Hyunhuy Nam v. Permanent Mission of the Republic of Korea to United Nations

• Decision Date: 21 February 2023
• Docket Number: 21-cv-06165 (JLR)
• Parties: HYUNHUY NAM, Plaintiff, v. PERMANENT MISSION OF THE REPUBLIC OF KOREA TO THE UNITED NATIONS, Defendant.
• Court: U.S. District Court — Southern District of New York

HYUNHUY NAM, Plaintiff,
v.
PERMANENT MISSION OF THE REPUBLIC OF KOREA TO THE UNITED NATIONS, Defendant.

No. 21-cv-06165 (JLR)

United States District Court, S.D. New York

February 21, 2023

OPINION & ORDER

JENNIFER L. ROCHON, UNITED STATES DISTRICT JUDGE

Plaintiff Hyunhuy Nam (“Plaintiff or “Nam”) brings this suit against his former employer, the Permanent Mission of the Republic of Korea to the United Nations (“Permanent Mission,” the “Mission,” or “Defendant”), alleging various employment law claims. ECF Nos. 1, 11 (“Compl.”). The Permanent Mission moves for summary judgment claiming it is immune from jurisdiction pursuant to the Foreign Sovereign Immunities Act (“FSIA”) as an instrumentality of the Republic of Korea and because Plaintiff released Defendant from any employment claims. See generally ECF No. 78-1 (“Def. SJ Mot.”).^[1] Plaintiff opposes the motion and cross moves for partial summary judgment on some of his claims; namely, he seeks judgment against Defendant as a matter of law for failure to pay appropriate overtime wages under the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”); for failure to pay spread of hours premiums under NYLL; and for failure to provide accurate wage notices and wage statements under NYLL. See generally ECF No. 79-1 (“Pl. SJ Mot.”).^[2] He also

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seeks liquidated damages, prejudgment interest, and attorneys' fees and costs. Id. For the reasons stated below, the Court DENIES Defendant's motion for summary judgment and GRANTS in part and DENIES in part Plaintiff's motion for partial summary judgment.

I. BACKGROUND

A. FACTUAL BACKGROUND

For purposes of the parties' motions for summary judgment, the facts will be taken from the Rule 56.1 statements and the underlying evidentiary record presented. Local Civil Rule 56.1 requires that a party submitting a motion for summary judgment include a statement of numbered paragraphs “of the material facts as to which the moving party contends there is no genuine issue to be tried.” Local Civil Rule 56.1(a). The opposing party shall include with their opposition papers a statement responding to each paragraph and including additional material facts. Id. at 56.1(b). Each numbered paragraph of material facts will “be deemed to be admitted for purposes of the motion” unless the opposing party “controvert[s] the statement.” Id. at 56.1(c). Both parties must cite to admissible evidence to support their statements of material fact or their statements controverting any statement of material fact. Id. at 56.1(d). “The local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.” Holtz v. Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001); see also id. at 73 (“[W]here there are no[] citations or where the cited materials do not support the factual assertions in the Statements, the Court is free to disregard the assertion.” (internal quotation marks and citation omitted)).

Plaintiff's Rule 56.1 Statement of Material Facts does not comply with Local Rule 56.1's requirement that each statement be “followed by [a] citation to evidence which would be

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admissible.” Rule 56.1(d). The Court will not disregard Plaintiff's Rule 56.1 statement in total, but will only consider facts that are not followed by a citation to evidence for the purposes of the motion if there is evidentiary support for the fact in the record elsewhere. See Holtz, 258 F.3d at 73 (citation omitted) (“A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules.”).

Plaintiff has also submitted two sworn declarations in opposition to Defendant's motion for summary judgment and in support of Plaintiff's partial motion for summary judgment. See ECF Nos. 79-3, 87-2. Defendant argues that Plaintiff's declarations, which are in English, should be disregarded because Plaintiff, a “ROK [Republic of Korea] national” and non-native English speaker who used an interpreter at his deposition, did not provide sufficient documentation to establish that he understood what he was signing. ECF No. 91 (“Def. Reply”) at 5-6. In the case of non-native English speakers, it is a declarant's obligation to “submit documents sufficient to establish that [the declarant] understood what he was signing.” Mendez v. MCSS Rest. Corp., 564 F.Supp.3d 195, 210 (E.D.N.Y. 2021) (quoting Heredia v. Americare, Inc., No. 17-cv-06219 (RWL), 2020 WL 3961618, at *4 (S.D.N.Y. July 13, 2020)).

