United States District Court, N.D. New York
JOSEPH BIASI, individually and on behalf of all others similarly situated, Plaintiffs,
WAL-MART STORES EAST, LP; EARLENE SCHAEFFER; RYAN DUNPHY; and REBECCA PAUKSTELA, Defendants.
STEWART JONES HACKER MURPHY, LLP RYAN M. FINN, ESQ., DAVID I.
IVERSEN, ESQ. Counsel for Plaintiffs
McCARTER & ENGLISH, LLP PAMELA J. MOORE, ESQ., SAMI
ASAAD, ESQ. Counsel for Defendants
DECISION and ORDER
T. SUDDABY, Chief United States District Judge
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
Plaintiff's Second Amended Complaint
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.)
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.)
Statement of Undisputed Material Facts
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
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].)
Amsterdam Wal-Mart store is one of Wal-Mart's
“Supercenters, ” meaning it has a wide variety of
departments, including both general merchandise and
store also includes a deli department that sells a wide
variety of packaged items on a retail basis as well as some
prepared food sold by deli department associates (employees)
is sold exclusively on a retail, take-out
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.
deli department does not have a soda fountain.
deli department does not take payment from customers.
Customers must take all prepared food (and any other deli
items) to the check-out lanes like all other store
Wal-Mart associates do not deliver any food to customers,
whether on a catering/banquet or boxed lunch basis.
department associates do not serve customers at a table or
clean up after them.
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.
Plaintiff testified at his deposition that most of his time
was spent unloading “general merchandise” trucks.
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.
Another daily task Plaintiff had to perform was sorting
merchandise that arrived mixed together into cardboard boxes
called “break packs.”
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.
Additionally, Plaintiff was routinely tasked with processing
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.
Plaintiff also was responsible for “binning, ”
which refers to stocking “overstock” merchandise
in the warehouse area.
Plaintiff also unloaded other trucks such as the
“remix” trucks as well as meat and product
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.
Items on the FDD truck were “all mixed together”
FDD truck contained between 3-10 pallets.
When the FDD truck arrived, one of the Unloaders would unload
the pallets using a pallet jack, and then return to their
pallets were placed into a central cooler/freezer outside of
the deli department.
deli department had its own cooler/freezer that Plaintiff
Plaintiff estimated that it took from a “couple of
minutes” to “10 to 15 minutes” to unload
the FDD truck.
Although there was a delivery from the FDD truck on a daily
basis, Plaintiff was not always assigned to unload it.
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.
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.
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.
Neither these items nor any of the general merchandise or
grocery items were used to make the prepared foods sold by
the deli department.
Plaintiff never worked as a deli associate.
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.
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
September 27, 2014, Wal-Mart published an updated dress code
policy for New York associates on the WIRE.
WIRE is a computerized repository of all of Wal-Mart's
policies that are applicable to associates and to which
associates have open access.
new dress code policy was posted “on the wall outside
Plaintiff remembers seeing certain portions of the new dress
code policy “[p]robably more than
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,