Opinion
20-CV-7724 (RA) (JLC)
02-13-2023
SHEENA ADAMS, individually and on behalf of all other similarly situated persons, Plaintiff, v. BLOOMBERG L.P., Defendant.
THE HONORABLE RONNIE ABRAMS, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
Sheena Adams brought this action alleging that Bloomberg, L.P. (“Bloomberg”) violated the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). Four individuals have opted in as plaintiffs: Anthony Provenzale, Rodrick Telford, Keerti Hariharan, and Amber Adam (collectively, “opt-in plaintiffs”). Bloomberg has moved for summary judgment as to all of Adams' claims, has also moved to strike a declaration submitted by Adams, and seeks permission to file a Reply Local Rule 56.1 Statement. Also pending before the Court is Adams' motion for leave to further amend her complaint, and her motion for conditional certification of the FLSA collective action, court-facilitated notice, and equitable tolling. For the reasons which follow, I recommend that Bloomberg's motion for summary judgment and request to file a Reply Rule 56.1 Statement be granted, its motion to strike be denied, and Adams' motion for leave to amend be denied without prejudice to renewal.
The Court will enter a separate order following the issuance of this report and recommendation denying Adams' motion for conditional certification, a non-dispositive motion, without prejudice to renewal.
I. BACKGROUND
A. Facts
Unless otherwise noted, the following facts are undisputed. Bloomberg is a financial, software, data, and media company. Defendant's Local Rule 56.1 Statement of Undisputed Material Facts (“Def. 56.1”), Dkt. No. 110, ¶ 1. It is a Delaware company registered in New York, which grossed more than $500,000 in each of the past six years. Second Amended Complaint (“SAC”), Dkt. No. 67, ¶¶ 9, 12.
In certain paragraphs of her responses to Bloomberg's Local Rule 56.1 statement, Adams purports to controvert a statement but instead, provides facts tangential or irrelevant to the paragraph being disputed, or on some occasions, arguments and conclusions. In such instances, the Court deems Bloomberg's statement admitted because Adams has failed to “specifically controvert” the statements as required by Local Civil Rule 56.1(c). See, e.g., Wells Fargo Bank, N.A. v. Bivona & Cohen, P.C., No. 12-CV-5212 (RA) (GWG), 2016 WL 2745847, at *1 n.2 (S.D.N.Y. May 11, 2016), adopted by 2016 WL 3098843 (June 1, 2016); see also Rodriguez v. Schneider, No. 95-CV-4083 (RPP), 1999 WL 459813, at *1 n.3 (S.D.N.Y. June 29, 1999) (“Rule 56.1 statements are not argument. They should contain factual assertions with citation to the record. They should not contain conclusions.”) (emphasis in original).
1. Plaintiff Sheena Adams
Adams worked in Bloomberg's Customer Support Department, providing technical and other support to Bloomberg customers. Def. 56.1 ¶ 3. She was hired in December 2011 and began work on January 3, 2012 in the role of Global Technical Support (“GTEC”) Representative, which involved providing technical support to “Bloomberg's clients over the phone and through chats on Bloomberg's instant messaging platform.” Id. ¶¶ 4-5, 8. On November 1, 2017, Adams' job title changed to “Implementation Specialist,” a role that combined the GTEC Representative role with a different role. Id. ¶¶ 9-10. As both a GTEC Representative and Implementations Specialist, Adams reported to a team leader and in both roles, she needed to log into her computer to access the program that connected her to customer inquiries, delivered through an automated queue. Id. ¶¶ 11, 13, 14.
Adams attempts to controvert this statement, arguing that witnesses for both parties testified that employees could also log into systems remotely to work from home. Plaintiff's Responses to Defendant Bloomberg L.P.'s Local Rule 56. 1 Statement of Undisputed Material Facts (“Pl. Resp. 56.1”), Dkt. No. 125, ¶ 13. Bloomberg contends that Adams' statements do not specifically controvert its stated facts. Defendant Bloomberg L.P.'s Reply to Plaintiff's Responses to Defendant's Local Rule 56.1 Statement of Undisputed Material Facts (“Def. Rep. 56.1”), Dkt. No. 151-1, ¶ 13. The Court agrees. While it might be the case that employees were able to access Bloomberg's systems remotely, that does not controvert the fact that Adams needed to log into her computer. Accordingly, Bloomberg's statement should be deemed admitted.
When Adams started as a GTEC Representative in 2012, her position was classified as exempt and thus not overtime eligible; however, on March 31, 2016, the position was reclassified as non-exempt. Pl. Resp. 56.1 ¶ 7. From then on, Adams was classified as non-exempt and, Bloomberg alleges, it paid her a base salary “covering straight-time pay for all hours worked in a week, . . . plus overtime pay at one-half her regular rate for any hours over 40 in a work week.” Def. 56.1 ¶ 20. Adams was paid on the 15th and last business day of each month. Id. ¶ 21. Adams' base salary at the time of hiring was $48,000 and $64,000 at the time of her termination. Id. ¶¶ 25, 27. Adams was terminated from Bloomberg on October 25, 2019. Id. ¶ 28.
Adams attempts to controvert this statement for three reasons. First, she contends that in addition to a base salary, her “compensation included a compensation bonus for work on a weekend or a holiday.” Pl. Resp. 56.1 ¶ 20. Bloomberg responds that the compensation to which Adams refers are not bonuses, but rather “paid days off.” Def. Rep. 56.1 ¶ 20. However this compensation is defined, it does not appear to have any bearing on the fact that Adams received a base salary. Second, Adams contends that her “compensation fluctuated,” but again, this does not appear to controvert the fact that she received a base salary. Finally, Adams contends that she was not paid for all hours over 40 in a work week. This point will be discussed further below.
Adams claims that her salary at the time of hiring included a “compensation bonus for work on a weekend or a holiday.” Pl. Resp. 56.1 ¶ 26. As noted above, this does not appear to controvert the fact Adams' base salary at the time of hiring was $48,000. In addition, Adams attempts to controvert Bloomberg's statement with respect to her salary at the time of her termination, stating the “payroll data does not support this statement” because she did not receive the same base salary for every pay period. Id. ¶ 27. Here, too, the evidence to which Adams cites does not specifically controvert what her base salary was at the time of her termination. Accordingly, Bloomberg's statement should be deemed admitted.
2. Bloomberg's Payment Policies
During the relevant time period, Bloomberg used two different methods to track employees' hours. Each method is discussed below.
a. The Badge Period and Rounding Policy
From September 2014 (the beginning of the time period covered by NYLL's statute of limitations) through June 2016, Bloomberg used the “actual time recorded by its badge system” to process time worked and payroll. Plaintiff's Statement of Additional Facts in Opposition to Defendant's Motion for Summary Judgment (“Pl. 56.1”), Dkt. No. 126, ¶ 7. From July 2016 through February 9, 2019 (the “Badge Period”), Bloomberg used badge data as a time clock for overtime-eligible employees. Def. 56.1 ¶¶ 37, 40; Pl. Resp. 56.1 ¶ 46. That is, when employees used their badges to enter the building (“badge in”) or leave the building (“badge out”), the system would record that time. Def. 56.1 ¶ 42. In order to enter or exit the building, employees had to swipe their badges at a turnstile. Id. ¶ 41. During the Badge Period, Bloomberg used this data to track the number of hours certain employees, including Adams, were in the office for purposes of making overtime payments. Id. ¶ 43.
In July 2016, Bloomberg began using third-party software to implement a rounding policy it used to track an employee's starting and stopping times for overtime purposes. Pl. 56.1 ¶ 8. The rounding policy operated as follows: if a badge time was seven minutes or less after the last quarter-hour, it would be rounded down; if it was more than seven minutes after the last quarter-hour, it would be rounded up. Def. 56.1 ¶ 48. If an employee was badged out of the office for more than 20 minutes before badging back in, the start and stop times of the break would be rounded to the nearest quarter-hour, and the break would not be compensated.
