Noble v. 93 University Place Corp., 02 Civ.1803 SAS.

• Decision Date: 18 November 2003
• Docket Number: No. 02 Civ.1803 SAS.,02 Civ.1803 SAS.
• Citation: 303 F.Supp.2d 365
• Parties: Nigel NOBLE, on behalf of himself and all others similarly situated, Plaintiff, v. 93 UNIVERSITY PLACE CORPORTION, d/b/a Healthy Pleasures and Helene Burgess, Defendants.
• Court: U.S. District Court — Southern District of New York

303 F.Supp.2d 365

Nigel NOBLE, on behalf of himself and all others similarly situated, Plaintiff, v. 93 UNIVERSITY PLACE CORPORTION, d/b/a Healthy Pleasures and Helene Burgess, Defendants.

No. 02 Civ.1803 SAS.

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

November 18, 2003.

Karl J. Stoecker, New York, New York, for Plaintiff.

Michael J. Volpe, Shaffin A. Datoo, Clifton Budd & DeMaria, LLP, New York, New York, for Defendants.

OPINION AND ORDER

SCHEINDLIN, District Judge.

Nigel Noble brings this action against 93 University Place Corporation, d/b/a Healthy Pleasures ("University") and Helene Burgess, alleging that: (1) University violated New York Labor Law Section 740 ("Whistleblower Law") by terminating Noble in retaliation for refusing to participate in and for complaining about the mislabeling of food; (2) University violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1), by failing to pay overtime to Noble and other similarly situated employees; and (3) University violated New York Labor Law § 160 and 12 NYCRR § 142-2.2 by failing to pay overtime to Noble and other similarly situated employees. Noble brings the second cause of action as a collective action pursuant to 29 U.S.C. § 216(b), and the third cause of action as a class action pursuant to Fed. R.Civ.P. 23(a) and 23(b)(3) on behalf of all current and former employees of University who were not paid overtime.

University and Burgess move for summary judgment, contending that Noble's Section 740 claim must fail because Noble cannot establish: (1) that he was dismissed in retaliation for his complaints about mislabeling; or (2) an actual violation of a law that created and presented a substantial and specific danger to the public health and safety. University and Burgess also maintain that Noble's second and third claims both must fail because Noble is exempt from the overtime requirements of the FLSA and New York State law. Finally, University and Burgess contend that Noble's Section 740 claim against Burgess should be dismissed.¹

Jurisdiction is based on the FLSA, 29 U.S.C. § 216(b), and 28 U.S.C. §§ 1331 and 1367(a). For the reasons stated below, defendants' motion is denied.

I. BACKGROUND

A. The Undisputed Facts

The parties agree on the following material facts: University is a New York corporation that owns and operates three retail natural food stores in New York City under the name "Healthy Pleasures." Complaint ("Compl.") ¶ 4; see 6/5/03 Defendants' Memorandum of Law in Support of Summary Judgment ("Defs.Mem.") at 1. Helene Burgess is the owner of University. See Defs. Mem. at 1.

In and around January or February 2001, University and Burgess hired Noble to work as a chef in the kitchen department at their 93 University Place location. Compl. ¶ 3; see 7/24/03 Affidavit of Nigel Noble ("Noble Aff.") ¶ 1; 9/18/02 Deposition of Nigel Noble ("Noble Dep. 1"), Ex. 0 to 6/5/03 Defendants' Notice of Motion for Summary Judgment ("Defs.Notice"), at 47. Noble was hired at an annual salary of $45,000. See Defendants' Local Civil Rule 56.1 Statement ("Defs.56.1") ¶ 3. After about three months' on the job, Noble's salary was increased to $48,000. See id. ¶ 4. Noble reported to Bashar Omar, the general manager of University's three stores, who in turn reported to Burgess. See 9/18/02 Deposition of Nigel Noble ("Noble Dep. 2"), Ex. J to 7/24/03 Declaration of Karl J. Stoecker, counsel for plaintiff ("Stoecker Decl."), at 39; 2/12/03 Deposition of Bashar Omar ("Omar Dep."), Ex. P to Defs. Notice, at 5.

In the first week of his employment, Noble complained to Omar that the store sold mislabeled food. See Defs. 56.1 ¶ 35. In particular, Noble alleged that the labels of salad bar items omitted ingredients and that the labels of non-salad bar items listed ingredients that were not contained in the food. See id. ¶¶ 36-37.

About seven or eight months later, in and around August 30, 2001, Omar confronted Noble with the fact that he had found perfectly good chickens in the garbage, and that he had been informed that Noble had instructed someone to throw away the chickens. See id. ¶¶ 40-91, 49. Omar then fired Noble. See Noble Dep. 1 at 9. Noble packed up his belongings and left the store. See id. at 11-12. Noble filed the instant action on March 6, 2002. See Defs. 56.1 ¶ 57.

B. The Disputed Facts

The parties disagree on material facts related to two key issues in this case. First, they dispute material facts in connection with the scope of Noble's duties and authority during his employment, and the terms of Noble's compensation. Second, they differ on events related to the alleged mislabeling practices.

