United States District Court, S.D. New York
DANYELL THOMAS, RASHAUN F. FRAZER, ANDRAE WHALEY, ELENI MIGLIS, CHERYL A. STRYCHARZ, and DANIELLE BROWN, individually and on behalf of all others similarly situated, Plaintiffs,
BED BATH AND BEYOND, INC., Defendant.
OPINION & ORDER
A. ENGELMAYER, District Judge.
decision resolves cross-motions for summary judgment filed by
plaintiffs, who are employees at the home-goods retailer Bed
Bath & Beyond, Inc. ("BBB"), and their employer,
BBB, the defendant. Plaintiffs bring claims under the Fair
Labor Standards Act ("FLSA") and New York Labor
Law. The motions turn on whether BBB paid a subset of
employees, its Department Managers ("DMs"), in
conformity with the "Fluctuating Work Week" method
("FWW")-a method for calculating overtime
compensation which the FLSA permits under certain
circumstances and which BBB used until March 2015.
reasons that follow, the Court, finding that BBB properly
implemented this method of compensation, grants BBB's
summary judgment motion on plaintiffs' overtime
compensation claims (Counts I and II of the Second Amended
Complaint) and denies the DMs' motion.
a home-furnishings retailer with stores in the New York area.
JSF ¶¶ 1, 5.
in this case include the five named plaintiffs (Rashaun
Frazer, id. ¶ 16, Danyell Thomas, id.
¶ 26, Andrae Whaley, id. ¶ 36, Cheryl
Strycharz, id. ¶ 47, and Danielle Brown,
id. ¶ 57) and 17 opt-in plaintiffs (Radica
Kutwaru, id. ¶ 68, Guy-Robert Desir,
id. ¶ 78, Bryan LaForest, id. ¶
83, Karla Reynosa, id. ¶ 91, Elizabeth Padilla,
id. ¶ 101, Cuthbert Baptiste, id.
¶ 111, Hector Caraballo, id, ¶121, Byron
Villacres, id. ¶ 132, AndrewCertoma,
id. ¶ 142, John Cutajar, id. ¶
152, Alexis Carree, id. ¶ 159, Anthony Rollock,
id. ¶ 170, Erick Ricardo Olivia, id.
¶ 178, Jose Alberto Cassia, id. ¶ 181,
Latia Diaz, id. ¶ 184, LeRoy Clarke,
id. ¶ 187, and Tomika Boyd, id. ¶
March 2015, BBB paid DMs in its New York stores overtime
according to the FWW method; since then, it has paid DMs
overtime at a rate of 1.5 times their regular hourly rate.
JSF ¶ 5. Plaintiffs' claims relate solely to the
period when BBB used the FWW method.
that period, BBB's employees, upon being hired or
promoted to the DM position, received several documents
explaining their compensation and the operation at BBB of the
FWW method for calculating overtime pay. JSF ¶¶
each DM received a Department Manager Compensation
Acknowledgement form. JSF ¶9. It explained BBB's
compensation methodology. The form stated:
At the time I was hired, I was told what my anticipated
weekly compensation will be and how it will be calculated.
I understand that my weekly compensation consists of two
components: (1) a base weekly salary; and (2) an additional
amount for all hours above 40 that I work during a week.
I understand that my base weekly salary is compensation for
all hours I work in a week. I will get paid this base salary
for each week I work, whether or not I work 40 hours in that
week, subject to the Company's sick day and leave
I further understand that I will be scheduled for no less
than 47 hours per week, but that my actual hours worked will
fluctuate depending on the needs of my store.
each DM received documents setting out what the DM's base
annual salary would be if he or she worked 40 (or fewer)
hours per week. JSF ¶ 6. These documents also set out
what the DM's expected total earnings would be for a week
in which he or she worked 47 hours (i.e., 7 overtime
hours). Id. Each DM also received documents
explaining that the dollar value (per overtime hour) for
hours worked above 40 hours would vary due to BBB's use
of the FWW method. JSF ¶ 7.
all DMs received annual notice and acknowledgment of pay rate
forms. Each stated:
Overtime rate of pay: rate fluctuations based on hours worked
in excess of 40*.
