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Redzepagic v. Hammer

United States District Court, S.D. New York

February 27, 2017

SEFKET REDZEPAGIC, on behalf of himself and others similarly situated, Plaintiff,


          RAMOS, D.J.

         Plaintiff Sefket Redzepagic (“Plaintiff) brings this action claiming violations of the Fair Labor Standards Act (FLSA) for Defendants' failure to pay overtime wages.[1] Defendants counterclaim for breach of contract, alleging that Plaintiff signed a release and waiver of all claims-including any FLSA claims-in connection with his termination as a residential superintendent. Doc. 43 at 9-14. Defendants seek dismissal of Plaintiff's FLSA claims as well as an order granting judgment to Defendants on their counterclaim. Doc. 70 at 1.[2]

         For the reasons discussed below, the Court GRANTS in part and DENIES in part Defendants' motion for summary judgment.

         I. BACKGROUND

         Plaintiff was employed by Melohn Properties, Inc. (“Melohn”) as the superintendent of a residential building located at 4750 Bedford Avenue, Brooklyn, New York from January 1, 1993 until July 2, 2014. Defendants' Rule 56.1 Statement (“Defs.' 56.1 Stmt.”) (Doc. 71) ¶ 1. During the period from 2012-2014, the managing agent at the building was Andrew Melohn. Id. ¶ 9. Prior to Andrew Melohn, the managing agent was Robert Hammer. Id. ¶ 10.

         Plaintiff and other employees who worked at the building were covered by a collective bargaining agreement (“CBA”) entered into between Melohn and Local 2 of the Building Service Employees & Factory Workers. Id. ¶ 14. Under the terms of the CBA, Plaintiff received a number of benefits, including the payment of overtime as follows:

The standard workweek shall be (40) hours consisting of five (5) consecutive workdays of eight (8) hours per day. Any hour worked in excess of eight (8) hours per day or forty (40) hours in a week shall be paid at the rate one and one half the hourly rate.

Id. ¶ 15 (citing Melohn Affidavit ¶ 13; Exhibit 26 at 1). The CBA also contained provisions related to holiday overtime and vacation. Plaintiff's regular work hours were from 9:00 a.m. to 5:00 p.m. Monday to Friday. Id. ¶ 86. He was also required to respond to emergencies during his off-hours. Id. ¶¶ 16-18, 20 (citing Melohn Affidavit ¶ 13; Exhibit 26 at 10) (“In all other respects, the present practice of the building with regard to the duties of the superintendent shall be continued, and, as heretofore, the superintendent shall take care of all emergencies.”).

         Plaintiff, as superintendent, received a rent-free apartment, free utilities, and a free parking spot. Id. ¶ 21.

         Each week Plaintiff submitted a report to Melohn's Assistant Controller, Joseph Gottlieb, which set forth the hours that he and the other employees worked. Id. ¶ 33.[3] Plaintiff avers that during the period from 2011 to the end of his employment in 2014, he worked between four and fifteen overtime hours each week. Affidavit of Sefket Redzepagic (“Pl. Aff.”) (Doc. 73, Ex. 1) ¶ 5. However, he did not report the overtime hours that he worked on most of the timesheets he submitted. Defs.' 56.1 Stmt. ¶¶ 36-37. Plaintiff states that he was directed by Defendants to report only 40 hours of work each week regardless of the number of hours he actually worked, unless he received advance approval for certain projects. Pl. Aff. ¶ 8. Additionally, on several occasions between January 2012 and June 2014, Plaintiff texted Andrew Melohn regarding overtime hours he put in to do additional work on the premises. Defs.' 56.1 Stmt. ¶¶ 52-53; see also Affidavit of Mark N. Reinharz, Exhibit 1 (Doc. 69-6-69-10) (“Text Messages”).[4] All of the information regarding the repairs Plaintiff performed were kept on worksheets, which Plaintiff kept in his office. Defs.' 56.1 Stmt. ¶ 114. However, a new owner, ABRO, purchased the building in July 2014, and in September 2014, ABRO discarded the worksheets. Id. ¶¶ 78, 83.

         After the sale of the building, ABRO advised the employees that they would not be retained. Id. ¶ 151. The union immediately filed an unfair labor practice charge against ABRO with the National Labor Relations Board. Id. ¶ 156. On July 3, 2014, ABRO provided Plaintiff with a written offer of $50, 000 to leave the building and cease employment, and Plaintiff subsequently made a counter offer of $100, 000. Id. ¶¶ 157, 159. During this time period, Plaintiff spoke with the union, which advised him that he should not accept the offer. Id. ¶ 162. On or about July 10, 2014, Plaintiff advised his union representative that he was offered $75, 000 to leave his position and that he would also receive unemployment benefits. Id. ¶¶ 164. Plaintiff ultimately accepted the $75, 000 offer. Id. ¶ 168.

