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Santana v. Rent A Throne, Inc.

United States District Court, E.D. New York

February 21, 2018

LUIS SANTANA, Plaintiff,


          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.


          Denis R. Hurley Senior District Court Judge


         Plaintiff 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.


         The following facts are taken from the parties' submission, and are undisputed unless noted otherwise.

         RATI is 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.)

         Plaintiff 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.)

         Defendants 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.)

         Defendant 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.)


         I. Legal Standard

         Summary 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).

         To 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 citations omitted).

         The 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).

         II. The Parties' Claims

         Plaintiff 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. ΒΆΒΆ ...

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