*As a Department Manager, your base weekly salary is
compensation for all hours you have worked in the week,
regardless of the number of hours you work You will also be
paid an additional amount for any hours worked over 40 in one
week. Please refer to the attached Department Manager's
Bi- Weekly Pay Stub for a detailed explanation.
Id. ¶ 10.
plaintiffs received pay stubs from BBB each pay period
setting forth their pay. Id. ¶ 12.
compensation practices for DMs as to overtime are helpfully
illustrated by examples drawn from the pay records of named
plaintiff Rashaun Frazer. As of January 21, 2014,
Frazer's base weekly salary was $1, 034.22-he was paid
that sum regardless whether he worked overtime. See
JSF ¶ 20; id., Ex. 6. Frazer's weekly
hours, however, like those of the other DMs, varied. JSF
¶ 23. His pay stubs reflected how the additional pay-on
top of the base pay of $1, 034.22-was tabulated for weeks in
which Frazer worked more than 40 hours. See JSF, Ex.
6; Alvarez Decl,, Ex. 1. For example, for a week in which
Frazer worked 47 hours, BBB, to calculate his additional
compensation for overtime, would divide his base compensation
figure ($1, 034.22) by the total number of hours he worked
that week (47). See generally Alvarez Deck, Ex. 1.
This would yield the hourly rate that BBB would pay Frazer
for his overtime hours for that week ($21.79 per hour). Thus,
for the 7 hours of overtime Frazer worked, he would be paid
$152.53 (i.e., $21.79/hour x 7 hours). See
Id. In a week in which Frazer worked more overtime
hours, this formula would result in Frazer's being paid a
higher absolute overtime wage but a smaller rate per overtime
hour. So, for example, had Frazer worked 54 hours in
particular week, BBB would calculate his overtime hourly rate
by dividing his weekly compensation ($1, 034.22) by the total
number of hours worked in the week (54). This would yield an
overtime hourly rate of $18.97; and for his 14 hours of
overtime work, Frazer would be paid $265.58 (i.e.,
$18.97/hour x 14 hours). See id.
were scheduled to work 47.5 hours per week. BBB's
Response to P. 56.1 ¶¶ 1. The parties agree that,
in almost every week at issue, the plaintiff DMs in fact
either worked 40 or more hours, or, when annual or sick leave
time taken that week was added to their actual hours worked,
were credited with having worked 40 or more hours. See
Id. ¶¶ 2, 6.
as discussed below, on several occasions, three plaintiff
DMs-Reynosa, Frazer, and Thomas-worked fewer than 40 hours in
a given week, as a result of having taken unpaid leave.
See infra § II.A.2. For these weeks, Reynosa,
Frazer, and Thomas did not receive their base
salary, but instead, a lesser figure. See Id.
Plaintiffs' argument that BBB misapplied the FWW method
relies heavily on these DMs' receipt for those several
weeks of lower-than-usual base pay. Based on this alleged
misapplication of FWW, plaintiffs argue that BBB is precluded
from using that method to calculate the overtime pay of these
employees and the other plaintiff DMs. Plaintiffs contend
instead that BBB is obliged to calculate overtime pay by
using the more generous "time and a half method that the
FLSA prescribes for workers paid a regular hourly rate.
October 18, 2016, plaintiffs filed this action, bringing
claims on behalf of DMs and AMs under the FLSA and NYLL. Dkt.
November 18, 2016, plaintiffs filed an amended complaint.
Dkt. 11. On December 16, 2016, BBB answered the amended
complaint. Dkt. 14. On June 16, 2017, after plaintiffs had
moved for collective certification under the FLSA,
see Dkt. 28, the Court granted plaintiffs leave to
file a second amended complaint and denied as moot the motion
for conditional class certification, see Dkt. 79.
