United States District Court, E.D. New York
Elzbieta GODLEWSKA, Krystyna Bielawska, Barbara Hatala, Barbara Pilch, and Boleslaw Pryzgoda, on behalf of themselves and all others similarly situated, Plaintiffs,
HDA, Human Development Association, Inc., d/b/a HDA, Yechila Gruenwald a/k/a Yechiel Gruenwald individually and as Executive Director of HDA, Human Development Association, Inc., Zvi Kestenbaum, Marina Voskoboyniko, Golda Pokhis a/k/a Olga Pokhis, Margarita Zilbert, Eva Friedman, Irena Gadzhiyeva, Sarah Juroviesky, Ella Rashkova, Bella Slomivc, Rita Strashnov, The City of New York, New York City Human Resources Administration and Verna Eggleston, as Commissioner of NYC Human Resources Administration, Defendants.
[Copyrighted Material Omitted]
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Robert Wisniewski, Robert Wisniewski & Associates, P.C., New York, NY, for Plaintiffs.
Michael A. Cardozo, Corporation Counsel of the City of New York, Andrea O'Connor, Assistant Corporation Counsel of the City of New York, New York City Law Department, Office of the Corporation
Counsel, New York, NY, for City Defendants.
David S. Greenhaus, Jackson Lewis LLP, Melville, NY, for defendants HDA, Human Development Association, Inc., d/b/a HDA; Yechila Gruenwald a/k/a Yechiel Gruenwald individually and as Executive Director of HDA; Zvi Kestenbaum; Marina Voskoboyniko; Golda Pokhis a/k/a Olga Pokhis; and Margararita Zilbert.
Anne P. Edelman, Kaufman, Dolowich & Voluck & Gonzo, LLP, Woodbury, NY, for defendants HDA, Human Development Association, Inc., d/b/a HDA; Yechila Gruenwald a/k/a Yechiel Gruenwald individually and as Executive Director of HDA; Zvi Kestenbaum; Marina Voskoboyniko; Golda Pokhis a/k/a Olga Pokhis; Margararita Zilbert; Jane Doe a/k/a " Mrs. Friedman" ; Jane Does 1-10 and John Does 1-10.
Jeffrey S. Ettenger, Kaufman, Dolowich & Voluck & Gonzo, LLP, Woodbury, NY, for defendant HDA, Human Development Association, Inc., d/b/a HDA.
Joshua Robert Fay, New York City Law Department, Labor and Employment, New York, NY, for City Defendants.
Lisa Marie Griffith, New York City Law Department, Office of the Corporation Counsel, New York, NY, for City Defendants.
MEMORANDUM AND ORDER
AZRACK, United States Magistrate Judge:
In June 2012, the parties consented to my deciding summary judgment motions concerning whether defendants the City of New York (the " City" ), New York City Human Resources Administration (" HRA" ), and Verna Eggleston as HRA Commissioner (together, " City Defendants" ) are plaintiffs' joint employer. ECF Nos. 276, 281. Now before me are the (i) City Defendants' motion for summary judgment, in which City Defendants argue that they are not plaintiffs' joint employer; and (ii) plaintiffs' cross-motion for summary judgment, in which plaintiffs argue the contrary position. ECF Nos. 270-75, 277-80. For the reasons discussed in this memorandum, City Defendants' motion for summary judgment is granted, and plaintiffs' cross-motion for summary judgment is denied.
Plaintiffs seek (i) unpaid prevailing, minimum and overtime wages, benefits, liquidated damages, reasonable attorneys' fees, and damages for retaliation under the Fair Labor Standards Act of 1938 (29 U.S.C. § 201, et seq. ) (" FLSA" ), the Civil Rights Act of 1871 (42 U.S.C. § 1983), 42 U.S.C. § 1988, N.Y. Labor Law Arts. 6 and 19, and New York State common law; (ii) actual, treble, and punitive damages for violations of the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1964) and N.Y. Labor Law §§ 193 and 198-b; and (iii) under New York State common law for unjust enrichment and negligent hiring and supervision. Third Am. Compl., ECF No. 95. Plaintiffs are former or current home attendants employed by defendant Human Development Association (" HDA" ), a not-for-profit agency that contracted with HRA to provide home attendant services to City residents. See Home Attendant Services Agreement, dated November 2, 2001 (" Contract" ) at 1, Ex. C. Plaintiffs allege, among other
things, that City Defendants (1) are subject to the FLSA's compensation requirements because they are plaintiffs' joint employer; and (2) violated the FLSA by not paying plaintiffs as that statute requires.
