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Dudley v. Hanzon Homecare Services, Inc.

United States District Court, S.D. New York

January 17, 2018

VELMA DUDLEY, Plaintiff,



         Plaintiff Velma Dudley, who worked as a live-in home health aide and companion, brings claims, pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”), NY. Lab. Law § 650 et seq., against her former employer, Hanzon Homecare Services, Inc. (“Hanzon”), and Hanzon's owner, Melsada Morrison (together with Hanzon, “Defendants”). (Docket No. 5 (“Compl.”), ¶¶ 7, 10).[1] By Order dated July 20, 2016, the Court entered a default judgment as to liability against Hanzon, but deferred the assessment of damages pending adjudication of Dudley's claims against Morrison. (Docket No. 47). Dudley now moves, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment against Morrison with respect to both liability and damages.[2] Morrison, proceeding pro se, opposes the motion as to her. For the reasons discussed below, Dudley's motion is GRANTED in part and DENIED in part.


         The relevant facts, taken from the Complaint and admissible materials submitted in connection with the pending motion, are either undisputed or described in the light most favorable to Morrison. See Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

         Dudley worked for Morrison as a home health attendant from some time in 2013 until about May 26, 2015. (Compl. ¶ 20). Morrison owned Hanzon, a third-party provider of home health care for elderly and sick clients in the New York area. (Compl. ¶¶ 8, 10). When Dudley was hired, she was provided with a notice listing her hourly pay as “$15” and her daily pay as “$130.” (Docket No. 79 (“Morrison Decl.”), Ex. G (“Notice of Pay”)). Dudley worked exclusively with a single elderly client; her duties included preparing the client's meals, organizing and dispensing the client's medication, and generally keeping the client company. (Compl. ¶¶ 21, 22, 27). On days that she worked, she slept in the client's home so that she would be able to provide care to during the night if necessary. (Compl. ¶ 25, 28). During the course of her employment, Dudley was paid $130 per day worked (although she also received holiday and bonus pay on occasion). (Compl. ¶ 24; Docket No. 80 (“Def.'s Resp. to Pl.'s 56.1”), at ¶ 22). She did not receive statements listing either her regular or overtime rates of pay upon payment of her wages. (Compl. ¶ 47).


         Summary judgment is appropriate where the admissible evidence and the pleadings demonstrate “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); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (per curiam). A dispute over an issue of material fact qualifies as genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); accord Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant's burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23); accord PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir. 2002) (per curiam).

         In ruling on a motion for summary judgment, all evidence must be viewed “in the light most favorable to the non-moving party, ” Overton v. N.Y. State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and the court must “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought, ” Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004). Additionally, because Morrison is proceeding pro se, the Court must grant her “special solicitude.” Tracy v. Freshwater, 623 F.3d 90, 100-04 (2d Cir. 2010). Such special solicitude is not unlimited, however. Provided Dudley meets her initial burden of demonstrating the absence of a genuine issue of material fact, Morrison must still “come forward with evidence demonstrating that there is a genuine dispute regarding material fact.” Bennett v. Bailey, No. 07-CV-7002 (PKC), 2010 WL 1459192, at *3 (S.D.N.Y. Apr. 9, 2010).


         Dudley's summary judgment motion covers several issues. First, she argues that Morrison is individually liable as an “employer” within the meaning of both the FLSA and NYLL and that she herself was a covered “employee” within the meaning of those same statutes. (See Docket No. 81 (“Pl.'s Br.”), at 6-10). Second, Dudley seeks summary judgment with respect to her claims to unpaid wages, overtime pay, and minimum wages. (Pl.'s Br. 10-14). Third, she argues for summary judgment on her claims of payroll notice violations under the NYLL. (Pl.'s Br. 16-17). And finally, Dudley argues that she is entitled to liquidated damages on her claims. (Pl.'s Br. 14-16). The Court addresses these arguments in turn.

         A. “Employer” and “Employee” Status

         First, Dudley moves for summary judgment on the questions of whether Morrison, in her individual capacity, was an “employer” within the meaning of the FLSA and NYLL and whether she herself was a covered “employee” under the two statutes. (Pl.'s Br. 6-9). The first question is easily resolved. Whether an individual is personally liable as an “employer” under the FLSA and the NYLL turns on four factors: “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (citation and internal quotation marks omitted); see also Hernandez v. Jrpac Inc., 14-CV-4176 (PAE), 2016 WL 3248493, at *22 (S.D.N.Y. June 9, 2016) (“The statutory standard for employer status under the NYLL is nearly identical to that of the FLSA.”). Here, it is undisputed that Morrison satisfies all four factors. (See, e.g., Docket No. 72 (“Sackowitz Decl.”), Ex. 1 (“Morrison Depo.”), at 42 (acknowledging that she “personally supervise[d] all the home health aides that work for [the company]”); Docket No. 78 (“Def.'s Br.”), at 12 (confirming that Morrison “hired Plaintiff, set work policies and rules, assigned Plaintiff to perform work for the client, disciplined Plaintiff and terminated Plaintiff”)). Morrison's sole argument against being treated as Dudley's “employer” is that she controlled and supervised Dudley “in her capacity as Hanzon's president, ” (Def.'s Br. 12), but that fact is irrelevant as a matter of law. See, e.g., Irizarry v. Catsimatidis, 722 F.3d 99, 105 (2d Cir. 2013) (holding that “an individual within a company that undisputedly employs a worker” can be held “personally liable for damages”); Fermin v. Las Delicias Peruanas Rest., Inc., 93 F.Supp.3d 19, 37 (E.D.N.Y. 2015) (finding that owners of the defendant employer were “Plaintiffs' employers for the purposes of NYLL liability”).

         The second question -whether Dudley is a covered “employee”- is a tad more complicated because the FLSA and the NYLL both have exemptions for “companionship services.” See 29 U.S.C. § 213(a)(15); 12 N.Y.C.R.R. § 142-2.14; see also, e.g., Severin v. Project Ohr, Inc., No. 10-CV-9696 (DLC), 2012 WL 2357410, at *5 (S.D.N.Y. June 20, 2012). It is undisputed, however, that the NYLL exemption did not apply to Dudley, as she was “employed by an employer or agency other than the family or household using his or her services.” N.Y. Lab. Law § 2(16); see also Severin, 2012 WL 2357410, at *5 (observing that the NYLL does not exempt “sleep-in home attendants employed by . . . vendor agencies” (citation and internal quotation marks omitted)). It is similarly undisputed that, beginning January 1, 2015, the FLSA exemption did not apply to Dudley, as it was changed on that date to exclude “[t]hird party employers of employees engaged in companionship services, ” such as Hanzon and Morrison. 29 C.F.R. § 552.109 (2015).[3] Thus, the only matter in dispute is whether the FLSA's “companionship services” exemption applied to Dudley before January 1, 2015. (See Def.'s Br. 8 n.8; Pl.'s Br. 8-9). The Court need not - and does not - resolve that dispute, however, as it has no bearing on the outcome of the case given that Dudley's “minimum wage and overtime damages . . . under the NYLL . . . overlap with and excee[d] her claims under the FLSA.” (Pl.'s Br. 9).[4] Accordingly, the Court grants summary judgment to Dudley on her status as an “employee” under the NYLL and on her status as an “employee” under the FLSA beginning on January 1, 2015.

         B. ...

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