Adams attempts to controvert this statement, stating it is “materially incomplete.” Pl. Resp. 56.1 ¶ 48. However, Adams does not dispute that badge time was rounded, so this fact should be deemed admitted.
Id. ¶ 49. If any work was performed outside of the office, employees would self report the work performed on an “SDSK” ticket. Def. 56.1 ¶ 55.
Adams attempts to controvert this statement, contending that Bloomberg's payroll analyst, Steven Shore, communicated to employees that breaks that are 20 minutes or more (as opposed to more than 20 minutes) would be deducted. Pl. Resp. 56.1 ¶ 49. Adams points to multiple documents in which Shore communicated to employees that breaks of 20 minutes or more would be unpaid. Id. However, in his declaration, Shore states that breaks of 20 minutes or less were counted as work time. Dkt. No. 31, ¶ 9. Whether Bloomberg compensated breaks that were under 20 minutes, or under 19 minutes, appears to be a fact that is in dispute. However, the Court does not find this to be a material fact, as whether or not breaks 20 minutes or more, versus 21 minutes or more were compensated does not appear to change Adams' claim regarding the rounding policy.
Adams attempts to controvert this statement as “misleading and materially incomplete,” because “SDSK tickets are not an accurate record of work hours.” Pl. Resp. 56.1 ¶ 54. Bloomberg contends, and the Court agrees, that Adams' statement does not specifically controvert the fact that SDSK tickets were used to record out of office work. Def. Rep. 56.1 ¶ 54. Accordingly, this fact should be deemed admitted. Whether the SDSK tickets are an accurate record of work hours is discussed further below.
b. The MYHR Period
Bloomberg changed its policy effective February 9, 2019 (the “MYHR Period”), no longer using the badge data or implementing the rounding policy, and instead requiring employees to self-report their overtime into a platform called “MYHR.” Def. 56.1 ¶ 68. For any day an employee badged into the office, MYHR loaded an eight-hour block of time into the timesheet for that day. Id. at ¶ 70. Similarly, if an employee worked at home, the hours worked would be transferred to the MYHR timesheet for that day. Id. at ¶ 71. Employees could access their timesheets on MYHR to review and edit the hours they worked. Id. ¶ 72. Through MYHR, employees could enter time on a daily basis or at the end of every week. Id. ¶ 76. Prior to its implementation, Bloomberg trained non-exempt employees on how to report overtime on MYHR, instructing them “to add time to MYHR for any workweek in which they worked more than 40 hours.” Id. ¶ 80.
Adams attempts to controvert this fact, stating that “MYHR timesheets are not a record of employees' work hours. The time preloaded into MYHR was not accurate.” Pl. Resp. 56.1 ¶ 72. In support of her response, Adams cites two pieces of evidence, both of which explain that MYHR would prepopulate with eight hours and employees were meant to edit them as applicable. Id. This does not controvert the statement that employees could access their timesheets and edit their hours. As Bloomberg notes, Def. Rep. 56.1 ¶ 72, this appears to support the same fact. Accordingly, the fact that employees could review and edit their timesheets on MYHR should be deemed admitted.
B. Procedural History
1. Background
Adams commenced this action on September 18, 2020. Complaint, Dkt. No. 1, ¶ 40. Following the filing of the complaint, several opt-in plaintiffs filed consents to sue: Anthony Provenzale, Dkt. No. 6-1; Rodrick Telford, Dkt. No. 8-2; Keerti Hariharan, Dkt. No. 10-1; and Amber Adam, Dkt. No. 34-1. On December 9, 2020, Adams amended her complaint. First Amended Complaint, Dkt. No. 14.
Three others opted into the case but later withdrew their consents. Dkt. Nos. 48, 69, 80.
On December 18, 2020, Adams moved for conditional certification. Motion to Certify Class and Issuance of Notice, Dkt. No. 15. On December 28, 2020, Bloomberg filed its answer, Dkt. No. 25, and on January 29, 2021, it filed its opposition to Plaintiff's motion for conditional certification, Dkt. No. 28. By order dated February 19, 2021, at Adams' request, and with Bloomberg's consent, she was allowed to withdraw her motion for conditional certification without prejudice, while the parties engaged in pre-certification discovery. Dkt. No. 35.
On March 5, 2021, a case management plan was entered whereby the parties agreed to engage in phased discovery: the first phase would relate to FLSA conditional certification and merits discovery relating to Adams' claims and the opt-in plaintiffs; and the second phase would cover Rule 23 class certification discovery, and if necessary, any remaining merits discovery. Dkt. No. 42.
On December 10, 2021, with Bloomberg's consent, Adams moved to amend her complaint for a second time. Dkt. No. 65. The motion was granted and Adams filed the operative complaint on December 13, 2021. SAC, Dkt. No. 67. In the SAC, Adams alleges five causes of action: (1) Bloomberg failed to pay overtime in violation of the FLSA; (2) Bloomberg failed to pay overtime in violation of NYLL; (3) Bloomberg failed to pay for all badge hours and all hours not captured by the badge data in violation of NYLL §§ 190 et seq.; (4) Bloomberg failed to provide accurate wage statements in violation of NYLL § 195(3); and (5) Bloomberg failed to provide a sufficient wage notice in violation of NYLL § 195(1)(a). Bloomberg filed its answer to the SAC on December 27, 2021. Dkt. No. 68.
2. The Instant Motions
On May 4, 2022, Adams moved to amend her complaint for a third time. Notice of Motion For leave to File Third Amended Complaint, Dkt. No. 88; Memorandum of Law in Support of Motion for Leave to File Third Amended Complaint, Dkt. No. 92; Declaration of Artemio Guerra dated May 4, 2022, Dkt. No. 93. Bloomberg filed its opposition to the motion to amend on June 3, 2022. Memorandum of Law Opposing Plaintiff's Motion for Leave to File Third Amended Complaint, Dkt. No. 99; Declaration of Kristina A. Yost dated June 3, 2022, Dkt. No. 100. Adams filed her reply on June 17, 2022 (“Pl. Rep. Am.”). Reply Memorandum of Law in Support of Motion for Leave to file Third Amended Complaint, Dkt. No. 101.
On June 30, 2022, Adams renewed her motion for FLSA conditional certification. Notice of Motion, Dkt. No. 102; Plaintiff's Renewed Motion for FLSA Conditional Certification and Issuance of Notice to the Collective, Dkt. No. 103; Declaration of Artemio Guerra dated June 30, 2022, Dkt. No. 104; Declaration of Michael Russo dated June 30, 2022 (“Russo Decl.”), Dkt. No. 105. As exhibits to the Declaration of Artemio Guerra, Adams included the following: the deposition of Sheena Adams dated January 5, 2022 (“Adams Dep.”), Dkt. Nos. 104-30, 104-31; the deposition of Kate Wheatley dated February 9, 2022 (“Wheatley Dep.), Dkt. No. 10440; and the deposition of Guil Sendyk dated February 2, 2022 (“Sendyk Dep.), Dkt. Nos. 104-42, 104-43. That same day, Bloomberg moved for summary judgment as to all of Adams' claims. Notice of Motion, Dkt. No. 108; Memorandum of Law in support of Defendant's Motion for Summary Judgment (“Def. Mem.”), Dkt. No. 109; Defendant Bloomberg L.P.'s Local Rule 56.1 Statement of Undisputed Material Facts (“Def. 56.1”), Dkt. No. 110; Declaration of Kristina A. Yost dated June 30, 2022 (“Yost Decl.”), Dkt. No. 111; Declaration of Bo Choe dated June 30, 2022, Dkt. No. 112.
As Bloomberg moved for summary judgment only as to Adams, in making the following recommendations, the Court assesses the evidence only as it relates to her (and not the opt-in plaintiffs).
