United States District Court, N.D. New York
KELLY KIRKLAND, individually and on behalf of all others similarly situated, Plaintiff,
SPEEDWAY LLC, Defendant.
STEWART JONES HACKER MURPHY, LLP Attorneys for Plaintiff.
LITTLER MENDELSON PC Attorneys for Defendant.
COUNSEL RYAN M. FINN, ESQ. DAVID I. IVERSEN, ESQ. JILL M.
LOWELL, ESQ. ANDREW J. VOSS, ESQ. HINNA M. UPAL, ESQ.
MEMORANDUM-DECISION AND ORDER
FREDERICK J. SCULLIN, JR. SENIOR UNITED STATES DISTRICT JUDGE
are two motions pending before the Court. First, Defendant
moves to have the Court enter judgment in favor of Plaintiff
with regard to her Uniform Maintenance Pay, 12 N.Y.C.R.R.
§ 146-1.7(a), claim in conformance with Defendant's
March 2, 2016 Rule 68 Offer of Judgment and subsequently to
dismiss that claim as moot pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. See Dkt. No. 18.
Defendant also moves for summary judgment pursuant Rule 56 of
the Federal Rules of Civil Procedure with regard to
Plaintiff's New York Human Rights Law ("NYHRL")
and Uniform Maintenance Pay claims. See Dkt. No. 38.
about November 13, 2014, Defendant Speedway LLC hired
Plaintiff Kelly Kirkland to work the overnight shift at its
Hess-branded gas station in Ithaca, New York. See
Dkt. No. 38-1 at ¶¶ 15-16. Her job consisted of
running the register, maintaining the appearance of the
store, and preparing food items. See Id. at ¶
18. Plaintiff was required to wear a clean uniform to work.
See Dkt. No. 43-3 at ¶ 25. Part of the required
uniform was a Hess-branded polo shirt. When Plaintiff was
hired, her supervisor, Brian Morgan, provided her with one
polo shirt. See id. at ¶ 2.1. She received
another polo shirt later in her employment. See Dkt.
No. 38-1 at ¶ 22. Plaintiff worked a total of ten shifts
although she was scheduled to work twelve. See Id.
at ¶ 17; see also Dkt. No. 43-3 at ¶ 17.
worked with Joseph Leeks for three of these shifts.
See Dkt. No. 38-1 at ¶ 30. Plaintiff knew Mr.
Leeks before she was hired because she was a frequent
customer of the gas station; and he was a friend of
Plaintiff's then-boyfriend, who also worked with Mr.
Leeks. See Id. at ¶¶ 27-29. Plaintiff
alleges that Mr. Leeks sexually harassed her during each of
the shifts they worked together.
first shift, Plaintiff testified that Mr. Leeks told a
co-worker that they were dating and at least once called her
"hun." See Dkt. No. 38-4, Pl's Depo.
at 156, 161 Plaintiff also testified that Mr. Leeks was
"creepy, " and he was constantly staring at her and
making her feel uncomfortable. See Pl's Depo. at
second shift, Plaintiff alleges that Mr. Leeks constantly
said to her, "How you doing, baby girl? How are you,
hun? Can I give you a ride, baby girl? Hun, what's the
matter? You doing okay, Hun? Baby girl, what's the
matter?" See Id. at 168. Furthermore, Plaintiff
testified that Mr. Leeks inappropriately touched her hand
twice, see Id. at 176, and that Mr. Leeks bumped
into her on purpose, see Id. at 180. Finally, she
testified that Mr. Leeks stared at her constantly. See
Id. at 181 (stating that he looked like "a monster
from the closet").
third shift, Plaintiff testified that Mr. Leeks constantly
called her "baby girl." See Id. at 186.
Further, Mr. Leeks placed both hands on Plaintiff's
shoulders, and she froze in fear and told him not to do that.
See Id. at 200. In addition, she testified that he
was constantly staring at her. See Id. at 203.
Moreover, she stated that, when she tried to hand Mr. Leeks
money, he grabbed her hand. See Id. at 204. Finally,
she testified that he bumped into her again in the same
manner as the previous shift. See Id. at 205.
