Pappas v. City of New York

1

JOHN PAPPAS, et al., Plaintiffs, v. CITY OF NEW YORK, Defendant.

No. 23-cv-6010 (LJL)

United States District Court, S.D. New York

May 9, 2024

OPINION AND ORDER

LEWIS J. LIMAN UNITED STATES DISTRICT JUDGE

Defendant the City of New York (“Defendant” or the “City”) moves to dismiss the Third Amended Complaint (“TAC”) for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and for failure to state a claim for relief pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, to compel arbitration. Dkt. No. 44. For the following reasons, the motion is granted in part and denied in part.

BACKGROUND

For purposes of this motion, the Court accepts the well-pleaded allegations of the TAC as true.

Plaintiffs are eleven current and former Lieutenants and Sergeants of the New York City Transit Police (“Transit Police”) of the New York Police Department (“NYPD”). Dkt. No. 33 ¶ 3.^[1] Each of the Plaintiffs is considered a “Dog Handler” by the NYPD. Id. ¶¶ 4, 19-29. They are assigned a police dog owned by the NYPD to train and care for. Id. ¶¶ 3, 6. The police dogs live in each respective Dog Handler's home. Id. ¶ 42. As a matter of policy, the City requires the Dog Handlers to train, exercise and feed their assigned dogs seven days a week, 365 days a year. Id. ¶ 43. The Dog Handlers' duties include teaching the dogs basic commands, obedience, walking, feeding, scent-work training and exercising. Id. ¶ 44. Plaintiffs bathe brush, exercise, feed, and groom the dogs, clean the dogs' kennels and transport vehicles, and engage in related activities at home on workdays as well as on days off and during vacation periods. Id. ¶ 7. Plaintiffs also take their assigned police dogs for veterinary care as necessary and are not compensated for emergency veterinary visits that occur during non-official work hours. Id. ¶ 46.

Plaintiffs allege that “virtually all other departments within New York City . . . and in New York State provide [Dog] Handlers with additional pay regardless of title.” Id. ¶ 12. Those departments include the New York City Department of Corrections and the New York City Department of Environmental Protection as well as the Metro Transit Authority police and the polices departments of Nassau Suffolk, Orange, Westchester, and Rockland counties. Id. ¶ 13. Indeed, the City previously provided a retired police Lieutenant with compensation for his handler-related responsibilities prior to his retirement. Id. ¶ 14.

On days when Dog Handlers are at work, Dog Handlers perform a minimum of approximately two hours of unpaid overtime work with respect to their assigned police dog. Id. ¶ 47. On days when Dog Handlers are not at work, Dog Handlers perform a minimum of approximately one and a half hours of unpaid overtime work with respect to their assigned police dogs. Id. ¶ 48.

The City is required to pay all police officers overtime if they work more than 171 hours in a 28-day cycle. Id. ¶¶ 37, 41. Plaintiffs allege, however, that Defendant failed to pay them the appropriate overtime premiums for all hours worked in excess of 171 hours in a 28-day cycle. Id. ¶ 53.

PROCEDURAL HISTORY

Plaintiffs initiated this case by complaint filed on July 13, 2023. Dkt. No. 1. They alleged that Defendant failed to pay them overtime wages in violation of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. §§ 201 et seq., and the New York Labor Law (“NYLL”), N.Y. Lab. Law § 650 et seq. Id. ¶¶ 1-54. Plaintiffs also alleged that Defendant violated the NYLL by failing to provide them with accurate wage notices and wage statements and failing to pay them earned wages. Id. ¶¶ 55-67. Plaintiffs filed a First Amended Complaint on August 21, 2023, Dkt. No. 9, and, with the consent of Defendant and upon order of the Court, Dkt. Nos. 23, 25, filed a Second Amended Complaint on November 16, 2023, adding two Plaintiffs, seeking to bring the actions as a FLSA collective, and eliminating all claims under the NYLL, Dkt. No. 27.

On December 1, 2023, with the consent of Defendant and upon order of the Court, Dkt. Nos. 31-32, Plaintiffs filed the TAC, Dkt. No. 33, operative here. The TAC alleges two causes of action: (1) the failure to pay overtime wages in violation of the FLSA, Dkt. No. 33 ¶¶ 51-56; and (2) the failure to pay minimum wages in violation of the FLSA, id. ¶¶ 57-62. Plaintiffs seek to bring the action as a FLSA collective on behalf of themselves and “other similarly situated persons who are current and former sergeants and lieutenants and assigned a police dog by the City since the date three years prior to the filing of th[e] Complaint.” Id. ¶ 32.^[2] On December 15, 2023, Defendant filed this motion to dismiss the TAC or, in the alternative, to compel arbitration. Dkt. No. 44. The motion was accompanied by a declaration of counsel and a memorandum of law. Dkt. Nos. 45-46. On February 14, 2024, Plaintiffs filed a memorandum of law in opposition to the motion along with the Declaration of named Plaintiff John Pappas. Dkt. Nos. 62, 63-64. On February 21, 2024, Defendant filed a reply memorandum of law in further support of the motion. Dkt. No. 65.^[3]

