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Ramos v. Telgian Corp.

United States District Court, E.D. New York

January 24, 2017

DENNIS RAMOS, ED RODRIGUEZ, EDWARD KRALICK, and DANIEL EMERSON, individually and on behalf of all other persons similarly situated who were employed by TELGIAN CORPORATION and any other entities affiliated with, controlling, or controlled by TELGIAN CORPORATION, Plaintiffs,
v.
TELGIAN CORPORATION and any other entities affiliated with, controlling, or controlled by TELGIAN CORPORATION, Defendant.

          MEMORANDUM & ORDER

          PAMELA K. CHEN UNITED STATES DISTRICT JUDGE.

         Plaintiffs Dennis Ramos, Ed Rodriguez, Edward Kralick, and Daniel Emerson (“Plaintiffs”) brought this action to recover, on behalf of themselves individually and all similarly situated individuals, unpaid overtime compensation from Defendant Telgian Corporation (“Defendant” or “Telgian”), under Sections 207 and 216 of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 207, 216(b), and, individually, unpaid overtime and spread-of-hours compensation under the New York Labor Law (“NYLL”), NYLL § 663, and the New York Codes, Rules, and Regulations (“NYCRR”), 12 NYCRR §§ 142-2.2, 142-2.4. The parties cross-moved for summary judgment, and on March 31, 2016, the Court denied Plaintiffs' motion, and granted in part and denied in part Defendant's motion. Ramos v. Telgian Corp., 176 F.Supp.3d 181, 204 (E.D.N.Y. 2016) (“3/31/16 Order”). On the question of whether Defendant had properly compensated Plaintiffs pursuant to the Fluctuating Workweek (“FWW”) scheme, the Court found that there remained two issues of fact to be determined by a jury-first, whether Defendant had met the second element of the FWW scheme by paying Plaintiffs their fixed salaries regardless of the number of hours worked, and second, whether Defendant had met the fourth element of the FWW scheme, i.e., whether there existed a clear mutual understanding that Plaintiffs' fixed salaries were intended to compensate them for every hour actually worked, rather than for some fixed number of hours.

         In its present motion for reconsideration, Defendant argues that the Court overlooked controlling facts and law that warrant granting Defendant's summary judgment motion in full. Based on the parties' submissions and for the reasons stated below, the Court GRANTS Defendant's motion with respect to the second element of the FWW scheme as to Plaintiff Kralick, but otherwise DENIES reconsideration.

         I.LEGAL STANDARD

         A court may grant reconsideration on the basis of an “intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Virgin Atl. Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992). The standard for granting a reconsideration motion is “strict, ” and reconsideration generally will be denied “unless the moving party can point to controlling decisions or data that the court overlooked-matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995) (citations omitted). “It is well-settled that [a motion for reconsideration] is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir.), as amended (July 13, 2012) (quotations omitted). Furthermore, arguments raised for the first time on reconsideration are not proper grounds for reconsideration. See Image Processing Techs., LLC v. Canon Inc., 10-CV-3867, 2012 WL 253097, at *1 (E.D.N.Y. Jan. 26, 2012) (“[A] party is not permitted to ‘advance new facts, issues or arguments not previously presented to the Court' on a motion for reconsideration.”) (quoting Caribbean Trading & Fid. Corp. v. Nigerian Nat'l Petroleum Corp., 948 F.2d 111, 115 (2d Cir. 1991)).

         II. THE COURT GRANTS IN PART AND DENIES IN PART RECONSIDERATION ON ELEMENT 2 OF THE FWW SCHEME

         The Court reverses its denial of summary judgment on the second element of the FWW scheme as to Plaintiff Kralick, but denies reconsideration of this element as to the other Plaintiffs, albeit with some additional explanation.

         The Court's denial of summary judgment on this element was based on paystubs submitted into evidence that seemed to belie Defendant's assertion that Plaintiffs received a fixed weekly salary regardless of the hours worked. (Dkt. 39, Exhibit A, at ECF 9, 11, 21; Exhibit B, at ECF 32, 35, 36, 40, 44, 46, 49, 52; Exhibit D, at ECF 39, 41, 45, 46, 50, 52, 54, 58, 64, 66.)[1] The Court specifically pointed to paystubs in which the stated “regular” earnings were lower than Plaintiffs' salaries. (i.e. Dkt. 39, Exhibit A, at ECF 9, 11, 21.)

