Estrella v. P.R. Painting Corp. , 356 F. App'x 495 ( 2009 )

09-0947-cv
Estrella v. P.R. Painting Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A
LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the fifteenth day of December, two thousand
5 nine.
6
7 PRESENT: DENNIS JACOBS,
8 Chief Judge,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judge,
11 JED S. RAKOFF, *
12 District Judge.
13 _______________________________________
14 - - - - - - - - - - - - - - - - - - -X
15
16 Miguel Estrella, Higinio Pena, Walter Redwood, William
17 Smith, Pablo Torres, Juan Torres, individually and on behalf
18 of all others similarly situated,
19
20 Plaintiffs-Appellees,
21
*
Jed S. Rakoff, Judge of the United States District
Court for the Southern District of New York, sitting by
designation.
1 v. 09-0947-cv
2
3 P.R. Painting Corp., Kenneth Romano,
4
5 Defendants-Appellants. **
6
7 - - - - - - - - - - - - - - - - - - -X
8
9 FOR APPELLANTS: Gerald V. Dandeneau, Dandeneau &
10 Lott, Melville, NY.
11
12 FOR APPELLEES: Jonathan A. Bernstein, Levy Davis &
13 Maher, LLP, New York, NY.
14
15 Appeal from a judgment of the United States District
16 Court for the Eastern District of New York (Spatt, J.).
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
18 AND DECREED that the judgment of the district court is
19 AFFIRMED.
20 Defendants, P.R. Painting Corp. (“P.R. Painting”) and
21 Kenneth Romano, appeal from a judgment entered in the United
22 States District Court for the Eastern District of New York
23 (Spatt, J.). Appellees, employees of P.R. Painting, claim
24 that Appellants’ payment of overtime violated, inter alia,
25 Section 7 of the Fair Labor Standards Act of 1938 (“FLSA”),
26 29 U.S.C. § 207. On Appellees’ motions, the district court
**
We direct the Clerk of the Court to amend the
official caption as noted.
-2-
1 granted partial summary judgment in their favor on the issue
2 of liability. The parties thereafter stipulated to damages,
3 and judgment was entered for Appellees in the amount of
4 $65,877.60 plus interest, costs, and fees. We assume the
5 parties’ familiarity with the underlying facts, the
6 procedural history, and the issues presented for review.
7 We review summary judgment decisions de novo. Woodman
8 v. WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005).
9 Appellants and Appellees were parties (through their
10 respective bargaining associations) to two labor agreements,
11 a Collective Bargaining Agreement (“CBA”) and a Market
12 Recovery Agreement (“MRA”). Each covered a different type
13 of work, and with a different rate of compensation.
14 Appellees performed both types of work. P.R. Painting paid
15 them at the higher of the two rates (the CBA rate) for the
16 first 35 hours worked every workweek, at the lower of the
17 two rates (the MRA rate) for the next 5 hours worked (hours
18 36-40 of each workweek), and at one-and-a-half times the
19 lower rate for every hour worked over 40.
20 When work in a single workweek is performed at two or
-3-
1 more non-overtime rates, 29 U.S.C. § 207(a) requires that
2 overtime ordinarily be compensated at not less than one-and-
3 a-half times the weighted average of all non-overtime rates
4 applied during that workweek. Gorman v. Consol. Edison
5 Corp., 488 F.3d 586, 596-97 (2d Cir. 2007). Appellants do
6 not contest that their compensation method does not comport
7 with this requirement. Instead, they argue that their
8 compensation method falls within the exception provided for
9 by 29 U.S.C. § 207(g)(2). Their argument fails.
10 Section 207(g)(2) provides an exception to the
11 weighted-average method of overtime compensation if (1) a
12 given “employee perform[s] two or more kinds of work for
13 which different hourly . . . rates have been established,”
14 (2) overtime compensation is “computed at rates not less
15 than one and one-half times such bona fide rates applicable
16 to the same work when performed during nonovertime hours,”
17 and (3) such computation method is applied “pursuant to an
18 agreement or understanding arrived at between the employer
19 and the employee before performance of the work.” 29 U.S.C.
20 § 207(g). Neither party contests the district court’s
-4-
1 holding that Appellees “perform[ed] two or more kinds of
2 work for which different hourly . . . rates have been
3 established.”
4 The district court held that Appellants’ overtime
5 compensation method was not applied “pursuant to an
6 agreement or understanding arrived at between the employer
7 and the employee before performance of the work,” and
8 accordingly granted summary judgment. Appellants assign
9 error to that holding. But we need not consider Appellants’
10 assignment of error because, even assuming they are correct,
11 we find the evidence that they paid overtime “at rates not
12 less than one and one-half times such bona fide rates
13 applicable to the same work when performed during
14 nonovertime hours” is insufficient to survive summary
15 judgment. See Thyroff v. Nationwide Mut. Ins. Co., 460 F.3d
16 400, 405 (2d Cir. 2006) (“[W]e are free to affirm a decision
17 on any grounds supported in the record, even if it is not
18 one on which the trial court relied.”).
19 Appellants paid all overtime compensation at one-and-a-
20 half times the lower, MRA non-overtime rate. If, as
-5-
1 Appellants contend, Appellees in fact worked all overtime
2 hours on MRA jobs--to which the lower rate applied--
3 Appellants’ payment method satisfies § 207(g)(2) because it
4 compensated Appellees at “one and one-half times” the rate
5 “applicable to the same work when performed during
6 nonovertime hours.” But Appellants cite only two items of
7 evidence to support their contention, neither of which
8 suffices to establish it. First, Appellants argue that all
9 overtime hours must have been worked on MRA jobs because
10 they were paid at one-and-a-half times the MRA non-overtime
11 rate. This argument assumes the very fact at issue, i.e.,
12 it assumes that overtime hours were in fact worked on MRA
13 jobs. Second, Appellants point to an affidavit submitted by
14 defendant Kenneth Romano. (The district court declined to
15 consider the Romano affidavit, on the ground that it
16 contradicted Romano’s prior deposition testimony, but we
17 need not address this decision as we find the evidence
18 insufficient even including Romano’s affidavit.) The
19 affidavit stated that “the MRA work performed by the
20 Plaintiffs was usually work performed on Saturdays or after
-6-
1 the [non-MRA] work had been performed” (emphasis added).
2 But that statement supports at most a conclusion that some
3 of the overtime hours worked by Appellees were worked on MRA
4 jobs. This is not enough to survive summary judgment on the
5 issue of liability: If P.R. Painting failed to compensate
6 Appellees properly for even one hour of overtime, liability
7 is established. Anything else relates only to damages,
8 which were stipulated and are not challenged on appeal.
9 We have reviewed Appellants’ remaining arguments and
10 find them to be without merit. For the foregoing reasons,
11 the judgment of the district court is hereby AFFIRMED.
12 FOR THE COURT:
13 Catherine O’Hagan Wolfe, Clerk
14
15
16 By: __________________________
-7-