Belliard v. Koryeo Int'l Corp.

JUAN BELLIARD, on behalf of himself and all others similarly-situated, Plaintiffs, v. KORYEO INTERNATIONAL CORP., and STEVE HONG, in his professional and individual capacities Defendants.

14-cv-03495 (ENV) (ST)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 4, 2019

MEMORANDUM & ORDER

VITALIANO, D.J.

Juan Belliard commenced this action against his former employer, Koryeo International Corp. ("Koryeo"), and its president, Steve Hong, alleging violations of the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL"). Opt-in plaintiffs Marvin Lopez, Primitivo Espinal and Geraldo Lora later filed consent forms to join in a collective action. Plaintiffs bring claims for (1) unpaid overtime, pursuant to 29 U.S.C. § 207(a) and NYLL § 160; (2) minimum wage compensation, pursuant to 29 U.S.C. § 206(a) and NYLL § 652(1); and (3) defendants' failure to furnish plaintiffs with wage statements, pursuant to NYLL § 195(3). Complaint, Dkt. No. 1. Defendants have moved for summary judgment under Federal Rule of Civil Procedure 56. For the reasons set forth below, their motion is granted in part and denied in part.

Background

The following facts are drawn from the pleadings, Local Rule 56.1 filings and evidentiary submissions. The facts are construed, as they must be in the summary judgment context, in the light most favorable to the non-movant. See Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 456 (2d Cir. 2007).

Koryeo is an importer and distributor of Asian food products. Defendants' Statement of Material Facts in Support of Their Motion for Summary Judgment ("SOF"), Dkt. No. 85, ¶ 1. Its core business is the purchase and distribution of food products to customers in New York, New Jersey, Connecticut and Pennsylvania. SOF ¶ 5. Hong is Koryeo's president. SOF ¶ 2. There is no dispute that Belliard, Espinal, Lora and Lopez all worked for Koryeo at various times. Plaintiffs' Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pls. Opp."), Dkt. No. 89, at 5-7. Metropolitan New York City was the nerve center for Koryeo's operations. Koryeo maintained a main warehouse in Brooklyn until March 31, 2015, when it moved to New Jersey. SOF ¶ 3-4.

To staff operations, Koryeo hired drivers and driver's helpers who effected the delivery of its products. SOF ¶ 6. As certainly would be expected, defendants contend that the drivers' "primary responsibility" was to drive Koryeo's trucks to customers and distributors. SOF ¶ 7. At least some of these trucks weighed more than 17,900 pounds and were registered with the United States Department of Transportation. SOF ¶ 10-11; Declaration of Steve Hong ("Hong Decl."), Dkt. No. 87, at Ex. A; Plaintiffs' Counter-Statement of Undisputed Facts ("CSOF"), Dkt. No. 90, at ¶ 10.¹

Defendants contend that the "primary responsibilities" of driver's helpers included various safety-related activities intended to assist the drivers with "secur[ing] the product inside the trucks, deliver[ing] the products to the customer with drivers as well as assisting drivers with directions, [and] acting as a second set of eyes and ears for the driver." SOF ¶ 7-8. Plaintiffsdispute that claim and contend that driver's helpers were responsible only for transporting food products from the trucks to the customers. CSOF ¶ 8. But, most significantly, defendants note that driver's helpers off-loaded trucks along their routes, see Hong Decl. ¶¶ 8, 30, thus engaging in activities that directly affected the weight distribution on the trucks at each stop after the trucks left the warehouse to distribute products to customers.

There appears to be agreement that, ordinarily, plaintiffs and other Koryeo employees worked from 8 A.M. to 6 P.M., with a 30-minute lunch break, totaling 47.5 hours of time per week. SOF ¶ 13. Plaintiffs state that they occasionally worked before or after those times; that is, they worked more than 47.5 hours per week. CSOF ¶ 13. To track time, defendants used a punch-card system. SOF ¶ 14. When employees worked the standard 47.5 hours per week, this was noted on Koryeo's payroll records. SOF ¶ 15. When employees worked a non-standard number of hours, the difference was also noted and pay was recalculated accordingly. SOF ¶ 17; CSOF ¶ 17.

