Giallanzo v. City of New York
| Decision Date | 22 September 2022 |
| Docket Number | 20 Civ. 8509 (PAE) (JW) |
| Parties | ROBERT GIALLANZO, Plaintiff, v. CITY OF NEW YORK, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Robert Giallanzo, a former employee of the New York City Department of Transportation ("DOT"), brings overtime claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. against the City of New York ("the City"). Giallanzo claims that, as of his retirement on January 14 2020, he had accrued 837 hours and 50 minutes of unused compensatory time. He claims that these all reflected unpaid overtime work within the scope of the FLSA, and that the City wrongly denied him a cash buyout for such hours upon his retirement. He also seeks liquidated damages and reasonable attorneys' fees and costs.
With discovery complete, the City has moved for partial summary judgment. The City acknowledges that Giallanzo is eligible for a cash buyout for the overtime hours he accrued in FLSA-covered positions. And it concedes that it owes Giallanzo for 59 hours and 30 minutes of overtime work which, it concedes, he accrued in his earlier positions at DOT, before he was promoted to the post of Area Supervisor ("AS"). But the City makes two principal arguments to cap its liability at those hours. First, it argues that during the substantial portion of his DOT employment in which he served as an AS, Giallanzo fell within the FLSA's exemption for employees who work in a "bona fide executive . . . capacity." See 29 U.S.C. § 213(a)(1) (the "executive exemption"). As a result, it argues, Giallanzo could not have accrued any FLSA-covered overtime after September 23, 2005. Second, the City argues, his overtime hours were correctly recorded on his biweekly paystubs as 59 hours and 30 minutes. It argues that a separate category of hours reflected on the paystubs, known as "COMP TIME," captures a different category of hours. That category, it contends, is based on a union agreement under which employees earn compensatory time for work under other circumstances. The City thus seeks summary judgment as to liability in its favor on all but 59 hours and 30 minutes of overtime.
Giallanzo disputes both arguments. He argues that the executive exemption did not apply to him in his role as an AS. And, he argues, he worked substantial overtime hours for which he has not received a buyout payment at retirement. The City's records, he contends, inaccurately tabulate these hours. Giallanzo cross-moves for summary judgment as to all 837 hours and 50 minutes of compensatory time listed on his pay-stubs. He seeks $47,000 in damages, liquidated damages in the same amount, and attorneys' fees and costs.
Before the Court is the detailed Report and Recommendation (the "Report") of the Honorable Kevin Nathaniel Fox, former United States Magistrate Judge.[1]Dkt. 51. Central among its recommendations, the Report concludes that the City has not adduced sufficient evidence to establish that Giallanzo's work as an Area Supervisor fit within the executive exemption. The Report thus recommends that (1) the City's partial motion for summary judgment be denied in full; (2) Giallanzo's motion for summary judgment be granted with respect to the fact of the City's liability; and (3) because the pay records adduced leave Giallanzo's pay rate, and thus the amount of his damages, unclear, a trial be held limited to the tabulation of damages. Id. The City objects to several of the Report's recommendations. Dkt. 56 ("Def. Obj."). Giallanzo does not object to any recommendation, but he has responded to the City's objections. Diet. 57 ( ).
Based on its review of the Report, the City's objections, and Giallanzo's reply, the Court adopts some, but not all of, the Report's recommendations. Most important, the Court departs from the Report in that the Court finds that the City has adduced sufficient evidence on which a jury could find the executive exemption applies. However, the Court holds, there is a dispute of material fact as to one of the four required elements of the exemption. Thus, whether the exemption applies must be resolved at trial and cannot be resolved on summary judgment. The Court, in accord with the Report, does enter summary judgment for Giallanzo as to liability with respect to 59 hours and 30 minutes of work, as to which the FLSA's overtime pay requirements undisputedly apply.
1. Giallanzo's Hiring and Early Employment
On September 6, 1988, DOT hired Giallanzo as a highway repairer ("HR"). Pl 56.1 ¶ 1. As an HR, Giallanzo laid asphalt and concrete, filled road depressions and excavations with tar, broke surfaces, built foundations, and performed general labor. Id. ¶ 2. It is undisputed that the HR position is covered by FLSA. Def. 56.1 ¶ 1. Pay and benefits in this role are determined by a periodically renewed consent decree between the HRs' union and the City. See Pl`. 56.1 ¶ 3; Def. 56.1 ¶ 2. Under it, HRs who perform overtime can elect to receive either pay for those hours or time off, known as "compensatory time." Pl. 56.1 ¶ 4.
