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Biasi v. Wal-Mart Stores East, LP

United States District Court, N.D. New York

March 22, 2017

JOSEPH BIASI, individually and on behalf of all others similarly situated, Plaintiffs,


          McCARTER & ENGLISH, LLP PAMELA J. MOORE, ESQ., SAMI ASAAD, ESQ. Counsel for Defendants

          DECISION and ORDER

          GLENN T. SUDDABY, Chief United States District Judge

         Currently before the Court, in this employment discrimination and uniform maintenance pay class action filed by Joseph Bilas (“Plaintiff”) against Wal-Mart Stores East, LP (“Wal-Mart”), Earlene Schaeffer, Ryan Dunphy and Rebecca Paukstela (collectively “Defendants”), are the following three motions: (1) Defendants' motion for partial summary judgment seeking dismissal of Plaintiff's second cause of action (Dkt. No. 36), (2) Defendants' motion to strike certain portions of Plaintiff's declarations that were submitted in opposition to their motion for summary judgment (Dkt. No. 50), and (3) Plaintiff's cross-motion seeking leave of the Court to file and serve a third amended complaint (Dkt. No. 46). For the reasons set forth below, Defendants' motion for partial summary judgment is granted, their motion to strike is denied, and Plaintiff's cross-motion is denied.


         A. Plaintiff's Second Amended Complaint

         The allegations relevant to Plaintiff's second cause of action are as follows. Plaintiff was employed by Wal-Mart as a non-exempt hourly employee for approximately twenty years. (Dkt. No. 28, ¶ 12 [Pl.'s 2d Am. Compl.].) As part of his job, Plaintiff was required to wear a vest that displayed a Wal-Mart logo while working in Wal-Mart stores. (Id., ¶ 48.) Despite Wal-Mart's requirement that employees wear a uniform while performing their duties, Wal-Mart did not pay to launder or maintain Plaintiff's uniforms. (Id., ¶¶ 47, 58-59.) Plaintiff claims that, under 12 NYCRR 146-1.7, Wal-Mart was required to provide him and other similarly situated employees with enough uniforms consistent with the average number of days they worked per week or to compensate them with a “uniform maintenance pay” in order to pay for the maintenance of their uniforms. (Id., ¶ 49.) Plaintiff worked five days per week but was given only two vests. (Id., ¶ 56.) Plaintiff was informed that Wal-Mart's policy was to give two uniforms to full-time employees and one uniform to part-time employees. (Id., ¶ 58.)

         Based upon the foregoing, Plaintiff seeks to establish a class consisting of all persons who work, or have worked, as a non-exempt employee for Wal-Mart in the State of New York during the past six years. (Id., ¶ 61.) Furthermore, Plaintiff seeks on behalf of himself and the individual class members, among other things, damages in the amount of their unpaid minimum wage for uniform maintenance pay. (Id., ¶¶ 74-77.)

         B. Statement of Undisputed Material Facts

         Although discovery is not complete in this case, Magistrate Judge Baxter gave Defendants leave to file an early dispositive motion after completion of one deposition. (Text Notice dated April 20, 2016; Dkt. No. 35.) Subsequently, Defendants filed a motion for partial summary judgment. Before reciting the material facts of this case, the Court must address an issue it has identified in Plaintiff's response to Defendants' Statements of Material Facts, made pursuant to Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court. Specifically, at various points throughout Plaintiff's Rule 7.1 Response, he “admits” facts asserted by Defendants in their Rule 7.1 Statement but then includes additional facts and/or legal argument in those responses. In these instances, the Court will treat Defendants' assertions as undisputed. (See, e.g., Dkt. No. 49, ¶¶ 34, 39, 44, 48-49, 53 [Pl.'s Rule 7.1 Response].) See CA, Inc. v. New Relic, Inc., 12-CV-5468, 2015 WL 1611993, at *2 n.3 (E.D.N.Y. Apr. 8, 2015) (holding that “the Court will consider the statement provided by [Plaintiff] as undisputed because [Defendant's] initial response in each instance is, in fact, ‘Undisputed'”); Washington v. City of New York, 05-CV-8884, 2009 WL 1585947, at *1 n.2 (S.D.N.Y. June 5, 2009) (holding that “the statement provided by Defendants is taken as true because Plaintiff[']s initial response in each instance is ‘Admit'”); see also Baity v. Kralik, 51 F.Supp.3d 414, 418 (S.D.N.Y. 2014) (noting that plaintiff's responses failed to comply with the court's local rules where “Plaintiff's purported denials . . . improperly interject arguments and/or immaterial facts in response to facts asserted by Defendants, often speaking past Defendants' asserted facts without specifically controverting those same facts”); Goldstick v. The Hartford, Inc., 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (striking plaintiff's Rule 56.1 Statement, in part, because plaintiff added “argumentative and often lengthy narrative in almost every case the object of which is to ‘spin' the impact of the admissions plaintiff has been compelled to make”).

         Unless otherwise noted, the following facts were asserted and supported with accurate record citations by Defendants in their Statement of Material Facts (“Rule 7.1 Statement”) and expressly admitted by Plaintiff in his response thereto (“Rule 7.1 Response”). (Compare Dkt. No. 38 [Defs.' Rule 7.1 Statement] with Dkt. No. 49 [Pl.'s Rule 7.1 Response].)

         1. The Amsterdam Wal-Mart store is one of Wal-Mart's “Supercenters, ” meaning it has a wide variety of departments, including both general merchandise and groceries.

