Brown v.

755 F.3d 154

Jayquan BROWN, Plaintiff–Appellant,

v.NEW YORK CITY DEPARTMENT OF EDUCATION, and Joshua Laub, Defendants–Appellees.

Docket No. 13–139–cv.

United States Court of Appeals, Second Circuit.

Argued: Nov. 12, 2013.

Decided: June 18, 2014.

Chinyere Okoronkwo, Esq., New York, N.Y., for Plaintiff–Appellant.

Larry A. Sonnenshein and Kathy H. Chang, Of Counsel, for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, N.Y., for Defendants–Appellees.

Before: POOLER, RAGGI, and WESLEY, Circuit Judges.

REENA RAGGI, Circuit Judge:

Plaintiff Jayquan Brown appeals from a judgment entered on December 13, 2012, in the United States District Court for the Southern District of New York (Paul A. Crotty, Judge ), in favor of defendants the New York City Department of Education (“DOE”) and DOE principal Joshua Laub. The district court awarded DOE summary judgment on Brown's federal claim for relief under the Fair Labor Standards Act of 1938 (“FLSA”), see29 U.S.C. § 201 et seq., concluding as a matter of law that Brown was not entitled to statutory minimum and overtime wages for the three years he worked at DOE's Banana Kelly High School (“Banana Kelly”) because Brown had served as a public agency volunteer, not an employee. Declining to exercise supplemental jurisdiction, the district court also dismissed Brown's related New York Labor Law claim against Banana Kelly principal Laub without prejudice to Brown refiling in the state court. See Brown v. N.Y.C. Dep't of Educ., No. 12 Civ. 0035(PAC), 2012 WL 6186496, at *8 (S.D.N.Y. Dec. 12, 2012).

In urging vacatur, Brown contends only that the district court erred in its “volunteer” determination. He does not otherwise challenge the district court's exercise of discretion in dismissing his state law claim against Laub. Because Brown's volunteer challenge fails on the merits for reasons explained in this opinion, we affirm the judgment in favor of defendants in all respects.

I. Background

We summarize the relevant facts supported by the record in the light most favorable to Brown, the party against whom summary judgment was awarded. See Northeast Research, LLC v. One Shipwrecked Vessel, 729 F.3d 197, 200 (2d Cir.2013). In doing so, however, we note that where Brown's deposition testimony appears to conflict with his Rule 56.1 statement of undisputed facts, see Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, we rely on the facts in his Rule 56.1 statement. See Gibbs ex rel. Estate of Gibbs v. CIGNA Corp., 440 F.3d 571, 578 (2d Cir.2006) (stating that parties are bound by factual admissions made to court); see also Cohan v. Movtady, 751 F.Supp.2d 436, 443 (E.D.N.Y.2010) ( “[P]arties are bound by their concessions in Rule 56.1 Statements.”).

A. Brown's Work at Banana Kelly

Jayquan Brown graduated in 2006 from DOE's New School for Arts and Sciences (“New School”), located in the South Bronx. At that time, New School shared physical space with Banana Kelly so that Brown came to know staff at both schools.

Brown was unable to secure paid employment after graduation. He did, however, assist his brother who was working as a group leader for younger students at an after-school program at C.S. 92.¹ On a visit back to New School in or about October 2007, Brown mentioned his “mentoring” work at C.S. 92 to Daniel Jerome, Banana Kelly's director of student life. Jerome asked Brown if he would be interested in mentoring students at Banana Kelly. When Brown responded affirmatively, Jerome raised the matter with principal Laub.

Laub determined that Brown lacked the higher education and personal criteria necessary for a paid staff position; nevertheless, Laub “bent some rules” to create what he described to Brown as a “volunteer internship.” J.A. 467–68. At his deposition, Laub stated that he did this to advance Brown's career opportunities. Meanwhile, Brown has professed not to have “fully appreciate[d]” what was meant by the terms “intern” and “volunteer.” Id. at 468. He acknowledged, however, that he was never required to provide any qualifications for employment at Banana Kelly and was never told by any school official that he would be paid for his work. Nor did Brown himself initially inquire as to compensation. Rather, he accepted Laub's offer in order (1) to build his resume; (2) to model himself on Jerome, whom he admired; and (3) to be a person who could “stand up, and make a change, and show the kids that we do care.” Id. at 547.

