O'Neill v. Mermaid Touring Inc., 11 Civ. 9128(PGG).
| Decision Date | 10 September 2013 |
| Docket Number | No. 11 Civ. 9128(PGG).,11 Civ. 9128(PGG). |
| Parties | Jennifer O'NEILL, Plaintiff, v. MERMAID TOURING INC. and Stefani Joanne Germanotta, a/k/a “Lady Gaga,” Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION TEXT STARTS HERE
Virginia Kristina Trunkes, Snitow Kanfer Holtzer & Millus LLP, New York, NY, for Plaintiff.
Andrew Evan Rice, Steven D. Hurd, Proskauer Rose LLP, New York, NY, for Defendants.
Plaintiff Jennifer O'Neill was employed as a personal assistant to Stefani Germanotta, a/k/a “Lady Gaga,” in early 2009 and also from about February 5, 2010 through her termination on March 5, 2011. (Am. Cmplt. (Dkt. No. 13) ¶ 20) In her remaining claims, Plaintiff asserts that Germanotta and her company, Mermaid Touring, Inc., violated the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”) and New York's Labor Law §§ 190 et seq. by failing to pay her overtime wages duringthe 2010–11 time period.1 (Am. Cmplt. ¶ 34–49). Plaintiff alleges that she was “expected to be working and/or on call every hour of every day” during her employment with Defendants (Am. Cmplt. ¶ 19) and, as a result, she is owed overtime pay for every hour of every day beyond forty-hours per week for every week of her employment. (Am. Cmplt. ¶ 22)
Defendants seek summary judgment on their claims that (1) Plaintiff is not entitled to overtime compensation under the Labor Law for hours she worked outside of New York State; (2) Plaintiff's alleged “on call” time is not compensable; and (3) any overtime compensation due Plaintiff should be calculated at half-time, rather than at time-and-a-half. (Dkt. No. 57)
Sometime before 2008, Defendant Germanotta moved into Plaintiff's apartment building on the Lower East Side, and the two eventually became friends and roommates. (Def. R. 56.1 Stmt. ¶¶ 3–4, 14) 2 Germanotta, also know by her stage name “Lady Gaga,” is a singer and songwriter. (Def. R. 56.1 Stmt. ¶ 1). In 2008, O'Neill moved to Los Angeles. (Def. R. 56.1 Stmt. ¶ 5)
In early 2009, Germanotta offered O'Neill—who had prior work experience in the music industry—a job as her personal assistant. (Def. R. 56.1 Stmt. ¶¶ 13, 17) Germanotta offered O'Neill this position because the two were friends. (Def. R. 56.1 Stmt. ¶ 14) O'Neill accepted the job offer in Los Angeles, and began working for Defendants in early 2009. (Def. R. 56.1 Stmt. ¶ ¶ 13, 15) Between 2009 and 2011, Germanotta was consistently engaged in international tours, and O'Neill always traveled with the tour. (Def. R. 56.1 Stmt. ¶¶ 2, 61)
When Germanotta hired O'Neill she did not explain exactly what O'Neill's duties would be, but O'Neill knew “what a personal assistant is” and that she would be working “24/7.” (Def. R. 56.1 Stmt. ¶¶ 21–23) O'Neill's understanding was that she would be paid $1,000 a week to work “24/7.” (Def. R. 56.1 Stmt. ¶ 24) O'Neill worked as Germanotta's personal assistant for approximately four to eight weeks in early 2009. (Def. R. 56.1 Stmt. ¶ 18) O'Neill's employment ended when she resigned. (Def. R. 56.1 Stmt. ¶ 19) While working for Germanotta in 2009, O'Neill was paid $1,000 per week. (Def. R. 56.1 Stmt. ¶ 20)
On or about February 5, 2010, Germanotta re-hired O'Neill as her personal assistant. (Def. R. 56.1 Stmt. ¶ 27) Once re-hired, O'Neill again expected to be working a “24/7 job.” (Def. R. 56.1 Stmt. ¶ 28) Germanotta did not discuss salary with O'Neill, but several weeks into her employment,Troy Carter—Germanotta's manager—told O'Neill that she would be paid $75,000 per year. (Def. R. 56.1 Stmt. ¶¶ 29–30) O'Neill understood that her $75,000 annual salary would be her total compensation for all the work she performed for Germanotta. (Def. R. 56.1 Stmt. ¶ at 32) There was no discussion of overtime compensation, although much later—in December 2010—O'Neill told Germanotta that she should receive additional compensation when Germanotta's tour was extended by two or three days. (Def. R. 56.1 Stmt. ¶¶ 33, 34; Pltf. R. 56.1 Resp. ¶ 65) O'Neill's employment was terminated by Germanotta on or about March 5, 2011. (Def. R. 56.1 Stmt. ¶ 36)
O'Neill describes her duties for Germanotta as entailing
anything and everything that [Germanotta] needed, from cleaning the hotel room and cleaning up after her to helping her put her makeup out, have her makeup done, making sure her hair looked right before she went on stage, making sure she drank water, making sure she had tea, making sure that she ate, making sure she was hopefully on time to places. And just being there for her.
