Barfield v. New York City Health and Hopitals Corporation
| Decision Date | 30 May 2006 |
| Docket Number | No. 05 CIV. 6319(JSR).,05 CIV. 6319(JSR). |
| Citation | 432 F.Supp.2d 390 |
| Parties | Anetha BARFIELD, Plaintiff, v. NEW YORK CITY HEALTH AND HOPITALS CORPORATION and Bellevue Hospital Center, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Abdool Khalil Hassad, Law Office of Abdool Hassad, Jamaica, NY, for Plaintiff.
Christopher Howard Lowe, Seyfarth Shaw LLP, Michele Ann Molfetta, NYC Law Department, Office of the Corporation Counsel, New York City, Lorie Elizabeth Almon, Seyfarth Shaw LLP, Boston, MA, for Defendants.
Plaintiff Anetha Barfield, a nurse who was paid by nursing referral agencies for work she performed for and at Bellevue Hospital ("Bellevue"), alleges that Bellevue and its principal, the New York City Health and Hospitals Corporation, violated the overtime provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1). By Memorandum Order dated November 17, 2005, the Court denied plaintiff's motion to certify a collective action under the FLSA, following which the case proceeded to the completion of discovery. Presently pending before the Court are the parties' respective motions for summary judgment.
The basic facts are undisputed. From about August 2002 to May 2005, plaintiff worked at Bellevue through three different referral agencies. Plaintiff's Statement of Material Undisputed Facts ("Pl.Statement") ¶¶ 11-12; Defendants' Counterstatement of Material Facts ("Def.Counterstatement") ¶¶ 11-12. Between October 30, 2003 and January 31, 2005, there were at least 16 weeks during which plaintiff, by working through multiple agencies, worked more than 40 hours at Bellevue in a given week. Pl. Statement ¶¶15-16; Def. Counterstatement ¶¶ 15-16. Plaintiff did not receive overtime pay for any of those hours worked in excess of 40 hours. Pl. Statement ¶ 18; Def. Counterstatement ¶ 18.
Under the FLSA, "no employer shall employ any of his employees ... for a workweek longer than forty hours unless such employee receives [overtime] compensation." 29 U.S.C. § 207(a)(1). Because the plaintiff was paid, and in that sense employed, by the nursing referral agencies, the critical question is whether Bellevue was also her "employer" under the terms of the FLSA. See 29 C.F.R. § 791.2 ().
Under the FLSA, an entity employs an individual if it "suffer[s] or permit[s]" that individual to work. 29 U.S.C. § 203(g). Given this expansive definition of employment, see Rutherford Food Corp. v. McComb, 331 U.S. 722, 728, 67 S.Ct. 1473, 91 L.Ed. 1772 (1947), any entity that as a matter of economic reality functions as an individual's employer may be treated as an "employer" under the Act even if another entity also so functions at the same time. See Zheng v. Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir.2003). Although the Court in Zheng suggested that certain "outsourcing" arrangements fall outside the ambit of the FLSA, id. at 76, it held more generally that, in such circumstances, a court, in determining whether a particular entity has functional control over a worker, must consider the "circumstances of the whole activity viewed in light of economic reality," id. at 71 (internal quotation marks omitted). In so doing, the court should take account of such factors as "(1) whether [defendants'] premises and equipment were used for the plaintiffs' work; (2) whether the [referral agencies] had a business that could or did shift as a unit from one putative joint employer to another; (3) the extent to which plaintiffs performed a discrete line-job that was in tegral to [defendants'] process of production; (4) whether responsibility under the contracts could pass from one subcontractor to another without material changes; (5) the degree to which the [defendants] or their agents supervised plaintiffs' work; and (6) whether plaintiffs worked exclusively or predominantly for the [defendants]." Id. at 72.
The Court therefore turns to applying this test to the particular circumstances that plaintiff's individual case presents:
As to the first factor, i.e., "whether [defendants'] premises and equipment were used for plaintiff's work," it is undisputed that plaintiff performed her work on Bellevue's premises and in so doing used equipment provided by Bellevue. Pl. Statement ¶¶ 20-21; Def. Counterstatement ¶¶ 20-21.
As to the second factor, although the referral agencies contracted with numerous clients and remained free to send their employees to assignments at any of those other facilities, the referral agencies generally did not "shift as a unit from one putative joint employer to another." Zheng, 355 F.3d at 72. In particular, in plaintiff's case, during the period here in issue plaintiff was assigned only to Bellevue. Pl. Statement ¶¶ 22-23; Def. Counterstatement ¶¶ 22-23. While theoretically she could have been assigned elsewhere, the referral agencies were expected "whenever possible, to assign the same nurses for an extended period of time to the same hospitals in order to promote more continuity of care and to increase the productivity of the nurses and the value of their services." Ex. 25 (New York City Health and Hospitals Corporation Operating Procedure No. 130-1, dated January 18, 1980), attached to Declaration of Abdool Hassad sworn to April 12, 2006.
As to the third factor, i.e., "the extent to which plaintiffs performed a discrete linejob that was integral to [defendants] process of production," it is undisputed that plaintiff performed work that was integral to Bellevue's operation. Pl. Statement ¶ 30; Def. Counterstatement ¶ 30.1
As to the fourth factor, i.e., "whether responsibility under the contracts could pass from one subcontractor to another without material changes," it is undisputed that plaintiff signed up to work at Bellevue through multiple referral agencies and that her work responsibilities remained the same regardless of which agency referred her. Pl. Statement ¶ 43; Def. Counterstatement ¶ 43.
As to the fifth factor, i.e., the "degree to which the [defendants] or their agents supervised plaintiffs' work," the relevant consideration in this context is whether Bellevue "demonstrate[d] effective control of the terms and conditions of the plaintiff's employment," particularly the extent to which Bellevue set employees' schedules. See Zheng, 355 F.3d at 75. Although defendants dispute that Bellevue "schedules" the agency nurses, defendants acknowledge that Bellevue provides agency nurses with tentative dates and times on which they may need to work and requires them to call in to determine if they should report to work. Def. Counterstatement ¶ 49. Bellevue sends this schedule to the referral agencies so that they can pass the information on to the nurses; the nurses may also call the Bellevue staffing office directly to obtain this information. Id. Further, on several occasions, Bellevue asked plaintiff to work double-shifts and, before plaintiff worked the additional shift, it was approved by Bellevue. Pl. Statement ¶ 54; Def. Counterstatement ¶ 54.
As to the sixth factor, i.e., "whether plaintiff worked exclusively or predominantly for the defendant," the plaintiff here, as already noted, worked exclusively for Bellevue.2
As the above analysis demonstrates, all the Zheng factors here point, to a greater or lesser degree, toward plaintiffs being employed by Bellevue. In addition, under Zheng, the Court may "consider any other factors it deems relevant to its assessment of the economic realities." Id. at 71-72. Here, it is undisputed that Bellevue exercises at least some control over which agency nurses are permitted to work for the hospital, see Deposition of Maximina Silas dated March 8, 2006 at 76-78 (cited in Def. Counterstatement ¶67), regularly evaluates the performance of agency nurses, Pl. Statement ¶ 28; Def. Counterstatement ¶28, and could prohibit an agency nurse from continuing to work at Bellevue if it believed she had committed a major violation of some rule or if it was otherwise dissatisfied with the nurse's performance, Def. Counterstatement ¶¶ 29, 70.
From all the foregoing, it is obvious that no evidentiary dispute remains that is material to the determination here in issue but that, rather, consideration of the undisputed "circumstances of the...
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