Brown worked at Banana Kelly from the fall of 2007 through December 2010. ² He generally spent five days a week (and frequent Saturdays) at the school for approximately forty hours per week and, in 2009, also assisted during the summer session. Brown explained that Jerome told him he was needed five days per week; therefore, he did not think that he had any choice but to come in that frequently because “if I didn't, I would be letting him [ i.e., Jerome] down, and I would be letting the school down.” Id. at 595. Brown acknowledged that on the few occasions when he was absent, he was neither criticized nor disciplined.

Brown was initially assigned to Banana Kelly's “Intervention Team” (“I–Team”), a group of salaried employees tasked with student conflict resolution. On this team, Brown performed various duties associated with lunchtime supervision, detention, parent contact, and student escort. He also answered the telephone and handed out report cards and progress reports. Only in 2010 was Brown given any student mentoring responsibilities.

On various occasions, Brown asked Laub for a paid position. Laub generally responded negatively, citing budget constraints and Brown's lack of higher education. Laub did consider the possibility of offering Brown a part-time paid position and, on one occasion, told Brown that he would search the budget for the necessary money. Nothing materialized, however, and Brown has admitted that neither Laub nor Jerome ever told him that he was going to be paid for his work. Nevertheless, Brown asserted that Laub and Jerome created an impression that money to pay him was forthcoming when, in 2010, Jerome informed the I–Team that Laub had applied for a $170,000 grant to support its work by, among other things, providing stipends for interns. Apparently, no grant was ever received. Meanwhile, when Brown inquired as to a paid position as a “school aide,” Laub and Jerome encouraged him to seek such a position at another DOE school.

Brown did seek aide positions at other schools because he “wanted to get paid.” Id. at 610. Further, in 2009, with a letter of recommendation from Jerome, Brown secured a paid part-time evening job with a security company.

From time to time—but on fewer than five occasions in total—Laub gave Brown cash in amounts ranging from $40 to $50, telling him that he was doing a great job and should keep up the good work. Brown testified that he did not know why Laub was giving him this money and did not think it was for his work. Meanwhile, Brown asserted that in recognition of his “working all day” without pay and doing a “great job,” Jerome gave him $60 per week approximately 10 to 20 times, as well as occasional MetroCards and subway fare. Id. at 476. Both Laub and Jerome sometimes paid for Brown's meals.

B. Procedural History

On January 4, 2012, Brown commenced this action against DOE, alleging a failure to pay him minimum and overtime wages as required by the FLSA. See29 U.S.C. §§ 206(a), 207(a). On March 19, 2012, he amended his complaint to sue Laub in his individual capacity for alleged violations of the New York Labor Law. SeeN.Y. Lab. Law § 652 et seq.

On the parties' cross-motions for summary judgment, the district court granted DOE's motion, concluding as a matter of law from the totality of the circumstances viewed most favorably to Brown that Brown was a “volunteer, not an employee, as defined by the FLSA” and, therefore, without a claim to minimum or overtime wages. Brown v. N.Y.C. Dep't of Educ., 2012 WL 6186496, at *8.

II. DiscussionA. Notice of Motion

At the outset, we note that Brown urges vacatur of the judgment in this case based on defendants' alleged failure to comply with the particularity requirements of the Federal Rules of Civil Procedure in moving for summary judgment. SeeFed.R.Civ.P. 7(b)(1)(B) (requiring motion to “state with particularity the grounds for seeking the order”). Brown argues that defendants' motion was deficient in omitting any mention of the FLSA in their notice of motion and stating summarily that they sought dismissal of all claims.

Brown concedes that he failed to raise any notice objection in the district court. Thus, the point is forfeited on appeal. See Oneida Indian Nation v. Madison Cnty., 665 F.3d 408, 441 (2d Cir.2011), cert. dismissed, ––– U.S. ––––, 134 S.Ct. 1582, 188 L.Ed.2d 589 (2014). Nor do we identify any reason to exercise our discretion to review the forfeited claim. Defendants' supporting memorandum of law, filed the same day as their summary judgment motion, explained in detail the grounds for seeking the requested relief. Thus, Brown cannot credibly claim that he did not have notice of the grounds upon which defendants sought summary judgment. We therefore proceed to discuss Brown's merits challenge to the award of summary judgment.

B. Summary Judgment on FLSA Claim

1. Standard of Review

Brown argues that disputed issues of fact precluded the district court from concluding as a matter of law that he worked at Banana Kelly as a public agency volunteer, thereby exempting DOE from the FLSA's minimum and overtime wage requirements. This court has not previously had occasion to consider the scope of the FLSA's public agency volunteer exception. Those of our sister circuits to have considered the question have concluded that whether an individual is a public service volunteer within the meaning of the FLSA is ultimately a question of law. See Mendel v. City of Gibraltar...