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Eschmann v. White Plains Crane Service, Inc.

United States District Court, E.D. New York

March 24, 2014



KIYO A. MATSUMOTO, District Judge.

Plaintiff Daniel Eschmann ("plaintiff" or "Eschmann") brings this suit under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"), and the New York Labor Law § 1 et seq. (the "NYLL"), alleging that defendants failed to pay proper overtime wages and terminated him in retaliation for complaining about overtime violations. ( See ECF No. 1, Compl. filed 12/2/11.) Plaintiff names as defendants White Plains Crane Service, Inc. ("White Plains"); Bay Crane Services, Inc. ("Bay Crane"); Bay Crane Services of Long Island, Inc. ("Bay Crane Long Island"); Richard Bernardo ("R. Bernardo"); and Joseph Bernardo ("J. Bernardo"). ( Id. at 2.) The court has subject-matter jurisdiction in this action pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiff's state law claims is proper pursuant to 28 U.S.C. § 1367.

Pending before the court are plaintiff's (1) motion for partial summary judgment on Counts One and Two of the Complaint, alleging that defendants failed to pay plaintiff proper overtime wages in violation of FLSA § 207(a) and NYLL § 663; and (2) defendants' cross-motion for partial summary judgment on Counts Three through Six of the Complaint, alleging that defendants engaged in illegal retaliation and retaliatory termination in violation of FLSA § 215 and NYLL § 215. Plaintiff filed a previous stipulation of dismissal with prejudice as to his seventh cause of action, alleging defendants failed to pay prevailing wages under NYLL § 220. (Order dated 4/1/13; ECF No. 16, Stipulation dated 4/1/13.)

For the reasons set forth below, the court: (1) grants in part and denies in part plaintiff's motion for partial summary judgment against defendants as to Counts One and Two, failure to pay overtime wages under the FLSA and NYLL; (2) grants defendants' motion in its entirety as to Counts Three, Four, Five, and Six, illegal retaliation and retaliatory termination under the FLSA and NYLL.


The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1 and the admissible evidence contained in the exhibits cited and annexed to the parties' motion papers, are undisputed unless otherwise indicated. The court views the facts in the light most favorable to the nonmoving party with respect to each motion.[1]

Plaintiff commenced his employment with defendant Bay Crane on or about January 2007. ( See ECF No. 22-1, Defs.' 56.1 Statement in Support of Defs.' Mot. for Summ. J. dated 5/8/13 ("Defs.' Stmt."), at ¶ 1.) Plaintiff was hired as a helper. (ECF No. 25-4, Joint Deposition Transcript Index ("Joint Appendix"), J. Bernardo Depo., J.A. at 171.) White Plains Crane is a subsidiary of Bay Crane, and Bay Crane has been in existence continuously since 1951. (ECF No. 31, Pl.'s 56.1 Statement in Support of Pl.'s Mot. for Summ. J. dated 5/8/13 ("Pl.'s Stmt."), at ¶¶ 3-4.) Defendants Joseph Bernardo and Richard Bernardo are principals of Bay Crane and its subsidiaries, White Plains Crane and Bay Crane Long Island. (Pl.'s Stmt. at ¶ 6.) Joseph Bernardo has been a principal and control person of Bay Crane since 1957. (Pl.'s Stmt. at ¶ 4.) Richard Bernardo has been continuously employed by Bay Crane since approximately 1988 and holds the title of Vice President of Bay Crane. (Pl.'s Stmt. at ¶ 5; R. Bernardo Decl. at ¶ 2.) Though both Joseph and Richard Bernardo controlled each aspect of plaintiff's employment, including hiring, compensation, work duties, and termination, (Pl.'s Stmt. at ¶ 9), Richard Bernardo was principally responsible for decisions concerning plaintiff's compensation. (R. Bernardo Decl. at ¶ 3.)

Plaintiff regularly worked over 40 hours in a work week but was rarely paid an overtime rate. (Pl.'s Stmt. at ¶ 10; R. Bernardo Decl. at ¶ 4.) It was defendants' stated policy and regular practice throughout plaintiff's employment to pay all non-union employees a "straight rate, " or regular rate, for all hours worked over 40 hours in a work week when employees worked overtime on the defendants' worksite. (Pl.'s Stmt. at ¶ 11; R. Bernardo Depo., J.A. at 291-92, 298.) Plaintiff would only get paid an overtime rate when he worked at a client's location off-site, and defendants billed the client for any overtime work. (Pl.'s Stmt. at ¶ 12; J.A. at 291-92, 350.) Plaintiff did not receive overtime pay when he worked overtime hours on-site, in defendants' own shop. ( Id. ) Plaintiff asserts that defendants knew they were supposed to pay overtime rates for all overtime hours worked because defendants billed clients for overtime and paid overtime to plaintiff when he worked on outside jobs, but refused to pay overtime when it came directly from defendants' "own pockets." (Pl.'s Stmt. at ¶ 13.) Defendants, however, deny knowledge of their overtime obligations, and assert that Bay Crane did not know it was required to pay overtime to employees working on-site. (R. Bernardo Decl. at ¶¶ 5-6.; R. Bernardo Depo., J.A. at 286; J. Bernardo Depo., J.A. at 185-86, 195.) Defendants further assert that they paid overtime rates for work performed off-site "as a consequence of a standard practice to pay the overtime as it was billed through to Bay Crane's clients." (R. Bernardo Decl. at ¶ 5.)

