United States District Court, S.D. New York
SEFKET REDZEPAGIC, on behalf of himself and others similarly situated, Plaintiff,
ROBERT HAMMER, MELOHN PROPERTIES INC., THE MELOHN GROUP LLC, L 4750, LLC, A 4750, LLC, 4750 BEDFORD LLC., LEON MELOHN, ALFONS MELOHN, AND JOHN DOES #1-10, jointly and severally, Defendants.
OPINION AND ORDER
Sefket Redzepagic (“Plaintiff) brings this action
claiming violations of the Fair Labor Standards Act (FLSA)
for Defendants' failure to pay overtime
wages. 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.
reasons discussed below, the Court GRANTS in part and DENIES
in part Defendants' motion for summary judgment.
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.
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.”).
as superintendent, received a rent-free apartment, free
utilities, and a free parking spot. Id. ¶ 21.
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. ¶
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”). 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,
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.
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
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. 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.
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.
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.
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
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.
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.
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
Waiver of Plaintiff's FLSA Claim
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 ...