United States District Court, E.D. New York
BORELLI & ASSOCIATES P.L.L.C. Attorneys for Plaintiff By:
Alexander T. Coleman, Esq. Michael J. Borrelli, Esq.
HARFENIST KRAUT & PERLSTEIN LLP Attorneys for Defendants By:
Andrew C. Lang, Esq. Stephen J. Harfenist, Esq.
MEMORANDUM AND ORDER
R. Hurley Senior District Court Judge
Luis Santana (“Plaintiff”) brought this action
against Defendants Rent A Throne, Inc. (“RATI”)
and Sean O' Rourke (“O'Rourke”)
(collectively, “Defendants”) alleging violations
of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 206(a), 207(a);and 215(a)(3) and the New
York Labor Law (“N.Y. Lab. Law”) §§
160, 190-91, 195(1) and (3), 663(1), 652(1), and 215(a)(3),
for failure to pay overtime and for retaliation for making a
good faith complaint. (Complaint [DE 1] ¶ 1 (hereinafter
“Compl.”).) Presently before the Court is
Defendants' motion for summary judgment pursuant to
Federal Rule of Civil Procedure (“Rule”) 56. For
the reasons set forth below, the motion is denied.
following facts are taken from the parties' submission,
and are undisputed unless noted otherwise.
a New York corporation that provides portable bathrooms and
toilet rentals to construction sites and event venues in New
York City and surrounding counties in New York State.
(Defendants' R. 56 Stmt. [DE 29] at ¶¶ 1-2
(hereinafter “Defs.' R. 56 Stmt.”)].
Defendant O'Rourke is part-owner and Chief Executive
Officer of Defendant RATI. (Id. ¶ 3.) Plaintiff
is a resident of the State of New York and was previously
employed by another portable bathroom company. (Id.
¶ 4.) Plaintiff was hired by RATI on or about May 11,
2011, at which point he signed the initial wage notice.
(Id.) Plaintiff never had a written employment
agreement with RATI. (Id. ¶ 5.) At the time of
hiring, Plaintiff was paid a rate of $25.00 per hour, or $1,
000.00 per week, plus an overtime rate of $37.50 per hour.
(Id. ¶ 6.) Plaintiff claims that during this
initial work period he worked an average of 15 to 30 hours a
week of overtime, including on weekends and holidays.
(Plaintiff's R. 56 Stmt. [DE 33] at ¶ 21, 23
(hereinafter “P.'s R. 56 Stmt.”) Plaintiff
states that he did not fill out time sheets in 2011, as there
were no time sheets; rather, he signed a document to receive
his pay. (Id. ¶ 25.)
claims that at some time in 2012 he complained about the
hours he was working but not being paid for, so Defendants
offered him $100 more per week to make up for the lack of
overtime compensation. (Id. ¶ 22.) Defendants
dispute only the statement that the supplemental $100 was to
cover overtime. (Defs.' R. 56 Stmt. ¶ 7.) Defendants
claim this money was given as part of Plaintiff's
promotion from an hourly to a salaried employee.
(Id.) Defendants claim that Plaintiff signed a
Second Wage Notice at this time that indicated that Santana
was converted to a salaried employee. (Id.)
Plaintiff disputes this and testified that he did not
recognize the Second Wage Notice and that he has concerns
that the document may be fraudulent. (P.'s R. 56 Stmt.
¶ 7.) As evidence of Plaintiff's status as a
salaried employee, Defendants claim that Plaintiff's
salary was never reduced in the pay period from January 27,
2012 through October 5, 2012. (Defs.' R. 56 Stmt. ¶
8.) Plaintiff disputes this, saying that he received a
reduction of $100 from his base in the pay period of October
1, 2012 through October 20, 2012; an increase of $100 over
his base from the pay period from October 21, 2012 to October
27, 2012; and then back to his base salary pay the week of
October 28, 2012 through November 3, 2012. (P.'s R. 56
Stmt. ¶ 8.)
state that during Plaintiff's employment he was
considered a field manager. (Defs. R. 56 Stmt. ¶ 11.)
Plaintiff contends that this is immaterial and was
Defendants' understanding alone, if true. (P.'s R. 56
Stmt. ¶ 11.) During his employment, Plaintiff had
certain duties that may or may not have been managerial in
nature. They are as follows. Defendants claim that Plaintiff
testified at a hearing on behalf of RATI before the New York
Compensation Board regarding a terminated employee.
(Defs.' R. 56 Stmt. ¶ 12.) Plaintiff maintains that
he was there only because Defendants directed Plaintiff to
relay the message to the employee that he was fired.
(P.'s R. 56 Stmt. ¶ 12.) The parties agree that
Plaintiff told customers he was a manager when he was sent to
work sites to resolve a problem, but Plaintiff claims that he
did that based on the circumstances and that the customers
knew he was only a driver because he would also clean the
bathrooms. (Defs.' R. 56 Stmt. ¶ 13; P.'s R. 56
Stmt. ¶ 13.) Defendants claim that Plaintiff terminated
an employee, whereas Plaintiff says he only terminated the
employee after Defendant O'Rourke had already terminated
the same employee two days prior. (Defs.' R. 56 Stmt.
