United States District Court, S.D. New York
DR. RONALD TONGRING, Plaintiff,
BRONX COMMUNITY COLLEGE OF THE CITY UNIVERSITY OF NEW YORK SYSTEM, ANTHONY WEAVER, SUSAN FORMAN, Defendants.
ORDER AND OPINION
ANDREW L. CARTER, Jr., District Judge.
Plaintiff Nils Tongring ("Tongring" or "Plaintiff") brings this amended complaint against Defendants Bronx Community College, Anthony Weaver and Susan Forman ("Defendants"). Tongring brings claims for violation of the Fair Labor Standards Act (FLSA) and New York Labor Law (NYLL); the Age Discrimination in Employment Act of 1967 ("ADEA"); the New York State Human Rights Law ("NYSHRL"); New York City Human Rights Law ("NYCHRL") and libel, and seeks to bring a collective and class action on these bases. Defendants move for dismissal of the amended complaint in its entirety.
Plaintiff was hired as an adjunct professor to teach two mathematics classes at Bronx Community College for Spring 2010. (Am. Compl. ¶ 8). As part of his job duties, Plaintiff conducted office hours for students, prepared and graded examinations and homework. Plaintiff alleges that he taught these classes competently but was terminated without cause and replaced by younger workers who were less qualified. Plaintiff contends that the cause of this termination were defamatory evaluations written by Defendants Weaver and Forman which were "patently false and a pretext for violation of the ADEA, the NYSHRL and the NYCHRL" and "misunderstood and mischaracterized what was going on in the classroom." (Am. Compl. ¶ 33). Plaintiff alleges that he was not compensated for all hours he was required to work. (Am. Compl. ¶ 10) When he finally complained about this non-payment, his suspension from BCC was converted into a firing, allegedly in retaliation. (Am. Compl. ¶ 23). Defendant BCC informed Plaintiff that it would compensate Plaintiff for the amount he would have earned through the end of the semester only if Plaintiff signed a "do not darken my door clause, " a lifetime ban on ever applying again for work at any college in the City University of New York system. (Am. Compl. ¶ 36).
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a claim must contain "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)). A claim has facial plausibility "when the plaintiff pleads factual content that allows the Court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678.
On a motion to dismiss, the court will accept the plaintiff's allegations as true, see Kassner v. 2nd Ave. Delicatessen Inc. , 496 F.3d 229, 237 (2d Cir. 2007), and must "draw all reasonable inferences in favor of the plaintiff, " id. (citing Fernandez v. Chertoff , 471 F.3d 45, 51 (2d Cir. 2006)). However, the court need not accept allegations that are merely conclusions of law. Kassner , 496 F.3d at 237 (complaint inadequate if it "merely offers labels and conclusions or a formulaic recitation of the elements of a cause of action"). Therefore, on a motion to dismiss, "[t]he appropriate inquiry is not whether a plaintiff is likely to prevail, but whether he is entitled to offer evidence to support his claims." Fernandez , 471 F.3d at 51 (internal quotation marks and citation omitted).
I. Wage Violations under FLSA
Teachers are exempt from the FLSA minimum wage and maximum hour provisions, which do not apply to "any employee employed in a bona fide executive, administrative, or professional capacity..." 29 U.S.C. § 213(a)(1). The term "employee employed in a bona fide professional capacity" in section 13(a)(1) of the Act also means any employee with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment by which the employee is employed. The term "educational establishment" is defined in § 541.204(b). 29 CFR § 541.303. An "educational establishment" means an elementary or secondary school system, an institution of higher education or other educational institution. 29 C.F.R. § 541.204. Under New York state law, a community college is considered an "institution of higher education." See McKinney's Education Law § 6202(4).
Tongring contends that because he was not compensated on a salary or fee basis in an amount greater than $455 per week, exemption does not apply. See 29 CFR 541.300(a). However, as Defendants point out, the salary threshold does not apply to teachers, i.e., those employees who are in a bona fide professional capacity "with a primary duty of teaching, tutoring, instructing or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in an educational establishment." 29 CFR § 541.303(d). Therefore, Tongring is an exempt employee and cannot maintain a claim under the FLSA. Defendants' motion to dismiss the FLSA claim is granted.
II. Wage Violations under NYLL
Defendants contend that Plaintiff's NYLL claims must be dismissed because under the NYLL, "Employee' includes any individual employed or permitted to work by an employer in any occupation, but shall not include any individual who is employed or permitted to work... by a federal, state or municipal government or political subdivision thereof." McKinney's Labor Law § 651(5)(n). The question is whether BCC constitutes "a federal, state or municipal government or political subdivision thereof." If so, Tongring as "an individual who is employed... by BCC, " would be explicitly precluded from recovery under NYLL.
Defendants only tersely discuss why the NYLL claim should be dismissed, but seemingly would like the court to apply a recent analysis that a public benefit health care corporation constituted a political subdivision of municipal government. Memorandum at 12 (quoting Drayton v. MetroPlus Health Plan, Inc. , 791 F.Supp.2d 343, 345 (S.D.N.Y. 2011)). Tongring alleges that BCC is part of the City University of New York (CUNY) system (Am. Compl. ¶ 2) and makes allegations against CUNY more generally, (id. ¶¶ 13, 36). Applying the logic in Drayton, I conclude that BCC is a political subdivision of a municipal government, namely New York City.
Although there is no provided definition for "political subdivision, " New York courts engage in a "particularized inquiry into the nature of the [organization] and the statute claimed to be applicable to it, " Long Island R. Co. v. Long Island Lighting Co. , 103 A.D.2d 156, 479 N.Y.S.2d 355, 361 (2d Dept.1984), "to determine whether - for the specific purpose at issue - the public benefit corporation... perform[s] an essential government function... [and therefore] should be treated like the State." Clark-Fitzpatrick, Inc. v. Long Island R. Co. , 70 N.Y.2d 382, 387, 521 N.Y.S.2d 653, 516 N.E.2d 190 (2d Dept.1987); Faculty Student Ass'n of State Univ. of Oneonta, Inc. v. Ross , 54 N.Y.2d 460, 463-64, 446 N.Y.S.2d 205, 430 N.E.2d 1258 (N.Y.1981) (court must consider "the nature of the employing organization" in determining whether an entity is a political subdivision under the New York Labor Law).
In summarizing Clark-Fitzpatrick, the Drayton court remarked that the public entity at issue - the Long Island Railroad - had been categorized as a political subdivision because of "the statutorily-determined public nature of the LIRR's operations, as well as the public source of much of its funding." Drayton , 791 F.Supp.2d at 347. Applying those factors to the putative defendant in Drayton, Home Health Corporation and its subsidiary, the Drayton court held that it was properly considered a political subdivision because it performed an "essential public and governmental function" and "received a substantial amount of funding from public sources" See id. at 346-47. Drayton, ...