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Perez v. Manna 2nd Avenue LLC

United States District Court, S.D. New York

February 28, 2017

THOMAS E. PEREZ, Secretary of Labor, United States Department of Labor, Plaintiff,
v.
MANNA 2ND AVENUE LLC dba GINA LA FORNARINA, MANNA MADISON AVENUE LLC dba GINA LA FORNARINA, MANNA AMSTERDAM AVENUE LLC dba GINA LA FORNARINA, MANNA LEXINGTON AVENUE LLC dba GINA LA FORNARINA, and PAOLA PEDRIGNANI, Individually and as Owner, Defendants.

          MEMORANDUM AND ORDER

          JAMES C. FRANCIS IV UNITED STATES MAGISTRATE JUDGE

         The United States Secretary of Labor, Thomas E. Perez (the "Secretary"), brings this Fair Labor Standards Act ("FLSA") action against Manna 2nd Avenue LLC, Manna Madison Avenue LLC, Manna Amsterdam Avenue LLC, Manna Lexington Avenue LLC, and Paola Pedrignani for violations of the FLSA's overtime, minimum wage, and recordkeeping provisions. The parties have cross-moved for partial summary judgment. The plaintiff seeks judgment on his overtime claims for the period June 16, 2013, to November 18, 2015, [1] including liquidated damages and a determination of the defendants' joint and several liability. Both parties seek a decision on the viability of the defendants' executive exemption defense. For the following reasons, the defendants' motion is denied, and the plaintiff's motion is granted in part and denied in part.

         Background

         Ms. Pedrignani is the owner of the four corporate defendants, which operate as the Italian pizza restaurant Gina La Fornarina at separate locations across Manhattan. (Stipulation dated Aug. 24, 2016 (“Stip.”), attached as Exh. 1 to Declaration of Amy Tai dated Sept. 16, 2016 (“9/16/16 Tai Decl.”), ¶¶ 6-7; Defendants' Rule 56.1 Statement (“Def. 56.1 Statement”), ¶¶ 1-2). Ms. Pedrignani has primary managerial control over the restaurants. (Stip., ¶ 6; Def. 56.1 Statement, ¶ 8).

         During the relevant period, the defendants jointly employed a variety of employees, including kitchen chefs, pizza chefs, dishwashers, salad makers, prep cooks, trainees, servers, bussers, runners, porters, general captains, hosts, baristas, and delivery people. (Amended Complaint, ¶¶ 4-7; Stip., ¶¶ 5, 10-11; The Secretary of Labor's Rule 56.1 Statement in Support of His Motion for Partial Summary Judgment (“Pl. 56.1 Statement”), ¶ 31; Def. 56.1 Statement, ¶¶ 3, 5, 9). Some of the employees worked for more than one of the restaurants in the same week. (Stip., ¶ 11). The pizza chefs were usually paid a fixed salary. (Def. 56.1 Statement, ¶ 16).

         The Department of Labor began an investigation of the defendants in 2013 for alleged violations of the FLSA's overtime, minimum wage, and notice provisions. (Def. 56.1 Statement, ¶ 17). After the parties were unable to resolve the dispute, the Secretary filed this action. (Def. 56.1 Statement, ¶¶ 18-21). On summary judgment, the plaintiff contends that the defendants owe overtime wages to the above-mentioned kitchen and dining room employees from June 16, 2013, to November 18, 2015, because the defendants did not (1) aggregate hours worked at different locations, (2) combine hours worked at different positions or pay rates, and (3) properly calculate overtime rates when employees were paid a fixed sum. The defendants argue that the pizza chefs are exempt from the overtime pay rule under the FLSA's executive exemption.

         Discussion

          A. Summary Judgment Standard

         Under Rule 56 of the Federal Rules of Civil Procedure, a court will “grant summary judgment if the movant shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The moving party bears the initial burden of identifying “the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. The opposing party then must come forward with specific materials establishing the existence of a genuine dispute. Id. at 324. Where the nonmoving 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, ” summary judgment must be granted. Id. at 322-23. Where “the party opposing summary judgment bears the burden of proof at trial, summary judgment should be granted if the moving party can ‘point to an absence of evidence to support an essential element of the nonmoving party's claim.'” Gemmink v. Jay Peak Inc., 807 F.3d 46, 48 (2d Cir. 2015) (quoting Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995)).

