Viera v. City of N.Y.

512 F.Supp.3d 461

Christopher VIERA et al., Plaintiffs,

v.CITY OF NEW YORK, Defendant.

1:19-cv-05773 (SDA)

United States District Court, S.D. New York.

Signed January 8, 2021

Hope Allison Pordy, Elizabeth Rachel Sprotzer, Spivak Lipton LLP, New York, NY, Chelsea M. Williams, Gregory Keith McGillivary, Hillary Lebeau, Sarah Michelle Block, McGillivary Steele Elkin LLP, Washington, DC, for Plaintiff Christopher Viera.

Hope Allison Pordy, Elizabeth Rachel Sprotzer, Spivak Lipton LLP, New York, NY, Hillary Lebeau, Gregory Keith McGillivary, Sarah Michelle Block, McGillivary Steele Elkin LLP, Washington, DC, for Plaintiffs Genadiy Mints, Devin Sparks.

Hope Allison Pordy, Spivak Lipton LLP, New York, NY, Sara Lyn Faulman, Gregory Keith McGillivary, McGillivary Steele Elkin LLP, Washington, DC, for Plaintiff Carl Graham.

Laura Christine Williams, New York City Law Department, New York, NY, for Defendant.

OPINION AND ORDER

STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.

This is an action brought under the Fair Labor Standards Act ("FLSA") by four persons who claim to be owed overtime for work performed as employees of the New York City Fire Department ("FDNY"). Before the Court are a motion for summary judgment by plaintiffs Christopher Viera ("Viera"), Genadiy Mints ("Mints"), Devin Sparks ("Sparks") and Carl Graham ("Graham") (collectively, "Plaintiffs") (Pls.’ Not. of Mot., ECF No. 71), and a motion for summary judgment by defendant City of New York ("City" or "Defendant"). (Def.’s Not. of Mot., ECF No. 75.)¹ For the reasons set forth below, these motions are DENIED.

RELEVANT FACTS

I. Background Facts

Plaintiffs are FDNY employees who have held the civil service title of Motor Vehicle Operator ("MVO") at some point since June 21, 2016, and have been assigned to the Fleet Services Bureau ("Fleet Services") and/or the Technical Services Bureau ("Tech Services") for some or all of that time period. (Def.’s Counter 56.1 ¶ 1; Pls.’ Counter 56.1 ¶ 1.) Plaintiffs Viera and Mints have been assigned to Tech Services for the entirety of the period from June 21, 2016 to the present, and currently hold the civil service title of City Laborer. (Pls.’ Counter 56.1 ¶ 7.) During the period from June 21, 2016 to the present, Plaintiff Sparks first was assigned to Fleet Services, and currently is assigned to Tech Services, where he holds the civil service title of City Laborer. (Id. ¶ 9.) Plaintiff Graham has been assigned to Fleet Services for the entirety of the period from July 29, 2016 to the present, where he holds the civil service title of MVO. (Id. ¶ 8.)

The duties and responsibilities of Tech Services MVOs² include operating motor vehicles, maintaining motor vehicles, performing motor vehicle inspections and light maintenance on vehicles, and transporting medical oxygen tanks and other Emergency Medical Service ("EMS") supplies to and from the oxygen tank refill center and firehouses/EMS stations throughout the City. (Def.’s Counter 56.1 ¶ 7; Pls.’ Counter 56.1 ¶ 14.) The duties and responsibilities of Fleet Services MVOs include operating motor vehicles, maintaining motor vehicles, performing motor vehicle inspections and light maintenance on vehicles, transporting fire apparatus and ambulances between firehouses/EMS stations and repair facilities for routine maintenance or when the vehicles need repair, and transporting employees between FDNY locations. (Def.’s Counter 56.1 ¶ 6; Pls.’ Counter 56.1 ¶ 15.)

Normally, MVOs are scheduled for 8.5-hour shifts, inclusive of an unpaid thirty-minute meal period, with two regularly scheduled days off per week. (Def.’s Counter 56.1 ¶ 4; Pls.’ Counter 56.1 ¶¶ 22-23.) At present, due to the COVID-19 pandemic, Plaintiffs assigned to Tech Services are temporarily scheduled to work four days per week in 10.5 hour shifts, inclusive of an unpaid thirty-minute meal period. (Def.’s Counter 56.1 ¶ 5; Pls.’ Counter 56.1 ¶ 25.)

CityTime is the City's proprietary electronic timekeeping and payroll system, which the vast majority of City employees use to record their work time. (Pls.’ Counter 56.1 ¶ 28.) The FDNY has required Plaintiffs to use the CityTime timekeeping system since 2007.³ (Def.’s Counter 56.1 ¶ 22; Pls.’ Counter 56.1 ¶ 30.) Plaintiffs used CityTime to clock in when they arrived at their assigned work location and clock out when they left their assigned work location. (Def.’s Counter 56.1 ¶ 26.)

