts his previous deposition testimony, it will be disregarded. However, since Poole was never deposed, his declaration cannot contradict any prior testimony of his and will therefore be considered by the Court. Having decided this evidentiary issue, the Court will now turn to the merits of the parties' respective summary judgment motions.

A. Plaintiffs' Motion for Summary Judgment

Plaintiffs argue that grooms and hot walkers employed by the Defendants irrefutably worked in excess of 40 hours per week, without proper overtime compensation. Defendants counter that there are genuine issues of fact with respect to both the hours of work by grooms and the compensation paid to them. With regard to hot walkers and exercise riders, Defendants cross-move for summary judgment on the grounds that these sub-classes do not work over 40 hours per week as a matter of law.*fn6 Aside from claiming that Plaintiffs do not work over 40 hours per week, Defendants also argue that Plaintiffs received a fixed compensation for a fixed schedule, which Defendants assert does not violate federal or state labor laws. Defendants also maintain that any overtime worked by Plaintiffs was in violation of its policies and practices and therefore did not violate the FLSA. Finally, Defendants contend that Plaintiffs are not entitled to summary judgment as to their spread of hours claim, and, instead, argue that this claim should be dismissed.

Section 207 of the FLSA mandates that employers must compensate their respective employees for hours in excess of 40 per week at a "rate not less than one and one-half times the regular rate at which he is employed." 29 U.S.C. § 207(a)(1). The same holds true under New York law. See N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2; see also Chun Jie Yin v. Kim, No. 07-CV-1236, 2008 WL 906736, at *4 (E.D.N.Y. Apr. 1, 2008) ("Like the FLSA, however, New York mandates that employers provide time-and-a-half compensation for their employees' work hours that exceed 40 hours per week."). It is of no consequence under the FLSA that an employer compensates its employees annually or weekly. See 29 C.F.R. § 778.109 ("The Act does not require employers to compensate employees on an hourly rate basis."). An employee who sues for overtime compensation bears the burden of proving that an employer did not properly compensate him. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946).

However, the FLSA requires employers to maintain accurate records of the hours and wages of their employees. See 29 U.S.C. § 211(c) (requiring every employer to "make, keep, and preserve such records of the persons employed by him and of the wages, hours, and other conditions and practices of employment maintained by him"); see also 29 C.F.R. § 516.2(a)(7) (requiring that employers maintain records of "[h]ours worked each workday and total hours worked each workweek" by employees). New York State maintains similar record keeping requirements for employers. See N.Y. Lab. Law § 661 (requiring employers to establish and maintain payroll records "showing for each week worked the hours worked, the rate or rates of pay and basis thereof");N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.6(a)(4) (requiring employers to establish, maintain and preserve, for not less than six years, weekly payroll records which show for each employee "the number of hours worked daily and weekly, including the time of arrival and departure for each employee working a split shift or spread of hours exceeding 10").

In situations where an employer's payroll records are inaccurate or inadequate, "an employee has carried out his burden if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference." Anderson, 328 U.S. at 687; see also Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58, 66 (2d Cir. 1997) (concluding that when a defendant fails to maintain the required employment records, the employee may "submit sufficient evidence from which violations of the Act and the amount of an award may be reasonably inferred") (internal quotation marks omitted). "As courts have found, a plaintiff can meet this burden 'by relying on recollection alone.'" Santillan v. Henao, --- F. Supp. 2d ----, 2011 WL 4628752, at *16 (E.D.N.Y. Sept. 30, 2011) (quoting Doo Nam Yang v. ACBL Corp., 427 F. Supp. 2d 327, 335 (S.D.N.Y. 2005)) (collecting cases). "The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence." Anderson, 328 U.S. at 687-88; see also Ramirez v, Rifkin, 568 F. Supp. 2d 262, 273 (E.D.N.Y. 2008) (stating that after plaintiff meets his initial burden, "[t]he burden then shifts to the employer to show that the inference is not reasonable."). A similar standard to Anderson is applied in deciding overtime claims under New York law. See Park v. Seoul Broad. Sys. Co., No. 05-CV-8956, 2008 WL 619034, *8 n.13 (S.D.N.Y. Mar. 6, 2008). However, the New York standard places a more demanding burden on employers than the FLSA. See Padilla v. Manlapaz, 643 F. Supp. 2d 302, 307 (E.D.N.Y. 2009) (concluding that after plaintiff meets its burden, "[t]he burden then shifts to the employer to prove by a preponderance of the evidence that the plaintiff was properly paid for the hours worked"); see also Jiao v. Shi Ya Chen, No. 03 Civ. 165, 2007 WL 4944767, at *3 (S.D.N.Y. 2007) (finding that if an employer is unable to meet its burden under the FLSA, it could not satisfy the burden under New York law).

In this case, the submitted payroll records show that Defendants did not keep track of the hours worked by the Plaintiffs. See Pls.' 56.1 Stmt, Exs. J-P. While Defendants continue to emphasize the fact that their payroll practices were customary, if not uniform, in the industry, such uniformity in the industry does not make the payroll practices of the Defendants legal. James Hilt, who served as Defendants' bookkeeper, testified that Zito Racing did not have a system in place for monitoring the hours worked by its employees. See Hilt Dep. at 114:13-16. Assistant trainers Troncozo and Poole also confirmed the lack of such records. Troncozo, who was the supervisor in charge of those Zito Racing employees located at Belmont Racetrack, testified that he did not keep any record of when grooms and hot walkers arrived and left in the morning and when they came back for the afternoon shift. See Troncozo Dep. at 93:17-94:4. The only sort of record keeping identified by Troncozo was a reference to his foreman keeping track, on a piece of paper which was thrown out each week, how many days each employee showed up for work and which of these employees returned for the afternoon shift. Id. at 95:10-20, 98:10-99:10,101:25-102:17, 136:19-23. Assistant trainer Poole also admitted that "Zito Racing does not keep strict track of the hours worked by these grooms" and that Zito Racing "took a relaxed approach to keeping track of hours actually worked by our grooms." Poole Decl. ¶¶ 9, 12. The Defendants' payroll records merely indicate the employee's name and the amount paid to that individual each week.*fn7 It was not until September 2008 -- after the employment of the Plaintiffs and opt-in Plaintiffs ended -- that Zito Racing began to keep track of, and record, the hours worked by it employees. See Pls.' 56.1 Stmt, Ex. Q.

The failure by Zito Racing to keep records for the hours worked by its employees prior to September 2008 warrants the application of the lesser burden of proof for those time periods where such records are not available. See Tran v. Alphonse Hotel Corp., 281 F.3d 23, 31 (2d Cir. 2002) ("When accurate records or precise evidence of the hours worked do not exist, an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.") (quoting Anderson, 328 U.S. at 687); Rivera v. Ndola Pharm. Corp., 497 F. Supp. 2d 381, 389 (E.D.N.Y. 2007) (applying lesser standard where the time sheets contained only the employee's name and amount paid that week).

1. Hours Worked

It is the Plaintiffs' contention that both grooms and hot walkers have worked over 40 hours a week without being properly compensated. Each category of employee will be addressed separately.

a. Grooms

Due to the lack of adequate records maintained by Defendants prior to September 2008, Plaintiffs need only submit sufficient evidence to show the amount and extent of the hours worked as a matter of just and reasonable inference. Anderson, 328 U.S. at 687. A plaintiff may meet this burden by relying solely on his own recollection. See Rivera, 497 F. Supp. 2d at 388 (citing Doo Nam Yang, ...

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