December 10, 2014, Plaintiff left a note asking her manager,
Mr. Morgan, to call her. Mr. Morgan called Plaintiff, and she
described the preceding events to him. See Pl's
Depo. at 261. Mr. Morgan told Plaintiff that he would no
longer schedule her to work with Mr. Leeks and that he was
going to forward her complaints to the human resources
December 13, 2014, Plaintiff went to pick-up her pay-check at
the gas station. Mr. Leeks was there and yelled
Plaintiff's name several times and tried to get her
attention. See Id. at 196. Plaintiff ignored him and
walked away and called Mr. Morgan after this incident.
See Id. at 264.
the time she worked for Defendant, Plaintiff also worked at
Rite-Aid. On December 14, 2014, Mr. Leeks approached
Plaintiff while she was working at Rite-Aid. Plaintiff
testified that Mr. Leeks asked her to cook for him, asked her
to move away with him to Florida, rubbed her arm, and made
her feel "completely terrified." See Id.
at 216. Eventually Plaintiff ran away from Mr. Leeks and
complained to her Rite-Aid manager that she was "creeped
out." See Id. at 229. Plaintiff called Mr.
Morgan after the Rite-Aid incident.
testified that she met with Defendant's human resources
manager, Renee Schroll, on December 16, 2014, and told her
that she was afraid of Mr. Leeks, upset that no one had told
her that Mr. Leeks was a violent sex-offender,  and was
uncomfortable working with him. See Pl's Depo.
at 258-59. Plaintiff also gave Ms. Schroll a written
statement. See Dkt. No. 38-15. Ms. Schroll
interviewed Mr. Leeks and a witness to the harassment and
afterward concluded that Plaintiff's complaints were
"not substantiated"; however, she also concluded
that Plaintiff should not be scheduled to work with Mr. Leeks
anymore. See Dkt. No. 38-9, Schroll Dec., at ¶
was originally scheduled to work on the date of her interview
with Ms. Schroll, December 16, 2014; however, she did not.
Thereafter, she was not placed on the schedule again. The
parties dispute why she was never scheduled again. Plaintiff
claims it was retaliation for her complaints; Defendant, on
the other hand, argues that Plaintiff neglected to provide
Mr. Morgan with her availability. In any event, Defendant
deemed Plaintiff to have abandoned her job on January 31,
2015, due to a month and a half of inactivity. See
Id. at ¶ 22.
commenced this action on September 3, 2015, by service of a
Summons with Notice on the New York Secretary of State
against Hess Retail Operations, Speedway LLC, and Hess
Corporation (collectively "Defendants") in New York
State Supreme Court, County of Tompkins. Defendants
subsequently removed the action to this District based on
diversity of citizenship. See Dkt. No. 1.
Subsequently, on March 2, 2016, the Court approved the
parties' stipulation to dismiss Defendants Hess
Corporation and Hess Retail from this case. See Dkt.
complaint, Plaintiff asserts two causes of action: (1)
hostile work environment and retaliation in violation of
NYHRL; and (2) an individual and putative class action claim
to collect unpaid uniform maintenance pay for Defendant's
breach of the requirements set forth in 12 N.Y.C.R.R. §
146-1.7(a). See generally Dkt. No. 8. Defendant
moves to dismiss Plaintiff's Uniform Pay claim for lack
of subject matter jurisdiction; or, alternatively, for
summary judgment. Defendant further moves for summary
judgment on Plaintiff's NYHRL claims.
Defendant's motion to dismiss Plaintiff's Uniform
Maintenance Pay claim
146 of the New York Minimum Wage Orders pertains to the
hospitality industry, i.e., restaurants and hotels.