On August 1, 2022, Bloomberg filed its opposition to Adams' renewed motion for FLSA conditional certification, Dkt. No. 131, along with the following declarations all dated August 1, 2022: Declaration of Kristina A. Yost, Dkt. No. 132; Declaration of Peri Casella, Dkt. No. 133; Declaration of Rodrigo Ferreira, Dkt. No. 134; Declaration of Chiara Nunziata, Dkt. No. 135; and Declaration of Amy Okurowski, Dkt. No. 136. Bloomberg also filed a letter-motion to strike the Russo Declaration (Dkt. No. 105), submitted in support of Adams' renewed conditional certification motion. Letter-Motion for Conference re Motion to Strike (“Def. Mot. Strike”), Dkt. No. 137. That same day, Adams filed her memorandum of law in opposition to Bloomberg's motion for summary judgment (“Pl. Opp.”), Dkt. No. 124, along with her Responses to Bloomberg's Local Rule 56.1 Statement of Undisputed Material Facts (“Pl. Resp. 56.1”), Dkt. No. 125, and Plaintiff's Statement of Additional Facts in Opposition to Defendant's Motion for Summary Judgment (“Pl. 56.1”), Dkt. No. 126. As part of her opposition papers, Adams also filed the following declarations dated August 1, 2022: Declaration of Artemio Guerra, Dkt. No. 127; and Declaration of Michael Russo, Dkt. No. 128.
On August 16, 2022, Adams filed her reply in support of her renewed motion for FLSA conditional certification. Dkt. No. 147. That same day, Bloomberg filed its reply in support of its motion for summary judgment, (“Def. Rep.”), Dkt. No. 148, along with Defendant's Response to Plaintiff's Rule 56.1 Statement of Additional Facts, Dkt. No. 150, and a letter motion for leave to file a Reply Local Rule 56.1 Statement of Undisputed Material Facts, Dkt. No. 151, with the proposed statement attached, Dkt. No. 151-1. On August 19, 2022, Adams filed a letter opposing Bloomberg's letter-motion to strike the Russo Declaration. Letter Response in Opposition to Motion (“Pl. Strike Resp.”), Dkt. No. 155. Bloomberg submitted a letter reply in support of its motion to strike the Russo Declaration on August 26, 2022. Reply in Support of Bloomberg's Motion to Strike (“Def. Rep. Strike”), Dkt. No. 161.
The Court recommends granting Bloomberg leave to file its proposed Reply 56.1 Statement. Local Rule 56.1 neither prohibits nor provides for a reply in further support of a 56.1 statement. See, e.g., Capital Records, LLC v. Vimeo, LLC, No. 09-CV-10101 (RA), 2018 WL 4659475, at *1 (S.D.N.Y. Sept. 10, 2018). While courts in this Circuit have described a Reply 56.1 Statement as “procedurally improper,” Mayaguez S.A. v. Citigroup, Inc., No. 16-CV-6788 (PGG) (JLC), 2021 WL 1799653, at *8 (S.D.N.Y. Apr. 30, 2021) (citations and quotation omitted), adopted by 2022 WL 901627 (Mar. 25, 2022), the Court believes that an exception is warranted in these circumstances. Bloomberg argues, and the Court agrees, that much of what Adams states is “controverted” is not actually so and the Reply 56.1 Statement makes that clear. Accordingly, the Reply 56.1 Statement should be allowed. See, e.g., Perkins v. Presley, 18-CV-03590 (MKV), 2022 WL 769339, at *1 (S.D.N.Y. Mar. 14, 2022) and Mejia v. City of New York, No. 17-CV-2696 (NGG) (JO), 2020 WL 2837008, at *2 n.2 (E.D.N.Y. May 30, 2020) (cases allowing reply 56.1 statements).
Because their motion papers and exhibits contain redactions as filed on the docket, the parties submitted unredacted versions directly to the Court. In this report and recommendation, the Court cites only to the redacted versions available on the docket.
An order of reference was entered on April 21, 2021, referring this case to me for general pretrial supervision and dispositive motion, specifically, Adams' contemplated motion for conditional certification. Dkt. No. 47. On April 12, 2022, an amended order of reference was entered referring this case to me for general pretrial supervision and for all dispositive motions. Dkt. No. 86.
A motion to amend is considered to be non-dispositive, see, e.g., Fezzani v. Bear, Stearns & Co., Inc., No. 99-CV-793 (PAC) (JLC), 2022 WL 782751, at *1, n.1 (S.D.N.Y. Mar. 15, 2022) (collecting cases) (motions to amend non-dispositive in Second Circuit), and this Court could therefore issue a decision (rather than a report and recommendation) as to Adams' motion to amend. However, given that a motion for summary judgment is dispositive, for efficiency, the Court will address both motions in this report and recommendation.
II. DISCUSSION
A. Legal Standards
1. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure “allows a party to seek a judgment before trial on the grounds that all facts relevant to a claim(s) or defense(s) are undisputed and that those facts entitle the party to the judgment sought.” Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (citation omitted). A motion for summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute about a genuine issue exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor.” Bolling v. City of New York, No. 18-CV-5406 (PGG) (RWL), 2021 WL 961758, at *4 (S.D.N.Y. Mar. 15, 2021) (quoting Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008)) (internal quotations omitted). “A moving party can demonstrate the absence of a genuine issue of material fact ‘in either of two ways: (1) by submitting evidence that negates an essential element of the non-moving party's claim, or (2) by demonstrating that the non-moving party's evidence is insufficient to establish an essential element of the non-moving party's claim.'” Id. at *5 (quoting Nick's Garage, Inc. v. Progressive Cas. Ins. Co., 875 F.3d 107, 114 (2d Cir. 2017)).
“When considering a motion for summary judgment, the court is not to weigh the evidence but is instead ‘required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.'” Konteye v. New York City Dep't of Educ., No. 17-CV-2876 (GBD) (RWL), 2019 WL 3229068, at *2 (S.D.N.Y. July 18, 2019) (quoting Phillips v. DeAngelis, 331 Fed.Appx. 894, 894-95 (2d Cir. 2009) (citation omitted)). Nonetheless, “in opposing a motion for summary judgment, the non-moving party may not rely on unsupported assertions, conjecture or surmise.” Guerra v. Trece Corp., No. 18-CV-625 (ER), 2020 WL 7028955, at *2 (S.D.N.Y. Nov. 30, 2020) (citing Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995)). Rather, “to defeat a motion for summary judgment, the nonmoving party must provide hard evidence, from which a reasonable inference in [its] favor may be drawn.” Konteye, 2019 WL 3229068, at *2 (cleaned up); see Cuffee v. City of New York, No. 15-CV-8916 (PGG) (DF), 2018 WL 1136923, at *4 (S.D.N.Y. Mar. 1, 2018) (“[a non-moving party] must do more than simply show that there is some metaphysical doubt as to the material facts .... [She] must come forth with evidence sufficient to allow a reasonable jury to find in [her] favor.”) (internal quotations and citations omitted).
2. Coverage Under the FLSA and NYLL
To state a claim for wages under the FLSA and NYLL, a plaintiff must first demonstrate that “she is a ‘covered employee,' who was ‘employed in an enterprise engaged in interstate commerce or in the production of goods for interstate commerce.'” Allison v. Clos-ette Too, L.L.C., No. 14-CV-1618 (LAK) (JCF), 2015 WL 9591500, at *7 (S.D.N.Y. Apr. 20, 2015) (quoting Rodriguez v. Almighty Cleaning, Inc., 784 F.Supp.2d 114, 120 (E.D.N.Y. 2011) (citation omitted) (internal alterations omitted), adopted by 2015 WL 5333930 (Sept. 14, 2015); see also Tony & Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 295 (1985). Bloomberg does not dispute that it was an “enterprise engaged in commerce” during Adams' employment, see SAC ¶ 14, and so it may be liable for violations of the FLSA. See, e.g., Ethelberth v. Choice Sec. Co., 91 F.Supp.3d 339, 353 (E.D.N.Y. 2015). Accordingly, Adams is a covered employee under the FLSA and NYLL. See, e.g., Allison, 2015 WL 9591500, at *7; see also, e.g., Li v. Leung, No. 15-CV-5262 (CBA) (VMS), 2016 WL 5369489, at *8 (E.D.N.Y. June 10, 2016) (internal citation and quotation marks omitted), adopted as modified by 2016 WL 5349770 (Sept. 23, 2016); Coulibaly v. Millennium Super Car Wash, Inc., No. 12-CV-4760 (CBA) (CLP), 2013 WL 6021668, at *7 (E.D.N.Y. Nov. 13, 2013).
