Barfield v. New York City Health and Hospitals

Decision Date08 August 2008
Docket NumberDocket No. 06-4137-cv (L).,Docket No. 06-4310-cv (xap).
PartiesAnetha BARFIELD, Plaintiff-Appellant-Cross-Appellee, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Bellevue Hospital Center, Defendants-Appellees-Cross-Appellants.<SMALL><SUP>1</SUP></SMALL>
CourtU.S. Court of Appeals — Second Circuit

Lorie E. Almon (Gerald L. Maatman, Jr., Christopher H. Lowe, on the brief), Seyfarth Shaw LLP, New York, NY, for Defendants-Appellees-Cross-Appellants.

Before: JACOBS, Chief Judge, CALABRESI, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

Plaintiff Anetha Barfield is a certified nursing assistant who, at times relevant to this case, was directly employed and paid by three referral agencies, each of which arranged for her to work on a temporary basis at a single facility, defendant Bellevue Hospital Center ("Bellevue"), which is operated by defendant New York City Health and Hospital Corporation ("HHC"). As a result, Barfield sometimes worked at Bellevue for a total of more than 40 hours per week, although never for more than 40 hours at the behest of a single referral agency. In an action filed in the United States District Court for the Southern District of New York (Jed S. Rakoff, Judge), Barfield, on behalf of herself and a class of similarly situated temporary health care employees, sued Bellevue and HHC for overtime pay pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq. Although the district court entered summary judgment in favor of Barfield on May 30, 2006, see Barfield v. N.Y. City Health & Hosps. Corp., 432 F.Supp.2d 390 (S.D.N.Y.2006), and awarded her unpaid overtime, liquidated damages, and attorney's fees and costs, she appeals the attorney's fee award, faulting the district court for reducing its lodestar fee calculation by 50 percent to account for plaintiff's failure to secure collective action certification, see Barfield v. N.Y. City Health & Hosps. Corp., No. 05 Civ. 6319 (JSR), 2006 WL 2356152, at *1, *3 (S.D.N.Y. Aug. 11, 2006). Defendants, in turn, cross-appeal the district court's determination that, as a matter of law, Bellevue qualified as plaintiff's joint employer with the referral agencies and, as such, was liable for her overtime pay as provided in the FLSA. Defendants further assert that the district court abused its discretion in awarding liquidated damages to plaintiff in light of the FLSA's "good faith" exception. See 29 U.S.C. § 260. We identify no merit in the parties' arguments, and we affirm the challenged judgment in all respects.

I. Factual Background
A. Bellevue and Its Reliance on Referral Agencies

Founded in 1736, Bellevue is the oldest public hospital in the United States. On an annual basis, it presently treats 26,000 inpatients and 500,000 outpatients, and handles 94,000 emergency visits. Although Bellevue is the flagship facility of the HHC, which oversees its budget operations, Bellevue makes staffing decisions independent from its parent, employing thousands of individuals on its payroll and supplementing these payroll employees, as need arises, with temporary personnel supplied by referral agencies.

Bellevue relies on at least eleven different referral agencies on a non-exclusive basis to supply it with individuals qualified to serve temporarily in a variety of health care positions. These referral agencies provide training for their "agency employees"; the agencies also ensure that their employees hold the proper certifications and qualifications required for each assignment. While Bellevue provides its own payroll employees with malpractice insurance, it expects agency employees to carry their own insurance or to obtain such coverage through their referral agencies. The specific terms and arrangements that Bellevue has with each referral agency differ, but the basic payment structure is the same: Bellevue pays all referral agencies a flat hourly rate for the services of temporary employees; the agencies, in turn, pay an hourly wage to the employees, which represents a portion of the fee received from Bellevue.

After making arrangements with a referral agency for temporary certified nursing assistants, Bellevue generally contacts the referred individuals directly to advise as to the shifts that will likely need coverage. Bellevue requires temporary nursing assistants to call the hospital two hours before the start of the identified shifts to determine whether their services are, in fact, required. When agency-referred nursing assistants arrive at Bellevue, they sign in on designated sheets, indicating both their own name and that of their referring agency. A Bellevue supervising nurse signs off on these sheets, verifying the number of hours worked by each agency-referred nursing assistant. Bellevue then provides records of the hours worked by agency employees to their respective referral agencies.