The regulation broadly defines the term
"restaurant" to include "any eating or
drinking place that prepares and offers food or beverage for
human consumption. . . ." 12 N.Y.C.R.R. §
146-3.1(b). Defendant's gas station falls within the
statutory definition, as it admits that part of
Plaintiff's position was to prepare "pizza and
breakfast sandwiches for a customer self-service food
case." See Dkt. No. 38-1 at ¶ 18.
part of the hospitality industry, Defendant must comply with
the rules set forth in Part 146, including the Uniform
Maintenance Pay provision, which provides that, "[w]here
an employer does not maintain required uniforms for any
employee, the employer shall pay the employee, in addition to
the employee's agreed rate of pay, uniform maintenance
pay . . . based on the number of hours worked[.]" 12
N.Y.C.R.R. § 146-1.7(a). In 2014, when Defendant
employed Plaintiff, the uniform maintenance pay was $9.95 for
each week an employee worked more than 30 hours and $4.75 for
each week an employee worked up to 20 hours per week.
Moreover, the regulation defines "required uniform"
as "clothing required to be worn while working at the
request of an employer, or to comply with any federal, state,
city or local law, rule, or regulation, except clothing that
may be worn as part of an employee's ordinary
wardrobe." 12 N.Y.C.R.R. § 146-3.10(a). The parties
agree that the Hess-branded polo shirt is the only part of
Plaintiff's daily wardrobe that qualifies as part of her
generally alleges that Defendant provided "uniforms but
did not pay to have the uniforms laundered nor did
Defendant provide each employee with a sufficient number of
uniforms . . . to avoid paying the statutory uniform
maintenance fee." See Dkt. No. 8 at ¶ 70.
noted above, Defendant moves for the Court to enter judgment
in favor of Plaintiff with regard to her Uniform Maintenance
Pay claim in conformance with Defendant's March 2, 2016
Rule 68 Offer of Judgment and subsequently to dismiss that
claim as moot pursuant to Rule 12(b)(1) of the Federal Rules
of Civil Procedure for lack of subject matter jurisdiction.
is well established that '[t]he Case or Controversy
Clause of Article III, Section 2 of the United States
Constitution limits the subject matter jurisdiction of the
federal courts such that the "parties must continue to
have a personal stake in the outcome of the
lawsuit."'" Tanasi v. New Alliance
Bank, 786 F.3d 195, 198 (2d Cir. 2015) (quotation
omitted). "That is, '[w]hen the issues in dispute
between the parties are no longer live, a case becomes
moot.'" Id. (quoting Lillbask ex rel.
Mauclaire v. Conn. Dep't of Educ., 397 F.3d 77, 84
(2d Cir. 2005)).
of the Federal Rules of Civil Procedure provides, in
pertinent part, that "a party defending against a claim
may serve on an opposing party an offer to allow judgment on
specified terms, with the costs then accrued."
Fed.R.Civ.P. 68(a). If, within 14 days after being served,
the plaintiff accepts, "[t]he clerk must then enter
judgment." Id. On the other hand, "an
unaccepted offer is considered withdrawn[.]"
Fed.R.Civ.P. 68(b). However, the consequence of declining an
offer is that, if the plaintiff receives a less favorable
judgement, it "must pay the costs incurred after the
offer was made." Fed.R.Civ.P. 68(d).
Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (2016),
the Supreme Court settled the "disagreement among the
Courts of Appeals over whether an unaccepted offer can moot a
plaintiff's claim, thereby depriving federal courts of
Article III jurisdiction." Id. at 669
(citations omitted). The Court expressly rejected the
proposition "that an unaccepted settlement offer [under
Rule 68] can moot a complaint." Id. at 671.
Rather, the Supreme Court ruled that, "'[w]hen a
plaintiff rejects such an offer -- however good the terms --
her interest in the lawsuit remains just what it was before.
And so too does the court's ability to grant her relief.
An unaccepted settlement offer -- like any unaccepted
contract offer -- is a legal nullity, with no operative
effect.'" Id. at 670 (quoting [Genesis
Healthcare Corp. v. Symczyk, 133 S.Ct. 1523, 1533 (2013)
(Kagan, J., dissenting)]).
reaching this decision, the Supreme Court emphasized that,
after the offer of judgment had expired, the plaintiff's
claim remained unsatisfied:
[W]hen the settlement offer Campbell extended to Gomez
expired, Gomez remained emptyhanded; his [Telephone Consumer
Protection Act] complaint, which Campbell opposed on the
merits, stood wholly unsatisfied. Because Gomez's
individual claim was not made moot by the expired settlement
offer, that claim would retain vitality during the time
involved in determining whether the case could proceed on
behalf of a class. While a class lacks independent status
until certified, see Sosna v. Iowa, 419 U.S. 393,
399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), a would-be class
representative with a live claim of her own must be accorded
a fair opportunity to show that certification is warranted.