         As to Plaintiff Kralick, however, Defendant correctly points out that Kralick's paystubs did not include pay periods where Kralick's “regular” earnings were less than his stated salary. (Dkt. 39, Exhibit C, ECF 2-18.) Because the Court previously overlooked this material fact, it reverses the denial of summary judgment to Defendant on this element with respect to Plaintiff Kralick.[2]

         Regarding the other Plaintiffs, the Court affirms its previous finding that “there is no evidence in the record that would permit the Court to determine, ” in each instance where a paycheck listed a Plaintiff's “regular” earnings as lower than the normal salary, whether Defendant was complying with the FWW scheme. (3/31/16 Order, 176 F.Supp.3d at 196-97.)[3]

         The Court takes this opportunity to clarify its finding on this point. The paystubs at issue broke down gross earnings into categories such as “regular, ” “OT” (or “Halftime OT”), “subsistence, ” “holiday, ” “floating holiday, ” and “leave.” (See, e.g., Dkt. 39, Exhibit A, at ECF 9, 11, 21.) While these paystubs might be subject to an interpretation that does not violate the FLSA, Defendant failed to offer this explanation in briefing its summary judgment motion, and it would be improper for the Court to consider this new argument now.[4] On reconsideration, Defendant explains for the first time that although certain pay stubs showed lower regular pay amounts, Plaintiffs, in fact, were paid the same or more than their normal salary because they also received pay from their holiday or leave banks, as indicated in those pay stubs. The reason, Defendant further explains, that Plaintiffs sometimes received more than their regular pay is that leave pay was paid in eight-hour increments regardless of the actual amount of leave the employee used. Thus, if an employee used less than eight hours of leave, he received more than his regular salary for that pay period. (Dkt. 79, at 6-9; 12-16). Defendant points to a Department of Labor Opinion Letter that explains, “deductions may be made from vacation or sick leave banks because of absences for personal reasons or illness, as long as no deductions are made from an employee's salary” and as long as “where there is no paid leave to substitute for employee absences, the employer [does] not make deductions from the employee's guaranteed fixed salary under the [FWW] method of compensation.” U.S. Dep't of Labor Wage & Hour Op. Letter, 1999 WL 1002399, at 2 (May 10, 1999) (“1999 DOL Opinion Letter”).[5]

         Even if the Court were to consider Defendant's belated argument, it would still deny summary judgment, because a jury could interpret the “holiday” and “leave” amounts in the paystubs as reflecting holiday and leave premiums for hours worked on holidays and days off, and could find that Plaintiffs' “regular” earnings were impermissibly reduced for other reasons-which would violate the FWW scheme. “[A]lmost every court to have addressed the issue has held that paying an employee hours-based, or time-based, bonuses and premiums-such as extra pay for holiday, weekend, or night work-offend[s] § 778.114's requirement of a ‘fixed weekly salary.'” Wills v. RadioShack Corp., 981 F.Supp.2d 245, 255-56 (S.D.N.Y. 2013). See O'Brien v. Town of Agawam, 350 F.3d 279, 289-90 (1st Cir. 2003) (holding that employees did not receive a “fixed amount” under FWW element two when they were paid additional compensation for nighttime shifts and for other hours worked on otherwise off-duty time); Lane v. Crescent Servs., LLC, 2:12-CV-368, 2013 WL 12106124, at *5 (S.D. Tex. Sept. 17, 2013) (“Payment of an off-shore, day-off, holiday, or shift premium to an employee violates the FLSA requirement that the employee receive a fixed salary and precludes application of the FWW method of compensation.”); Brantley v. Inspectorate Am. Corp., 821 F.Supp.2d 879, 889-91 (S.D. Tex. 2011) (finding that Defendant did not satisfy the requirements for FWW when employees would earn premiums when they worked on a scheduled day off or holiday); Brumley v. Camin Cargo Control, Inc., 2010 WL 1644066, at *6 (D.N.J. 2010) (same); Adeva v. Intertek USA, Inc., 2010 WL 97991, at *3 (D.N.J. 2010) (same); Ayers v. SGS Control Servs., Inc., 03-Civ.-9077, 2007 WL 646326, at *8-10 (S.D.N.Y. Feb. 27, 2007) (holding that employees did not receive a fixed salary under FWW because they received lump-sum “day-off pay” for working on their days off); see also Bacon v. Eaton Aeroquip, LLC, 2014 WL 5090825 (E.D. Mich. 2014) (explaining that the Department of Labor rejected a rule that would have permitted hours-based or time-based bonuses and premiums, and thus intended to leave in place the prohibition found by the majority of courts) (citing Wills, 981 F.Supp.2d at 260-63)).[6]

         Because the jury, based on the evidence in the record, could reach alternative conclusions about how Defendant paid Plaintiffs during the pay periods documented by the paystubs with “holiday” and “leave” designations, Defendant is not entitled to summary judgment on this element of the FWW scheme.[7]

         III. THE COURT DENIES ...


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