B. Anetha Barfield

Plaintiff Anetha Barfield is a certified nursing assistant who, through agency referrals, worked temporary assignments at Bellevue from August 2002 to May 2005.2 The first agency to refer Barfield to Bellevue, Ultra Care of Manhattan, required her to sign a copy of its written policies and procedures, which advised her, inter alia, that "[a]ll employees are restricted to a maximum of forty (40) hours per [weekly] pay period." Ultra Care of Manhattan Policies & Procedures # 10. In a declaration filed in support of her motion for summary judgment, Barfield stated that UltraCare had told her that she could not work more than 40 hours through them because Bellevue would not pay overtime. Barfield thereafter registered with two other referral agencies, which independently assigned her to work at Bellevue. As a result, there were sixteen weeks between October 20, 2003, and January 31, 2005, when Barfield worked a total of more than 40 hours per week at Bellevue, even though she never worked more than 40 hours in a week for any single referral agency. It is undisputed that Barfield did not receive overtime pay for any hours worked in excess of 40 per week, either from her referral agencies or from Bellevue.

C. The Instant FLSA Action

On behalf of herself and a class of others similarly situated, Barfield sued Bellevue and HHC for violating the overtime provision of the FLSA, 29 U.S.C. § 207(a)(1).

1. Denial of Collective Action Certification

The district court declined to certify Barfield's suit as an FLSA collective action, ruling that the "limited anecdotal hearsay" she proffered to support a widespread problem of temporary hospital employees working more than 40 hours per week without overtime compensation was inadequate to make even the "modest factual showing" necessary to demonstrate that plaintiff and potential class members "together were victims of a common policy or plan that violated the law." Barfield v. N.Y. City Health & Hosps. Corp., No. 05 Civ. 6319 (JSR), 2005 WL 3098730, at *1 (S.D.N.Y. Nov. 18, 2005) (internal quotation marks and citations omitted).3 The case consequently proceeded on Barfield's claim alone.

2. The Award of Summary Judgment in Favor of Plaintiff
a. Defendants' Responsibility for Barfield's Overtime

After discovery concluded, the parties cross-moved for summary judgment on the question of liability. The district court observed that, because Barfield "was paid, and in that sense employed, by the nursing referral agencies," the "critical" liability question was "whether Bellevue was also Barfield's `employer' under the terms of the FLSA." Barfield v. N.Y. City Health & Hosps. Corp., 432 F.Supp.2d at 392; see also 29 C.F.R. § 791.2 (stating that individual may be employed by more than one entity at same time). In addressing this issue, the district court looked to six factors identified in Zheng v. Liberty Apparel Co., 355 F.3d 61, 72 (2d Cir.2003) (identifying factors relevant to determining whether "entity has functional control over workers even in the absence of ... formal control" so as to qualify as employer). See Barfield v. N.Y. City Health & Hosps. Corp., 432 F.Supp.2d at 392-94.4 With regard to the first four factors, the district court concluded that it was undisputed that (1) Barfield performed her work on Bellevue's premises using Bellevue's equipment; (2) no referral agency shifted its business as a unit from one putative joint employer to another, but, instead, each agency assigned the same agency employees to the same hospitals whenever possible — in Barfield's case, to Bellevue — "in order to promote more continuity of care and to increase the productivity of the nurses and the value of their services"; (3) Barfield performed work integral to Bellevue's operation; and (4) Barfield's work responsibilities remained the same regardless of which agency referred her. Id. at 393 (internal quotation marks omitted). With regard to Zheng's supervision factor, the district court concluded that the evidence established as a matter of law that (5) Bellevue "demonstrate[d] effective control on the terms and conditions of the plaintiff's employment" in light of Bellevue's degree of control over Barfield's schedule. Id. (internal quotation marks omitted). Although Bellevue disputed that it scheduled shifts directly with agency health care employees, the district court noted that Bellevue conceded its frequent communication of tentative work shifts to referred employees, requiring them to call the hospital a few hours before the start of these shifts to confirm the assignments. See id. In addition, the district court found that, on several occasions, Bellevue solicited Barfield to work a double shift even before she began the first assignment. See id. The district court further observed that it was undisputed that (6) Barfield worked exclusively for Bellevue. See id. at 394. Thus, the district court concluded that all of the Zheng factors "point, to a greater...