Id. at 672.
for the present purpose, however, the Court declined to
"decide whether the result would be different if a
defendant deposit[ed] the full amount of the plaintiff's
individual claim in an account payable to the plaintiff, and
the court then enter[ed] judgment for the plaintiff in that
suggests that this case presents an opportunity for the Court
to answer this unresolved question. In that regard, on March
7, 2016, Defendant served upon Plaintiff an offer of judgment
permitting her to (1) take judgment against Defendant as to
her Uniform Pay claim; (2) receive payment of one hundred
sixty three dollars and fifty cents ($163.50) for any unpaid
Uniform Maintenance Pay; and (3) receive payment for
Plaintiff's applicable attorney's fees and costs.
See Dkt. No. 18-3. Furthermore, on that same day,
Defendant deposited $163.50 into its attorney's
escrow/trust account. See Dkt. No. 18-1 at 6.
Defendant asserts that the funds are payable to Plaintiff and
"a check for the full $163.50 will be issued to
Plaintiff upon Order of the Court or request by Plaintiff or
Plaintiff's counsel." See id. Plaintiff,
however, rejected Defendant's offer.
argues that, where the "'offer tenders complete
relief, the court should . . . enter judgment pursuant to the
terms of that offer, with or without the
plaintiff's consent.'" See id. (quoting
Hepler v. Abercrombie & Fitch Co., 607
F.App'x 91, 92 (2d Cir. 2015) (emphasis added)).
Defendant relies on Helper for the proposition that
"'a defendant may always end the litigation by
offering judgment for all the relief that is
sought.'" See Id. (quoting Helper,
607 F.App'x at 92). Defendant also cites two cases in
which the courts entered judgment against the defendants,
rendering the cases moot, notwithstanding the existence of
putative class complaints. See Id. at 7 (citing
Franco v. Allied Interstate LLC, No. 13-CV-4053,
2015 WL 7758534 (S.D.N.Y. Nov. 30, 2015); Maximo v. 140
Green Laundromat, No. 14 CIV. 6948, 2015 WL 4095248
(S.D.N.Y. July 7, 2015) (FLSA claim)).
Defendant argues that Campbell-Ewald Co. v. Gomez,
136 S.Ct. 663 (2016), does not compel an opposite result.
See id. at 9. Defendant contends that the
"linchpin" of Campbell-Ewald was "the
failure of defendant to remit payment to plaintiff, which
resulted in a live case and controversy because the
unaccepted Rule 68 Offer was never effectuated." See
Id. Here, in contrast, Defendant has placed the full
amount of the offer in an escrow/trust account payable to
Plaintiff. See id.
Second Circuit's recent decision in Radha Geismann,
M.D., P.C. v. ZocDoc, Inc., 850 F.3d 507 (2d Cir. 2017),
forecloses Defendant's argument. ZocDoc
confirmed that, "'[w]hen a plaintiff rejects [a Rule
68] offer -- however good the terms -- her interest in the
lawsuit remains just what it was before. And so too does the
court's ability to grant her relief.'"
Id. at 513 (quoting Campbell-Ewald, 136
S.Ct. at 670 (quoting Genesis Healthcare, 133 S.Ct.
at 1533 (Kagan, J., dissenting))). Furthermore, because
Plaintiff declined the offer, it was considered
"withdrawn." Fed.R.Civ.P. 68(b). As the Second
Circuit stated, "a 'withdrawn' offer 'ha[s]
no continuing efficacy.'" ZocDoc, 850 F.3d
at 512 (quoting [Campbell-Ewald, ] 136 S.Ct. at
670). Thus, the Court is powerless to enter judgment in
Defendant's favor because the unaccepted Rule 68 offer is
a legal nullity. See id. Therefore, the Court
denies Defendant's motion to dismiss Plaintiff's
Uniform Maintenance Pay Claim.
Motion for summary judgment