         In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Smith v. Barnesandnoble.com, LLC, 839 F.3d 163, 166 (2d Cir. 2016). However, the court must inquire whether “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party, ” Anderson, 477 U.S. at 249, and may grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative, id. at 249-50. When evaluating cross-motions for summary judgment, the court reviews each party's motion on its own merits, and draws all reasonable inferences against the party whose motion is under consideration. Morales v. Quintel Entertainment, Inc., 249 F.3d 115, 121 (2d Cir. 2001).

         B. Defendants' Failure to Comply with Local Rule 56.1

          Local Civil Rule 56.1(a) of the Southern and Eastern Districts of New York requires that a party moving for summary judgment annex “a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” The opposing party, in response, must “include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Local Civil Rule 56.1(b).

         Although the defendants provided a Rule 56.1(a) statement for their own summary judgment motion, they failed to controvert the plaintiff's Rule 56.1(a) statement. Accordingly, the facts contained in the plaintiff's statement could be deemed admitted. See Local Civil Rule 56.1(c); Dejana Industries, Inc. v. Village of Manorhaven, No. 12 CV 5140, 2015 WL 1275474, at *3 (E.D.N.Y. March 18, 2015). However, the “court has broad discretion to determine whether to overlook a party's failure to comply with local court rules . . . [and] may in its discretion opt to ‘conduct an assiduous review of the record' even where one of the parties has failed to file such a statement.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (quoting Monahan v. New York City Department of Corrections, 214 F.3d 275, 292 (2d Cir. 2000)). Because there is a preference for deciding cases on the merits, I will conduct an “assiduous review” of the record where necessary. See Dejana Industries, 2015 WL 1275474, at *3; Lopez v. Echebia, 693 F.Supp.2d 381, 386 (S.D.N.Y. 2010).

         C. Defendants' Joint Liability as Employers

         The plaintiff contends that the defendants jointly employed their employees and are jointly and severally liable. An employee is jointly employed “if the facts establish that the employee is employed jointly by two or more employers, i.e., that employment by one employer is not completely disassociated from employment by the other employer(s).” 29 C.F.R. § 791.2(a). Whether a joint employment arrangement exists is to be “resolved from the totality of the evidence.” Barfield v. New York City Health and Hospitals Corp., 537 F.3d 132, 149 (2d Cir. 2008). If two employers jointly employ an employee, then

all of the employee's work for all of the joint employers during the workweek is considered as one employment for purposes of the Act. In this event, all joint employers are responsible, both individually and jointly, for compliance with all of the applicable provisions of the act, including the overtime provisions, with respect to the entire employment for the particular workweek.

29 C.F.R. § 791.2(a); see Barfield, 537 F.3d at 141; Zheng v. Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir. 2003).

         The parties stipulated, “Together, Manna 2nd Avenue LLC, Manna Madison Avenue LLC, Manna Amsterdam Avenue LLC, Manna Lexington Avenue LLC, and Paola Pedrignani jointly employed their employees.” (Stip., ¶ 10). They also agreed that Ms. Pedrignani centrally managed the corporate defendants and that the business activities of the restaurants were related. (Stip., ¶¶ 6, 8-9). Thus, the defendants jointly employed the employees and are jointly and severally liable under the FLSA for any damages award. See Fermin v. Las Delicias Peruanas Restaurant, Inc., 93 F.Supp.3d 19, 37 (E.D.N.Y. 2015).

         D. Pizza Chefs

         Both parties seek judgment with respect to the defendants' affirmative defense that the pizza chefs are subject to the FLSA's executive exemption. The FLSA's overtime pay rule does not “apply with respect to . . . any employee employed in a bona fide executive, administrative, or professional capacity.” 29 U.S.C. § 213(a)(1). The regulations defining the FLSA's executive exemption provide that

[t]he term “employee employed in a bona fide executive capacity” . . . shall mean any employee:
(1) Compensated on a salary basis at a rate of not less than $455 per week . . ., exclusive of board, lodging or other facilities;
(2) Whose primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof;
(3) Who customarily and regularly directs the work of two or more other employees; and
(4) Who has the authority to hire or fire other employees or whose suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status ...

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