3. FLSA and NYLL Statute of Limitations
“The FLSA generally provides for a two-year statute of limitations on actions to enforce its provisions, but allows a three-year limitations period for ‘a cause of action arising out of a willful violation.'” Herman v. RSR Sec. Services Ltd., 172 F.3d 132, 141 (2d Cir. 1999) (quoting 29 U.S.C. § 255(a)). An FLSA violation is willful if “the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988). “The statute of limitations starts to run when the employee begins to work for the employer.” Rodriguez v. Queens Deli Corp., No. 09-CV-1089 (KAM) (SMG), 2011 WL 4962397, at *2 (E.D.N.Y. Oct. 18, 2011). The limitations period for violations of the relevant provisions of NYLL is six years. See NYLL § 663(3).
B. Analysis
As discussed further below, Bloomberg's motion to strike the Russo Declaration should be denied, its motion for summary judgment as to Adams should be granted in its entirety, and Adams' motion for leave to amend should be denied without prejudice to renewal by the opt-in plaintiffs.
1. The Motion to Strike the Russo Declaration Should Be Denied
Bloomberg moves to strike the Russo Declaration submitted in support of Adams' renewed conditional certification motion. Def. Mot. Strike at 1. Although the Court, by separate order, is denying Adams' motion for conditional certification without prejudice to renewal, Bloomberg's letter-motion to strike is still relevant as Adams cites to the Russo Declaration in opposing Bloomberg's motion for summary judgment as well. Bloomberg argues that the Court should strike the Russo Declaration in its entirety pursuant to Rule 37 of the Federal Rules of Civil Procedure, because Adams failed to disclose Russo as an expert and the declaration contains expert opinions and conclusions offered after the close of expert discovery and after Russo's deposition, so it “impermissibly skirts Rule 26(a)(2).” Id. Adams responds that the Russo Declaration is not an expert report subject to Rule 26(a)(2) but rather a summary pursuant to Rule 1006 of the Federal Rules of Evidence. Pl. Strike Resp. at 1. The Court agrees with Adams. Rule 1006 provides that a party may “use a summary, chart, or calculation to prove the content of voluminous writings . . . that cannot be conveniently examined in court.” Fed.R.Evid. 1006. The Russo Declaration provides summaries of the voluminous data that Bloomberg itself produced. See, e.g., Kalloo v. Unlimited Mech. Co. of NY, 977 F.Supp.2d 187, 198 (E.D.N.Y. 2013) (“[n]o expert analysis” where spreadsheets included “calculations that totaled the number of hours worked in any given week based on the ‘time in' and ‘time out' represented on timesheets”). Here, as in Kalloo, Russo used a computer program, but “[n]o expert analysis was involved.” Id. Further, as a Rule 1006 summary, Adams was not obligated to disclose the Russo Declaration in advance, “as long as the [] records themselves were made available” to Bloomberg. Butler v. N.Y.Health & Racquet Club, 768 F.Supp.2d 516, 525 n.4 (S.D.N.Y. 2011). Accordingly, Bloomberg's letter-motion to strike the Russo Declaration should be denied.
2. The Motion for Summary Judgment Should Be Granted on All Claims
a. Adams' Claim for Unpaid Overtime During the Badge Period Should Fail
Adams' first two causes of action allege that Bloomberg failed to pay overtime in violation of the FLSA and NYLL. SAC ¶¶ 71-75. The Court evaluates these claims in light of Bloomberg's various practices with regard to recording its employees' hours.
i. Bloomberg's Rounding Policy is Neutral on its Face
The FLSA permits employers to use rounding policies when tracking employees' hours for the purposes of payment, if the rounding policy is “neutral on its face and in application [does] not result in the systematic undercompensation of its employees.” Vasquez v. Victor's Cafe 52nd St., Inc., No. 18-CV-10844 (VSB), 2019 WL 4688698, at *4 (S.D.N.Y. Sept. 26, 2019) (quoting Boone v. PrimeFlight Aviation Servs., Inc., No. 15-CV-6077 (JMA) (ARL), 2018 WL 1189338, at *5-7, 14 (E.D.N.Y. Feb. 20, 2018), adopted by 2018 WL 1187402 (Mar. 7, 2018)). The Department of Labor regulation governing rounding policies provides:
In evaluating rounding policies under NYLL, courts use the same analysis as applicable under the FLSA. See, e.g., Eduoard v. Nikodemo Operating Corp., No. 18-CV-5554 (BMC), 2019 WL 13219570, at *5 (E.D.N.Y. Oct. 22, 2019).
It has been found that in some industries, particularly where time clocks are used, there has been the practice for many years of recording the employees' starting time and stopping time to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour. Presumably, this arrangement averages out so that the employees are fully compensated for all the time they actually work. For enforcement purposes this practice of computing working
time will be accepted, provided that it is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.29 C.F.R. § 785.48(b). Courts in this Circuit and others have held that a rounding policy that rounds every time clock entry up and down, to the nearest quarter hour, is neutral on its face and thus permissible under the FLSA. See, e.g., Vasquez, 2019 WL 4688698, at *4 (citations omitted).
Bloomberg represents that its rounding policy recorded employees' time by tracking each employee's badge swipe in and out of the building (“badge time”). Def 56.1 ¶ 42. Badge time “was rounded pursuant to a seven-minute rule .... if the badge time was 7 minutes or less after the last quarter-hour, it would be rounded down, and if it was more than 7 minutes after the last quarter-hour, it would be rounded up.” Def. 56.1 ¶ 48. Further, “[i]f an employee was badged out for more than 20 minutes before badging back in, the start and stop times of the break would be rounded to the nearest quarter-hour.” Def. 56.1 ¶ 49.
Adams argues that Bloomberg's rounding policy is not neutral on its face because the policy called for deducting breaks that were 20 minutes or more before rounding. Pl. Opp. at 14. In support of her argument, Adams contends that Bloomberg's description of its rounding policy in its 56.1 statement is “materially incomplete” because the rounding policy consisted of “two distinct steps.... the first step was to manipulate the [time clock] records to deduct periods when employees were outside the office.” Pl. Resp. 56.1 ¶ 48. Second, she claims that breaks were deducted if an employee was out for 20 minutes or more, not more than 20 minutes. Id. ¶ 49.
In opposing Bloomberg's motion, Adams has not adduced sufficient evidence to demonstrate any dispute of material fact. Her description of Bloomberg's policy as to “deduct” periods when employees were outside the office is what Bloomberg described itself. In fact, Adams also observes that “[time clock] events [were rounded] to the nearest quarter of an hour.” Pl. Resp. 56.1 ¶ 48. Further, as previously discussed, Adams' assertion that Bloomberg was deducting breaks that were 20 minutes or more, as opposed to more than 20 minutes, is not a dispute of material fact. Accordingly, the Court should deem Bloomberg's description of its rounding policy to be admitted.
