Callari v. Blackman Plumbing Supply, Inc., 11-CV-3655 (ADS) (AKT)

MICHAEL CALLARI, individually and on behalf of other persons similarly situatedwho were employed by BLACKMAN PLUMBING SUPPLY, INC.,and/or any other entities affiliated with or controlled by BLACKMANPLUMBING SUPPLY, INC., Plaintiffs, v. BLACKMAN PLUMBING SUPPLY, INC., ROBERT MANNHEIMER,AS CO-EXECUTOR OF THE ESTATE OF RICHARD BLACKMAN,AND ROBERT A. TEPEDINO, AS CO-EXECUTOR OF THE ESTATEOF RICHARD BLACKMAN, and JOHN DOES #1-10, Defendants.

11-CV-3655 (ADS) (AKT)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: December 19, 2013

MEMORANDUM OF

DECISION AND ORDER

APPEARANCES:

Bee Ready Fishbein Hatter & Donovan, LLP

Attorneys for the Plaintiff and Opt-in Plaintiff George Ruggiero

By: Robert Connolly, Esq., Of Counsel

Certilman Balin Adler & Hyman, LLP

Attorneys for the Defendants

By: Douglas E. Rowe, Esq.

James A. Rose, Esq.

Sanjay V. Nair, Esq., Of Counsel

SPATT, District Judge.

On July 29, 2011, the Plaintiff Michael Callari ("the Plaintiff"), individually and on behalf of other persons similarly situated, commenced this action against the Defendants Blackman Plumbing Supply, Inc. ("BPS"), Richard Blackman ("Blackman") and John Does #1-10. Pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 207 and 216, New York Labor Law ("NYLL") Article 19 § 663, NYLL Article 6 §§ 190 et seq. and 12 New York Codes, Rules and Regulations ("NYCRR") § 142-2.2, the Plaintiff seeks to recover allegedly unpaid overtime wages owed to him and all similarly situated persons who are presently or were formerly employed by BPS and/or any entities affiliated with or controlled by BPS, Blackman and John Does #1-10.

On June 21, 2013, following the passing of Blackman, the parties entered into a stipulation substituting Robert Manheimer ("Manheimer") and Robert A. Tepedino ("Tepedino"), as Co-Executors of the Estate of Blackman, as defendants in this action, in place and instead of Blackman. The Court "so ordered" this stipulation on June 24, 2013. In addition, on September 28, 2012, George Ruggerio ("Ruggerio") opted-in as a plaintiff. He is the only opt-in plaintiff in this action.

Presently before the Court is a motion by BPS, Manheimer and Tepedino (collectively, the "Defendants") for summary judgment dismissing the Complaint. The Defendants argue that summary judgment should be granted in their favor because (1) the Plaintiff was an exempt employee under the FLSA; and (2) the Plaintiff and Ruggiero's federal claims are time-barred and Ruggiero's federal and state law claims were waived. The Defendants also argue that the Court should decline to exercise supplemental jurisdiction over the Plaintiff's remaining state law claims and that, in any event, even if the Court did retain jurisdiction of the case, the Plaintiff's collective allegations should be dismissed because the Plaintiff never filed for class certification or conditional certification and have now waived his right to do so.

As an initial matter, the Court notes that the Plaintiff, in opposition to the Defendants' motion, included an almost forty page attorney declaration containing factual allegations inaddition to his twenty-six page memorandum of law, in violation of this Court's Individual Rule VI.B.i, which limits the length for a memorandum of law in opposition to twenty-five pages. Accordingly, as the Plaintiff has attempted to circumvent this Court's rule on page limits by supplementing the Plaintiff's memorandum of law with the attorney declaration, the Court declines to consider the attorney declaration. See Great Atlantic & Pacific Tea Co., Inc. v. Town of East Hampton, 997 F. Supp. 340, 346 n.1 (E.D.N.Y. 1998).

For the reasons set forth below, the Court grants the Defendants' motion for summary judgment as to the opt-in Plaintiff Ruggiero's claims, but denies the Defendants' motion for summary judgment as to the Plaintiff Callari's claims.

I. BACKGROUND

A. Underlying Facts Pertaining to the Individual Plaintiff Callari

The Defendant BPS is a company which sells plumbing, heating and cooling supplies from retail and wholesale stores and locations. From 1989 until his last day of employment, July 15, 2010, the Plaintiff was employed by BPS as an Assistant Branch Manager at BPS's Mineola branch. While working as an assistant manager, the Plaintiff was a salaried employee and BPS classified the Plaintiff as exempt from overtime compensation allegedly based on his actual duties and responsibilities at the Mineola branch.