Obviously, the parties dispute whether plaintiffs were paid any overtime premium for work performed beyond the standard hours. But, the dispute is not as straightforward as the words might suggest. In fact, defendants contend that the amount plaintiffs were paid when they worked 47.5 hours included "overtime" pay for standard hours exceeding 40 hours per week.² SOF ¶ 18; CSOF ¶ 18. Plaintiffs maintain that they were salaried, rather than hourly, workers. At the same time, however, plaintiffs understood that if they worked more or less than 47.5 hours per week - for instance, because they were late, sick or absent - their pay would not be the sameas if they had worked 47.5 hours. See, e.g., Belliard Tr. 29:4-11; Lopez Tr. 4-13. Defendants embrace this understanding as support for their argument that their payroll records corroborate that workers' pay was not a salary but was adjusted if they were absent or worked less than 47.5 hours per week. Hong Decl. Exs. C-F. Hong declares, moreover, that he explained the workings of this "hourly" pay structure to his employees when they began work. SOF ¶ 21.

Like with the hours they worked and the calculation of their compensation, there is substantial agreement as to the nature of the services provided by plaintiffs as employees of Koryeo. Specifically, Belliard worked for Koryeo from July through August 2013. SOF ¶ 42. He typically worked as a driver's helper once per week on average and otherwise as a warehouse employee, in which role he packaged seafood. CSOF ¶ 54. Yet, on any given day, Belliard could be assigned to work or travel on Koryeo's trucks. SOF ¶ 55. The nature of his work as a driver's helper is disputed, but, as previewed above, the parties agree that he delivered products to customers from the trucks. CSOF ¶ 56. As a warehouse worker, Belliard's duties also included performing safety checks on Koryeo's trucks, "palletizing products" and ensuring that Koryeo's trucks were "balanced" when they were sent out to make deliveries. SOF ¶ 60.

Espinal was a Koryeo worker from March through August 2013. SOF ¶ 61. He admits that he worked as a driver's helper for a month or two during the middle of his employment but states that otherwise he worked solely in the warehouse. CSOF ¶ 61. Espinal's responsibilities as a driver's helper or warehouse worker were the same as Belliard's in those respective roles. CSOF ¶ 73.

Lora worked for Koryeo from April 2013 through March 2015. SOF ¶ 78. He worked solely as a warehouse worker for the first seven months of his employment and then he occasionally worked as a driver's helper. He could be assigned to work as a driver's helper atany time. CSOF ¶ 99. Lora's duties were similar to Belliard's and Espinal's in those two roles.

Lopez's primary role as an employee was significantly different from that of the other plaintiffs. He worked for Koryeo from March 2007 through February 2012. SOF ¶ 22. He was, on occasion, a truck driver, SOF ¶ 22, although plaintiffs allege that "much of his employment involved duties unrelated to driving." They allege that he was a driver only once or twice per week. CSOF ¶ 22. Lopez also concedes that he made deliveries as a driver to New York, New Jersey and Connecticut customers. He claims he was otherwise was assigned to any other task required by defendants, but that these tasks included maintenance of Koryeo's trucks. SOF ¶ 40. Koryeo, Lopez admits, could assign him to drive at any time. SOF ¶ 41.

Although plaintiffs take issue with what they apparently believe are unsupported characterizations of truck travel-related responsibilities of driver's helpers, they effectively do not deny Hong's description of the work as directly connected to the operation of the company's trucks to deliver Asian food products to retail customers in four states. In giving his fulsome description of the duties of driver's helpers, Hong declares that driver's helpers are responsible for loading products on Koryeo's trucks, traveling on the trucks and unloading deliveries, assisting drivers with directions, "acting as a second set of eyes and ears" for the driver, alerting the driver to pedestrians or objects near the truck, assisting the driver with backing up the truck, pressing an emergency buzzer on the truck when need be, assisting the driver with truck inspections and reporting safety issues to management. Hong Decl. ¶¶ 31, 38, 49.

As for the wage statement claim, Hong testified that Koryeo did not issue its employees pay stubs after their first pay checks, Hong Tr. 80:6-15; 88:2-9, and never issued wage statements. Hong Tr. 88:4-25.

Standard of Review

Implementing a bedrock rule, a federal district court must grant summary judgment when, construing the evidence in the light most favorable to the non-movant, "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). A court's responsibility in assessing the merits of a summary judgment motion is not to try issues of fact, but merely to "determine whether there are issues of fact to be tried." Sutera v. Schering Corp., 73 F.3d 13, 16 (2d Cir. 1995) (quoting Katz v. Goodyear Tire & Rubber Co., 737 F.2d 238, 244 (2d Cir. 1984)); see also Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010) (noting that, on summary judgment, "the court 'may not make credibility determinations or weigh the evidence'") (emphasis omitted) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110, 147 L. Ed 2d 105 (2000)).

This exercise demands a critical eye. Not all facts are...