D'Arpa v. Runway Towing Corp.
| Decision Date | 18 June 2013 |
| Docket Number | 12-CV-1120 |
| Parties | CHRISTOPHER D'ARPA, JOSUE JOEL PUJOLS-VASQUEZ, DESMOND MITCHELL, EDGAR PADILLA, individually and on behalf of all other persons similarly situated, Plaintiffs, v. RUNWAY TOWING CORP.; RUNWAY TOWING & RECOVERY CORP.; CYNTHIA PRITSINEVELOS; CHRIS PRITSINEVELOS; JOHN DOES # 1-10; XYZ CORPORATIONS # 1-10, jointly and severally, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
NOT FOR PUBLICATION
MEMORANDUM AND ORDERAPPEARANCES:
GARY ROSEN LAW FIRM, P.C.
By: Gary Rosen
Attorneys for Plaintiffs
MARGOLIN & PIERCE, LLP
By: Philip Pierce
Attorneys for Defendants
Christopher D'Arpa, Josue Joel Pujols-Vasquez, Desmond Mitchell, Edgar Padilla, and fifteen opt-in plaintiffs2 (collectively, "Plaintiffs") bring this putative class and collective action pursuant to the Fair Labor Standards Act ("FLSA") and New York Labor Law ("NYLL") against Runway Towing Corp., Cynthia Pritsinevelos, Chris Pritsinevelos, and various unnamed individuals and corporations (collectively, "Defendants") to, inter alia, recover hourly, overtime, and spread of hours wages allegedly due to them.3 Plaintiffs move for partial summary judgment pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 56,4 collective certification pursuant to the FLSA, and class certification pursuant to Fed. R. Civ. P. 23(a) and b(3). Defendants cross-move for partial summary judgment.5 For the reasons stated below, both motions are granted in part and denied in part.
Runway Towing Corp. ("Runway") is a New York corporation formed on May 6, 2004. Pls.' Rule 56.1 ¶ 204; Rosen Decl. Ex. 30 (NYS Dep't of State Entity Information). Runway operates a fleet of eighteen tow trucks.7 Defs.' Rule 56.1 ¶ 3. Runway has a permit, issued by the New York City Police Department, to provide road service on the Belt Parkway(Gowanus Expressway to Rockaway Parkway). Pls.' Rule 56.1 ¶ 198; Rosen Decl. Ex. 27 (Permit). This permit authorizes Runway to patrol the Belt Parkway for disabled vehicles. Pls.' Rule 56.1 ¶ 199; Rosen Decl. Ex. 28 (Arterial Towing Proposal). Runway is registered with the United States Department of Transportation ("DOT") and has been issued DOT Identification Number 14723479. Pls.' Rule 56.1 ¶ 218; Defs.' Resp. Rule 56.1 ¶ 12. Runway generates over $500,000 a year in revenue. Pls.' Rule 56.1 ¶ 215.
Cynthia Pritsinevelos is the President and a shareholder of Runway. Pls.' Rule 56.1 ¶¶ 86, 190. She holds a Bachelor's Degree from Hofstra University in Banking and Finance and a Master's Degree from Drexel University in Banking and Finance.8 Id. ¶¶ 89-90. As President of Runway, she is responsible for office management and payroll for the company. Id. ¶¶ 88, 186. Chris Pritsinevelos is Cynthia Pritsinevelos's husband and is the Operations Manager for Runway. Id. ¶¶ 87, 188. He was also a shareholder of Runway from May 6, 2004 to January 1, 2008, at which point he transferred his shares to his wife. Id. ¶ 189. Both Cynthia and Chris Pritsinevelos hold the power to hire and fire employees. Id. ¶¶ 226-228; Rosen Decl. Ex. 4, at 10:18-19 (Chris Pritsinevelos Dep.).
Defendants employed D'Arpa as a tow truck driver and to patrol the Belt Parkway for disabled vehicles from approximately April 10, 2010 and January 30, 2012. Pls.' Rule 56.1 ¶ 9; Rosen Decl. Ex. 5 ¶¶ 5-7 (D'Arpa Decl.). Defendants dispute that Runway employed D'Arpa,describing him instead as "a commissioned salesman." Defs.' Resp. Rule 56.1 ¶ 2. They do not, however, appear to dispute that D'Arpa performed towing and patrolling services for Runway, whether as an employee or independent contractor.
Defendants employed Pujols-Vasquez as a tow truck driver from approximately May 11, 2010 to September 5, 2011. Pls.' Rule 56.1 ¶ 11; Rosen Decl. Ex. 11 ¶¶ 5-6 (Pujols-Vasquez Decl.). They employed Mitchell as a tow truck driver from approximately April 20, 2010 to December 30, 2011. Pls.' Rule 56.1 ¶ 12; Rosen Decl. Ex. 8 ¶¶ 5-6 (Mitchell Decl.). They employed Padilla as a tow truck driver from approximately June 2, 2011 to December 12, 2011. Pls.' Rule 56.1 ¶ 13; Rosen Decl. Ex. 13 ¶¶ 5-6 (Padilla Decl.). Thirteen of the fifteen opt-in plaintiffs - Alicia, Bennett, Carpintero, Dann, Gonzales, Kimbrough, Mack, Mergen, Perez, Rivera, Rodriguez, Sanabria, Williams - also worked as tow truck drivers for Runway at various points between 2006 and 2011. Pls.' Rule 56.1 ¶¶ 14-26. Defendants employed Fallas as a dispatcher from approximately October 3, 2010 to September 21, 2012. Id. ¶ 17; Rosen Decl. Ex. 7 ¶¶ 5-6 (Fallas Decl.). They employed Shao as a secretary and office assistant from approximately August 27, 2007 to September 13, 2012. Pls.' Rule 56.1 ¶ 28; Rosen Decl. Ex. 17 ¶¶ 5-6 (Shao Decl.).