Therefore, because Bloomberg's policy rounds all badge times, and rounds them both up and down, the rounding policy should be found to be neutral on its face. See, e.g., Vasquez, 2019 WL 4688698, at *4 (policy rounding “each punch up or down to the nearest quarter hour .... is precisely the type of policy found to be permissible under the FLSA”) (citing Corbin v. Time Warner Ent.-Advance/Newhouse P'ship, 821 F.3d 1069, 1078-79 (9th Cir. 2016) (policy rounding all time punches to nearest quarter-hour is facially neutral)).
ii. Bloomberg's Rounding Policy is Neutral as Applied
Bloomberg contends its rounding policy is not only facially neutral but also neutral as applied, because the rounding for “some badge events and workweeks” benefitted Adams and the rounding for other weeks benefitted Bloomberg. Def. Mem. at 15. Adams counters that the policy “fails to compensate the employees for all their work hours,” and that as a result of the rounding policy, Adams “suffered a net loss of 2.55 hours of compensation.” Pl. Opp. at 12, 13. Further, she contends that the rounding policy resulted in “underpayment in 90% of all overtime weeks within [a] representative sample of overtime weeks” and that she, “along with Opt-Ins Provenzale and Telford, collectively lost 29.85 hours of compensation as a result of Bloomberg's rounding.” Pl. Opp. at 15. Adams states that “[b]ecause Bloomberg's Rounding Policy failed to compensate employees for all hours actually worked, Bloomberg cannot show that its Rounding Policy complies with [the] law.” Id. Bloomberg does not dispute that Adams lost some time during the Badge Period but contends that at most it was 2.12 hours over the course of three years and that this “lost” time accounts for time during which Adams was not working. Def. Mem. at 16-17. Namely, Bloomberg contends, it covers the time Adams spent walking from the turnstile where she tapped her badge in, to her desk and back again. Id. at 17.
Adams argues that whether the time for which she was not compensated constitutes “work” is a question for the jury and not appropriate to be decided on summary judgment. Pl. Opp. at 16. In support of her argument that her activities constitute work, she cites the Supreme Court's definition of work in Tenn. Coal, Iron & R. Co. v. Muscoda Loc. No. 123, 321 U.S. 590, 598 (1944)- “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.” Pl. Opp. at 16. She argues that by using badge time to compute compensation, Bloomberg was encouraging employees to stay in the office, because “it was important to Bloomberg's company culture,” and therefore, it was time that should be considered compensable work. Id.
Contrary to Adams' argument, “[w]hether a particular activity can constitute ‘work' under the FLSA is a question of law in this Circuit.” Gibbs v. City of N. Y., 87 F.Supp.3d 482, 496 (S.D.N.Y. 2015) (citing Holzapfel v. Town of Newburgh, N.Y., 145 F.3d 516, 521 (2d Cir. 1998)). “It falls to the trial judge to determine whether the employee's activities could potentially constitute work, while it falls to the jury to determine how much time was spent within the court's definition of work.” Id. at 490 (cleaned up). Accordingly, it is appropriate for the Court to analyze if the activities in question qualify as compensable work.
The time Adams spent between badging in or out and logging on or off her computer should not be compensable. Department of Labor regulations define “preliminary” and “postliminary” activities to include “checking in and out and waiting in line to do so, changing clothes, washing up or showering, and waiting in line to receive pay checks.” 29 C.F.R. § 790.7(g). Furthermore, the Portal-to-Portal Act narrows the definition of work and provides that the FLSA does not require an employer to compensate an employee for “activities which are preliminary to or postliminary to said principal activity or activities.” 29 U.S.C. § 254(a). “Even if an activity falls within Tenn. Coal's definition” of work, as Adams asserts it does here, it still may be excluded by the Portal-to-Portal Act. “Only if the activity emerges unscathed from this two-step analysis, is it, as a matter of law, ‘work' under the FLSA.” Gibbs, 87 F.Supp.3d at 491-92 (cleaned up). The appropriate inquiry is whether the activity is “an intrinsic element of those [principal] activities and one with which the employee cannot dispense if [she] is to perform [her] principal activities.” Integrity Staffing Solutions, Inc. v. Busk, 574 U.S. 27, 37 (2014). In Integrity Staffing Solutions, the Supreme Court held that time spent waiting to undergo and undergoing security screenings at the end of a shift is not compensable under the FLSA. Id. at 29. Numerous courts in this Circuit have held that similar preliminary and postliminary tasks do not count as compensable work. See, e.g., Gorman v. Consol. Edison Corp., 488 F.3d 586, 594 (2d Cir. 2007) (donning and doffing of “helmet, safety glasses, and steel-toed boots may be indispensable to plaintiffs' principal activities without being integral”); Stewart v. Hudson Hall LLC, No. 20-CV-885 (PGG) (SLC), 2021 WL 1750368, at *10 (S.D.N.Y. May 4, 2021) (time spent waiting for locker to store tools for work not compensable); Campbell v. Empire Merchants, LLC, No. 16-CV-5643 (ENV) (SMG), 2018 WL 5456666, at *7 (E.D.N.Y. Aug. 27, 2018) (although activity in question primarily benefited employer, activity rendered “plaintiff and [coworkers] no better equipped to perform their principal activities” because of said activity), adopted by 2019 WL 2206065 (May 22, 2019).
Adams maintains that the time she spent traveling to her desk, getting food from the pantry, and speaking with her colleagues was work time that was for the benefit of Bloomberg. Pl. Opp. at 16. However, under the case law, time spent preparing to work, such as donning gear, and time spent preparing to leave work, such as taking off gear, is not compensable. Yet, by Adams' own admission that she lost 2.55 hours of badge time at most, see Pl. Opp. at 5, over three years, some of this non-compensable time (spent walking from the turnstile where she badged in to her computer, or time spent getting up to get a glass of water) was, in fact, compensated. See Adams Dep. 153:7-154:24 (Adams' testimony regarding her post badge in habits, prior to starting work). Therefore, while Bloomberg's rounding policy resulted in no compensation for some of the time that Adams is alleged to have worked, it also resulted in compensation for time where she was not working.
In addition, Adams argues that Bloomberg intended for all badge hours to be compensable and promised employees as much. Pl. Opp. at 7. As further discussed below, Adams has not provided evidence demonstrating that Bloomberg made such a promise.
The court in Boone v. Primeflight Aviation Servs., Inc. provides an instructive discussion of this issue, including a thorough analysis of the case law concerning rounding policies. 2018 WL 1189338, at *6. For instance, the policy in East v. Bullock's, 34 F.Supp.2d 1176, 1184 (D. Ariz. 1998), cited in Boone, was neutral in application because defendant's rounding policy “may not [have] credit[ed] employees for all the time actually worked, but it also credit[ed] employees for time not actually worked.” This appears to be exactly how Bloomberg's rounding policy operates. Its policy “average[d] out sufficiently” where it compensated Adams for time that was not compensable by law. See, e.g., Boone, 2018 WL 1189338, at *6 (citing East, 34 F.Supp.2d at 1184 (“[d]uring the same time period in which [plaintiff] was underpaid, she was also overpaid, [thus] the employer's rounding practices average[d] out sufficiently”)). Accordingly, the rounding policy should be found neutral as applied.
Although Bloomberg originally argued in its moving papers that any time Adams lost as a result of rounding was “de minimis, ” see Def. Mem. at 16, in its reply papers, Bloomberg states that it is not making an argument pursuant to the de minimis doctrine at summary judgment, but is reserving its right to do so if there is a trial. Def. Rep. at 4 n.6. Under the de minimis doctrine, “employers may disregard otherwise compensable work . . . when the matter in issue only concerns a few seconds of work beyond the scheduled working hours.” Boone, 2018 WL 1189338, at *10 (cleaned up). Because the Court recommends finding this time to be not compensable, whether the de minimis doctrine applies need not be considered.
iii. Adams' Claim for Unpaid Out-of-Office Work Hours During the Badge Period Should Fail
Bloomberg next contends that Adams' claim for unpaid overtime for out-of-office work during the Badge Period should fail because Adams testified that there was never a time she worked out-of-office for which she did not submit an SDSK ticket. Def. Mem. at 17. Specifically, during her deposition Adams was asked: “Was there ever any time that you worked outside of the office that you did not report on an SDSK ticket?” and she responded, “[n]o.” Adams Dep. at 256:7-15.
Adams insists that “SDSK tickets are an incomplete record of out-of-office worktime” because she “and others understood Bloomberg's rule to be that only work on client tickets was counted as work time and that work on ancillary tasks did not count as work time and therefore could not be included in any time submitted on an SDSK ticket.” Pl. Opp. at 21. Adams contends that a review of the badge in and badge out data “shows that work was performed beyond the time documented as work time according to the SDSK tickets,” confirmed by her supervisor. Id. In support of her position, Adams offers the following evidence. First, she submits an excerpt from her deposition testimony, in which she describes instructions she allegedly received from her manager, Guil Sendyk:
Q: . . .What did Guil say about productivity?
