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Silverio v. United Block Ass'n, Inc.

United States District Court, S.D. New York

January 14, 2015

Basilia Silverio, Plaintiff,
United Block Association, Inc., et al., Defendants

For Basilia Silverio, Plaintiff: Alex Umansky, Phillips & Associates, Attorney at law, PLLC, New York, NY.

For United Block Association, Inc., Defendant: Harvey Steven Mars, Law Office of Harvey S. Mars, New York, NY.


ALISON J. NATHAN, United States District Judge.

Plaintiff Basilia Silverio (" Silverio") brings this action against Defendants United Block Association, Inc. (" UBA"), UBA Executive Director Kwame Insaidoo (" Insaidoo"), and Dr, Modi Essoka (" Essoka") for failure to pay wages and retaliatory discharge under the Fair Labor Standards Act (" FLSA"), 29 U.S.C. § 201 et seq . and New York Labor Law (" NYLL") § § 191 (1)(d), 215. The Defendants now move for summary judgment on all of Silverio's claims. See Dkt. No. 20. For the reasons below, Defendants' motion is GRANTED.


The United Block Association is a non-profit corporation that operates a small number of senior citizen day centers in Manhattan, specifically in or around the neighborhood of Harlem. Mars Deck, Ex. 2 at 9:12-16; 59:11 (" Insaidoo Deposition"). It receives all, or nearly all, of its funding through contracts with the New York Department for the Aging (" DFTA"), an agency of the City of New York. Id. at 59:12-23.

In 1994, the UBA hired Plaintiff as one of its senior center directors. Umansky Deck, Ex. A ¶ 2 (" Silverio Declaration"). Specifically, she was assigned to be the Director of UBA's Manhattanville Riverside Senior Center (" Manhattanville"). Mars Deck, Ex. 5 at 14:12-19 (" Silverio Deposition"). It was at this time that Ms. Silverio was first asked about her academic credentials and whether she possessed a bachelor's degree. Id. at 82:2-8. Later, in March 1999, UBA circulated a memorandum to senior employees reminding them that they were required to " meet the minimum entry academic requirements" for their positions. Mars Deck, Ex. 9 at 1. Ms. Silverio responded to this memorandum by providing UBA with a number of training certificates for skills and abilities relevant to her position at the Manhattanville center, as well as her college transcript, demonstrating that she had acquired a number of credits, but not a degree, at Lehman College. Mars Deck, Ex. 10; Silverio Dep. at 67:7-69:24.

Beginning in May 2011, Plaintiff ceased receiving compensation for her work at the Manhattanville center. Silverio Deck ¶ 3. On July 15, 2011, the Plaintiff and other UBA employees received a letter from the organization's management explaining that their contract with the DFTA had expired and that, as a result, they lacked the funds necessary to meet payroll. Id. ¶ 4; Silverio Dep. at 134:14-135:16; Insaidoo Dep. at 103:2-14. The letter explained that employees had the option of either leaving the UBA and applying for unemployment benefits or remaining with the organization without the assurance of getting paid. Mars Deck, Ex. 3. UBA contends that the delay in funding was due in part to DFTA's development of more rigorous standards for awarding public contracts to senior centers. Silverio Dep. at 70:6-72:4, 80:14-82:8; Insaidoo Dep. at 120:18-121:24.

On July 25, 2011, still without having been paid for over a month, Silverio filed a complaint with the New York State Department of Labor (" NYSDOL"). Silverio Deck ¶ 7. Ms. Silverio believes that her employers learned of her complaint, shortly after it was filed, from her assistant, Delcia Caba, who informed Mr. Insaidoo that Ms. Silverio was in the process of filing a complaint. Silverio Deck ¶ 7. By mid-August 2011 the UBA had received a renewed contract with the DFTA and all of their employees, including Silverio, were fully paid their missing back wages. Insaidoo Dep. at 114:25-116:21; Silverio Dep. at 160:25-161:18. Accordingly, Ms. Silverio's NYSDOL complaint was closed. Silverio Dep. at 160:25-161:18

