Kaye v. Orange Reg'l Med. Ctr.

• Decision Date: 30 September 2013
• Docket Number: Case No. 12–CV–4364 (KMK).
• Parties: Gerald KAYE, Plaintiff, v. ORANGE REGIONAL MEDICAL CENTER, Defendant.
• Court: U.S. District Court — Southern District of New York

975 F.Supp.2d 412

Gerald KAYE, Plaintiff,

v.ORANGE REGIONAL MEDICAL CENTER, Defendant.

Case No. 12–CV–4364 (KMK).

United States District Court, S.D. New York.

Sept. 30, 2013.

Limitation Recognized

N.Y.McKinney's Labor Law §§ 191(1)(d), 193, 198Louis Ginsberg, Esq., Law Firm of Louis Ginsberg, P.C., Roslyn, NY, for Plaintiff.

George Felix Brenlla, Esq., Clifton Budd & DeMaria, LLP, New York, NY, for Defendant.

Sheryl A. Orwel, Esq., Office of University Counsel, Weill Cornell Medical College, New York, NY, for Defendant.

OPINION AND ORDER

KENNETH M. KARAS, District Judge.

Gerald Kaye (“Plaintiff”), individually and on behalf of a purported class action, brings this suit against his employer, Orange Regional Medical Center (“Defendant”), alleging that Defendant failed to pay him and other, current and former nonexempt respiratory therapists for work they performed during rest periods and meal breaks. Plaintiff contends that Defendant consequently failed to compensate employees for all the hours that they spent working, including overtime hours. Plaintiff's claims arise under various provisions of the N.Y. Labor Law and corresponding N.Y. Department of Labor regulations. Defendant seeks dismissal of Plaintiff's claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) as preempted under Section 301 of the Labor Management Relations Act (“LMRA”) (“ § 301”). For the reasons stated herein, Defendant's Motion is denied.

I. Background

A. Facts

Except where otherwise noted, the following facts are drawn from Plaintiff's Complaint and are taken as true for the purposes of resolving the instant Motion.¹

Plaintiff is currently employed by Defendant as a respiratory therapist, an hourly wage worker, and has been so employed since in or around August 2002. (Compl. ¶ 2.) Defendant is a nonprofit corporation which, upon Plaintiff's belief, has, at all relevant times, employed at least forty hourly wage respiratory therapists. ( Id. ¶ 3.) Plaintiff alleges that “[a]t the repeated requests of [Defendant], Plaintiff[ ] and ... his fellow respiratory therapists worked through meal and rest periods without compensation. Plaintiff has worked an average of 1.5 hours per week during meal and/or rest periods without compensation throughout his employment.” ( Id. ¶ 6.) Defendant “automatically ... deducted at least one-half hour of time per day from each respiratory therapist[']s pay check, regardless of whether the employee worked through the meal or rest period.” ( Id.) Plaintiff also alleges that Defendant “failed to pay Plaintiff and the other respiratory therapists a minimum wage for all hours worked, as well as, time and one half their regular rate of pay for hours worked over forty [hours] in a work week.” ( Id. ¶ 7.) “Had [Defendant] compensated [hourly wage respiratory therapists] for all [their] actual hours worked, [they] would have accumulated additional time worked in excess of 40 hours per week, for which they would have had to have been paid overtime or time and one-half.” ( Id.) Plaintiff admits that “[p]reviously”—without specifying when—“a complaint was filed with the United States Department of Labor regarding the uncompensated work performed during required meal and/or rest periods. In response ... Defendant paid the respiratory therapists some but not all of the unpaid wages owed.” ( Id. ¶ 8.)

Although neither explicitly mentioned nor indirectly referenced in the Complaint, Defendant, in support of its motion, has relied on a collective bargaining agreement (“CBA”) between Defendant and 1199SEIU United Healthcare Workers East (“the Union”), the latter of which represents Plaintiff. It appears that the current CBA is operative from “January 1, 2008 through April 30, 2015.” (Aff. of George F. Brenlla in Support of Def.'s Mot. To Dismiss (“Brenlla Aff.”), Ex. B (“CBA”) (Dkt. No. 7).) ² Defendant cites several provisions of the CBA as relevant to Defendant's Motion. First, Article X of the CBA sets forth the “Wages and Minimums” due to various classifications of employees, such as “Service, Clerical, [and] Technical Employees,” the classification that includes hourly wage respiratory therapists. (CBA Art. X ¶ 1.) Pursuant to the CBA, these workers received a “lump sum bonus” as a “one-time payment” on or around July 1, 2008, and the hourly rates of all employees were increased “across[ ] the [ ] board.” ( Id. Art. X ¶¶ 1(a), 2(a).) The CBA also states that the minimum pay rates for each type of employee “shall be contained in a stipulation (Stipulation II) between [Defendant] and the Union,” which Stipulation is “annexed” to the CBA. ( Id. Art. X ¶ 2(b)(3); see also id. Stipulation II, at 119–21.)

