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Colella v. City of New York

United States District Court, S.D. New York

December 5, 2013

BRIAN COLELLA, JOSEPH BERARDI, ALBERT P. SOMMA JR., ANTHONY GIORDANO, MICHAEL KAZMIERZAK, DOMINICK BUETI, WILLIAM K. FLYNN, NICK DEMONTE, JOHN FABBRICANTE, PATRICK J. BRADY, JOHN SCUPELLITI, JERRY PARISI, GERARD GEISLER, and ROBERT RYAN, individually and on behalf of those similarly situated, Plaintiffs,
v.
THE CITY OF NEW YORK and the NEW YORK CITY FIRE DEPARTMENT, Defendants

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[Copyrighted Material Omitted]

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For Brian Colella, Plaintiff: David George Gabor, Hope Senzer Gabor, Gabor & Gabor, Garden City, NY; Lawrence Solotoff, Solotoff & Solotoff, Great Neck, NY.

For Kenneth Dowling, Joseph Berardi, Albert P. Somma, Jr., Anthony Giordano, Richard Bueti, William K. Flynn, Jerry Parisi, Gerard Geisler, Robert Ryan, Plaintiffs: David George Gabor, Hope Senzer Gabor, Gabor & Gabor, Garden City, NY.

Anthony Giordano, Plaintiff, Pro se.

For Frederick J. Cermak, Joseph McCarthy, Plaintiffs: David George Gabor, Gabor & Gabor, Garden City, NY.

PATRICK J BRADY, Plaintiff, Pro se.

For The City of New York, New York City Fire Department, Defendants: Benjamin Welikson, LEAD ATTORNEY, The New York City Law Department, New York, NY; Carolyn Walker-Diallo, Larry Rafael Martinez, LEAD ATTORNEYS, NYC Law Department, Office of the Corporation Counsel (NYC), New York, NY; Jessica Leigh Waters, NYC Law Department, Office of the Corporation Counsel, New York, NY.

OPINION

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OPINION AND ORDER

LORETTA A. PRESKA, Chief United States District Judge.

Plaintiffs brought this collective action seeking back wages for overtime pay they claim Defendants the City of New York (the " City" ) and the New York City Fire Department (the " FDNY" ) withheld from them and other similarly situated individuals in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. (the " FLSA" ). Defendants have moved for summary judgment dismissing all of Plaintiffs' claims. For the reasons stated below, Defendants' motion [Dkt. No. 61] is GRANTED.[1]

I. BACKGROUND

A. Procedural History

Because the caption for this case no longer accurately reflects the Plaintiffs who remain involved in this litigation, the Court begins with the history of the case. On May 26, 2006, Plaintiff Brian Colella commenced this action by filing a pro se summons and complaint in the Supreme

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Court of the State of New York, New York County, alleging that he and other employees of the FDNY Building Maintenance Division (" BMD" ) were the victims of unfair labor practices in violation of the New York Labor Law. Plaintiff Colella thereafter obtained counsel, who filed a verified amended complaint on June 26, 2007, naming sixteen additional plaintiffs and adding claims under the FLSA; all named plaintiffs filed their written consent to join the FLSA lawsuit, pursuant to 29 U.S.C. § 216(b). On July 10, 2007, Defendants removed the action to the United States District Court for the Southern District of New York.

On January 8, 2009, Plaintiffs filed the operative Fourth Amended Complaint (the " Complaint" ), which contains causes of action under the FLSA only; all claims under the New York Labor Law have been abandoned. On January 12, 2009, this Court certified the case as a " collective action" pursuant to 29 U.S.C. § 216(b). The notice distributed to potential additional members of the collective action defined the class as " any and all current and former employers of The New York City Fire Department's Building Maintenance Division, who worked as Carpenters, Electricians, Cement Masons, Roofers and Plumbers on or after May 26, 2004." On June 28, 2010, the parties filed a stipulation adding Frederick J. Cermak and Joseph McCarthy as additional named Plaintiffs based on their having timely opted-in. On December 23, 2010, the Court dismissed with prejudice the claims of Plaintiffs John Fabbricante and Michael Kazmierczak for failure to prosecute.

