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Perkins v. Bronx Lebanon Hospital

United States District Court, S.D. New York

June 11, 2015



PAUL A. ENGELMAYER, District Judge.

In his Third Amended Complaint ("TAC"), plaintiff Craig Perkins alleges that his employer, Bronx Lebanon Hospital (the "Hospital"), failed to pay him overtime compensation in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), and the New York Labor Law ("NYLL"), N.Y. Lab. Law § 663. This Court previously dismissed Perkins's overtime claims as pled in an earlier complaint but granted leave to amend; it also dismissed with prejudice various other claims asserted against the Hospital and Perkins's union.

The Hospital now moves to dismiss the TAC pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that it fails to state a claim upon which relief can be granted. In the alternative, the Hospital moves for partial summary judgment under Rule 56, claiming that its records establish that Perkins was paid for many of the overtime hours in question. For the following reasons, the Hospital's motions are denied, except that the Court dismisses Perkins's NYLL claim to the extent it is based on events occurring on or before March 21, 2013.

I. Background

A. Documents Considered

In resolving a motion to dismiss, the Court "may consider any written instrument attached to [the Complaint] as an exhibit or any statements or documents incorporated in it by reference, as well as... documents that the plaintiffs either possessed or knew about and upon which they relied in bringing the suit.'" City of Pontiac Policemen's & Firemen's Ret. Sys. v. UBS AG, 752 F.3d 173, 179 (2d Cir. 2014) (quoting Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000)). In addition, "it is well established that a district court may rely on matters of public record in deciding a motion to dismiss under Rule 12(b)(6).'" Burfeindt v. Postupack, 509 F.App'x 65, 67 (2d Cir. 2013) (summary order) (quoting Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998)).

Under these principles, the Court may properly consider the tables attached to the TAC, which purport to document the hours Perkins worked and the wages he was paid. See Dkt. 61 ("TAC"), Exs. A-B.

The Hospital asks the Court to consider three documents attached to the Declaration of Philip Repash in support of the motion to dismiss, Dkt. 65 ("Repash Decl."), and six documents attached to the Declaration of Jasen Nhambiu in support of the same motion, Dkt. 66 ("Nhambiu Decl."). Exhibits A and B of the Repash Declaration consist of the Hospital's payroll records and time clock records, respectively. Plaintiff's counsel represents, however, that he did not rely on the documents attached to the Repash Declaration in drafting the TAC, but instead relied on "limited records" voluntarily produced by the Hospital. Dkt. 72 ("Pl. Br."), at 8, 11. Corroborating this claim, the pay periods in the tables attached to the TAC do not correspond to the pay periods in Exhibit A of the Repash Declaration. Compare TAC Ex. A, at 1, with Repash Decl., Ex. 1, at 1. Accordingly, the Court cannot consider Exhibits A and B of the Repash Declaration in resolving the motion to dismiss.

Exhibit C of the Repash Declaration is a decision by an Administrative Law Judge ("ALJ") resolving Perkins's 2011 application for unemployment insurance benefits. Because this decision was publicly filed, the Court may consider it. See Burfeindt, 509 F.App'x at 67. The ALJ decision is, however, minimally relevant to the pending motion to dismiss.

Exhibits A through F of the Nhambiu Declaration pertain to Perkins's termination in August 2011, the grievances he filed thereafter, and the settlement agreement reached by the parties to resolve those grievances. Because Exhibits B and F, the settlement agreement and an arbitral decision, are matters of public record, the Court may consider them. See id. As to the balance of the exhibits, the Court can fairly assume that Perkins was aware of the documents when his counsel drafted the TAC. However, "mere notice or possession" of documents does not suffice; "a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). There is no indication that Perkins relied on the documents labeled as Exhibits A, C, D, and E in drafting his pleadings, and so the Court may not consider them. See id. at 153-54.

Substantively, the six documents attached to the Nhambiu Declaration are relevant only insofar as they suggest that Perkins signed a binding settlement agreement releasing all claims against the Hospital that had accrued as of March 21, 2013, the date that the settlement agreement was executed. See Nhambiu Decl. ¶¶ 5-8. Because Perkins concedes this point, see Pl. Br. 5-6, the Court has no need to consider any of the documents.

Finally, Perkins asks the Court to consider an affidavit he submitted in opposition to the Hospital's motion to dismiss, which contains various new factual allegations and attaches as exhibits four sets of documents. Dkt. 71 ("Perkins Aff."). Of these, the Court may consider Exhibit A, a letter motion Perkins's counsel submitted to the Court via ECF on December 10, 2014. Dkt. 59. The Court may also consider page 4 of Exhibit C, a description of Perkins's job responsibilities that is explicitly incorporated into the TAC by reference. See TAC ¶ 11 ("[T]he description of the duties of the Fire Safety Officer job classification was and is contained in a manual published by the Hospital and known as the Bronx-Lebanon Hospital Center Safety and Security Manual."). However, because "it is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss, " Weir v. City of New York, No. 05 Civ. 9268 (DFE), 2008 WL 3363129, at *9 (S.D.N.Y. Aug. 11, 2008) (citation omitted), the Court disregards the balance of the affidavit and its attachments.

B. Factual Background[1]

On August 4, 2004, the Hospital hired Perkins as a Fire Safety Officer. TAC ¶ 7. His responsibilities include conducting fire and evacuation drills, selecting and training members of the fire brigade, and directing evacuations in the event of a fire. Perkins ...

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