All minutes from the time that a Plaintiff punched in at his work location to the time he punched out at his work location were captured in CityTime. (Id. ) However, under the City's pay system, Plaintiffs were not compensated for all of their time recorded in CityTime; instead, under a default "pay-to-schedule" system, they were paid according to their regular shifts, unless they indicated there was an exception to that schedule—i.e. , unless they indicated that they had worked overtime or had taken time off. (See id. ¶ 27.) Any time recorded in CityTime that fell outside of an employee's regular work schedule would be reflected in CityTime as "noncompensable" unless the employee submitted an overtime request for that time and that request was approved. (See Def.’s Counter 56.1 ¶ 28; Pls.’ Counter 56.1 ¶ 34.) Plaintiffs knew how to submit requests for overtime payment in CityTime. (Pls.’ Counter 56.1 ¶ 72.) In addition, supervisors had the capability to submit overtime requests on behalf of the employees they supervised. (Def.’s Counter 56.1 ¶ 29.)

Citing to their deposition testimony, Plaintiffs contend that "the City does not provide guidance or documents explaining how to submit overtime requests for pre-shift and meal-period work that has not been pre-approved." (See Pls.’ 56.1 ¶ 65.) The City disputes this contention and asserts that it "is the City's policy to pay employees for overtime worked, regardless of pre-approval." (See Def.’s Counter 56.1 ¶ 28.)

II. Plaintiffs’ Alleged Uncompensated Work

Each Plaintiff testified that he regularly performed work prior to his shift. (See Viera Tr. 24-25, 63-64, 70, 98-99; Mints Tr. 35, 42-47, 49-51, 59; Sparks Tr. 55, 71, 74-75, 82-83, 86-88; Graham Tr. 52, 54, 60-63.⁴ ) This work included, for example, locating and moving the vehicle he was to drive on any given day, inspecting the vehicle (e.g. , tire pressure, fluids and lights) and/or warming up the vehicle. (See id. ) Because the City has a record of when each Plaintiff clocked in every day, Plaintiffs contend that they can calculate from the City's own records the exact amount of back pay they are due for the work they performed prior to the beginning of their shifts. (See Pls.’ 56.1 ¶ 39 & Lanier 10/12/20 Decl., ECF No. 74-9.)

Each Plaintiff also testified that he regularly performed work during his uncompensated meal periods. (See Viera Tr. 78-79, 82; Mints Tr. 35, 63-64, 68, 70; Sparks Tr. 100, 102, 106; Graham Tr. 82-83.) Plaintiffs asserted that this work was made necessary by, for example, the volume of their work and/or the logistical difficulty of parking their vehicles in order to eat. (See id. )

The City denies having any knowledge of Plaintiffs’ performance of uncompensated pre-shift work, asserting that Plaintiffs knew how to submit requests for overtime and in fact had been compensated for overtime work performed outside of their scheduled shifts. (See Def.’s Counter 56.1 ¶¶ 33-36.) The City likewise asserts that employees were compensated for performing work during their meal periods if they submitted overtime requests within CityTime to receive compensation, or if the City otherwise became aware of their work.⁵ (See Def.’s Counter 56.1 ¶¶ 44-47.)

The City submits an expert declaration asserting that over 94% of the overtime requests that Plaintiffs submitted in CityTime during the relevant time period were approved. (See Erath Decl., ECF No. 78-29, ¶ 11(G).)

III. Pay Differentials

Plaintiffs are eligible to earn pay differentials, including "vehicle differentials" and "night shift differentials," through their employment with the City. (Def.’s Counter 56.1 ¶ 73.) Under the FLSA, such differentials are to be factored into the calculation of an employee's base rate for a given workweek (the "regular rate"), which then is multiplied by 1.5 in order to determine the appropriate overtime pay rate for that employee for that workweek. (See Lanier 10/12/20 Decl. ¶ 14.) In support of their motion, Plaintiffs submit an expert declaration to argue that the City did not factor in differential pay when calculating this "regular rate" for weeks in which Plaintiffs both earned differential pay and worked overtime, with the result being that Plaintiffs were underpaid for those weeks. (See Pls.’ 56.1 ¶ 78 (citing Lanier 10/12/20 Decl. ¶ 14); see also Pls.’ Reply at 9 ("[P]laintiffs assert that when they are paid differentials, [those differentials] are improperly excluded from the regular rate calculation." (emphasis omitted)).) Plaintiffs contend that they are owed $477.17 of total back pay for the City's failure to properly calculate their FLSA regular rate of pay. (See Lanier 10/12/20 Decl. ¶ 15.)

In response, the City asserts that "CityTime automatically includes night-shift and vehicle differentials in employees’ regular rates of pay for the purposes of calculating overtime compensation." (Def.’s Counter 56.1 ¶ 76.) Citing to a declaration by its expert, the City argues that "Plaintiffs appear to admit that the vehicle differential was included in Plaintiffs’ regular rate of pay for the purposes of calculating overtime, [since they] do not attribute any damages to the City's alleged failure to account for vehicle differentials in calculating overtime pay." (Erath Decl. ¶ 11(J).) With respect to the night shift differential, the City argues that Plaintiffs’ expert declaration "is devoid of any evidence of how he concludes that night-shift differential was not included within the regular rate of pay." (Def.’s Opp. Mem. at 10.)

IV. FLSA Compliance By The City

The parties dispute whether the City...