On February 17, 2011, the Court entered the parties' stipulated dismissal with prejudice of the claims of Plaintiffs Gerard Geisler, Nick Demonte, Dominick Bueti, and Patrick J. Brady. The Court granted Defendants' motion for summary judgment as to the claims of pro se Plaintiff Anthony Giordano on June 14, 2011, for failure to proffer evidence from which a fact finder could find that Giordano was entitled to overtime pay under the FLSA. Accordingly, at the time Defendants filed the instant motion, the following nine named Plaintiffs remained in the case: Joseph Berardi (" Berardi" ), Albert P. Somma Jr. (" Somma" ), Brian Colella (" Colella" ), Jerry Parisi (" Parisi" ), Joseph McCarthy (" McCarthy" ), Robert Ryan (" Ryan" ), Frederick Cermak (" Cermak" ), William K. Flynn (" Flynn" ), and John Scupelliti (" Scupelliti" ). Defendants now move for summary judgment on the claims of all remaining Plaintiffs.

B. Relevant Facts

The following facts are not in dispute unless otherwise noted, and all facts are construed and all reasonable inferences are drawn in favor of Plaintiffs, the non-moving party.[2]

1. Allegations in the Complaint

Plaintiffs are nine current or former BMD employees who worked at one point during the relevant period as a carpenter,

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electrician, or cement mason. Plaintiffs claim Defendants failed to pay overtime for the following acts alleged to be compensable under the FLSA: (1) time spent transporting tools, materials, and equipment in their assigned FDNY vehicles from their homes to their worksites and back; (2) time spent en route to either their worksites or homes ensuring that the tools, materials, and equipment are secure in their vehicles; (3) time spent inspecting their work vehicles each morning and after they return home from work; and (4) time spent receiving or returning calls or pages from their supervisors regarding work assignments for that day or the next day. Because Defendants employed Plaintiffs for a seven hour per day, Monday through Friday workweek, and because the seven hour workday ran from when Plaintiffs checked in at their work locations until they left for home, Plaintiffs claim the time spent performing the aforementioned tasks resulted in a greater than forty hour workweek, for which they were owed overtime at either the rate of time-and-a-half or double time.[3] (See Compl. ¶ ¶ 29-30.)

Plaintiffs also bring a claim for Defendants' " intentional[] fail[ure] to maintain adequate and accurate written records for the hours and wages earned by [P]laintiffs in order to facilitate their exploitation of [P]laintiffs' labor," allegedly in violation of 29 U.S.C. § 211(c) and 29 C.F.R. § 516.2. (Id. ¶ ¶ 52-53.) Plaintiffs primarily seek relief in the form of their alleged unpaid overtime compensation under the FLSA, lost wages, pension, and retirement benefits, liquidated damages in an amount equal to their unpaid overtime compensation pursuant to 29 U.S.C. § 216(b), and reasonable attorney's fees. (Compl. ¶ ¶ 56-57, 61-62.)

2. Defendants' Representatives and Relevant Policies

Since 2002, Joseph Mastropietro (" Mastropietro" ) has acted as Assistant Commissioner for the Bureau of Facilities, within which BMD is one department. (Pl. 56.1 ¶ 3.) Daniel Wallen (" Wallen" ) has acted as Supervisor of Mechanics since at least 2002 and reports to Mastropietro. (Id. ¶ 4.) Wallen supervises almost all BMD trades personnel, including Plaintiffs. (Id. ¶ 5.) Dominick Moretti (" Moretti" ) served as Supervisor of Electricians from July 29, 2001, until March 31, 2009, and reported directly to Wallen. (Id. ¶ ¶ 6-7.)