A: You pretty much had to be effectively working on a ticket in order to be able to get-or get that overtime. It wouldn't-it wouldn't' have been valid if it was just something that you overlooked or had to just do a simple updated. It was more than that. You had to actually be physically dealing with that ticket.
Q: Did Guil ever tell you that doing an update or following up on something you overlooked was not time that would be paid for by Bloomberg? ....
A: It was never told, but my-my certain-my specific ticket that I did have had valid reasons of being approved.Pl. 56.1 ¶ 11 (citing Adams Dep. 315:8-15). In addition, Adams cites to her testimony in which she describes her discussions with co-workers who told her only certain types of work would qualify as overtime. Pl. Resp. 56.1 ¶ 122.
Second, Adams points to Sendyk's deposition testimony. Pl. Resp. 56.1 ¶ 104. When asked in his deposition about the specific SDSK tickets of one employee, Anthony Provenzale, Sendyk agreed that for the particular events about which he was asked, it appeared that Provenzale's SDSK tickets did not accurately reflect the time Provenzale worked that day. Id. (citing Sendyk Dep. 196:25-197:24).
The evidence Adams offered is insufficient to controvert Bloomberg's contention that there was no time for which she worked outside the office and did not submit an SDSK ticket. The Court first considers Adams' testimony regarding the instructions she received from Sendyk. Her testimony-that the only work that was to be reported on an SDSK ticket was direct work on a customer inquiry-does not specifically controvert Bloomberg's statement that Adams herself did not have time worked that was not reported on an SDSK ticket. Adams might have been led to believe that only certain types of work could be reported on an SDSK ticket, yet it is entirely possible that all her work was reported (as her deposition testimony itself suggests). See, e.g., Wells Fargo Bank, N.A., 2016 WL 2745847, at *1 n.2 (where 56.1 counterstatement failed to specifically controvert statement, statement deemed admitted). Further, Adams' testimony regarding what her co-workers told her about their experience is inadmissible hearsay. See, e.g., Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 160 (2d Cir. 1999) (plaintiff's statement regarding “what he was told was hearsay” and thus “he failed to adduce any evidence sufficient to create a genuine issue to be tried as to his contention”).
The excerpt from Sendyk's testimony is also inadmissible, as it was not based on his personal knowledge. During his deposition, Sendyk was shown a summary of data that he did not prepare, nor had he seen before. Sendyk Dep. 186:21-190:2. “Pursuant to Rule 56(e) of the Federal Rules of Civil Procedure, a court may strike or disregard portions of an affidavit submitted in support of a motion for summary judgment if the affidavit is not based ‘on personal knowledge' and fails to set forth evidence that would be admissible at trial.” Scavo v. CMA CGM S.A., No. 16-CV-5479 (ENV) (CLP), 2021 WL 7367075, at *9 (E.D.N.Y. Mar. 4, 2021) (citing Fed.R.Civ.P. 56(e)), adopted by 2022 WL 577953 (Feb. 25, 2022); see also Bernstein v. Vill. of Wesley Hills, 95 F.Supp.3d 547, 559 (S.D.N.Y. 2015) (“While the Court does not doubt that [the affiant] is aware of at least some of the assertions in his Affirmation, they remain inadmissible if not based on personal knowledge.”) (emphasis in original), aff'd, 644 Fed.Appx. 42 (2d Cir. 2016).
Accordingly, Adams has not adduced admissible evidence to create a genuine dispute regarding whether she had any time for which she worked outside the office for which she did not submit an SDSK ticket. Her overtime claim related to out-ofoffice work during the Badge Period should therefore be dismissed.
b. Adams' Unpaid Overtime Claim During the MYHR Period Should Fail
Bloomberg contends that Adams' claim for unpaid overtime during the MYHR period should also fail. Def. Opp. at 18. To support a claim for unpaid overtime, “an employee has the burden of proving that he performed work for which he was not properly compensated.” Daniels v. 1710 Realty LLC, No. 10-CV-22 (RER), 2011 WL 3648245, at *4 (E.D.N.Y. Aug. 17, 2011) (citations omitted), aff'd, 497 Fed.Appx. 137 (2d Cir. 2012).
When the employer has kept proper and accurate records, the employee may easily discharge his burden by securing the production of those records.... When no such records exist, the employee may meet this burden if he proves that he has in fact performed work for which he was improperly compensated.... In order to meet this burden, the [employee] must produce sufficient evidence to show
the amount and extent of that work as a matter of just and reasonable inference.Id. (citations omitted) (emphasis in original). In order to establish liability for unpaid overtime, Adams thus needs to demonstrate, by a reasonable inference, that there was work performed for which she was not compensated, and that Bloomberg had actual or constructive knowledge of that work. See, e.g., Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011).
Bloomberg has put forward evidence demonstrating that during the MYHR period, there was only one week in which Adams worked more than 40 hours and for that overtime, she was paid. Def. 56.1 ¶ 131. Further, Bloomberg points to Adams' own deposition testimony in which when asked if she ever worked overtime and did not report it in MYHR, she could not recall. Def. Opp. at 19 (citing Adams Dep. at 260:15-20, 324:8-16, 329:7-24).
Adams makes several arguments attempting to refute Bloomberg's contentions. Pl. Opp. at 22-24. First, she points to the time records, contending that the “vast majority” of workdays show exactly eight hours of work, and these “implausibly identical” time entries are evidence of fabricated time records. Id. at 23 (citing Hernandez v. Jrpac Inc., No. 14-CV-4176 (PAE), 2016 WL 3248493, at *6 (S.D.N.Y. June 9, 2016)). But Hernandez is distinguishable. There, the court determined that a time recording system was not credible due to repeated fractionated hours, such as an employee repeatedly working “46.6” hours over “13 weeks.” Id. Further, it was not the numbers in and of themselves that made the system questionable-the time entries were also contrary to plaintiffs' “consistent testimony.” Id. at 7. Here, the data show that 78% of all of Adams' workdays were exactly eight hours, which was the default number of hours in Bloomberg's system. Pl. Opp. at 23. As discussed further below, Adams' testimony does not cast doubt on the validity of these records. Therefore, the records do not qualify as “implausibly identical time entries” as was the case in Hernandez.
Next, Adams contends the badge data for this time period, coupled with her deposition testimony, demonstrate a material factual dispute regarding unpaid overtime. Pl. Opp. at 23. Adams observes that during the week she worked more than 40 hours, she was badged into the building for 45.33 hours but was only paid for 41 hours. Pl. Opp. at 8. But during this time period, employees were not paid by the times they were badged into the building, they were paid for the times they reported in MYHR. Further, Adams does not allege (nor did she testify in her deposition) that the 4.33 hours for which she was not paid was time she was working. Pl. Opp. at 5.
Taking Adams' argument in its most favorable light, and assuming the MYHR records are not accurate, Adams need only provide evidence to raise a just and reasonable inference that work was performed for which she was not compensated. See, e.g., Kuebel, 643 F.3d at 365. Adams concedes that she could not remember “specific dates” on which she worked overtime, Pl. Opp. at 4, but points to deposition testimony that there was overtime work that she did not report in MYHR and there was overtime work that she did report in MYHR, for which she was not paid. Adams Dep. 229:21-230:5, 292:21-24. Further, she testified that she was instructed by her managers not to report certain work as overtime, was indirectly told to come in early before the start of her shift, and was told to work through lunch (although she specifically never worked through lunch without reporting it on MYHR, see Adams Dep. 267:16-21). Adams Dep 268:15-20, 293: 1-18. However, her testimony stops here. When asked when this overtime work was performed, what tasks she was performing, or with what frequency it occurred, Adams, repeatedly, could not recall. Adams Dep. 260:15-20, 324:8-16, 329:7-24. Adams was not able to provide even approximate time frames or numbers.