The Plaintiff was originally hired by BPS in approximately May of 1981. At the time he was hired, he was responsible for doing pricing, which he did for about two years, before slowly moving over to sales. While working as an inside sales representative, the Plaintiff would enter sales orders that were placed over the phone. With respect to the pricing of BPS's products, the prices were set in the computer and the Plaintiff did not have the ability to change them. In the event a question about prices arose or someone was seeking a major price adjustment on aproduct, the Plaintiff would generally speak to the manager. As the Plaintiff explained at his deposition,

[i]f it was a pricing question and it was kind of a no brainer, then I would help them with it. If it got into a situation where it might involve selling it at a very low price, if the manager was not there, I would call purchasing or speak to somebody. Basically, to get the okay for the price.

(Rose Decl., Exh. C, pg. 20-21.)

The Plaintiff also reviewed opened orders and pending orders, but only when the manager was not there and he only had limited authority to adjust an order. Further, he attended training sessions to increase his knowledge of the products that BPS was selling. His other responsibilities as a sale representative included processing returns and issuing credits to customers, so long as these transactions did not involve "an extraordinary amount of material," in which case the Plaintiff would have to consult with the manager first before proceeding. (Rose Decl., Exh. C, pg. 23.)

In addition, when the Mineola branch was crowded with customers, the manager would direct the Plaintiff to assist customers at the counter. On some occasions, when the Plaintiff was working with relatively new salespersons, the Plaintiff would suggest to these other salespersons that they assist those customers who were waiting to be helped. However, although he made suggestions, the Plaintiff did not have authority over anyone in the Mineola branch while he was working as a salesperson.

The Plaintiff remained in sales until he became Assistant Branch Manager for the Mineola branch in 1989. Just a few months prior to that time, Andy Rothenbucher ("Rothenbucher") had been brought in as manager and Marc Wolff ("Wolff") as assistant manager. As a result, the Plaintiff advised BPS's then-general manager Kevin Sossin ("Sossin")that he intended to leave BPS because he believed he had deserved the assistant manager position. However, Wolff ended up leaving BPS after only two or three months because he did not get along with Rothenbucher. Sossin then offered the Plaintiff the job as assistant manager to replace Wolff, which the Plaintiff accepted. No one was hired or brought in to take the Plaintiff's place as a salesperson.

According to the Plaintiff, when he became assistant manager, he did not receive any training in connection with his promotion. Moreover, he claims that his responsibilities generally did not change once he became assistant manager except when Rothenbucher was not there. On those occasions, the Plaintiff would handle cash reports for Rothenbucher, which at the time were very small and simply involved clearing the drawer to check if they were over or under in relation to the previous day's sales. Nevertheless, the Plaintiff could not make major decisions, such as firing an employee, without the manager there. In those cases when the manager was not available, the Plaintiff would speak to the corporate office about the issue and comply with their decision.

As the Plaintiff stated, "my job [as assistant manager] was to help [the manager] out, but sales were my number one job." (Rose Decl., Exh. C, pg. 29.) In this regard, the Plaintiff's responsibilities increased in that he performed whatever job-related tasks the manager asked of him, even if those tasks did not pertain to sales. The Plaintiff did not receive a pay increase beyond the normal pay increase he received every year while in sales, nor did he receive letterhead or additional space at the Mineola branch. However, he did receive business cards for the first time. On the business cards, his title was listed as assistant manager. He also introduced himself as the assistant manager to customers when they asked him who he was or what he was doing.

Generally, the manager directed the employees in sales with respect to their jobs. Only when the manager was unavailable did the inside salespeople come to the Plaintiff. In this regard, for instance, the Plaintiff was only responsible for taking attendance for the branch when the manager was not there and when the manager returned, he would inform him of who was excessively late to work. He would also review the time sheets of employees if the manager was out sick or on vacation and notify the corporate office if there was a notation that needed to be made, such as if the employee had worked overtime but it was not noted in the computer system. Moreover, if one of the employees had a serious emergency and there was no time to check with the manager, the assistant manager would give the employee permission to leave early for the day. Further, the Plaintiff asked the employees who wanted to work on Saturday and set the Saturday schedule.

With respect to discipline, on the rare occasion that an employee behaved unprofessionally with a customer and the manager was not there, the Plaintiff would speak to the employee about the matter. Further, if he saw an inside salesperson...