Motion practice in this case has spanned several years. In April 2004, defendants brought a motion to dismiss plaintiffs' civil RICO claim, which Judge David Trager granted in part and denied in part. See Godlewska v. Human Dev. Ass'n, No. 03-CV-3985, 2005 WL 1667852 (E.D.N.Y. July 18, 2005), ECF No. 49. On May 18, 2006, I granted in part and denied in part plaintiffs' motion to amend their First Amended Complaint. See Godlewska v. Human Dev. Ass'n, No. 03-CV-3985, 2006 WL 1422410 (E.D.N.Y. May 18, 2006), ECF No. 72. Plaintiffs amended their complaint twice thereafter. See ECF Nos. 74, 95. On September 19, 2011, I granted plaintiffs' and City Defendants' request for permission to file summary judgment motions solely on the issue of whether City Defendants are a joint employer of plaintiffs. In June 2012, plaintiffs and City Defendants consented to my deciding the summary judgment motions. ECF Nos. 276, 281.
A. New York State's Medicaid Program
Medicaid law entitles qualified patients to receive " personal care services" (" PCS" ). 42 U.S.C. § 1396d(a)(24); N.Y. Soc. Servs. L. § 365-a(2)(e). The federal government and participating states finance Medicaid jointly. 42 C.F.R. § 430.0. New York, as a participating state, established a " plan" for providing Medicaid services, which the federal government approved. See 42 U.S.C. §§ 1396-1, 1396b(a); 42 C.F.R. § 430.0.
The New York State Department of Health (" NYSDOH" ) is the state agency that implements and supervises New York's Medicaid plan and oversees the governing state regulatory scheme. See N.Y. Pub. Health L. § 201(1)(v); N.Y. Soc. Servs. L. § 363-a(1); 18 N.Y.C.R.R. § 505.14 (the " Regulations" ). Pursuant to the Regulations, NYSDOH delegates running the PCS program to " local social services districts," such as the City. See 18 N.Y.C.R.R. § 505.14; N.Y. Soc. Servs. L. §§ 56, 62. HRA administers the City's PCS program and contracts with home healthcare agencies such as HDA to provide PCS to eligible patients. See Ng Dep. 69:2-3, 4/9/10. HDA is a not-for-profit agency organized " for the sole purpose of providing personal care services under contract with the City" to persons the City determines are Medicaid-eligible for such services. Contract at 1. Plaintiffs are former and current home attendants that HDA employed.
B. HRA and HDA
1. The Contract
The Regulations require HRA to use a State-approved model contract when it contracts with home healthcare agencies. 18 N.Y.C.R.R. § 505.14(c). The City may vary the model contract only if the variations do not change the model contract's requirements and NYSDOH permits the variation. Id. HDA and HRA did not negotiate over the Contract. Ng Dep. 109:20-110:4, 4/9/10; Gruenwald Dep. 354:4-12, 6/7/10. HRA reserves the right to terminate the Contract without cause if doing so would be in the City's best interest. Contract Part II Art. 6.1(F).
The Contract states several times that City Defendants do not have an employment relationship with HDA or the home attendants. See Contract Art. 10.1(B), Contract Part II Arts. 5.1, 5.4.
2. How City Defendants Authorize PCS
The Regulations govern in detail the terms, delivery, and administration of PCS, which they define as " some or total assistance with personal hygiene, dressing and feeding; and nutritional and environmental support functions," which " must be essential to the maintenance of the patient's health and safety in his or her own home, as determined by the social services district in accordance with the Regulations of the Department of Health; ordered by the attending physician; based on an assessment of the patient's needs and of the appropriateness and cost-effectiveness of services ...; and supervised by a registered professional nurse." 18 N.Y.C.R.R. § 505.14(a) et seq. The Regulations list specific PCS tasks that City Defendants may authorize and, for some of those tasks, the maximum number of hours a home attendant may work for a particular patient. See id.
The Regulations also dictate the procedures HRA must follow when a prospective Medicaid patient requests services. First, the patient's physician must submit an order on the form the State requires. Id. §§ 505.14(b)(2)-(3)(i). Second, an HRA employee must complete a social assessment of the prospective patient on a form the State requires. Id. §§ 505.14(b)(2)-(3)(ii). Third, a nurse must assess the patient. Id. §§ 505.14(b)(2)-(3)(iii).
Using input from the doctor, nurse, and social assessment, HRA's Community Alternative Systems Agency division (" CASA" ) makes the initial determination whether to authorize any of the specific tasks the Regulations enumerate and, if so, how many hours to authorize. See id. § 505.14(b)(5); Kalvin Dep. 7:16-8:5, 11/8/10. Once the City authorizes services, HRA provides HDA with written information about the services authorized, including their duration and frequency. See 18 N.Y.C.R.R. § 505.14(b)(5). HRA must approve any change to the authorization. Id. § 505.14(b)(5)(vii).
