Nunez v. Metropolitan Learning Institute

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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STEVEN NUNEZ, a.k.a. “STEVEN CRUZ”,

Plaintiff,

-against- MEMORANDUM AND ORDER

18-CV-1757(EK)(VMS)

METROPOLITAN LEARNING INSTITUTE, INC. and

BORIS DAVIDOFF, individually,

Defendants.

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ERIC KOMITEE, United States District Judge:

Plaintiff Steven Nunez brings this action against his

former employer — defendant Metropolitan Learning Institute,

Inc. (“MLI”) and its CEO, Boris Davidoff — for alleged

violations of overtime, wage statement, and anti-retaliation

laws under the Fair Labor Standards Act (“FLSA”) and the New

York Labor Law (“NYLL”).1 Defendants move for summary judgment

on all claims. For the reasons set forth below, the motion is

denied.

I. Background

Defendant MLI is a “private, non-profit” organization

that offers post-secondary education programs at several

campuses in New York City. Third Amended Complaint ¶ 27, ECF

1 Plaintiff also went by “Steven Cruz” during the relevant time period,

and the “a.k.a.” designation in the caption is his.

No. 93 (“Compl.”). Plaintiff was employed at MLI from March

2006 through January 2018. Id. ¶ 30. His titles, at various

times, included “Office Manager,” “Bursar,” “Quality Control

Officer,” and “[Financial] Aid Representative,” Declaration of

Steven Nunez (“Nunez Decl.”), Ex. C, ECF No. 108, although he

challenges the applicability of these labels to his actual work,

Nunez Decl. ¶ 70. Plaintiff does not dispute that Defendants

terminated him at least in part for engaging in a sexual

relationship with a student, which he admittedly did. Id. ¶ 94

(“I had a consensual relationship with an adult student . . .

while employed by MLI.”).

Five months after Plaintiff commenced this action,

Defendants sued Nunez in New York state court on claims related

to that relationship. The state court dismissed MLI’s complaint

for failure to state a claim. MLI later filed an amended state-

court complaint, which was also dismissed. In response to these

lawsuits, Plaintiff amended his complaint in this action to add

retaliation claims under the FLSA and NYLL.

Defendants now move for summary judgment on all

claims. They argue that (1) Plaintiff was exempt from overtime

pay requirements because of his managerial duties at MLI;2 and

2 Although Defendants do not move for summary judgment on Plaintiff’s

claims for failure to furnish wage information to employees under

NYLL §§ 195(1) and 195(3), the “complete and timely payment of all wages due”

(2) he has not asserted the type of injury required to state a

retaliation claim (i.e., harm to his career prospects). As

explained below, the Court denies the motion on both grounds.

II. Standard

Summary judgment is appropriate when “the movant shows

that there is no genuine dispute as to any material fact” and

that he “is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). A material fact is one that “can affect the

outcome under the applicable substantive law.” Graham v.

Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (internal citations

omitted). A genuine dispute is one that can “reasonably be

resolved in favor of either party.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 250 (1986). In performing this analysis,

the Court must resolve all ambiguities and draw all inferences

in favor of the non-moving party. Gallo v. Prudential

Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223 (2d Cir.

1994). “If, in this generous light, a material issue is found

to exist, summary judgment is improper.” Nationwide Life Ins.

Co. v. Bankers Leasing Ass'n, 182 F.3d 157, 160 (2d Cir. 1999).

is an affirmative defense to these claims. See, e.g., Dudley v. Haznon

Homecare Servs., Inc., No. 15-CV-8821, 2018 WL 481884, at *4 (S.D.N.Y. Jan.

17, 2018) (citing NYLL § 198(1-b)); Suarez v. Big Apple Car, Inc., No. 15-CV-

5330, 2017 WL 9400686, at *1 (E.D.N.Y. Dec. 1, 2017). Because this question

depends entirely on whether Plaintiff was exempt from the overtime rules, the

resolution of Defendants’ motion on the overtime claims will apply to these

claims as well.

The moving party may establish that there is no

genuine dispute “by showing that little or no evidence may be

found in support of the nonmoving party’s case.” Gallo, 22 F.3d

at 1223-24 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986)). If the moving party meets this burden, the non-moving

party “must come forward with specific facts showing that there

is a genuine issue for trial.” LaBounty v. Coughlin, 137 F.3d

68, 73 (2d Cir. 1998). However, the non-moving party “must do

more than simply show that there is some metaphysical doubt as

to the material facts, and may not rely on conclusory

allegations or unsubstantiated speculation.” Brown v. Eli Lilly

& Co., 654 F.3d 347, 358 (2d Cir. 2011) (internal citations and

quotations omitted). If “no rational finder of fact could find

in favor of the nonmoving party because the evidence to support

its case is so slight, summary judgment must be granted.” Id.

(internal quotations omitted).

III. Analysis

A. Wage Violations

The Court first turns to Plaintiff’s claims for

violation of the overtime provisions.3 Under the FLSA, employers

3 I note that Plaintiff failed to submit a Rule 56.1 counter-statement

that complied with this District’s Local Rules. See E.D.N.Y. Local R. 56(b)

(nonmovant must “respond[] to each numbered paragraph in the statement of the

moving party”); id. at R. 56(d) (counter-statement must provide “citation[s]

to evidence which would be admissible” following “each statement”). This is

must pay employees overtime compensation for time worked in

excess of forty hours per week. 29 U.S.C. § 207(a). The same

is true under the NYLL. See Martinez v. Dannys Athens Diner

Inc., No. 16-CV-7468, 2017 WL 6335908, at *2 (S.D.N.Y. Dec. 5,

2017) (the overtime pay requirements under these statutes are

“identical”).