In support of a claim for unpaid overtime, a plaintiff has a low burden that may be met “through estimates based on [her] own recollection.” Kuebel, 643 F.3d at 362. However, here, Adams could not even provide an estimate of the amount of unpaid overtime she had. For example, in Kuebel, plaintiff recalled “to the best of his memory” that “he worked more than forty hours just about every week, and averaged from one to five hours of uncompensated overtime every week.” 643 F.3d at 356. Whereas in Daniels v. 1710 Realty LLC, the trial court held, and the Circuit agreed, where plaintiff had only provided “vague” testimony regarding how much overtime he worked, and this testimony was inconsistent with other evidence in the case, plaintiff had not met his burden. 2011 WL 3648245, at *5-6; 497 Fed.Appx. at 139. See also Duverny v. Hercules Med. P.C., No. 18-CV-7652 (DLC), 2020 WL 1033048, at *5 (S.D.N.Y. Mar. 3, 2020) (where plaintiff could not provide certain details, factfinder could not determine she had compensable time, and plaintiff's “general assertion” was insufficient).
The case at hand is more like Daniels and less like Kuebel. When asked if she was aware of “any weeks in which [she] entered more than 40 hours in the MYHR timekeeping system and [was] not paid,” Adams responded, “I don't remember.” Adams Dep. 216:18-23. Later, when asked if she could “recall a single time during the MYHR period” where she did work beyond her “scheduled hours in a week” and “didn't report that time accurately in the MYHR system,” Adams responded, “I don't remember.” Adams Dep. 324:8-16. Thus, Adams has not adduced evidence to show as a matter of just and reasonable inference that she has unpaid overtime.
When later asked if she found a wage statement that was “inconsistent” with the records in HR, Adams responded, “[y]es, I have.” Adams Dep. 219:13-21. When further asked when that happened, Adams stated, “I can't give you a specific day. I don't remember.” Id.
Adams goes on to contend that there is at least a genuine dispute of material fact as to whether Bloomberg knew or should have known that she and other employees were working overtime hours. Pl. Opp. at 23-24. It is true that Adams has adduced sufficient evidence to at least raise a question regarding Bloomberg's ability to know when its employees were working, even if the time was not reported on MYHR. Pl. Resp. 56.1 ¶ 19. However, because Adams has failed to raise a reasonable inference of unpaid overtime during the MYHR period, whether Bloomberg may have had actual or constructive knowledge of the alleged overtime is of no import. Thus, Adams' claim for unpaid overtime during the MYHR period should also be dismissed.
c. Adams' Unpaid Wages Claim Pursuant to NYLL § 193 Should Fail
Adams' third cause of action is a claim for a statutory violation of NYLL § 193. SAC ¶¶ 76-77. Bloomberg contends that this is a breach of contract claim and as such, it is preempted by Adams' claim for unpaid wages pursuant to the FLSA. Def. Opp. at 21. Even if it is not preempted, Bloomberg argues, the claim fails because Adams cannot demonstrate the existence of a contract or a breach. Id. at 22-23. In response, Adams insists that her third cause of action is not a breach of contract claim, but a claim pursuant to NYLL § 193 whereby Bloomberg failed to pay “promised wages.” Pl. Opp. at 25. Because in a motion for summary judgment the facts should be viewed in the light most favorable to the non-moving party, the Court will analyze Adams' third cause of action as a claim pursuant to NYLL § 193.
Nonetheless, Adams' claim should still fail. NYLL § 193 provides that “[n]o employer shall make any deduction from the wages of an employee,” except certain specified deductions. Bloomberg contends that Adams has not alleged any deductions, just the complete withholding of her wages. Def. Rep. at 7-8. “[A] plaintiff cannot sustain a claim under Section 193 if he fails to allege that his employer has withheld any specific ‘deduction' from his wages, as opposed to failing to pay the wages themselves.” Jensen v. AR Glob. Invs., LLC, No. 19-CV-657 (RA), 2020 WL 1322584, at *7 (S.D.N.Y. Mar. 20, 2020) (citing Goldberg v. Jacquet, 667 Fed.Appx. 313, 314 (2d Cir. 2016) (“although [plaintiff] did not receive wages to which he was entitled, his wages were not reduced in the manner prohibited by NYLL § 193”)) (citations omitted). Bloomberg has the better of the argument. Even if Adams had sufficiently produced evidence that Bloomberg failed to pay overtime, this is not the type of violation contemplated by § 193.
Adams contends that Bloomberg's failure to pay relates to both overtime hours and regular hours. Pl. Opp. at 25. In its reply, Bloomberg argues that Adams is raising the claim as it relates to regular hours for the first time in her opposition to the motion, which is impermissible. Def. Rep. at 9. Regardless, for the reasons that follow, Adams' third cause of action should be dismissed.
Adams goes on to claim that any argument under § 193 is not duplicative of her FLSA claims because it relates to her claim that “Bloomberg promised to pay [her] for all badge hours and all work hours not captured by badge data,” and therefore, the claim relates to Bloomberg's failure to pay pursuant to its own promises. Pl. Opp. 28-29. Even if § 193 was applicable here, Adams has not raised a genuine issue of material fact regarding Bloomberg's alleged promise to pay for all badge hours. Adams argues that “Bloomberg promised this method of compensation repeatedly, in various forms and various times.” Pl. Opp. at 30 (citing Pl. 56.1 Resp. ¶ 33). She cites to a document accessible to all employees on Bloomberg's human resources website which stated, “any time spent in the office will be counted when determining your eligibility for overtime.” Dkt. No. 104-13 at 7. Adams argues that this was a “promise” made by Bloomberg to pay employees for all hours they were badged into the building. Pl. Opp. at 30. Adams and Bloomberg argue at length whether this document and the specific statement create a binding contract. See Def. Mem. at 22-23, Pl. Opp. at 30-32. Whether or not it does, the statement does not create a promise to pay employees for all time badged into the building-at most it is a promise to count badge time when determining employees' eligibility for overtime. This does not support Adams' position that Bloomberg promised to pay for all badge hours.
Next, Adams cites to the deposition of Kate Wheatley, a 30(b)(6) witness for Bloomberg, in which she stated as follows:
Q: In your capacity as a 30(b)(6) witness in 2014, did Bloomberg promise to pay overtime eligible positions according to their badge time? ....
A: So yes, we did use badge time to make overtime payments to people in 2014 that were overtime eligible.Pl. Resp. 56.1 ¶ 33 (citing Wheatley Dep. 80:18-81:3). Adams argues that Wheatley's testimony demonstrates support of Bloomberg's “promise” to pay. Pl. Opp. at 32. In addition, Adams cites to Wheatley's testimony in a separate litigation, in which she stated that badge hours are “one element of the hours worked.” Pl. 56.1 Resp. ¶ 33. Wheatley's testimony in both depositions supports the fact that badge time was a factor in Bloomberg's overtime determinations. However, the testimony falls far short of demonstrating that Bloomberg made a promise to pay for all badge hours. The Court does not read Wheatley's testimony in either deposition to constitute support of a promise made by Bloomberg, independently, or in conjunction with the rest of Adams' evidence. Accordingly, Adams has not adduced sufficient evidence demonstrating that Bloomberg made such a promise. Summary judgment should be granted on this claim.