         2. The store also includes a deli department that sells a wide variety of packaged items on a retail basis as well as some prepared foods.[1]

         3. The prepared food sold by deli department associates (employees) is sold exclusively on a retail, take-out basis.[2]

         4. The deli department does not offer table service, counter service, or curb service of any kind, and there are no tables or counters at which customers can sit and eat a meal within the immediate vicinity of the deli department.[3]

         5. The deli department does not have a soda fountain.

         6. The deli department does not take payment from customers.

         7. Customers must take all prepared food (and any other deli items) to the check-out lanes like all other store merchandise.

         8. Wal-Mart associates do not deliver any food to customers, whether on a catering/banquet or boxed lunch basis.

         9. Deli department associates do not serve customers at a table or clean up after them.

         10. Plaintiff worked in the Amsterdam Wal-Mart as an “Unloader.” 11. As an Unloader, “a good majority” of his time was spent in the receiving area.

         12. Plaintiff testified at his deposition that most of his time was spent unloading “general merchandise” trucks.

         13. Plaintiff described general merchandise as follows:

[a]nything that's, like, stock pallets, mixed in: Water, bicycles, electronic products. Anything that's stocked throughout the store on a shelf would be considered general merchandise that wasn't frozen, dairy, or food. Regular merchandise we stocked on the shelf. That's what came on the GM truck.

         14. Another daily task Plaintiff had to perform was sorting merchandise that arrived mixed together into cardboard boxes called “break packs.”

         15. Break packs were sorted in the “One Touch Area.” 16. Plaintiff testified at his deposition that he spent “an hour and a half” to “three hours” every day working on break packs.

         17. Additionally, Plaintiff was routinely tasked with processing apparel.

         18. Plaintiff testified at his deposition that processing apparel involved the following procedures:

We had to take it out of the plastic. It was-some of it was on hangars. Some of it we had to put on hangers ourself, whatever. We had to put on the hangers on the respective rack for which they wanted. Like, the infants', boys', and girls' went on one. Men's was on one side. Women's was on another, and there was a blue rack for regular apparel, and there was a red rack for what Wal-Mart called star freight where-if it was like, say, a special season, occasion, a holiday, and it was certain clothing set aside to sell from for different things.

         19. Plaintiff also was responsible for “binning, ” which refers to stocking “overstock” merchandise in the warehouse area.

         20. Plaintiff also unloaded other trucks such as the “remix” trucks as well as meat and product trucks.

         21. According to Plaintiff, there was one truck that came into the store called the “frozen, dairy, deli” (“FDD”) truck that contained some items to be stocked in the deli department. This truck included things like “frozen foods” “bakery stuff, ” “dairy products, like milk, juice, yogurt, cheeses, cottage cheese, ” and “Deli [products] . . . like, steaks, sausage, hot dogs, [and] meats.” 22. According to Plaintiff, the FDD truck was the only truck that brought food products sold by the deli department.

         23. Items on the FDD truck were “all mixed together” on pallets.

         23. The FDD truck contained between 3-10 pallets.

         24. When the FDD truck arrived, one of the Unloaders would unload the pallets using a pallet jack, and then return to their prior duties.

         25. The pallets were placed into a central cooler/freezer outside of the deli department.

         26. The deli department had its own cooler/freezer that Plaintiff never entered.

         27. Plaintiff estimated that it took from a “couple of minutes” to “10 to 15 minutes” to unload the FDD truck.[4]

         28. Although there was a delivery from the FDD truck on a daily basis, Plaintiff was not always assigned to unload it.

         29. Once the pallets were unloaded and placed in the central cooler/freezer, deli department associates would retrieve merchandise for the deli department from the cooler/freezer and bring it to stock in the deli department.

         30. As an Unloader, one of Plaintiff's tasks was stocking merchandise on the sales floor, which entailed stocking “general merchandise, ” including grocery items, in various departments outside of the deli.

         31. The closest Plaintiff ever got to the deli was stocking the sales floor “outside” the deli “where customers can pick from and buy from.” 32. The items Plaintiff stocked were packaged items like packaged hot dogs and hams.

         33. Neither these items nor any of the general merchandise or grocery items were used to make the prepared foods sold by the deli department.

         34. Plaintiff never worked as a deli associate.

         35. Plaintiff did not “even know anyone who worked in the deli.” 36. Plaintiff's interaction with the deli was limited to saying “hello, ' walk[ing] by, and that was all.” 37. Before September 2014, Wal-Mart's dress code required Unloaders to wear a clean blue shirt and either jeans or khakis.

         38. Plaintiff testified at his deposition that he “wore a different clean pair [of pants] every single day, ” and “wore a different [shirt] every day that was clean.” 39. Plaintiff testified that he would “bring [his clothes] home, wash them, and when they're clean, wear them back to work again.” 40. Beginning on September 29, 2014, Wal-Mart added a vest to the dress code.

         41. On September 27, 2014, Wal-Mart published an updated dress code policy for New York associates on the WIRE.

         42. The WIRE is a computerized repository of all of Wal-Mart's policies that are applicable to associates and to which associates have open access.

         43. The new dress code policy was posted “on the wall outside personnel.”[5]

         44. Plaintiff remembers seeing certain portions of the new dress code policy “[p]robably more than once.”[6]

         45. The new dress code policy (applicable to New York employees) noted that the vest was a wash and wear item, but stated that “wash and wear items” such as the vest would be laundered for associates “at the company's expense.” 46. Plaintiff testified that both his wife and father, who are employed at the Amsterdam Wal-Mart, ...

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