Electricians and carpenters are required to work Monday through Friday, 7:30 a.m. to 3:00 p.m., with one half hour of unpaid lunch per day, amounting to a thirty-five-hour regular paid workweek. (Compl. ¶ 41; Def. 56.1 ¶ 12.)[4] Cement masons

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similarly work thirty-five-hour regular paid workweeks, though their days run from 8:00 a.m. to 3:30 p.m. (Pl. 56.1 ¶ 15.) Electricians earn overtime at the rate of one-and-a-half times their regular hourly rate for all work performed in excess of the regularly scheduled seven hour workday. (Id. ¶ 13.) Carpenters earn the same overtime rate as electricians Monday through Saturday but earn two times their regular pay rate on Sundays and Holidays. (Id. ¶ 14.) Cement masons earn overtime at the rate of two times their regular hourly rate for all work performed in excess of the regularly scheduled seven hour workday. (Id. ¶ 16.)

All BMD personnel, including Plaintiffs, perform their trades at various FDNY worksites, or " work locations," within the City's five boroughs and travel to their work locations using an assigned FDNY vehicle. (Id. ¶ ¶ 17-18.) During all relevant times, Plaintiffs transported tools, equipment, and supplies necessary for the performance of their jobs in their FDNY vehicles; whenever they ran low on materials they would conduct an inventory and report to 35th Street in Queens to restock. (Id. ¶ ¶ 19-20.) Although the BMD employs motor vehicle operators to transport heavy duty equipment to the work locations, Plaintiffs allege occasionally they would transport certain equipment in their FDNY vehicles that they viewed as being " heavy duty." (Id. ¶ 21; Waters Decl. Ex. C, at 174-81.)

In April 2003, the FDNY implemented a new policy that changed the transportation procedures applicable to all BMD trade personnel. (Def. 56.1 ¶ 22.) Mastropietro circulated to each tradesman a memorandum (the " April 2003 Memo" ) and a " Driver Election Form" that contained two options. (Id. ¶ 23; Waters Decl. Ex. I.) " Option 1" provided that the employee would travel each day to his work location in an assigned FDNY vehicle and that such travel was non-compensable:

I choose to use the Department vehicle from home and commute to my assigned work locations(s) on my own time using the Department vehicle. Assignment(s) will be made the previous day as per current procedures. Start time is 0730 and I am required to report to my first assigned work location at 0730. I will sign out at the last work location at 1500.

(Pl. 56.1 ¶ ¶ 24-25.) Defendants paid those employees who elected Option 1 for gas and tolls, at least within the City's five boroughs. (E.g., id. ¶ 55; Waters Decl. Ex. S., at 54-55.) " Option 2" allowed trades personnel to commute to their work locations using their preferred mode of transportation:

I choose to commute (i.e. drive personal vehicle, use mass transit, etc.) on my own time to my assigned work location(s). Assignment(s) will be made the previous day as per current procedures. Start time is 0730 and I am required to report to my first assigned work location at 0730. I will sign out at the last assigned work location at 1500.

(Pl. 56.1 ¶ ¶ 29-30.) Any employee who did not elect Option 1 and failed to return the executed Driver Election Form automatically defaulted to Option 2. (Def. 56.1 ¶ 31; Waters Decl. Ex. I.)

BMD personnel who elected Option 1 were required to inspect their vehicles on a daily basis and check the vehicles' fluids at least once a week. (Def. 56.1 ¶ 36; Waters Decl. Ex. J.) The parties dispute whether Plaintiffs were required to inspect their vehicles during normal work hours--Defendants' contention--or before they left from home for their assigned work location--Plaintiffs' assertion. (Def. 56.1 ¶ 37; Pl. 56.1 ¶ 37.) BMD personnel who

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elected Option 1 could not use their FDNY vehicles for any purpose other than traveling between home and work locations and between different work locations. (See id. ¶ 38.) Defendants claim the FDNY's official policy was that Option 1 employees were required to park their vehicles overnight at their homes whereas Plaintiffs allege many employees were permitted to park their vehicles at local firehouses and other FDNY locations. (See Pl. 56.1 ¶ 39.)

BMD trades personnel, including Plaintiffs, were issued pagers to enable them to communicate with their supervisors and were required to carry the pagers at all times during work hours; the issuance of pagers did not depend on whether the employee elected Option 1 or Option 2. (Id. ¶ ¶ 40-41.) Plaintiffs allege they were required to monitor their pagers even during non-work hours. (Id. ¶ 42.)