To continue reading

Request your trial
880 cases
  • Senne v. Kan. City Royals Baseball Corp.
    • United States
    • U.S. District Court — Northern District of California
    • 21 Julio 2016
    ... ... The Court found that the activities of three of the Clubs - the New York Yankees, the Pittsburgh Pirates and the Detroit Tigers - were sufficient ... Id ... at 24 (citing Bonnette v ... Cal ... Health & Welfare Agency , 704 F.2d 1465, 1470 (9th Cir. 1983); Martinez v ... See Barfield v ... N ... Y ... C ... Health & Hosps ... Corp ., 537 F.3d 132, 141-42 (2d Cir ... ...
  • Copantitla v. Fiskardo Estiatorio Inc. D/B/A Thalassa Rest.
    • United States
    • U.S. District Court — Southern District of New York
    • 27 Mayo 2011
    ... ... 1608(RJH). United States District Court, S.D. New York. May 27, 2011 ... [788 F.Supp.2d 264] Alan Steven ... (NYLL), New York statutory and common law, and New York City law for alleged violations arising out of their employment ... Higueros v. New York State Catholic Health Plan, Inc., 630 F.Supp.2d 265, 269 (E.D.N.Y.2009). Once a ... statutory definitions sweep broadly. Barfield v. New York City Health and Hosps. Corp., 537 F.3d 132, ... ...
  • Torres v. Gristede's Operating Corp.
    • United States
    • U.S. District Court — Southern District of New York
    • 28 Agosto 2008
    ... ... OPERATING CORP., Namdor, Inc., Gristede's Food, Inc., City Produce Operating Corp., Gristede's Foods NY, Inc., Galo ... United States District Court, S.D. New York ... August 28, 2008 ... Page 448 ... COPYRIGHT ... , Inc., 514 F.3d 280, 288 (2d Cir.2008); see also Barfield v. N.Y. City Health & Hosps. Corp., 537 F.3d 132 (2d ... worked their additional hours off-site at client hospitals without either the agency's prior knowledge or supervision ... ...
  • Salinas v. Commercial Interiors, Inc.
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 25 Enero 2017
    ... ... , NATIONAL EMPLOYMENT LAW PROJECT, INC., New York, New York, for Amici National Employment Law Project, ... of life and from long hours of work injurious to health." S. Rep. No. 75884, at 4 (1937). Congress intended the ... " Benshoff v. City of Va. Beach , 180 F.3d 136, 140 (4th Cir. 1999) (quoting ... " Barfield v. N.Y.C. Health and Hosps. Corp. , 537 F.3d 132, 146 (2d ... ...
  • Request a trial to view additional results
2 firm's commentaries
10 books & journal articles
  • Employment Relationship Defined
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 1 - 2014 Part I. The Employment Relationship
    • 16 Agosto 2014
    ...Id . at *8. Other courts have also applied Zheng in the FLSA context. See, e.g., Barfield v. New York City Health and Hospitals Corp. , 537 F.3d 132 (2d. Cir. 2008). 1:9 MULTIPLE EMPLOYER ISSUES INVOLVING STAFF LEASING AND TEMPORARY SERVICES PROVIDERS a. t EXas s taFF L Easing a ct 1. Staff......
  • Theories of liability
    • United States
    • James Publishing Practical Law Books Litigating Sexual Harassment & Sex Discrimination Cases The substantive law
    • 6 Mayo 2022
    ...determined the rate and method of payment, and (4) maintained employment records.’” Barield v. New York City Health and Hospitals Corp ., 537 F.3d 132, 142 (2008) (citing Bonnette v. Calif. Health & Welfare Agency , 704 F.2d 1465, 1470 (9th Cir.1983) §1.7.3 Hybrid Test The reality is that t......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2014 Part VIII. Selected litigation issues
    • 16 Agosto 2014
    ...984 F. Supp. 491 (S.D. Miss. 1997), rev’d , 212 F.3d 269 (5th Cir. 2000), §9:3.H.2 Barfield v. New York City Health and Hospitals Corp. , 537 F.3d 132 (2d. Cir. 2008), §1:8.C.4 Barker v. Brown , 772 S.W.2d 507 (Tex. App.—Beaumont 1989, no writ), §30:5.C.2 Barnes v. Breeden , 911 F. Supp. 10......
  • Table of cases
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2016 Part VIII. Selected Litigation Issues
    • 27 Julio 2016
    ...984 F. Supp. 491 (S.D. Miss. 1997), rev’d , 212 F.3d 269 (5th Cir. 2000), §9:3.H.2 Barfield v. New York City Health and Hospitals Corp. , 537 F.3d 132 (2d. Cir. 2008), §1:8.C.4 Barker v. Brown , 772 S.W.2d 507 (Tex. App.—Beaumont 1989, no writ), §30:5.C.2 Barnes v. Breeden , 911 F. Supp. 10......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT