Boutsikakis v. TRI-Borough Home Care, Ltd.
| Docket Number | 15 CV 5833 (DG)(RML) |
| Decision Date | 11 April 2023 |
| Parties | CARINA BOUTSIKAKIS, in her individual capacity and on behalf of others similarly situated, Plaintiff, v. TRI-BOROUGH HOME CARE, LTD., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
By order dated October 28, 2022, the Honorable Diane Gujarati United States District Judge, referred the parties' cross-motions for summary judgment to me for report and recommendation. For the reasons explained below, I respectfully recommend that both parties' motions be granted in part and denied in part.
Plaintiff Carina Boutsikakis (“plaintiff”) brought this action on October 9, 2015 pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and the New York Labor Law (“NYLL”) to recover unpaid wages and other damages. Plaintiff filed two amended complaints thereafter to add collective action and retaliation allegations. .) The following facts, which are undisputed unless otherwise stated, are taken from the parties' Rule 56.1 statements, the exhibits filed by the parties with their summary judgment briefing, and relevant portions of the record.
Plaintiff and six subsequent “opt in” plaintiffs (together, “plaintiffs”) worked for defendant Tri-Borough Home Care, Ltd. (“defendant”) as registered pediatric private duty nurses and provided care to patients in their homes. 2022 ( ), Dkt. No. 96-2.) Plaintiffs allege that defendant paid them hourly rates of $24.00 for standard cases and $30.00 for higher priority cases. (Second Am. Compl. ¶¶ 20, 21.)[1]
Plaintiffs were scheduled for certain designated shifts and were required to log their work hours into defendant's Electronic Visit Verification (“EVV”) system by calling in and creating time-in and time-out data that was collected in defendant's software called “HHA Exchange.” (Pls.' Rule 56.1 Statement ¶ 2.) The scheduled time for each shift was also maintained in this database. (Id.) Defendant was required by federal law to maintain the EVV system by which nurses were expected to call in at the start and end of their shifts from their patients' homes. (Id. ¶ 3.) The EVV timekeeping data was then transferred to and kept in defendant's HHA Exchange software. (Id. ¶ 4.) Defendant's Employee Handbook states:
As field staff, you must call in and out from each assigned patient's home telephone on a daily basis. These telephone calls will generate your paycheck.... All field staff is required to submit corresponding paperwork weekly. All paperwork must be received in the office by Tuesday 12:00 noon for assignments performed in the previous calendar workweek.... Properly completed paperwork (for the prior week's assignments), submitted by the Tuesday noon deadline will be processed for payroll in the same week as received.
(Employee Handbook, attached as Ex. T to Def.'s Rule 56.1 Statement, Dkt. No. 97-7, at 9.)
In addition to the EVV system, defendant maintained a schedule indicating when nurses were supposed to be at certain locations, with oversight by a nurse supervisor, a coordinator, the nurse on the preceding shift, and/or the pediatric patient's family. (Pls.' Rule 56.1 Statement ¶ 6.) Furthermore, nurses were expected to keep detailed handwritten patient care notes on “nurses' notes.” (Id. ¶ 7.) The nurses' notes are triplicate forms - one copy was to be submitted to defendant, one was to stay at the patient's home in a binder, and one was for the nurse to keep for his or her records. (Id.) These forms contained details about treatments administered, the child's condition, and other relevant medical information. (Id.) Nurses would also note their shift times on these forms. (Id.)
Although the Employee Handbook indicates that all field staff must submit paperwork by Tuesday at noon for assignments performed in the previous calendar workweek, plaintiffs and defendant agree that defendant had “a rule that the nurses were to submit their notes by 10:00A.M. on the Tuesday of the week following care, ending in Friday.” (Id. ¶ 8; Def.'s Rule 56.1 Statement ¶ 8.) Defendant required nurses to submit the original, handwritten copy of their nurses' notes; electronic submission was not acceptable. (Pls.' Rule 56.1 Statement ¶ 9.) If defendant did not have the nurses' notes from a patient visit, it could not seek payment or reimbursement for that visit. (Id. ¶ 10.) Defendant therefore would not pay the nurses for the time they had worked until it received their nurses' notes, and if a nurse did not turn in the notes for a few weeks or a month, the nurse would not be paid for the time he or she had worked until those notes were received. (Id. ¶¶ 11, 12.)
Some nurses worked more than forty hours at least some workweeks. (Id. ¶ 14.) In approximately April 2015, defendant's administrator of the Family Pediatric division, Chantale Michel, decided to discontinue payment of time-and-a-half wages for overtime hours worked after allegedly calling the New York State Department of Labor (“DOL”) to confirm that it was “the right thing to do.” (Id. ¶ 19.) Plaintiffs assert that from April 2015 to August 2018, defendant paid a “straight time” rather than an overtime rate for hours worked over forty per workweek. (Id. ¶ 15.) Defendant does not dispute that it did not pay overtime wages for this period but asserts that the final day for which no overtime was paid was July 17, 2018. (Def.'s Rule 56.1 Statement ¶ 15.)
Plaintiffs move for summary judgment on defendant's liability for the underpayment of overtime wages, late payment of wages, and retaliation. 2022 ( ), Dkt. No. 96-1, at 1-2.) Defendant cross-moves for summary judgment to dismiss plaintiffs' first, second, third, and fourth causes of action. .)
Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A fact is material where it “might affect the outcome of the suit under the governing law” and a dispute is genuine where “the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party carries the initial burden of showing that there is no genuine dispute of material fact. Jaffer v. Hirji, 887 F.3d 111, 114 (2d Cir. 2018). However, where the burden of proof at trial would fall on the non-moving party, the moving party may shift its initial burden by “point[ing] to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim.” Simsbury-Avon Pres. Club, Inc. v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Once the moving party has satisfied its initial burden, the non-moving party must put forth specific facts showing that there is a genuine issue of material fact to be tried. Gottlieb v. Cty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996). While the court is “required to resolve all ambiguities and draw all permissible factual inferences in favor of [the non-moving party], conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.” Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018) (citations and internal quotation marks omitted). If the moving party meets its burden in establishing the absence of any genuine issue of material fact, “the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact.” Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006). The non-moving party must provide “affirmative evidence” from which a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). “Conclusory allegations, conjecture, and speculation . . . are insufficient to create a genuine issue of fact.” Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998)). Moreover, “[t]he ‘mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment.” Id. (quoting Anderson, 477 U.S. at 252).
Plaintiffs contend that there are no disputes of material fact that would preclude resolution of the following issues: (1) defendant failed to pay plaintiffs at a time-and-a-half rate for overtime hours worked during a certain period; (2) defendant should have paid plaintiffs for overtime work at a “blended rate”; (3) defendant made illegal deductions to wages or late payments; (4) liquidated damages are appropriate; (5) defendant's conduct was willful; (6) defendant's counterclaim should be dismissed and was retaliatory; and (7) damages should be bifurcated. (Pls.' Mem. at 1.) I will discuss each claim in turn.
Plaintiffs move for summary judgment on defendant's liability for its underpayment of overtime wages. The Honorable Kiyo A Matsumoto, ...
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