Biasi v. Wal-Mart Stores E., LP
| Decision Date | 22 March 2017 |
| Docket Number | 6:15-CV-0454 (GTS/ATB) |
| Parties | JOSEPH BIASI, individually and on behalf of all others similarly situated, Plaintiffs, v. WAL-MART STORES EAST, LP; EARLENE SCHAEFFER; RYAN DUNPHY; and REBECCA PAUKSTELA, Defendants. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
E. STEWART JONES HACKER MURPHY, LLP
Counsel for Plaintiffs
RYAN M. FINN, ESQ.
DAVID I. IVERSEN, ESQ.
PAMELA J. MOORE, ESQ.
SAMI ASAAD, ESQ.
Currently before the Court, in this employment discrimination and uniform maintenance pay class action filed by Joseph Bilas ("Plaintiff") against Wal-Mart Stores East, LP ("Wal-Mart"), Earlene Schaeffer, Ryan Dunphy and Rebecca Paukstela (collectively "Defendants"), are the following three motions: (1) Defendants' motion for partial summary judgment seeking dismissal of Plaintiff's second cause of action (Dkt. No. 36), (2) Defendants' motion to strike certain portions of Plaintiff's declarations that were submitted in opposition to their motion for summary judgment (Dkt. No. 50), and (3) Plaintiff's cross-motion seeking leave of the Court to file and serve a third amended complaint (Dkt. No. 46). For the reasons set forth below, Defendants' motion for partial summary judgment is granted, their motion to strike is denied, and Plaintiff's cross-motion is denied.
The allegations relevant to Plaintiff's second cause of action are as follows. Plaintiff was employed by Wal-Mart as a non-exempt hourly employee for approximately twenty years. (Dkt. No. 28, ¶ 12 [Pl.'s 2d Am. Compl.].) As part of his job, Plaintiff was required to wear a vest that displayed a Wal-Mart logo while working in Wal-Mart stores. (Id., ¶ 48.) Despite Wal-Mart's requirement that employees wear a uniform while performing their duties, Wal-Mart did not pay to launder or maintain Plaintiff's uniforms. (Id., ¶¶ 47, 58-59.) Plaintiff claims that, under 12 NYCRR 146-1.7, Wal-Mart was required to provide him and other similarly situated employees with enough uniforms consistent with the average number of days they worked per week or to compensate them with a "uniform maintenance pay" in order to pay for the maintenance of their uniforms. (Id., ¶ 49.) Plaintiff worked five days per week but was given only two vests. (Id., ¶ 56.) Plaintiff was informed that Wal-Mart's policy was to give two uniforms to full-time employees and one uniform to part-time employees. (Id., ¶ 58.)
Based upon the foregoing, Plaintiff seeks to establish a class consisting of all persons who work, or have worked, as a non-exempt employee for Wal-Mart in the State of New York during the past six years. (Id., ¶ 61.) Furthermore, Plaintiff seeks on behalf of himself and the individual class members, among other things, damages in the amount of their unpaid minimum wage for uniform maintenance pay. (Id., ¶¶ 74-77.)
Although discovery is not complete in this case, Magistrate Judge Baxter gave Defendants leave to file an early dispositive motion after completion of one deposition. (Text Notice dated April 20, 2016; Dkt. No. 35.) Subsequently, Defendants filed a motion for partial summary judgment. Before reciting the material facts of this case, the Court must address an issue it has identified in Plaintiff's response to Defendants' Statements of Material Facts, made pursuant to Local Rule 7.1(a)(3) of the Local Rules of Practice for this Court. Specifically, at various points throughout Plaintiff's Rule 7.1 Response, he "admits" facts asserted by Defendants in their Rule 7.1 Statement but then includes additional facts and/or legal argument in those responses. In these instances, the Court will treat Defendants' assertions as undisputed. (See, e.g., Dkt. No. 49, ¶¶ 34, 39, 44, 48-49, 53 [Pl.'s Rule 7.1 Response].) See CA, Inc. v. New Relic, Inc., 12-CV-5468, 2015 WL 1611993, at *2 n.3 (E.D.N.Y. Apr. 8, 2015) (); Washington v. City of New York, 05-CV-8884, 2009 WL 1585947, at *1 n.2 (S.D.N.Y. June 5, 2009) (); see also Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (); Goldstick v. The Hartford, Inc., 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) ().