On or about September 4, 2004, Defendants amended Option 2 as follows:

I choose to report to 58th Street (55-30 58th St., Maspeth) at the start of my workday at 0730 hrs, sign in, pick up the department issued vehicle, and then immediately proceed to my assigned job location(s). Assignments will be made the previous day in most cases as per current procedures. I will leave my last job assignment no sooner than 1400 hrs. and return to 58th Street to drop off the vehicle and sign out for the day.

(Waters Decl. Ex. P.) Amended Option 2 no longer provided trades personnel the opportunity to commute to their work locations in their personal vehicles or by way of public transportation; instead, they could only commute to the central location in Maspeth (the " Maspeth Central Location" ) where they would pick up an FDNY vehicle and then proceed to their work locations. (Id. Ex. C, at 231-32.) Plaintiffs claim they were not informed in 2004 that Option 2 had been amended; some claim they first learned of it years later, while others claim they only learned of it for the first time in their depositions. (Pl. 56.1 ¶ 44.) Plaintiffs' claim is bolstered by the fact that certain Plaintiffs signed Driver Election Forms after September 2004 that did not reflect the amendment to Option 2. (See Waters Decl. Exs. T, V, Z, BB, DD, FF.)

On or about February 26, 2007, the FDNY amended the language of Option 1 as follows:

I choose to use the department vehicle from home and commute to my assigned work location(s) on my own time using the Department vehicle. Assignment(s) will be made the previous day in most cases as per current procedures. Start time is 0730 hrs. and I am required to report to my first assigned work location at 0730 hrs. I will sign out at the last assigned work location at 1500 hrs. and travel home on my own time using the department vehicle.

(See, e.g., Waters Decl. Ex. R.) This amendment to Option 1 apparently served to clarify that trades personnel who elected Option 1 would be commuting on their own time back home from their work locations at the end of the workday, just as they would be in the morning while en route from their homes to their work locations. Option 1 as originally drafted stated only, " I choose to use the Department vehicle from home and commute to my assigned work locations(s) on my own time using the Department vehicle." (Pl. 56.1 ¶ 25 (emphasis added).) Nevertheless, it is clear that Defendants always intended Option 1 to mean that employees would not be on the clock when driving their FDNY vehicles back home from their work locations, and Plaintiffs do not claim they read Option 1 as originally drafted any differently upon signing their original Driver Election Forms.

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3. Plaintiff Joseph Berardi

Berardi began working as an electrician for the FDNY in 1983. (Id. ¶ 49.) From January 3, 2003, until September 27, 2004, Berardi was not employed by the FDNY. (Id. ¶ 51.) From when he returned to work on September 27, 2004, until December 7, 2004, Berardi drove his personal vehicle between his home in Middletown, New Jersey, and his assigned work locations. (Id. ¶ ¶ 50, 52.) Berardi alleges Defendants retaliated against him for not electing Option 1 under the April 2003 Memo by not providing him equal overtime opportunities as his peers and sending him " to the furthest 'work assignments' from where I lived[,] [viz.,] the furthest-out reaches of the City of New York." (Berardi Aff. ¶ ¶ 13-14.) On December 8, 2004, Berardi signed a Driver Election Form electing Option 1 and began traveling from his home to his work locations using an FDNY van; beginning in 2009, Berardi drove an FDNY box utility vehicle. (Pl. 56.1 ¶ 54; Waters Decl. Ex. T.) Berardi claims he did not sign the Driver Election Form voluntarily, (Berardi Aff. ¶ 20), and that his workday begins at 5:30 a.m and ends between 4:30 p.m and 5:00 p.m., depending on traffic. (Pl. 56.1 ¶ 61.)

Berardi argues the following actions he allegedly conducts while driving his FDNY vehicle between his home and work locations constitute compensable work for which Defendants have improperly denied him pay. First, he performs a daily 10-15 minute inspection of his FDNY vehicle--stored overnight in his driveway--at 5:30 a.m., which consists of checking the tires, battery, interior lighting, and oil, and ensuring materials inside the vehicle are secure and free from tampering. (Pl. 56.1 ¶ ¶ 62-64.) He also pulls over his vehicle once a month to re-secure items that may have ...


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