28, 2017, plaintiffs filed their second amended complaint,
the operative pleading before the Court. Dkt. 90 (the
"SAC"). On July 12, 2017, plaintiffs moved again to
certify a collective action under the FLSA. See
Dkts. 105-07. On August 9, 2017, that motion became fully
briefed. See Dkts. 112 (Def Op. Br.), 134 (Pl. Reply
Br.). On August 25, 2017, however, plaintiffs informed the
Court that they intended to move for summary judgment on the
DMs' FWW claim and to move for class certification of
their NYLL claims under Rule 23. See Dkt. 141. On
September 13, 2017, at a pre-motion conference, the Court set
a briefing schedule for the cross-motions for partial summary
judgment; held in abeyance, pending resolution of the summary
judgment motions, plaintiffs' motion for collective
certification under the FLSA; and directed that plaintiffs
defer filing any motion for class certification under Rule 23
until after the summary judgment motions were resolved.
See Dkt. 144.
October 27, 2017, BBB filed its motion for partial summary
judgment and supporting documents, including its Rule 56.1
Statement. Dkts. 152-56. On November 21, 2017, plaintiffs
filed their brief in opposition and in support of their
cross-motion for partial summary judgment. Dkts. 159-61. On
December 15, 2017, BBB filed its brief in opposition to the
plaintiffs' motion and in further support of its own,
Dkt. 166, and, on January 5, 2018, a revised brief in
opposition, Dkt. 171, and a counterstatement of facts in
response to plaintiffs' 56.1 statement, Dkt.
On January 19, 2018, plaintiffs filed their brief in reply.
Applicable Legal Standards
Standards for Summary Judgment
prevail on a motion for summary judgment, the movant must
"show  that there is 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). The movant bears the
burden of demonstrating the absence of a question of material
fact. Celolex Corp. v. Catrett, 477 U.S. 317, 322
the movant has properly supported its motion with evidentiary
materials, the opposing party must establish a genuine issue
of fact by "citing to particular parts of materials in
the record." Fed.R.Civ.P. 56(c)(1); see also Wright
v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). An issue of
fact is "genuine" if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party. SCR Joint Venture L.P. v. Warshawsky, 559
F.3d 133, 137 (2d Cir. 2009). "[A] party may not rely on
mere speculation or conjecture as to the true nature of the
facts to overcome a motion for summary judgment."
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010)
(internal quotation marks and citation omitted). "Only
disputes over facts that might affect the outcome of the suit
under the governing law" will preclude a grant of
summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In determining whether there are
genuine issues of material fact, the Court is "required
to resolve all ambiguities and draw all permissible factual
inferences in favor of the party against whom summary
judgment is sought." Johnson v. Killian, 680
F.3d 234, 236 (2d Cir. 2012) (quoting Terry v.
Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)).
court faced with cross-motions for summary judgment need not
'grant judgment as a matter of law for one side or the
other, ' but 'must evaluate each party's motion
on its own merits, taking care in each instance to draw all
reasonable inferences against the party whose motion is under
consideration.'" Cariou v. Prince, 784
F.Supp.2d 337, 345 (S.D.N.Y. 2011) (quoting Heubkin, Inc.
v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993));
see also, e.g., AGCS Marine Ins. Co. v. World Fuel
Servs., Inc., 187 F.Supp.3d 428, 435 (S.D.N.Y. 2016).
Standards Governing the Fluctuating Work Week Method
FLSA sets a maximum number of hours employees may work per
week without additional, overtime compensation. See
29 U.S.C. § 207. For every hour a non-exempt employee
works above 40 in a given week, the FLSA requires employers
to pay "a rate not less than one and one-half times the
regular rate at which he is employed." 29 U.S.C. §
207(a)(1), "This higher rate for overtime is intended to
apply financial pressure on employers to spread employment
and to compensate employees for the burden of a workweek
exceeding forty hours." Russell v. ...