Unless otherwise noted, the following facts were asserted and supported with accurate record citations by Defendants in their Statement of Material Facts ("Rule 7.1 Statement") and expressly admitted by Plaintiff in his response thereto ("Rule 7.1 Response"). (Compare Dkt. No. 38 [Defs.' Rule 7.1 Statement] with Dkt. No. 49 [Pl.'s Rule 7.1 Response].)
1. The Amsterdam Wal-Mart store is one of Wal-Mart's "Supercenters," meaning it has a wide variety of departments, including both general merchandise and groceries.
2. The store also includes a deli department that sells a wide variety of packaged items on a retail basis as well as some prepared foods.1
3. The prepared food sold by deli department associates (employees) is sold exclusively on a retail, take-out basis.2
4. The deli department does not offer table service, counter service, or curb service of any kind, and there are no tables or counters at which customers can sit and eat a meal within
the immediate vicinity of the deli department.3
5. The deli department does not have a soda fountain.
6. The deli department does not take payment from customers.
7. Customers must take all prepared food (and any other deli items) to the check-out lanes like all other store merchandise.
8. Wal-Mart associates do not deliver any food to customers, whether on a catering/banquet or boxed lunch basis.
9. Deli department associates do not serve customers at a table or clean up after them.
10. Plaintiff worked in the Amsterdam Wal-Mart as an "Unloader."
11. As an Unloader, "a good majority" of his time was spent in the receiving area.
12. Plaintiff testified at his deposition that most of his time was spent unloading "general merchandise" trucks.
13. Plaintiff described general merchandise as follows:
[a]nything that's, like, stock pallets, mixed in: Water, bicycles, electronic products. Anything that's stocked throughout the store on a shelf would be considered general merchandise that wasn't frozen, dairy, or food. Regular merchandise we stocked on the shelf. That's what came on the GM truck.
14. Another daily task Plaintiff had to perform was sorting merchandise that arrived mixed together into cardboard boxes called "break packs."
15. Break packs were sorted in the "One Touch Area."
16. Plaintiff testified at his deposition that he spent "an hour and a half" to "three hours" every day working on break packs.
17. Additionally, Plaintiff was routinely tasked with processing apparel.
18. Plaintiff testified at his deposition that processing apparel involved the following procedures:
We had to take it out of the plastic. It was-some of it was on hangars. Some of it we had to put on hangers ourself, whatever. We had to put on the hangers on the respective rack for which they wanted. Like, the infants', boys', and girls' went on one. Men's was on one side. Women's was on another, and there was a blue rack for regular apparel, and there was a red rack for what Wal-Mart called star freight where-if it was like, say, a special season, occasion, a holiday, and it was certain clothing set aside to sell from for different things.
19. Plaintiff also was responsible for "binning," which refers to stocking "overstock" merchandise in the warehouse area.
20. Plaintiff also unloaded other trucks such as the "remix" trucks as well as meat and product trucks.
21. According to Plaintiff, there was one truck that came into the store called the "frozen, dairy, deli" ("FDD") truck that contained some items to be stocked in the deli department. This truck included things like "frozen foods" "bakery stuff," "dairy products, like milk, juice, yogurt, cheeses, cottage cheese," and "Deli [products] . . . like, steaks, sausage, hot dogs, [and] meats."
22. According to Plaintiff, the FDD truck was the only truck that brought food products sold by the deli department.
23. Items on the FDD truck were "all mixed together" on pallets.
23. The FDD truck contained between 3-10 pallets.
24. When the FDD truck arrived, one of the Unloaders would unload the pallets using a pallet jack, and then return to their prior duties.
25. The pallets were placed into a central cooler/freezer outside of the deli department.
26. The deli department had its own cooler/freezer that Plaintiff never entered.
27. Plaintiff estimated that it took from a "couple of minutes" to "10 to 15 minutes" to unload the FDD truck.4
28. Although there was a delivery from the FDD truck on a daily basis, Plaintiff was not always assigned to unload it.
29. Once the pallets were unloaded and placed in the central cooler/freezer, deli department associates would retrieve merchandise for the deli department from the cooler/freezer and bring it to stock in the deli...
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