The parties agree that plaintiff never complained about his overtime wages to any governmental agency. (Defs.' Stmt. at ¶ 2; Eschmann Depo., J.A. at 67.) Although plaintiff did not complain to any government agency about overtime, he complained to several co-workers about not receiving overtime pay for work he performed on-site. (Eschmann Depo., J.A. at 67.) Defendants acknowledge that plaintiff made complaints about overtime pay prior to his termination. (Defs.' Stmt. at ¶ 4.) The parties, however, disagree over whether plaintiff ever complained to defendants about overtime pay. Plaintiff testified at his deposition that he complained to John Hagenstrom, a direct supervisor, "at least a dozen times" about his lack of overtime pay over the course of his employment. (J.A. at 56); that he complained to Richard Bernardo at least three times about the overtime issue (J.A. at 58-59, 60-64, 66); and that he complained to Joseph Bernardo three times (J.A. at 68-71). In contrast, defendants Richard and Joseph Bernardo testified at their depositions that they never heard any complaints from plaintiff regarding his overtime wages. (R. Bernardo Depo., J.A. at 45-46, 93; J. Bernardo Depo., J.A. at 352.)

Plaintiff was terminated from his employment on or about the first week of November 2010. (Defs.' Stmt. at ¶ 5.) Plaintiff asserts that he was terminated in retaliation for his complaints about not receiving overtime. (Eschmann Depo., J.A. at 82, 87.) Defendants dispute plaintiff's retaliation claim and assert that plaintiff was terminated because of numerous customer complaints about plaintiff's altercations. (J. Bernardo Depo., J.A. at 201, 205; R. Bernardo Depo., J.A. at 323, 336-43; Kaiser Decl., Ex. B, Customer Complaint Letters.)


I. Summary Judgment Standard

"Summary judgment is appropriate where there is no genuine dispute as to any material fact and the record as a whole indicates that no rational factfinder could find in favor of the non-moving party." Graves v. Finch Pruyn & Co., 353 Fed.App'x 558, 560 (2d Cir. 2009) (citing Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 2004)). "In ruling on a summary judgment motion, the district court must resolve all ambiguities, and credit all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment and determine whether there is a genuine dispute as to a material fact, raising an issue for trial." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (quotation marks omitted). "A fact is material when it might affect the outcome of the suit under governing law." Id. (internal quotation marks omitted). Moreover, an issue of fact is genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

"In order to defeat a motion for summary judgment supported by proof of facts that would entitle the movant to judgment as a matter of law, the nonmoving party is required under Rule 56[] to set forth specific facts showing that there is a genuine issue of material fact to be tried." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993). "[O]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment." Anderson, 477 U.S. at 248. The nonmoving party may not, however, "rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible, or upon the mere allegations or denials of the nonmoving party's pleading." Id. at 532-33. When cross motions for summary judgment are made, the standard is the same as that for individual motions. See Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121 (2d Cir. 2001). The court must examine each party's motion independently, and "in each case all reasonable inferences must be drawn against the party whose motion is under consideration." Id.

II. Plaintiff's Motion

Plaintiff seeks partial summary judgment as to his claims alleging defendants failed to pay proper overtime wages during the course of his employment, in violation of the FLSA, 29 U.S.C. § 207(a), and NYLL § 663 and N.Y. Compilation of Codes, Rules, and Regulations § 142-2.2. Under the FLSA, "no employer shall employ any of his employees... for a workweek longer than forty hours unless such employee receives compensation" at one and one-half times his regular rate for any hours worked in excess of forty hours. 29 U.S.C. § 207(a)(1).[2] Pursuant to NYLL § 663, an employee who is paid "less than the wage to which he... is entitled under the provisions of this article" shall recover the full amount of underpayments, among other costs and awards. N.Y. Lab. Law § 663.[3]

The statute of limitations for an overtime violation claim pursuant to the FLSA is two years for non-willful violations, and three years for willful violations. 29 U.S.C. § 255(a). A plaintiff seeking damages for an overtime violation under the NYLL has six years from the date of the alleged violation to assert his claim. N.Y. Lab. Law § 663(3).

A. Defendants' are Liable for Failing to Pay Overtime Wages

To establish liability under the FLSA and NYLL on a claim for unpaid overtime, a plaintiff must prove that he "performed work for which he was not properly compensated, and that the employer had actual or constructive knowledge of that work." Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011) (citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946)). At the summary judgment stage, the plaintiff must "produce sufficient evidence to show the amount and extent of that [uncompensated work] as a matter of just and reasonable inference." Kuebel, 643 F.3d at 362 (citing Anderson, 328 U.S. at 687). Here, plaintiff has submitted a copy of defendants' payroll register and his pay stubs reflecting various instances when plaintiff worked more than 40 hours in a week and was only compensated at the regular rate. ( See ECF No. 32, Moriarty Decl. dated 5/8/13, Exs. A, B.) In addition, defendants concede that they failed to properly pay plaintiff ...

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