The Court held oral argument on the motion to dismiss on March 27, 2024. See 3/27/24 Minute Entry. At argument, the Court requested supplemental briefing from the parties regarding arbitration of the claims. Dkt. No. 75 at 34. On April 25, 2024, after the parties submitted supplemental briefing, the Court held additional oral argument regarding the arbitrability of the claims brought by Sergeants. See 4/25/24 Minute Entry.

DISCUSSION

Defendant makes several arguments in support of its motion. First Defendant argues that the TAC must be dismissed with respect to the nine Sergeants who are Plaintiffs on the grounds that they are parties to arbitration provisions in collective bargaining agreements (“CBAs”) that require arbitration of this dispute. Dkt. No. 46 at 2, 10-13. Second, Defendant argues that the TAC must be dismissed in its entirety because Plaintiffs fall within the FLSA exemption for persons employed in a bona fide executive, administrative or professional capacity. Id. at 2, 1315. Third, Defendant argues that the FLSA claims asserted by Plaintiffs Velez and Corrigan must be dismissed as time-barred by FLSA's two-year statute of limitations and that such statute of limitations limits the relief that can be accorded the other Plaintiffs. Id. at 2, 15-17. Finally, Defendant argues that the TAC should be dismissed because Plaintiffs do not plead sufficient factual allegations to state either an overtime or minimum wage claim pursuant to the FLSA. Id. at 3, 18-20. The Court addresses each in seriatim.

I. Request for a Court Order Compelling Arbitration of the Sergeant-Plaintiffs' Claims

Defendant moves to dismiss the suit as against the nine individually named plaintiffs who are Sergeants, contending that suit is barred by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1 et seq.^[4] Dkt. No. 46 at 10-13. Defendant argues that the Sergeant-Plaintiffs should be compelled to arbitrate pursuant to a binding arbitration provision in a memorandum of agreement, which modified and extended the term of the CBA after it expired, and which covers FLSA disputes by NYPD Sergeants. Id.

Although styled as a motion to dismiss, see Dkt. No. 44, the Court construes Defendant's motion as it relates to arbitration of the Sergeants' claims as a motion to compel arbitration. “The Second Circuit has recognized that, depending on the facts and arguments presented, a motion to dismiss based on an arbitration clause may be treated as a motion to compel arbitration.” Begonja v. Vornado Realty Tr., 159 F.Supp.3d 402, 405 n.1 (S.D.N.Y. 2016) (citing Wabtec Corp. v. Faiveley Transp. Malmo AB, 525 F.3d 135, 139-40 (2d Cir. 2008)). “The motion must either ‘explicitly or implicitly ask[] the court to order arbitration.'” Gilbert v. Indeed, Inc., 513 F.Supp.3d 374, 390 (S.D.N.Y. 2021) (quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016)). “Where such a request is made and a movant thus manifests ‘an intent . . . to compel arbitration,' the Court may ‘treat[] motions to dismiss based on mandatory arbitration clauses as motions to compel arbitration.'” Id. (quoting Nicosia, 834 F.3d at 230 & n.3). Here, Defendant expressly requests that the Court “compel arbitration of this matter.” Dkt. No. 46 at 13. Accordingly, the Court treats Defendant's motion to dismiss insofar as it relates to arbitration as a motion to compel arbitration. See, e.g., Zachman v. Hudson Valley Fed. Cr. Union, 49 F.4th 95, 100 n.3 (2d Cir. 2022).

Courts evaluate motions to compel arbitration pursuant to the FAA under a standard similar to that utilized for summary judgment motions. Bensadoin v. Jobe-Riat, 316 F.3d 171, 175 (2d Cir. 2003); Cornelius v. Wells Fargo Bank N.A., 2020 WL 1809324, at *4 (S.D.N.Y. Apr. 8, 2020). As with a motion for summary judgment, the parties may submit documents in support or opposition of the motion, and the court “considers] all relevant, admissible evidence submitted by the parties and contained in pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, and draws all reasonable inferences in favor of the non-moving party.” Meyer v. Uber Techs., Inc., 868 F.3d 66, 74 (2d Cir. 2017) (internal quotation marks and citation omitted).^[5] “[T]he party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration.” Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 91 (2000); see also Harrington v. Atl. Sounding Co., Inc., 602 F.3d 113, 124 (2d Cir. 2010). It may not satisfy this burden through “general denials of the facts on which the right to...