The Court will consider the declarations. Plaintiff's declaration dated July 28, 2022 expressly states “under the penalty of perjury” that Plaintiff “read[s] and understand[s] English” and that the “above [declaration] is true and correct to the best of [his] knowledge.” ECF No. 79-3 (“Nam's July 28, 2022 Decl.”), at 4. The record also contains further evidence that Plaintiff understands English, even if there are some limitations. See ECF No. 78-5 (“Pl. Depo. Tr.”) at 6:1-3; 17:18-24 (“Q: Do you speak some English?; A: Just enough to get by as a truck driver.; Q: Would you say that your English is a conversational level?; A: Well, I wouldn't say perfect, however, I am able to take job instructions.”). Further confirming Plaintiff's English language abilities, Plaintiff notes that the Permanent Mission's posting for

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Plaintiff's role “required English-Korean bilingual skill.” Nam's July 28, 2022 Decl. ¶ 5. The fact that the plaintiff was more comfortable with an interpreter during a fast-paced and stressful deposition does not mean that he was unable to write, read, and understand a declaration that he could spend time reviewing.

This is unlike the cases relied upon by Defendant, where there was no indication that the declarants could read and understand English. See Mendez, 564 F.Supp.3d at 210 (rejecting declarations of declarants who were not “fluent in English” because they did not submit documents sufficient to show that the declarants knew what they were signing); Heredia, 2020 WL 3961618, at *3 (noting that contested declarations stated that the declarants' first language is Spanish and that they “do not speak English”); Sicom S.P.A. v. TRS Inc., 168 F.Supp.3d 698, 709-10 (S.D.N.Y. 2016) (evaluating whether declarant submitted documents “sufficient to establish that he understood what he was signing” assuming that declarant does not “speak or read English”).

Given Plaintiff's attestation under penalty of perjury that he reads and understands English and his verification of the truth of the declarations, the Court will consider his July 28, 2022 and August 29, 2022 Declarations. ECF No. 79-3; ECF 87-2 (“Nam's August 29, 2022 Decl.”).

1. The Parties

Plaintiff Hyunhuy Nam is a 61-year-old citizen of the Republic of Korea (“ROK” or “South Korea”), who presently lives in New Jersey as a permanent resident of the United States. ECF No. 80 (“Def. Rule 56.1 Statement”) ¶ 2; ECF No. 79-5 (“Pl. Rule 56.1 Statement”) ¶ 1. Defendant, the Permanent Mission, is an instrumentality of a sovereign state, operating as a foreign consulate located in Manhattan. Def. Rule 56.1 Statement ¶ 1; Pl. Rule 56.1 Statement ¶ 2.

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2. Hiring

Plaintiff responded to Defendant's online job advertisement seeking a chauffeur on the website “Hey Korean” and was hired in December 2016. Pl. Rule 56.1 Statement ¶ 3; Def. Rule 56.1 Statement ¶ 3; Nam's July 28, 2022 Decl. ¶ 5. As part of Plaintiff's hiring process, the Minister of the Permanent Mission interviewed Plaintiff “to ensure that Plaintiff [was] a safe and reliable driver.” Def. Rule 56.1 Statement ¶¶ 4-6. Defendant required Plaintiff to submit to “additional procedures for necessary security clearance” including a “detailed background check” in both the United States and South Korea. Id. ¶¶ 4, 7-8. The Minister personally made the decision to hire Plaintiff. Id. ¶ 9.

Defendant required Plaintiff to sign a “pledge agreement” each year certifying that Plaintiff would not “divulge” “knowledge of all matters that [he] will acquire” as that information would be designated “nationally classified information.” Id. ¶¶ 10-11. Under the agreement, Plaintiff also agreed to submit to a polygraph test if necessary. Id. ¶ 16. Plaintiff, who can read and understand Korean, was provided this Korean-language pledge agreement annually for five years and signed “knowingly, voluntarily, and without coercion.” Id. ¶¶ 1213, 15. Plaintiff does not dispute this but alleges that he signed the agreement without reading it. ECF No. 87-3 (“Pl. Rule 56.1 Counter Statement”) ¶ 15. Plaintiff retained these agreements and “knew” that the agreements were “critically important to his performing his job.” Id. ¶¶ 14, 17 (internal quotations omitted).

3. Employment Agreements

Plaintiff also signed yearly employment contracts that were provided in Korean. Def. Rule 56.1 Statement ¶¶ 19-21. Plaintiff does not dispute that he signed the contracts but again alleges that he signed them without reading them. Pl. Rule 56.1 Counter Statement ¶ 21.

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Defendant states, and Plaintiff does not dispute, that “[t]he form of the parties' employment contract is a form provided by the Korean government.” Id. ¶ 50.

The employment agreements contain a provision in which Plaintiff agrees not to disclose “any classified information and facts acquired during his employment.” Id. ¶ 20. Plaintiff retained these contracts which contained his signature. Id. ¶ 22. The employment agreements contained four benchmarks to measure Plaintiff's performance: (1) diligence; (2) responsibility; (3) “ability to perform his job”; and (4) “ability to keep matters secret - top secret.” Id. ¶ 25.

As a condition of employment, Plaintiff agreed not to disclose the Ministers' movements, individuals with whom the Ministers had...