United States District Court, S.D. New York
For Kamal Boutros, on behalf of themselves and others similarly situated, Samuel Zuniga, on behalf of themselves and others similarly situated, Plaintiffs: Elizabeth Charney Vladeck, Joshua Samuel Carlo Parkhurst, Cary Kane LLP, New York, NY.
For JTC Painting and Decorating Corp., John Caruso, Defendants: Russell S. Moriarty, LEAD ATTORNEY, Justin Stedman Clark, Levine & Blit, Pllc, New York, NY.
OPINION & ORDER
Paul A. Engelmayer, United States District Judge.
In this lawsuit under the Fair Labor Standards Act, 29 U.S.C. § § 201 et seq. (" FLSA" ), and New York Labor Law (" NYLL" ), two painters, Kamal Boutros and Samuel Zuniga, allege that their longtime employer, JTC Painting and Decorating Corporation, and its owner John Caruso (collectively, " JTC" ), failed to pay them overtime pay to which they were allegedly statutorily and contractually entitled. Zuniga also alleges that JTC retaliated against him after he filed this lawsuit, in violation of the FLSA. JTC now moves to dismiss. It argues that (1) plaintiffs fail to plead facts sufficient to establish subject matter jurisdiction under the FLSA; (2) Boutros's FLSA claim was mooted by JTC's offer of judgment under Federal Rule of Civil Procedure 68; and (3) if Boutros's FLSA overtime claim is moot, the Court should decline to exercise supplemental jurisdiction over plaintiffs' state-law claims. For the reasons that follow, the Court denies the motion to dismiss.
A. Factual Allegations
Boutros and Zuniga are painters who worked for JTC, a painting contractor. TAC ¶ ¶ 10-12. Caruso is an owner and/or officer of JTC who controls its employment practices, including payment of salary to Boutros and Zuniga. Id. ¶ ¶ 13, 16. JTC is subject to a collective bargaining agreement (" CBA" ) under which, for every hour a painter works in excess of 35 hours a week (" CBA overtime" ), JTC will pay him one and a half times his regular hourly rate. Id. ¶ ¶ 22, 24.
Boutros and Zuniga allege that JTC failed to pay them and their colleagues overtime pay, both as required by the CBA, and by the FLSA, under which overtime is required to be paid by covered employers for an employee's work in excess of 40 hours per week (" FLSA overtime" ). Id. ¶ 25. Instead, for overtime hours, they were paid at their normal hourly rate, id., either in cash or by means of a non-payroll check, id. ¶ 30. Boutros and Zuniga's wage rates during their employment were between $33.50 and $39.50 per hour. Id. ¶ 23.
Boutros alleges that JTC failed to pay him at least 308 hours of FLSA overtime and 963 hours of CBA overtime, dating back to 2009. Id. ¶ ¶ 26-27. Zuniga alleges that JTC failed to pay him at least 423 hours of FLSA overtime and 856 hours of CBA overtime, also dating back to 2009.
Id. ¶ ¶ 28-29. Both men also allege that JTC owes them for CBA overtime they performed before 2009, but they do not have records for that work, and have not quantified the overtime hours prior to 2009 for which they have not been paid. Id. ¶ ¶ 27, 29. JTC allegedly similarly denied overtime to its more than 100 other painters. TAC ¶ ¶ 31-34.
B. The Initial Complaint, JTC's Alleged Retaliation, and the Amended Complaints
On October 10, 2012, plaintiffs filed their initial Complaint, bringing claims under the FLSA and a putative class action under NYLL. Dkt. 1. On November 5, 2012, defendants answered. Dkt. 4.
After plaintiffs filed the Complaint, JTC " told Zuniga that he was being terminated from his job, and sent him home." TAC ¶ 74. Zuniga's attorneys intervened, and JTC brought Zuniga back to work, but it assigned him to a new supervisor, who offered that JTC would pay him a significant sum of money and find employment for a relative if he withdrew from the lawsuit. Id. ¶ ¶ 75-76. Zuniga told the supervisor that any offers should be made to his attorneys. Id. ¶ 77. In response, JTC ceased offering Zuniga work on long-term projects; JTC now allegedly ...