Second, Articles XI and XIII set forth the “Hours” and “Overtime” definitions and requirements for employees. Article XI states, in relevant part, that “[t]he regular work week ... shall consist of the number of hours per week regularly worked by ... [e]mployees as of July 1, 2003.... Employees shall receive two (2) days off in each full calendar week except in the event of overtime.” ( Id. Art. XI ¶ 1(a).) It then defines “[t]he regular workday for all full-time [e]mployees covered by this [CBA]” as “the number of hours in the regular work week as above defined, divided by five (5) exclusive of an unpaid lunch period.” ( Id. Art. XI ¶ 2.) And Article XIII sets forth in relevant part that “[e]mployees shall be paid one and one-half (1 1/2) times their regular rate for authorized time worked in excess of forty (40) hours within the work week.” It further provides that employees shall receive time and one-half for authorized work “in excess of thirty-seven and one-half (37.5) hours within the work week (or hours equivalent to their regular work week if such exceeded thirty-seven and one-half (37.5) hours) if mandated for at least one (1) hour during that work week.” ( Id. Art. XIII ¶ 1(a).)

Third, Articles XXX–XXXI set forth the grievance and arbitration procedures for disputes. A “grievance” is defined as “a dispute or complaint arising between the parties ... under or out of this [CBA] or the interpretation, application, performance, termination, or any alleged breach thereof.” ( Id. Art. XXX ¶ 1.) Article XXX then sets forth a three-step procedure for the resolution of grievances. At the first step, an employee having a grievance, “and/or his/her Union delegate ... shall take it up with [the employee's] immediate supervisor. The Employer shall give [an] answer to the Employee and/or his/her Union delegate ... within ten (10) working days.” ( Id.) If the grievance is not settled at step one, the grievant may then present the grievance in “writing, signed by the grievant and his/her Union Representative” to the grievant's department head. ( Id.) “A grievance so presented in [s]tep [two] shall be answered by the Employer in writing within five (5) working days ....” ( Id.) If the grievance still remains unresolved, the grievant may proceed to step three by presenting the grievance to the Manager of Human Resources of the Employer, who shall “render a decision in writing within ten (10) working days .... Responses will be mailed to the grievant and the Union Representative.” ( Id.) Article XXX further states that “[a]ny disposition of a grievance from which no appeal is taken within the time limits specified herein shall be deemed resolved and shall not thereafter be considered subject to the grievance and arbitration provisions of this [CBA].” ( Id. Art. XXX ¶ 3.) Article XXXI establishes “Arbitration” procedures:

(1) A grievance, as defined in Article XXX, which has not been resolved thereunder may, within thirty (30) working days after completion of [s]tep [three] of the grievance procedure, be referred for arbitration by the Employer or the Union to an arbitrator selected in accordance with the procedures of the American Arbitration Association.

...

(3) The award of an arbitrator hereunder shall be final, conclusive and binding upon the Employer, the Union and the Employee.

( Id. Art. XXXI ¶¶ 1(1), (3).)

Moreover, in June and July 2012, after Defendant removed this Action, the Union and Defendant entered into a Memorandum of Agreement (“MOA”) modifying the terms of employment for respiratory therapists to account for the facts which are the gravamen of this dispute—i.e., that “the work performed by respiratory therapists is inherently unpredictable and that it is not always possible for [Defendant] to guarantee that each respiratory therapist receives an uninterrupted meal break during each shift.” (Brenlla Aff. Ex. E (“MOA”).) Specifically, the MOA modifies the CBA such that

[t]he shift time for respiratory therapists shall be reduced from thirteen (13) hours to twelve and one half (12.5) hours per shift. Each shift shall include a paid meal break of thirty (30) minutes. In recognition of the fact that respiratory therapists are often not able to take an uninterrupted meal break, the parties agree that the shifts will be reduced by one half (1/2 hour) in exchange for the missed meal break.

( Id. ¶ 1.) ³

B. Procedural History

Plaintiff styles his action as a class action, filed on behalf of

[a]ll current and former respiratory therapists who are or were employed by Defendant [during the period commencing May 1, 2006, and continuing until such further dates as the practices complained of are or were discontinued (“the Class Period”) ] and who were (1) not compensated for all worked performed while on a meal and/or rest period; and (2) were not compensated for time worked over forty hours per week at overtime rates ....

(Compl. ¶ 10.) Plaintiff asserts three causes of action against Defendant in the Complaint. First, Plaintiff claims that Defendant violated N.Y. Labor Law §§ 190, 191, 193, 198, and 652, as well as New York Compilation of Codes, Rules, and Regulations, Title 12, § 142–3.1–.2, by “willfully fail[ing] to pay the correct wages and overtime pay due.” ( Id. ¶ 25; see also id. ¶¶ 26–31....