Calderon v. Mullarkey Realty, LLC

ERWIN FERNANDO CALDERON, and FELIPE RODRIGUEZ,on behalf of themselves and all others similarly situated, Plaintiffs, v. MULLARKEY REALTY, LLC, DENIS P. MULLARKEY, LLC,and DENIS P. MULLARKEY, in his individual and professional capacities, Defendants.

14-CV-2616 (PKC)(RLM)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

June 10, 2018

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Plaintiffs Erwin Fernando Calderon ("Calderon") and Felipe Rodriguez ("Rodriguez") bring this action against Defendants Mullarkey Realty, LLC, Denis P. Mullarkey, LLC ("Mullarkey LLC"), and Denis P. Mullarkey ("Mullarkey") for alleged violations of overtime, minimum wage, and anti-retaliation laws under the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL") as well as for violations of the wage notice requirements under the NYLL. Before the Court are the parties' respective motions for partial summary judgment. For the reasons stated below, Defendants' motions for summary judgment are granted in part and denied in part. Plaintiffs' motion for summary judgment is denied in its entirety.

BACKGROUND¹

A. Undisputed Facts²

The parties only agree as to the most basic facts. Denis P. Mullarkey RE, LLC and Defendant Denis P. Mullarkey, LLC own two residential buildings in Queens, New York. (Defendants' 56.1 Response Statement ("Defs.' 56.1 Resp."), Dkt. 89, ¶¶ 1-2.) Defendant Denis P. Mullarkey is the owner and President of Mullarkey LLC. (Id. at ¶ 5.) His wife, Catherine Mullarkey, was an office worker for Mullarkey LLC processing payroll, but did not keep track of the employees' hours. (Id. at ¶¶ 8, 11.) Mullarkey LLC employed Plaintiff Calderon as a superintendent from August 1983 until 2013 (Plaintiffs' 56.1 Response Statement ("Pls.' 56.1 Resp."), Dkt. 93-1, ¶ 3) and Plaintiff Rodriguez as a general worker and, occasionally, as a porter, from approximately 2001 until October 2013 (id. at ¶ 4; Defs.' 56.1 Resp., ¶¶ 65, 81).

Calderon was the only person with the title of "superintendent" in the Defendants' two buildings. (Pls.' 56.1 Resp., ¶ 3.) The parties agree that his duties included: collecting rent; performing plumbing inside apartments; soldering and piping in the basement; handling blown fuses, electricity issues, and flooding; and dealing with people smoking or sitting by the premises. (Id. at ¶¶ 47-48.) Calderon referred to himself as the "superintendent" to tenants and contracted with tenants via "Superintendent Agreements" to perform repair work in their apartments. (Id. at ¶ 49.) He was also listed as the superintendent for the buildings on the New York City Departmentof Buildings registration and with the New York Fire Department. (Id. at ¶ 50.)

For his entire employment, Calderon lived rent-free in an apartment in one of Defendants' buildings and was provided with free utilities. He was the only employee to have such an arrangement. (Id. at ¶ 39; Defs.' 56.1 Resp., ¶ 27.)³ From April 2008 through June or July 2013, his regularly scheduled hours were 8:30 a.m. through 5:00 p.m., with a one-hour lunch break, from Monday to Friday. (Pls.' 56.1 Resp., ¶ 6.) He was paid by check every week and was always the highest paid employee. (Defs.' 56.1 Resp., ¶¶ 38-39; Pls.' 56.1 Resp., ¶ 38.) Mullarkey never paid Calderon for more than 37.5 hours of work each week. (Deposition of Denis Mullarkey ("Mullarkey Dep."), 108:2-4.)⁴

On November 15, 2013 (Defs.' 56.1 Resp., ¶ 52), Calderon received a letter from Defendants stating:

Your employment with us officially ended on July 23, 2013. We have held the position of Superintendent open from July to the present. Since we have not received written notification from you as to when you will be able to perform the full time duties of Superintendent . . . we have no choice but to fill the position . . . effective immediately.

(Termination Letter, Dkt. 93-12). The letter also stated that Calderon's apartment was "no longer under employee exempt status and [he would] be expected to pay rent if [he] cho[]se to reside [in] []his apartment" after December 1, 2013. (Id.)

On July 30, 2013, Calderon applied to the New York State Workers' Compensation Boardfor disability based on "osteoarthritis of both knees." (Board Panel Decision ("Board Dec."), Dkt. 82-8, at 1.) A hearing was held on June 5, 2014, during which Calderon testified that "July 22[, 2013] was [his] last day" at work. (Workers' Compensation Hearing ("Hearing Tr."), Dkt. 82-7, 5:19-20; see also Board Dec., at 2 ("The claimant stopped working on July 22, 2013, due to pain.").) His claim was initially denied on June 10, 2014 and the denial was affirmed on May 22, 2015. (Board Dec., at 1, 6.) In its opinion, the Board noted that Catherine Mullarkey testified at the hearing that Calderon "was terminated on November 15, 2013, because he was out on disability and they had to fill the position." (Id. at 3.)