(Pltf. R. 56.1 Resp. ¶ 95(quoting O'Neill Dep. 20:7–16)) O'Neill monitored Germanotta's email, handled certain of her email and telephone communications, and was responsible for setting up her computer and printing out documents Germanotta wanted. (Pltf. R. 56.1 Resp. ¶¶ 98–99, 101) O'Neill also handled all of Germanotta's luggage—generally twenty bags—clothes, accessories, makeup, and toiletries as the tours proceeded. (Pltf. R. 56.1 Resp. ¶¶ 100, 149–50, 152) O'Neill was also responsible for ensuring that Germanotta received her “special food” at every location. (Pltf. R. 56.1 Resp. ¶ 105) For performances, O'Neill was responsible for ensuring that Germanotta arrived on time, had ample time for hair-styling, makeup, and voice warm-ups, and then appeared on stage on time. (Pltf. R. 56.1 Resp. ¶ 106) O'Neill also assisted with costume changes during performances. (Pltf. R. 56.1 Resp. ¶ 107) After a performance, O'Neill was responsible for having ice packs, tea, and a shower ready at the venue, for ensuring that dinner was available, and for arranging the exit from the venue. (Pltf. R. 56.1 Resp. ¶ 108)
During the 2010–11 time period, Plaintiff worked for Germanotta “24/7”:
I'm always working 24/7 because I'm on call. My phone is on, I'm expected to carry my phone with me at all times, to pick up the phone no matter what I'm doing, no matter where I am, and tend to whatever it is that [Germanotta] needs. So I consider myself to be on call 24/7 and available for her 24/7.
(Def. R. 56.1 Stmt. ¶ 51 (quoting O'Neill Dep. 56–57)) According to O'Neill, she was expected to be available to Germanotta “24/7” even when Germanotta was on vacation or when O'Neill was engaged in personal matters, including meals with friends, doctors' appointments or visits with family. . There was no specific work schedule for O'Neill; she was expected to be available to perform tasks for Germanotta at any time of the day or night. (Pltf. R. 56.1. Resp.¶ 37) In describing the time requirements of O'Neill's job, Germanotta testified:
You don't get a schedule. You don't get a schedule that is like you punch in and you can play fucking Tetris at your desk for four hours and then you punch out at the end of the day. This is when I need you, you're available.
(Pltf. R. 56.1 Resp. ¶ 163 (quoting Germanotta Dep. 16–17, 107) No time records were kept concerning O'Neill's work for Germanotta. (Pltf. R. 56.1 Resp. ¶ 166)
Because Germanotta and O'Neill frequently slept in the same bed—O'Neill never had her own hotel room while on tour—she was required to address Germanotta's needs throughout the night: “there were times when Ms. Germanotta woke [O'Neill] up [and said] ... get up and take care of what I need.' ” (Pltf. R. 56.1 Resp. ¶¶ 175–182 (quoting O'Neill Dep. 68)) If Germanotta was watching a DVD in the middle of the night and grew tired of it, “she woke up Ms. O'Neill to take out and replace the DVD.” (Pltf. R. 56.1 Resp. ¶ 179 (citing O'Neill Dep. 120–21))
O'Neill further testified that even when Germanotta was on vacation, O'Neill was still required to work:
We were never really on vacation. Every time she leaves an appointment, every time she walks outside, she has to be fully dressed, fully makeup'd, full hair, full everything.
Every day is a work day for her, so every day is a work day for the rest of us. There is no, we're going to stay in, we're going to sleep. There is no, let's put on sweatpants and go out to the movies and be girlfriends. It doesn't work like that.
If she needs to get dressed, if she needs to get up, then I need to work and make sure that she has clothes on, makeup on, hair on, has drank some water, taken her medication and had something to eat, which is every day of her life during that time.
(Pltf. R. 56.1 Resp. ¶ 140 (quoting O'Neill Dep. 52–53) At her deposition, Germanotta agreed that she “work[s] 24 hours a day.” (Pltf. R. 56.1 Resp. ¶ 192 (quoting Germanotta Dep. 301))
The parties agree that at two points during O'Neill's employment she did not work “24/7” for Germanotta. Between January 7, 2011 and February 6, 2011, O'Neill worked only about two hours a day, and on some days may not have worked at all. (Def. R. 56.1. Stmt. ¶ 56; Pltf. R. 56.1 Resp. ¶¶ 56, 130) Other than days within this period, O'Neill asserts that “she never had a ‘day off.’ ” (Pltf. R. 56.1 Resp. ¶ 130) She states that she was also given time off for two weeks in June 2010 during a tour break, but nonetheless “worked every day, with a schedule that varied depending upon Ms. Germanotta's needs.” (Pltf. R. 56.1 Resp. ¶ 59 (quoting O'Neill Dep. 55–56); see also Pltf. R. 56.1 Resp. ¶ 144)
With respect to O'Neill's claim for overtime compensation, Germanotta testified that (Pltf. R. 56.1 Resp. ¶ 192 (quoting Germanotta Dep. 301)
As noted above, Defendants have asked this Court to rule, as a matter of law, that (1) Plaintiff is not entitled to overtime compensation under the Labor Law for hours she worked outside of New York State; (2) Plaintiff's alleged “on-call” time is not compensable; and (3) any overtime compensation due Plaintiff should be calculated at half-time, rather than at time-and-a-half. (Dkt. No. 57)
I. SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56(a),...
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