On April 4, 1993, DOT promoted Giallanzo to Supervisor Highway Repairer ("SHR"). PL 56.1 ¶ 6. As an SHR, Giallanzo inspected the laying and grading of paving materials, and oversaw the maintenance and repair of roads, sidewalks, fences, guide rails, and related structures. Id. ¶ 7. Like the HR role, the SHR role is covered by FLSA, paid at a rate determined by a consent decree, and eligible for compensatory time in either pay or time off. Id. ¶ 8; Def. 56.1 ¶¶ 3, 4; see Barker Decl. 1, Ex. E & Ex. F. Giallanzo served as an SHR until September 23, 2005, when he was promoted to Area Supervisor of Highway Maintenance, Level I ("AS-I"). Def. 56.1 ¶ 5; Giallanzo Dep. at 8:3-6, Ex. E 8c Ex. F; see also Pl`. Resp. Obj. at 2 n.2.[3] Like HRs and SHRs, ASs are subject to two union-bargained agreements, the Blue-Collar Collective Bargaining Agreement ("CBA") and the Citywide Agreement ("CA"). PL 56.1 f 11. The CBA determines the salary, see Def. 56.1 ¶¶ 9, 10; Barker Decl. 1, Ex. J at 4, 5, 8, and the CA establishes overtime rates and methods of compensation, see Def. 56.1 ¶¶ 7, 8, Barker Decl. l,Ex. Katl-13.[4] 2. Giallanzo's Responsibilities as an AS-I and AS-II
In 2007, Giallanzo and other AS-Is filed a grievance with the City alleging that they were doing the supervisory work of Area Supervisors of Highway Maintenance, Level II ('AS-II"). Def. 56.1 ¶ 14. The group prevailed in arbitration. This resulted in their retroactive promotion to AS-IIs as of March 5, 2007, with backpay. Id; see Barker Decl. 1, Ex. M. & Ex. N.
ASs work "under general supervision, with some latitude for independent judgement and initiative, oversee[] the maintenance and repair activities for a designated area, deal[] with roadways, highways, bridges, tunnels and related structures; or assume[] responsibility for an important segment of a borough or citywide program of such maintenance and repair." Barker Decl. 1, Ex. M. at 2. Typical tasks of ASs include scheduling work projects, assigning proper vehicles and equipment, assigning crews to work locations, accompanying crew supervisors to give instruction regarding repairs, recommending patching, resurfacing, and other maintenance, enforcing agency regulations, and inspecting completed work and work in progress. Def. 56.1 Decl. ¶ 15; Barker Decl, 1, Ex. M. at 4. Although the tasks of AS-Is and AS-IIs are generally the same, the roles differ as to the degree of supervision by senior DOT officials. AS-Is operate under "general supervision, with some latitude for independent judgment and initiative" while AS-IIs work under "under general direction, with some latitude for independent action and decision." Barker Decl 1, Ex. M. at 7.
As an AS, Giallanzo assigned crews, performed quality control and safety checks, and inspected and supervised dozens of crews. Def. 56.1 ¶ 12; Giallanzo Dep. at 11:22-12:5; see Giallanzo Decl. 1 ¶ 12. Additionally, per the arbitration grievance, Giallanzo ran borough-wide programs, reported to the Deputy Director of Arterials (with minimal in-person contact), decided which crews attended to which projects, decided upon action in emergency situations, interacted with other governmental agencies, and prioritized various work projects. See Def. 56.1 Decl. ¶ 17; Barker Decl. 1, Ex. M. at 5-6. Giallanzo also supervised the maintenance of arterial highways, including assigning crews, investigating complaints, and answering complaints. Def. 56.1 Decl. ¶ 19; Giallanzo Dep. 20:10-21.
Giallanzo also had human-resources responsibilities. He approved timesheets, monitored the work of his subordinates, approved vacation requests, determined whether a subordinate's absence was excused or unexcused, completed informal and formal performance evaluations, and made recommendations on terminations, promotions, and transfers. See Def 56.1 Decl. ¶¶ 20-30; Giallanzo Dep. at 20:10-21; Barker Decl. 1, Ex. O ¶¶ 7-13; Giallanzo Decl. 1 ¶ 13. With respect to discipline, Giallanzo issued written discipline to HRs and SHRs under his supervision on a broad range of conduct, including improprieties relating to work product, timekeeping practices, behavior, and use of DOT property. Def. 56.1 ¶ 25. The City describes his role in initiating the disciplinary process as critical to its ability to sustain more serious charges against DOT highway repair workers-up to, and including, termination-in formal disciplinary proceedings. Id. ¶ 26; see Barker Decl. 1, Ex. O ¶ 11. Giallanzo, for his part, represents that he was not "authorized to dismiss, demote, or otherwise discipline employees," Giallanzo Decl. 1 ¶ 13, or to set his workers' wages or...
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