1. Noble's Duties, Authority, and Compensation

University and Burgess contend that Noble was hired as head chef and kitchen manager. See id. ¶ 1. They maintain that in these positions, Noble was in charge of a kitchen staff of between ten to twenty employees, and that the cooks and dishwashers reported directly to him. See id. ¶¶ 7, 30, 33-34.

According to University and Burgess, Noble had a number of different duties related to the smooth running of the whole kitchen, including: (1) scheduling kitchen employees; (2) ordering food for the kitchen; (3) keeping track of kitchen inventory; (4) planning the daily menu; (5) creating new dishes; (6) giving daily instructions and delegating work to the kitchen staff; (7) keeping track of the amount of food leaving the kitchen; (8) training new kitchen employees; (9) interviewing job applicants; and (10) acting as liaison between the kitchen department and Omar. See id. ¶¶ 8-19.

In addition, University and Burgess claim that they gave Noble authority to hire, fire, and discipline employees, and that Noble had acted on this authority. See id. ¶¶ 20-26. They also allege that Noble had authority to approve overtime. See id. ¶ 29. They assert that as Noble was a managerial employee, he was exempt from the provisions of federal overtime laws. See Defs. Mem. at 17.

Noble contends that he was not hired as head chef or kitchen manager, but simply as a chef responsible for cooking and preparing food for the store's salad bar. See Plaintiffs' Counterstatement Pursuant to Local Rule 56.1 ("Pl. 56.1 Resp.") ¶ 1; Noble Aff. ¶ 1. He claims to have had no supervisory authority over other employees, and that cooks and dishwashers did not report to him. See Noble Aff. ¶ 8.

As a chef, Noble maintains that he devoted 75 to 100 percent of his time to cooking. See id. ¶ 2. Occasionally, however, Noble assisted with other tasks under the direction of Omar or other chefs, including: (1) rearranging schedules that Omar had previously written up when other kitchen employees called in sick or failed to show up for work; (2) re-ordering commonly used kitchen supplies from the store's regular vendors; (3) collaborating with Burgess, Omar, and the other cooks on the daily menu; and (4) writing up the daily menu. See id. ¶¶ 5-7. On a couple of instances, at Burgess' request, Noble spent a few hours explaining to new kitchen employees how certain dishes were prepared. See id. ¶ 9. Noble denies that he was responsible for tracking kitchen inventory, or that he gave daily instructions or delegated work to the kitchen staff. See id. ¶ 8.

Noble contends that Omar and Burgess retained control over the hiring and firing of kitchen employees and that he himself had no authority to hire or fire anyone, or recommend that anyone be hired or fired. See id. ¶ 9; Pl. 56.1 Resp. ¶¶ 22-24; 26. He claims that he had rarely participated in the interview process and had never hired anyone. See Noble Aff. ¶ 9. He also maintains that he had never fired anyone and that Omar had regularly handled employee terminations. See id.; Pl. 56.1 Resp. ¶ 25. Further, he asserts that he never had the authority to approve overtime. See Noble Aff. ¶ 5.

Finally, Noble alleges that he, like all kitchen employees, was required to work sixty hours per week, but that neither he nor his fellow employees were ever paid overtime. See id. ¶ 2. On the contrary, his compensation, and that of other employees, was reduced when they worked less than sixty hours. See id. ¶ 3. Alternatively, he was compelled to make up time that he had missed in order to avoid a reduction in pay. See id. ¶ 4.

2. Mislabeling Practices and Related Events

Noble alleges that University and Burgess falsely represented their food products as being "organic," "natural," or "homemade" and charged customers a higher price than is ordinarily paid for comparable regular foods. Compl. ¶¶ 13-14. For example, University's website stated that "every item is all natural and free of any artificial ingredients, preservatives, or unhealthy oils and seasonings." See Noble Aff. ¶ 10.

In fact, Noble maintains, most of the food sold at University's stores was regular food purchased in bulk from wholesale food companies and then repacked or relabeled by store employees. See id. ¶ 15. The new labels would omit ingredients deemed to be deleterious, such as preservatives, salt, sugar, refined flour, certain vegetable oils and transfats, and flavor enhancers. See id. For example, turkey meatballs sold at University's salad bar were purchased by the case from a bulk distributor and were originally labeled as containing preservatives and flavor enhancers. Compl. ¶ 17. The label University placed above this item on its salad bar, however, omitted any reference to these ingredients. Id. University purchased frozen cakes and pies from Sisco and sold them as "homemade." Id. ¶ 21. On its own labels for these products, University then substituted the highly saturated vegetable oils listed on the Sisco labels with oils lower in saturated fat. Id. University also re-packaged regular chickens and sold them as "free range." Id. ¶ 23.

Deceptive labeling practices also applied to food prepared in the stores. See id. ¶ 20. For example, Noble claims that he listed salt and sugar as ingredients for food that he had prepared...