         On September 3, 2014, Plaintiff signed a severance agreement (“Agreement”) with ABRO that included a release of all claims against both ABRO and Melohn, including claims under the New York Labor Law and the Fair Labor Standards Act. Id. ¶ 170. Section Five of the Agreement provides:

In consideration of ABRO's payment of the Settlement Payments as well as its agreement to permit the Employee to continue to occupy the Unit to the date specified … the Employee … does fully and forever release and discharge ABRO MANAGEMENT, INC, 4750 REALTY LLC, and MELOHN PROPERTIES, including its and their past and present members, officers, directors, partners, agents, representatives, employees, attorneys, successors, and assigns … from any and all actions, claims, demands, losses, expenses, obligations, and liabilities related to any conduct or activity occurring before the Effective Date hereof, including but not limited to … those pursuant to the Fair Labor Standards Act of 1938, as amended and the New York Labor Law, and any other claim for compensation for work, labor, or services …

Agreement at 4-5.[5] Although the release provision purports to cover Melohn, the prior owner, and its employees, neither Melohn nor its employees were involved in the negotiation of the Agreement between Plaintiff and ABRO. Defs.' 56.1 Stmt. ¶ 179. In fact, Melohn was not aware of the Agreement until after this litigation began. Id. ¶ 180.

         Plaintiff understood that he had the right to speak with an attorney prior to signing, id. ¶ 17; however, he testified that when he asked to take the Agreement to a lawyer for review, the ABRO representative told Plaintiff, “No, don't worry about it. We have a lawyer. He's going to do all the paperwork. All you have to do is just sign.” Plaintiff's Rule 56.1 Statement (“Pl.'s 56.1 Stmt.”) (Doc. 75) ¶ 196. Under the terms of the settlement, Plaintiff was given seven days to revoke the Agreement, but did not do so. Id. ¶ 175.


         Plaintiff commenced this lawsuit in December 2014 claiming violations of New York Labor Law (NYLL) and the FLSA. See Complaint (Doc 1). His state law claims were later withdrawn, see Doc. 31, and Defendants counterclaimed for breach of contract. Doc. 43 at 9-14.


         Summary judgment is only appropriate where the “materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, [and] other materials” show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), 56(c)(1)(A). “An issue of fact is ‘genuine' if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Senno v. Elmsford Union Free Sch. Dist., 812 F.Supp.2d 454, 467 (S.D.N.Y. 2011) (citing SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009)). A fact is “material” if it might affect the outcome of the litigation under the governing law. Osberg v. Foot Locker, Inc., 907 F.Supp.2d 527, 532 (S.D.N.Y. 2012) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)).

         The party moving for summary judgment is first responsible for demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir. 2005). “When the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim.” Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009) (citing Celotex Corp., 477 U.S. at 322-23); see also Fed. R. Civ. P. 56(c)(1)(B). The burden then shifts to the non-moving party to come forward with admissible evidence sufficient to support each essential element of the claim, and “designate specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. at 324 (internal quotation marks omitted); see also Cordiano, 575 F.3d at 204.

         In deciding a motion for summary judgment, the Court must “‘construe the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.'” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting Williams v. R.H. Donnelley, Corp., 368 F.3d 123, 126 (2d Cir. 2004)). However, in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture or surmise. Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). A motion for summary judgment cannot be defeated on the basis of conclusory assertions, mere denials or unsupported alternative explanations of facts. Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008); see also Senno, 812 F.Supp.2d at 467 (citing Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). “The nonmoving party cannot defeat summary judgment by ‘simply showing that there is some metaphysical doubt as to the material facts, '” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)), it “must set forth significant, probative evidence on which a reasonable fact-finder could decide in its favor.” Senno, 812 F.Supp.2d at 467-68 (citing Anderson, 477 U.S. at 256-57).

         “Summary judgment is properly granted when the non-moving party ‘fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'” Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002) (quoting Celotex Corp., 477 U.S. at 322). In that situation, there can be no genuine dispute as to any material fact, “since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex Corp., 477 U.S. at 322-23.


         A. Waiver of Plaintiff's FLSA Claim

         Defendants argue Plaintiff's FLSA claim is barred because he knowingly signed the Agreement in which he released the Defendants of all claims, including specifically those asserted under the FLSA. Doc. 70 at 4-5. The FLSA was designed “to correct and as rapidly as practicable to eliminate” the practice of employers failing to pay their employees proper wages. 29 U.S.C. § 202(b). “The FLSA places strict limits on an employee's ability to waive claims for fear that employers would coerce employees into settlement and waiver.” Armenta v. Dirty Bird Grp., LLC, No. 13 Civ. 4603 (WHP), 2014 WL 3344287, at *1 (S.D.N.Y. June 27, 2014) (internal quotations and citation omitted); see also Cheeks v. Freeport Pancake House, Inc., 796 F.3d 199, 207 (2d Cir. 2015), cert. denied, 136 S.Ct. 824, 193 L.Ed.2d 718 (2016) (noting the FLSA “is a uniquely protective statute” designed “to prevent abuses by unscrupulous employers, and remedy the disparate bargaining power between employers and employees.”). “FLSA rights cannot be abridged by contract or otherwise waived because this would ‘nullify the purposes' of the statute and thwart the legislative policies it was designed to effectuate.” Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 740, 101 S.Ct. 1437, 1445 (1981) (quoting Brooklyn Savings ...

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