¶; 14; P.'s R. 56 Stmt. ¶ 14.) The Parties
agree that Plaintiff recommended people for hiring who were
almost always subsequently hired, but Plaintiff contends that
his recommendations carried no particular weight and he never
hired people directly himself. (Defs.' R. 56 Stmt. ¶
15; P.'s R. 56 Stmt. ¶ 15.) The Parties agree that
new employees were required to shadow Plaintiff upon starting
the job. (Defs.' R. 56 Stmt. ¶ 16; P.'s R. 56
Stmt. ¶ 16.). Defendants claim that Plaintiff trained
the office manager, which Plaintiff disputes except insomuch
as he explained to the office manager how to organize a route
but did not train him in any other aspects of the manager
position. (Defs.' R. 56 Stmt. ¶ 17; P.'s R. 56
Stmt. ¶ 17.) Defendants claim that Plaintiff gave other
drivers job-related advice, which Plaintiff objects to as a
material fact but does not dispute. (Defs.' R. 56 Stmt.
¶ 18; P.'s R. 56 Stmt. ¶ 18.) Finally, the
Parties dispute whether Plaintiff had one of only two keys to
the business premises, with Plaintiff noting that at one
point the office manager took away his key. (Defs.' R. 56
Stmt. ¶ 19; P.'s R. 56 Stmt. ¶ 19, 30.)
O'Rourke admitted that Plaintiff “didn't really
have exact hours” and that he would open the shop at
4:00 a.m., and stay until 2:00 p.m. to 3:00 p.m., and that
Plaintiff would work special events on weekends. (P.'s R.
56 Stmt. ¶¶ 24-25.) Plaintiff claims that in August
2014 he complained to Defendants about their failure to pay
him overtime wages. (Compl. ¶ 23.) Plaintiff claims that
after this time, Defendants retaliated by requiring him to
drive unsafe trucks. (P.'s R. 56 Stmt. ¶ 37.) This
lasted for several months. Finally, on January 14, 2015,
Plaintiff claims that he told Defendant O'Rourke via a
text message that his truck was unsafe. (P.'s R. 56 Stmt.
¶¶ 42, 46.) Plaintiff quit several days later and
was unable to complete his route that day because the truck
was in unsafe condition. (Id. ¶ 42-43.)
judgment pursuant to Rule 56 is appropriate only where
admissible evidence in the form of affidavits, deposition
transcripts, or other documentation demonstrates the absence
of a genuine issue of material fact, and one party's
entitlement to judgment as a matter of law. See Viola v.
Philips Med. SYS. of N. Am., 42 F.3d 712, 716 (2d Cir.
1994). The relevant governing law in each case determines
which facts are material; “only disputes over facts
that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). No. genuinely triable factual issue
exists when the moving party demonstrates, on the basis of
the pleadings and submitted evidence, and after drawing all
inferences and resolving all ambiguities in favor of the
non-movant, that no rational jury could find in the
non-movant's favor. Chertkova v. Conn. Gen'l Life
Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).
defeat a summary judgment motion properly supported by
affidavits, depositions, or other documentation, the
non-movant must offer similar materials setting forth
specific facts that show that there is a genuine issue of
material fact to be tried. Rule v. Brine, Inc., 85
F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present
more than a “scintilla of evidence, ” Del. &
Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178
(2d Cir. 1990) (quoting Anderson, 477 U.S. at 252)
(internal quotation marks omitted), or “some
metaphysical doubt as to the material facts, ”
Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d
Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986)) (internal
quotation marks omitted), and cannot rely on the allegations
in his or her pleadings, conclusory statements, or on
“mere assertions that affidavits supporting the motion
are not credible.” Gottlieb v. Cnty. of
Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal
district court considering a summary judgment motion must
also be “mindful . . . of the underlying standards and
burdens of proof, ” Pickett v. RTS Helicopter,
128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S.
at 252), because the “evidentiary burdens that the
respective parties will bear at trial guide district courts
in their determination of summary judgment motions.”
Brady v. Town of Colchester, 863 F.2d 205, 211 (2d
Cir. 1988). “[W]here the nonmovant will bear the
ultimate burden of proof at trial on an issue, the moving
party's burden under Rule 56 will be satisfied if he can
point to an absence of evidence to support an essential
element of the nonmoving party's claim.”
Id. at 210-11. Where a movant without the underlying
burden of proof offers evidence that the non-movant has
failed to establish her claim, the burden shifts to the
non-movant to offer “persuasive evidence that his claim
is not ‘implausible.'” Id. at 211
(citing Matsushita, 475 U.S. at 587).
The Parties' Claims
brings nine causes of action in his Complaint, which are as
follows. First, a claim for unpaid overtime under the FLSA,
29 U.S.C. § 207(a). (Compl. ¶¶ 31-37.) Second,
a claim for minimum wage violations under the FLSA for unpaid
work pursuant to 29 U.S.C. § 206. (Id.
¶¶ 38-44.) Third, a claim for unpaid overtime under
N.Y. Lab. Law § 160 and New York Comp. Codes R. & Regs.
142-2.2. (Id. ¶¶ 45-50.) Fourth, a claim
for minimum wage violations under N.Y. Lab. Law §
652(1). (Id. ¶¶ 51-57.) Fifth, a claim for
failure to pay wages in violation of N.Y. Lab. Law
§§ 190, 191, and 663(1). (Id. ¶¶
58-64.) Sixth, a claim for failure to furnish proper wage
notices in violation of N.Y. Lab. Law § 195(1).
(Id. ¶¶ 65-70.) Seventh, a claim for
failure to furnish proper wage statements in violation of
N.Y. Lab. Law § 198(1-d). (Id. ¶¶