United States District Court, N.D. New York
ARTHUR A. AMASH, et al., Plaintiffs,
HOME DEPOT U.S.A., INC., Defendant
Counsel Amended June 30, 2014.
Counsel Amended June 5, 2014.
For Arthur R. Amash, Sheryl Glickman, Christin M. Holloway, Joseph L. Pangoine, Jeffrey A. Repp, Richard A. Yingling, Jr., Plaintiffs: Frank Housh, Housh Law Offices, Buffalo, NY.
For Home Depot USA Inc, Defendant: Patrick G. Brady, John M. O'Connor, Clara H. Rho, George M. Macchia and Laura A. Stutz of Epstein Becker & Green, P.C., Newark, N.J., Joel M. Cohn, PRO HAC VICE, Akin, Gump Law Firm - DC Office, Washington, DC.
Thomas J. McAvoy, Senior United States District Judge.
DECISION & ORDER
Plaintiffs commenced this action asserting claims for unpaid overtime under the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 201 et seq., and New York Labor Law (" NYLL" ), Article 19, § 650 et seq.
See 2nd Am. Compl., dkt. # 43. Defendant Home Depot U.S.A., Inc. (" Home Depot" or " Defendant" ) moves for summary judgment dismissing the claims brought by Plaintiff Sheryl Glickman (" Glickman" or " Plaintiff" ). See Mot. dkt. # 139. For the reasons that follow, the motion is granted.
Glickman is a former Merchandising Assistant Store Manager (" MASM" ) for Home Depot who had joined a FLSA conditional certified collective action entitled Aquilino v. Home Depot, Inc., Civil Action No. 04-cv-4100, filed against Home Depot in the United States District Court for the District of New Jersey on December 21, 2006 (" Aquilino action" ). See Defendant's Statement of Material Facts Not in Dispute in Support of its Motion for Summary Judgment (" DSOF" ), at ¶ ¶ 10-11. The Aquilino plaintiffs, including Glickman, alleged that they were misclassified as exempt employees by Home Depot under the overtime requirements of the FLSA, and sought overtime compensation. See DSOF at ¶ ¶ 8-9.
On February 15, 2011, the District Court of New Jersey granted Home Depot's motion to decertify the nationwide FLSA collective action. Aquilino, 2011 WL 564039, at *11 (ECF Nos. 341 and 347 in D.N.J. 04-cv-4100). After decertification of the collective action, by Order dated May 2, 2011, the District of New Jersey dismissed the opt-in plaintiffs without prejudice. Aquilino, 2011 WL 564039, at *1, (ECF No. 353 in D.N.J. 04-cv-4100); see Aquilino v. Home Depot. U.S.A., Inc., No. 06-cv-4100 (PGS) (D.N.J. May 2, 2011) (ECF No. 353 in D.N.J. 04-cv-4100).
In June 2011, Glickman joined with other opt-in plaintiffs, filing an action in the United States District Court for the District of Connecticut, alleging violation of the FLSA and various state laws. See Costello v. Home Depot U.S.A., Inc., 888 F.Supp.2d 258, 262 (D. Conn. 2012). The Costello plaintiffs alleged violations of the FLSA and the wage and hour laws of New Hampshire, New York, and Vermont. Id. at 261. On January 10, 2012, Home Depot filed a motion in the Costello action, pursuant to Fed.R.Civ.P. 21 and 28 U.S.C. § 1404(a), to sever the plaintiffs' claims into seven separate actions and to transfer six of those actions to districts in other states, including New York. See id. (ECF No. 55 in D. Conn. 11-cv-0953). On April 10, 2012, the Costello Court granted Home Depot's motion. Id. at 271 (ECF No. 72 in D. Conn. 11-cv-0953).
In April and May 2012, the claims of Glickman and other New York plaintiffs were transferred to the District Court for the Northern District of New York. See Order of Transfer, filed April 30, 2012, (ECF No. 77 in D. Conn. 11-cv-0953), and Amended Order of Transfer, filed May 2, 2012 (ECF No. 79 in D. Conn. 11-cv-0953). Discovery in this action closed on December 20, 2013. See ECF No. 95.
Home Depot operates large warehouse-style retail stores that sell home improvement products and services. DSOF at ¶ 25. Each store is managed by a Store Manager and up to seven Assistant Store Managers (" ASMs" ), including MASMs, who are the second highest ranking employees,
subordinate only to the store manager. Id. at ¶ 26.
MASMs supervise from one to eleven merchandising departments, to wit: Lumber, Building Materials, Flooring, Paint, Hardware, Plumbing, Electrical, Garden, Kitchen & Bath, Millwork, and Dé cor. DSOF at ¶ ¶ 25-26. Each merchandising department is staffed by sales associates and a department supervisor. Id. at ¶ 27. MASMs supervise the department supervisors and associates assigned to the merchandising departments for which they are responsible. Id.
According to the Sales Assistant Store Manager Job Description that applies to MASMs, it is Home Depot's expectation that, int ...