Paganas v. Total Maint. Solution, LLC

• Citation: 220 F.Supp.3d 247
• Decision Date: 05 December 2016
• Docket Number: 15–CV–5424
• Parties: Anthony PAGANAS, Plaintiff, v. TOTAL MAINTENANCE SOLUTION, LLC, Aron Weber, and Reggie Tartaglione, Defendants and Third–Party Plaintiffs, v. St. John's University, New York, Third–Party Defendant.
• Court: U.S. District Court — Eastern District of New York

220 F.Supp.3d 247

Anthony PAGANAS, Plaintiff,

v.TOTAL MAINTENANCE SOLUTION, LLC, Aron Weber, and Reggie Tartaglione, Defendants and Third–Party Plaintiffs,

v.St. John's University, New York, Third–Party Defendant.

15–CV–5424

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

Signed December 5, 2016

Robert Sale Powers, Robert S. Powers, North Babylon, NY, for Plaintiff.

Perry S. Heidecker, Milman & Heidecker, Lake Success, NY, for Defendants and Third–Party Plaintiffs.

Lyle S. Zuckerman, Scott M. Cooper, Davis Wright Tremaine LLP, New York, NY, for Third–Party Defendant.

JUDGMENT, MEMORANDUM, AND ORDER

Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction ...249

II. Facts ...249

A. Initial Proceedings...249

B. University's Motion to Dismiss ...251

C. Defendants' Motion for Summary Judgment...252

D. Third–Party Defendant's Motion for Summary Judgment...252

E. Hearing...252

III. Law ...252

A. Standard for Summary Judgment...252

B. Overtime Wages ...252

1. Fair Labor Standards Act ("FLSA") ...252

2. NYLL...255

C. Pleading Standards under FLSA and NYLL ...255

D. Evidence under Fed. R. Civ. P. 26...256

E. Sanctions ...256

F. Indemnification...256

IV. Application of Law to Facts ...257

A. Pleading Standard ...257

B. Overtime Wages ...258

1. Compensation ...258

2. Primary Duty ...259

3. Collective Bargaining Agreement ...260

4. Directing Work...261

5. Authority to Recommend Discipline ...262

C. Fed. R. Civ. Pro. 26 ; Sanctions ...262

D. Indemnification...263

V. Conclusion ...263

I. Introduction

Plaintiff sued his employer, a provider of commercial janitorial and maintenance services, for overtime violations under the Fair Labor Standards Act ("FLSA") and under the New York Labor law ("NYLL"). The employer filed a third-party complaint against St. John's University, New York, with which it had contracted to provide campus cleaning services.

Defendants and third-party defendant move for summary judgment. Defendants' motion for summary judgment is entered against plaintiff, and third-party defendant's motion for summary judgment is entered against defendants. The case is dismissed.

II. Facts

A. Initial Proceedings

Plaintiff Anthony Paganas ("plaintiff') is a former employee of Total Maintenance Solution, LLC ("TMS", or, together with Aron Weber and Reggie Tartaglione, "defendants"). TMS is a New York company engaged in providing commercial janitorial and maintenance services to customers, such as St. John's University, New York ("the University"). Decl. of Aron Weber, Feb. 4, 2016, ECF No. 26 ("Weber Decl."), at ¶ 4; TMS Rule 56.1 Statement of Material Fact, Sept. 12, 2016, ECF No. 43 ("TMS Rule 56.1 Statement"), at ¶ 2. One of TMS's customers was the University, the third-party defendant. Weber Decl. at ¶ 6; TMS Rule 56.1 Statement at ¶ 5.

Plaintiff was employed by a contracting company named MacClean's in February 1983 to work on the University's campus performing, and later supervising, cleaning and maintenance work. TMS Rule 56.1 Statement at ¶¶ 6–9. Apparently, from 1983 to 2007, plaintiff continued supervision on the University's campus through various other contracting companies. Id. at ¶¶ 7–13. When the contracting company for which plaintiff was working lost its cleaning and maintenance contract with the University in 2007, plaintiff was hired as a building manager to supervise maintenance workers of TMS on the University's campus. Id. at ¶ 14. He held this position until May 1, 2014. Weber Decl. at ¶ 9; TMS Rule 56.1 Statement at ¶ 16. TMS maintained its cleaning and maintenance contract from July 2007 to May 2014. TMS Rule 56.1 Statement at ¶ 15.

As a building manager, plaintiff was responsible for overseeing the cleaning and maintenance crews of several buildings. He was also responsible for setting up equipment around the University's campus. TMS Rule 56.1 Statement at ¶ 17; Pl.'s Resp. to Statement of Material Fact, Sept. 26, 2016, ECF No. 53 ("Paganas Rule 56.1 Statement"), at ¶ 17; Hr'g Tr., Feb. 17, 2016 ("Feb. 17 Hr'g Tr."), at 9:20–10:1, 14:2–4.

Plaintiff claims that in the course of supervising the cleaning and maintenance staff, he performed some of the cleaners' work himself. Feb. 17 Hr'g Tr. at 13:8–15:24. It is primarily upon claims of assisting with hands-on actual cleaning and maintenance work that plaintiff's suit rests.