3. Hiring and Training Home Attendants
Pursuant to the Contract, HDA is " responsible for the recruitment and employment" of home attendants. Contract Art. 6.1. HDA screens all prospective home attendants and chooses which ones to hire. Id. Art. 6.1(C)-(D); Gruenwald Dep. 362:22-363:3, 6/7/10. HDA " personnel specialists" conduct the interviewing and hiring. See Godlewska Dep. 20:19-21, 1/22/09; Bielawska Dep. 14:5-21, 1/23/09; Pryzgoda Dep. 11:3-13, 2/1/10; Pilch Dep. 13:12-18, 2/9/10.
The Regulations dictate specific minimum qualifications for home attendants who provide PCS, including " maturity, emotional and mental stability," experience in personal care or homemaking, literacy, " sympathetic attitude," certification of good physical health, a criminal history record check, and certain required training that NYSDOH approves— forty hours of " basic training," three semi-annual hours of " in-service" training, and on-the-job training as needed. 18 N.Y.C.R.R. § 505.14(d)(4)-(e).
In addition to the regulatory requirements, the Contract requires HDA to hire at least one Public Assistance recipient for each $250,000 in the Contract's value, though HDA may request that HRA exempt it from this requirement on grounds of " extreme hardship." Contract Part II Art. 7.
4. The Assignment Process at HDA
When HDA receives a service authorization for a new patient, an HDA nurse schedules a home visit to see what type of home attendant would best serve the patient. Gruenwald Dep. 232:20-233:7, 5/4/10. HDA also assigns the new patient to a personnel specialist, who gives the home attendant her assignments and is responsible to find a suitable substitute if the home attendant is sick. See 18 N.Y.C.R.R. § 505.14(f)(2); Gruenwald Dep. 36:12-19, 96:15-21, 5/3/10; Gruenwald Dep. 206:17-22, 5/4/10; Hatala Dep. 264:5-10, 1/21/10; Biewlawska Dep. 10:22-24, 1/23/09; Pryzgoda Dep. 71:19-25, 2/1/10; Pilch Dep. 26:13-15, 2/9/10; Contract Art. 6.2(F).
5. Supervision and Monitoring
i. Supervision of Home Attendants
The Regulations require that home attendants receive " administrative supervision" and " nursing supervision," both of which HDA handles. 18 N.Y.C.R.R. § 505.14(f). The administrative supervision includes " verifying" that the patient is receiving PCS according to the City's authorization, evaluating home attendants' job performance or helping the nurse supervisors to do so, checking home attendants' time cards, and keeping scheduling records. Id. § 505.14(f)(2); see Contract Arts. 6.2, 6.5(B). The nursing supervision entails instructing or training the home attendant upon initiating services for a new patient and, at least every three months, conducting " Supervisory Nursing Visits" at which an HDA nurse evaluates and trains the home attendant. See Contract Arts. 1.28, 5.4; 18 N.Y.C.R.R. § 505.14(f)(3). HDA must forward to HRA copies of the performance evaluations that the nursing supervisors conduct. Contract Art. 5.4(D). HDA also evaluates home attendants' performance annually. See Gruenwald Dep. 85:9-13, 5/3/10; Contract Art. 6.2(G). The HDA personnel specialist assigned to the home attendant handles any disciplinary issues involving the home attendant. City Defendants' Local Rule 56.1 Stmt. of Facts (" Defs.' 56.1" ) ¶ 73.
The Contract obligates HDA to maintain a " personnel file" for each home attendant. Contract Art. 6.3(A); see Gruenwald Dep. 79:13-25, 5/3/10; Ng. Dep. 223:13-14, 4/16/10. HDA keeps the home attendant's performance evaluations, training certificates, time sheets, and records of any disciplinary action in the personnel file. See Gruenwald Dep. 83:25-84:18, 5/3/10; Contract Art. 6.2; see also 18 N.Y.C.R.R. § 505.14(f)(2).
HDA handles home attendants' complaints. See Contract Art. 6.5(G)(2) (requiring HDA to have grievance procedures for home attendants' complaints regarding " conditions of employment and proposed termination of employment" ); Gruenwald Dep. 85:14-86:14, 5/3/10. Unlike HDA, HRA does not accept complaints from home attendants; if a home attendant complains to HRA, HRA refers the home attendant back to HDA. See Ng Dep. 49:3-11, 4/9/10. HDA conveys a home attendant's complaint to CASA only if the home attendant complains that the patient is asking her to perform services outside the Medicaid authorization. See Kalvin Dep. 47:20-48:12, 11/8/10. If this happens, CASA schedules a ...