Around the time Ms. Silverio first filed her complaint with the NYSDOL, the UBA issued a memorandum to all its senior employees explaining that, in order to maintain prequalification status with the DFTA, it was reviewing the academic qualifications of all its senior employees. Mars. Deck, Ex. 6. The memorandum further explained that for directors, the position held by Ms. Silverio, the minimum academic qualification was a bachelor's degree. Id. While the memorandum is dated July 21, 2011, the Plaintiff alleges that she did not in fact receive it until after she had filed her complaint. Silverio Decl. ¶ 9. Regardless of the exact timing, the Plaintiff was aware from discussions and meetings within UBA that the DFTA was becoming increasingly insistent that prequalified agencies only hire employees with the requisite academic qualifications for working at senior centers. Silverio Dep. at 71:18-23, 70:23-71:1.

Ms. Silverio alleges that on September 6, 2011, Mr. Insaidoo and Dr. Essoka called her into a meeting during which they stated that she would be terminated unless she demonstrated that she had obtained a bachelor's degree. Silverio Decl. ¶ 12. In response to this request, Ms. Silverio again submitted a number of certificates demonstrating her participation in training relevant to her position. Mars Decl., Ex. 11. She also submitted an updated transcript from Lehman College, demonstrating that she had earned a handful of additional credits, with above-average grades, in 2001 and 2002 in courses relevant to senior care. Id.

On October 28, 2011, Dr. Essoka sent Ms. Silverio a letter thanking her for submitting her academic materials, but explaining that they were incomplete. Id. He requested that they meet on November 2, 2011 in order for Ms. Silverio to " clarify" the information she had provided. Id. After the meeting, Dr. Essoka sent another letter to Ms. Silverio explaining that, because she only had 56 college credits and had not completed her degree, she was unqualified for her current position or " any other higher position in UBA." Mars Decl., Ex. 12. The letter further stated that Ms. Silverio would be allowed to maintain her position if she went back to school for the spring 2012 semester and demonstrated a commitment to finishing her degree. Id. Short of this, Dr. Essoka explained, her employment would be terminated. Id. Ms. Silverio looked into returning to Lehman College, but ultimately did not reenroll. Silverio Dep. 77:23-78:16.

Approximately nine months later, on July 2, 2012, Ms. Silverio was promoted from Director of the Manhattanville center to Hispanic Programs Specialist for all four centers run by UBA. Insaidoo Decl. at 141:13-142:1. Her annual salary was increased from $43, 000/annum to $46, 000/annum. Silverio Dep. at 78:17-25, 117:16-18. This was a new position that was created to cater to the rising number of Hispanic seniors living in or near Harlem. Insaidoo Dep. at 53:11-24. According to the Plaintiff, at the time she accepted the new position, the " Duties and Responsibilities" for the position did not explicitly list any qualifications or academic requirements. Silverio Decl. ¶ 15. Furthermore, she states that at no point during the time she held this position did the Defendants ask her to return to school or obtain a bachelor's degree. Id. ¶ 17.[1]

On March 22, 2013, over nine months since receiving her promotion to Hispanic Programs Specialist and nearly eighteen months since filing her NYSDOL complaint, Ms. Silverio was fired by the UBA. The parties do not dispute that she was not discharged for performance related reasons. Insaidoo Dep. 74:7-18. Rather, she was told that she was being terminated because she had failed to obtain a bachelor's degree or enroll back in college and also because the management had learned that she was actively seeking employment elsewhere. Insaidoo Dep. 159:12-20; Mars Deck, Exs. 23-24.

After being terminated by the organization, Ms. Silverio applied for unemployment benefits, which the UBA did not challenge. Mars. Decl.. Ex. 26; Silverio Dep. at 176:14-25. When asked on the benefits form whether she was terminated for violating any company rule, Ms. Silverio checked " No." Mars Decl., Ex. 26. According to the Defendants, Ms. Silverio was reimbursed for all her unused vacation days. Insaidoo Dep. ...

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