Runway did not pay overtime based on a forty-hour week. Pls.' Rule 56.1 ¶ 97. Rather, it paid overtime only if an individual worked more than twelve hours in one day. Id. ¶ 98. Cynthia Pritsinevelos believed the towing industry was required to pay overtime to employees only if they worked over twelve hours per day. Id. ¶ 94. Runway's rate of pay forovertime was not one and one-half times the regular rate, but rather was $10 per hour. Id. ¶¶ 100, 105. Runway did not pay spread-of-hours wages.9 Id. ¶ 120.
Each of the Plaintiffs worked over forty hours in a week for Defendants and was not paid one and one-half of his or her hourly rate for each hour worked over forty hours.10 Id. ¶¶ 52-66. Each of the Plaintiffs also worked more than ten hours in one day for Defendants on more than one occasion. Pls.' Rule 56.1 ¶¶ 33-50; Rosen Decl. Ex. 17 ¶ 25 (Shao Decl.). Defendants paid D'Arpa, Pujols-Vasquez, Mitchell, and Padilla between $100 and $120 per day for a twelve-hour day, id. ¶¶ 71-72, 74, 78, and paid Alicia, Bennett, Carpintero, Dann, Gonzales, Kimbrough, Mack, Mergen, Rivera, Rodriguez, Sanabria, and Williams between $90 and $120 per day for a twelve-hour day, id. ¶¶ 67-70, 73, 75-77, 79-82. Defendants variously paid Fallas $40, $90, $100, and $120 per day for a twelve-hour day. Id. ¶ 83. They paid Perez between $10 and $12 per hour, id. ¶ 84, and Shao between $9 and $15 per hour, id. ¶¶ 84-85.
Defendants did not provide wage statements to their employees. Id. ¶ 211. They issued W-2s to the employees they compensated by check, but not to those compensated in cash. Id. ¶ 122. Defendants issued W-2s to some employees and 1099s to others. Rosen Decl. Ex. 3, at 172: 4-22 (Cynthia Pritsinevelos Dep.).11
Plaintiffs filed their complaint on March 7, 2012. See Compl., ECF No. 1. Defendants filed their answer on April 4, 2012. See Answer, ECF No. 7. Plaintiffs filed an amended complaint on April 8, 2012. See 1st Am. Compl., ECF No. 9. Defendants filed their answer to the amended complaint on April 19, 2012. See Am. Answer, ECF No. 11. Plaintiffs filed a second amended complaint on March 7, 2013.12 See 2d Am. Compl., ECF No. 92.
On June 26, 2012 the Court approved a stipulation agreeing to the conditional certification of a collective action. Order, June 26, 2012. On July 13, 2012 the Court approved the proposed notice of collective action. Order, ECF No. 16. Fifteen individuals subsequently consented to opt-in to this action.13 See Consents to Joinder, ECF Nos. 24, 35, 36, 39, 40, 41, 42, 43, 47, 48, 49, 52, 53, 61, 63.
The parties completed discovery on March 22, 2013. Minute Entry, Mar. 7, 2013. Plaintiffs filed their motion for partial summary judgment, collective certification, and class certification on April 14, 2013. See Mot. Summ. J., ECF No. 118. The motion seeks summary judgment on the following claims: (1) FLSA claims for overtime, minimum wage, and retaliation, and (2) NYLL claims for overtime, minimum wage, spread-of-hours, unlawful deductions, and failure to provide notice. Defendants filed a cross-motion for partial summary judgment on May 17, 2013. See Cross-Mot. Summ. J., ECF No. 121. The motion seeks summary judgment on Plaintiffs' overtime and minimum wage claims pursuant to the FLSA. I heard oral argument on June 12, 2013.
A court may grant summary judgment where "the movant shows that 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" if its resolution "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In determining whether there are genuine disputes of material fact, the court must "resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
Congress enacted the FLSA in 1938 to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers," 29 U.S.C. § 202(a), and to "guarantee [ ] compensation for all work or employment engaged in by employees covered by the Act." Tennessee Coal, Iron & Railroad Company v. Muscoda Local No. 123, 321 U.S. 590, 602 (1944). As part of that effort, the Act imposes numerous "wage and hour" requirements, including establishing a minimum wage and requiring overtime pay, both of which are at issue in this case. 29 U.S.C. §§ 206, 207.
As a threshold matter, the parties cross-move for summary judgment on the appropriate statute of limitations under the FLSA. Defendants argue that the two-year statute oflimitations should apply to Plaintiffs' FLSA claims. Plaintiffs assert...
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