d. Adams' Wage Statement Claim Should Fail
Adams contends in her fourth cause of action that Bloomberg failed to provide adequate wage statements pursuant to NYLL § 195(3). SAC ¶¶ 78-79; Pl. Opp. at 32. NYLL § 195(3) requires that employers “furnish each employee with a statement with every payment of wages, listing” a number of items, including “rate or rates of pay,” “gross wages; deductions,” and for all non-exempt employees, “the regular hourly rate or rates of pay; the overtime rate or rates of pay; the number of regular hours worked, and the number of overtime hours worked.” Adams alleges that the wage statements Bloomberg provided failed to state “the regular hourly rate or rates of pay; the overtime rate or rates of pay; [or] the number of regular hours worked.” Pl. Opp. at 32-33. Bloomberg argues, citing to the wage statements as evidence, that the statements complied with NYLL § 195(3) because they accurately reflected the overtime Adams worked (when applicable), the rate, and amount paid for those weeks. Def. Mem. at 24. Bloomberg also contends that the wage statements listed Adams' salary as her “regular” pay and that constitutes the “rate” she was paid. Id. In support of its position, Bloomberg cites to Sexton v. Am. Golf Corp., No. 13-CV-873 (RJD) (SMG), 2015 WL 5884825, at *6-7 (E.D.N.Y. Oct. 8, 2015). Id. Adams argues that Bloomberg's reliance on this case is misplaced because the court in Sexton did not provide any analysis as to the requirements of a wage statement. Pl. Opp. at 34. Further, Adams identifies three wage statements that include overtime pay but do not specify the number of hours worked. Id. at 33 (citing to Dkt. No. 111-10 at 19, 44, and 69). Accordingly, Adams argues, the wage statements do not comply with § 195(3). Id. at 33. See, e.g., Guan Ming Lin v. Benihana New York Corp., No. 10-CV-1335 (RA) (JCF), 2012 WL 7620734, at *13 (S.D.N.Y. Oct. 23, 2012) (“The statutory language clearly and unambiguously explains what the wage statements must contain, what reliefs the employees may seek for receiving inadequate wage statements, and what affirmative defenses the employer may raise.”), adopted by 2013 WL 829098 (Feb. 27, 2013).
NYLL § 198(1-d) “provides an affirmative defense against improper wage statements claim if ‘the employer made complete and timely payment of all wages due.'” Id. at *9 (citing NYLL §198(1-d)). Bloomberg argues the affirmative defense available in NYLL § 198(1-d) applies in these circumstances. Def. Mem. at 24. For the reasons discussed above, after considering the totality of the documentary and testimonial evidence in this case, the Court concludes that Bloomberg has sufficiently demonstrated that it “made complete and timely payment of all wages due.” Therefore, with respect to the three wage statements to which Adams points, Bloomberg may avail itself of the § 198(1-d) defense. See, e.g., Ahmed v. Morgans Hotel Grp. Mgmt., LLC, 55 N.Y.S.3d 691, at *6 (N.Y. Sup. Ct. 2017) (“if the employee suffered no actual injury as a result of not being given the notice, there is no liability”), aff'd sub nom. Ahmed v. Morgan's Hotel Grp. Mgmt., LLC, 74 N.Y.S.3d 546 (2018). Adams' claim pursuant to NYLL § 195(3) should fail.
e. Adams' Wage Notice Claim Should Fail
Finally, Adams alleges in her fifth cause of action that Bloomberg failed to comply with the wage notice requirement of NYLL § 195(1) because it did not obtain an affirmation of her primary language nor her regular hourly rate or overtime rate. SAC ¶¶ 80-83; Pl. Opp. at 34. Currently, NYLL § 195(1) requires employers to provide a wage notice at the time of hiring. However, for employees like Adams hired between April 9, 2011 and February 26, 2015, “the statute also required employers to provide annual notices.” Emily Wu v. Queens Blossom Corp., No. 18-CV-1366 (RPK) (RER), 2021 WL 2827309, at *14 (E.D.N.Y. July 7, 2021) (citations omitted). Because Adams was hired on December 15, 2011, the older version of the statute applies. Adams thus alleges that the six-year NYLL statute of limitations has not run for Bloomberg's failure to provide adequate annual notices, because she was terminated on October 25, 2019 and brought the case on September 18, 2020. Pl. Opp. at 35.
Adams is incorrect. The statute provides a private right of action only as to the initial notice, not with respect to the annual notice. See, e.g., Downie v. Carelink, Inc., No. 16-CV-5868 (JPO), 2018 WL 3585282, at *11 n.8 (S.D.N.Y. July 26, 2018). Accordingly, the only notice on which Adams can assert a claim was provided to her in December 2011 and therefore the six-year statute of limitations has run. See also Sell It Soc., LLC v. Strauss, No. 15-CV-970 (PKC), 2018 WL 2357261, at *15 n.5 (S.D.N.Y. Mar. 8, 2018) (annual wage notice requirement was eliminated before counterclaim filed and “in any event, an employee did not have a private right of action to challenge an employer's failure to provide an annual wage notice”) (citations omitted).
3. The Motion to Amend Should Be Denied Without Prejudice
Under Rule 15(a)(2) of the Federal Rules of Civil Procedure, a district court should “freely give leave [to amend] when justice so requires,” but “has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
Adams moves for leave to amend her SAC in order to add “newly discovered factual allegations to clarify the existing causes of action,” and to expand “the definitions of the classes to include job positions based on information she learned during the depositions of Bloomberg's witnesses.” Pl. Rep. Am. at 1, 7. Adams contends that her request for leave to further amend has no bearing on Bloomberg's motion for summary judgment because Bloomberg's motion is only against Adams, the named plaintiff, and “an expanded class definition does not impact her claims.” Pl. Rep. Am. at 8.
In a footnote in its moving papers, Bloomberg argues that if the Court grants its summary judgment motion, then the entire case, including the claims of the opt-in plaintiffs, should be dismissed. Def. Mem. at 1, n.1. By its own terms, Bloomberg's motion is for summary judgment only “as to the claims of Plaintiff Sheena Adams.” It does not address the merits of the opt-in plaintiffs' claims at all. Moreover, the cases that Bloomberg cites in support of its argument do not support its position. It is certainly possible that the opt-ins may have claims that could survive summary judgment. The Court does not address such claims here as it would be premature to do so given the current posture of the case.
The Court finds the motion to amend to be premature. Because Adams is the only named plaintiff and she has not moved to substitute any of the opt-in plaintiffs for herself, granting Bloomberg's motion for summary judgment will dismiss the case in its current posture. Accordingly, Adams' motion for leave to amend should be denied.
In her opposition papers to Bloomberg's motion for summary judgment, Adams makes a passing request to amend the complaint to substitute herself with the opt-in plaintiffs if Bloomberg's motion is granted. Pl. Opp. at 1. Adams' request in her opposition brief is insufficient to seek an amendment of the pleadings. See, e.g., Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998) (plaintiff may not seek to amend complaint through statements made in motion papers).
However, the motion to amend should be denied without prejudice. Although Adams has already amended her complaint twice, the resolution of the pending motion for summary judgment will result in the first adjudication of the claims on the merits. Contrary to Bloomberg's assertion that all claims (even those of the opt-in plaintiffs) should be dismissed, the opt-in plaintiffs should be allowed to renew the motion for leave to amend in order to substitute themselves for Adams as their claims may have merit independently of Adams, and at this point, amendment does not appear futile. See, e.g., Gonzalez v. Nicholas Zito Racing Stable Inc., No. 04-CV-22 (SLT) (AKT), 2008 WL 941643, at *3 (E.D.N.Y. Mar. 31, 2008) (where opt-in plaintiffs had “already submitted affidavits to the Court in connection with their knowledge of the claims of this case, and previously testified at deposition,” court found they would be “more than able to serve as class representatives,” and “little or no additional discovery needed for this matter to go forward”); see also Zambrano v. Strategic Delivery Solutions, LLC, No. 15-CV-8410 (ER), 2021 WL 4460632, at *8 (S.D.N.Y. Sept. 28, 2021) (opt-ins have standing to move to amend).
III. CONCLUSION
For the reasons set forth above, I recommend that (1) Bloomberg's letter-motion to strike the Russo Declaration be denied; (2) Bloomberg's letter-motion for leave to file a Reply 56.1 Statement be granted; (3) Bloomberg's motion for summary judgment as to Sheena Adams be granted in its entirety; and (4) Adams' motion for leave to amend be denied without prejudice to renewal by the opt-in plaintiffs.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Ronnie Abrams, United States Courthouse, 40 Foley Square, New York, NY 10007. Any requests for an extension of time for filing objections must be directed to Judge Abrams. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).