During the course of Plaintiffs' employment, Defendants never spoke to an attorney regarding an employer's responsibilities under the state and federal minimum wage laws or about an employer's duty to provide wage statements each pay period under the NYLL. (Pls.' 56.1 Resp., ¶¶ 84-85.) However, Defendants did "have a - a big sign on - where the employees report to every day in the office - or outside the office showing all employees their rights and employers what they were supposed to pay." (Mullarkey Dep., 165:17-23.) Defendants did not have a timecard or punch card system to record hours. (Id. at 135:11-22; Deposition of Catherine Mullarkey ("C. Mullarkey Dep.")⁵, 28:20-29:9.)

B. Disputed Facts

1. Calderon's Work Schedule

From 1983 until 2003, Calderon's work schedule was 8:00 or 8:30 a.m. until 5:00 p.m., from Monday to Friday, with a one-hour lunch break.⁶ (Mullarkey Dep., 23:5-20.) Although hewas also on-call after hours, "[Mullarkey] did not force [him] to stay in the building" and Calderon never asked for compensation for being on-call "because when [the tenants] would call [him with a problem], the following day [he] would go and do the job." (Deposition of Erwin Calderon ("Calderon Dep."), 85:14-85:24, 115:6-15.)⁷ According to Calderon, his work schedule changed dramatically in 2003⁸ when he was told that: (1) his regular hours were 8:30 a.m. to 5:00 p.m., Monday through Friday; (2) he was on-call from 5:00 p.m. to 10:00 p.m., Monday through Friday; (3) he was on-call from 8:30 a.m. until 10:00 p.m. on Saturdays;⁹ and (4) "[he] had to be on-call" for "24 hours" a day. (Id. at 29:3-19; see id. at 20:15-21:4 (Mullarkey allegedly "told [Calderon] that [his] regular hours were 8:30 [a.m.] to 10:00 [p.m.] at night and . . . told [Calderon] that [he] always ha[d] to be available 24 hours a day in case someone in the building need[ed] [him]").)

According to Calderon, Mullarkey "want[ed] [him] to be in the building, more or less" and and Calderon worried that if he left, he would be fired. (Id. at 88:17-19, 89:24-90:2, 116:14-117:11, 129:7-9, 149:2-10, 214:5-20.) If Calderon wanted to leave for any reason, he "would have to let [Mullarkey] know" and tell Mullarkey that Rodriguez was "going to be in charge and if anything happens, [Rodriguez] will be near the building." (Id. at 129:10-16, 145:3-16.)¹⁰Calderon was permitted to leave the buildings after 10:00 p.m., and between 5:00 p.m. and 10:00 p.m., Calderon says he could cook dinner, watch television, talk on the phone, go on the computer, play games, or "do whatever [he] wanted to do in the apartment." (Id. at 135:14-16, 138:3-139:15.) At 10:00 p.m., Calderon would either go to bed or "go watch TV or play chess with [his] son[.]" (Id. at 139:9-15, 146:17-19.) On Sundays, Calderon was not required to be in the buildings, but Mullarkey told him "just to make sure someone would be there in charge." (Id. at 147:10-14.) From "time-to-time", Calderon would contract with tenants via a "Superintendent Agreement" to perform repair work in their apartments on Sundays. (November 2016 Declaration of Erwin Calderon ("Nov. 2016 Calderon Decl."), Dkt. 93-2, ¶ 3.) However, Calderon alleges that even when he was not doing physical work, he was "watching the buildings the whole time and [he] was at the building the whole time like [Mullarkey] wanted [him] to [be]." (Calderon Dep., 191:10-12, 199:5-11.)

According to Mullarkey, he set Calderon's work schedule "[a]t the beginning" but "later on, Mr. Calderon then set his own work schedule." (Mullarkey Dep., 22:20-25.) Mullarkey conceded that Calderon was on-call on Saturday and Sunday, but stated that he was not required to stay in the buildings, that Mullarkey "did permit [Calderon] to leave either his home or worksite on Sundays[,]" and that "[Calderon] could leave . . . his worksite anytime after 5 o'clock." (Id. at 79:16-19, 89:4-17, 100:2-9.) Mullarkey said he visited the buildings twice a day, generally between 7:00 a.m. to 10:00 a.m. and 2:00 p.m. to 3:00 p.m., to "pick up various things, pick up rents, listen to what Mr. Calderon want[ed] to tell me" or get supplies. (Id. at 42:4-14, 43:21-25.) He would also occasionally visit the premises after 5:00 p.m. and "never" saw Calderon doing building work. (Id. at 67:12-68:10.) He did concede, however, that Calderon sometimes told him that he did work after hours, such as shutting down the water to an apartment because of a leak orattending to a problem with the boiler. (Id. at 68:11-23.) Speaking about Calderon's work after hours, Mullarkey stated, "if nothing goes on in the building, he does nothing. If something comes up, he has to take care of it." (Id. at 80:16-22.) At his deposition, Mullarkey stated that Plaintiffs "never asked" to be paid for certain hours. (Id. at 164:8-25.)

When asked for examples of physical work he had to do after 5:00 p.m. in both buildings, Calderon described the following incidents:

• Fixing the boiler. According to Calderon, Mullarkey "sometimes . . . would himself call [Calderon] at 4:30 in the morning" because "the boiler would get

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