Plaintiff's salary was $80,000 per year. By a separate agreement with the University he was paid an extra $250 each time he oversaw setup of the University's athletic facilities during a basketball game. TMS Rule 56.1 Statement at ¶¶ 18–19. He contends that TMS, not the University, paid him "wages" he earned in connection with the basketball games. Paganas Rule 56.1 Statement at ¶ 19. Except for the extra money he earned during basketball games, plaintiff's paychecks were always for the same amount, even though the number of hours he worked each week varied. TMS Rule 56.1 Statement at ¶ 21.

TMS employed both unionized and non-unionized workers. It did not keep time records for non-unionized employees. Id. at ¶ 26. Plaintiff was a non-unionized employee. Id. At no point during his employment with TMS did plaintiff sign time sheets; TMS alleges, without contradiction, that it did not keep records of the number of hours he worked each week. Id. at ¶¶ 23–27.

In September 2015, plaintiff filed a complaint against TMS and its owners, alleging that TMS had purposely discouraged its unionized employees who were paid on an hourly basis from working overtime, and instead increased non-unionized workers'—including plaintiff's—workload without paying him overtime. Compl., Sept 16, 2015, ECF No. 1 ("Compl."), at ¶¶ 28–34. Allegedly, defendants advised plaintiff that if he did not finish his work during his scheduled shift, he would be fired. Id. at ¶¶ 33–34. Plaintiff alleges he typically worked ten hours per day, five days a week, and, on one or two days each week, he worked in excess of ten hours. Id. at ¶¶ 36–37; Decl. of Anthony Paganas, Sept. 26, 2016, ECF No. 54, ("Paganas Decl."), at ¶ 1.

His paystubs indicate that he was paid an hourly rate of $38.46 for forty hours a week, even when he worked additional hours. Compl. at ¶¶ 39–40. He asserts that TMS willfully failed to keep accurate payroll and time records for him as required by the FLSA and the NYLL, misclassified him as a supervisor exempt from the requirements of the FLSA and the NYLL, and failed to pay him extra sums for overtime. Id. at ¶¶ 48–52.

Defendants argue that plaintiff fails to state a claim upon which relief may be granted: he was exempt from the overtime requirements of the FLSA and the NYLL. Answer and Third–Party Compl., Sept. 16, 2015, ECF No. 9 ("Answer"), at ¶¶ 61–64. They filed a third-party complaint against the University asserting that, under the contract between TMS and the University ("Service Agreement"), TMS is entitled to reimbursement and indemnification for plaintiff's claim should it result in damages. Id. at ¶¶ 75–81.

B. University's Motion to Dismiss

The University moves to dismiss defendants' complaint, arguing that under the Service Agreement TMS indemnified it against claims such as the one at issue. Mem. of Law in Supp. of Def. St. John's Univ., N.Y.'s Mot. to Dismiss Claims of Third–Party Pls. Pursuant to Fed. R. Civ. P. 12(b)(6), Jan. 8, 2016, ECF No. 17 ("Third–Party Def.'s Mot. to Dismiss").

Under the Service Agreement, TMS provided maintenance engineers and supervisors such as plaintiff to carry out "Basic Services" on the University's campus. Decl. of Scott M. Cooper at Ex. A, ECF No. 18–1. TMS paid its employees and under the Service Agreement, the University in turn paid TMS a "Basic Fee" for the value of the Basic Services and an additional "Management Fee" of 3% of the gross total cost of the Basic Services:

[The University] shall pay [TMS] a Management Fee equal to 3% of the gross total cost of the Basic Services ("Gross Total Cost"). The Gross Total Cost shall be the sum of: (i) all costs related to the payment of Maintenance Engineers and Supervisors, (ii) all costs expended for uniforms, equipment and supplies in furtherance of performing the Basic Services, (iii) all costs for consultants retained at the direction and approval of [The University], and (iv) all costs for insurance required under this Agreement ("Basic Fee"). The Basic Fee shall be payable every four (4) weeks.

Id. at § 2.1.

The Service Agreement includes an indemnification clause:

In addition to any liability or obligation of [TMS] to [the University] under other provisions of this Agreement or at law, [TMS] shall to the fullest extent permitted by law, indemnify , defend, and hold [the University] , its Board of Trustees, officers, employees, Service Companys [sic] and servants harmless from and against all claims , suits, damages, liabilities, losses, demands, costs and expenses, including reasonable attorneys' fees and disbursement, and punitive damages of every kind and nature, by or on behalf of any person , firm, association or corporation, in connection with [TMS]'s performance under this Agreement , including any and all claims by the Maintenance Employees and Supervisors concerning their hiring, employment, or separation therefrom, and claims by the Union or its various benefits funds in any form (including without limitation in court, arbitration, or before a government agency). [TMS]'s obligation to indemnify [the University] shall survive the expiration or termination of this Agreement. Nothing in this Section 4.2 or elsewhere in the Agreement shall create or give third parties any claim or right of action against [the University].

Id. at § 4.2 (emphasis added). The University argues that this clause indemnifies it against the type of liability TMS alleges here. See Third–Party Def.'s Mot. to Dismiss; Fed. R. Civ. P. 12(b)(6) ; Feb. 17 Hr'g Tr., at 6:14–7:1.

The University's motion to dismiss on the pleadings was denied. Order, Feb. 17, 2016, ECF No. 29.

C. Defendants' Motion for Summary Judgment

Defendants seek summary...