Defendants contend that Plaintiff was exempt from

these overtime requirements due to his position at MLI. The

FLSA exempts certain employees based on their profession, job

function, and other characteristics. In particular, there are

exemptions for employees who work in a “bona fide executive,

administrative, or professional capacity,” 29 U.S.C.

§ 213(a)(1), among other things.4

Defendants argue that Plaintiff falls within the

“administrative” and “executive” exemptions.5 The requirements

counsel’s third violation of Court rules in connection with this one motion.

See Order dated July 23, 2020. Although I exercise my “broad discretion” not

to penalize Plaintiff for his counsel’s errors, Holtz v. Rockefeller & Co.,

Inc., 258 F.3d 62, 73 (2d Cir. 2001), Mr. Aronauer’s repeated ignorance of

Court rules is troubling.

4 These exemptions are “substantially similar” in scope under the NYLL,

so the Court considers them together. See Ramos v. Baldor Specialty Foods,

Inc., 687 F.3d 554, 556 n.1 (2d Cir. 2012) (treating FLSA and NYLL

administrative and executive exemptions as functionally equivalent); Sethi v.

Narod, 974 F. Supp. 2d 162, 183-84 (E.D.N.Y. 2013) (administrative exemptions

are “substantially similar” under both statutes); Tomayo v. DHR Rest. Co.,

No. 14-CV-9633, 2017 WL 532460, at *5 & n.5 (S.D.N.Y. Feb. 3, 2017) (“The

NYLL has a substantially similar overtime provision with an analogous

exception for executives.”).

5 Defendants also argue that Plaintiff falls within the “combination”

exemption, which “requires that an employee’s primary duty involve a

for these exemptions differ in several respects, but both

require a showing that the employee’s “primary duty” involved

certain managerial tasks.

The executive exemption, for instance, applies to an

employee:

(1) [Who is c]ompensated on a salary . . . at a rate of

not less than $684 per week . . . ;

(2) Whose primary duty is management of the enterprise in

which the employee is employed or of a customarily

recognized department or subdivision thereof;

(3) Who customarily and regularly directs the work of two

or more other employees; and

(4) Who has authority to hire or fire other employees or

whose suggestions and recommendations as to the

hiring, firing, advancement, promotion or any other

change of status of other employees are given

particular weight.

29 C.F.R. § 541.100.

And the administrative exemption applies to an

employee:

(1) [Who is c]ompensated on a salary . . . at a rate of

not less than $684 per week . . . ;

(2) Whose primary duty is the performance of office or

non-manual work directly related to the management or

general business operations of the employer or the

employer’s customers; and

combination of exempt work” — i.e., work that qualifies for either the

executive or administrative exemption, aggregated together. Arasimowicz v.

All Panel Sys., LLC, 948 F. Supp. 2d 211, 223 (D. Conn. 2013) (quoting

29 C.F.R. § 541.708).

(3) Whose primary duty includes the exercise of discretion

and independent judgment with respect to matters of

significance.

Id. at § 541.200.

These analyses, by their nature, are not often

susceptible to resolution on motions for summary judgment.

“Because inquiries into employees’ FLSA-exempt status are fact-

intensive, even where there has been full discovery, courts are

often reluctant to grant summary judgment based on an FLSA

exemption.” Sexton v. Am. Golf Corp., No. 13-CV-873, 2015 WL

5884825, at *3 (E.D.N.Y. Oct. 8, 2015) (quoting Cheng Chung

Liang v. J.C. Broadway Rest., Inc., No. 12–CV–1054, 2015 WL

5439178, at *2 (S.D.N.Y. Sept. 15, 2015)).

The record here demonstrates why this is so. On the

one hand, several witnesses identified Plaintiff as a “manager,”

Defs’ 56.1 Statement ¶ 8, ECF No. 107-1; one of MLI’s “Campus

Director[s],” Mr. Ronald Harman, testified that Mr. Nunez

managed various sub-departments at MLI’s Jackson Heights campus,

id. ¶¶ 21-22, including recruiting, student records, and the “IT

department,” id. ¶ 22; Mr. Ashraf Mourad, the former “financial

aid director” at that campus, testified that Plaintiff “did

everything to basically run Jackson Heights,” id. ¶ 43; and

other witnesses testified that Mr. Nunez trained and evaluated

employees, id. ¶ 64, attended “directors[’] meetings,” id. ¶ 90,

made recommendations regarding pay raises, id. ¶ 48; and played

important roles in recruiting students to MLI, both as a

supervisor and on his own account, id. ¶¶ 96-99.

On the other side of the ledger, titles are not

dispositive in the exemption analysis. 29 C.F.R. § 541.2 (“A

job title alone is insufficient to establish the exempt status

of an employee.”). And Plaintiff attests that his role was

“straight forward,” “routine,” “secretarial,” and “not

difficult,” Nunez Decl. ¶¶ 43, 44, 45, 58, and that he

“monitor[ed] attendance,” and performed “other regular office

tasks,” id. ¶ 70, including inputting “daily attendance sheets,”

id. ¶ 46, preparing “awards for perfect attendance students,”

id., confirming that “student [financial aid] folders contained

all necessary information,” id. ¶ 50, reviewing “recruiter check

list[s],” id. ¶ 59, getting supplies and ordering student books,

id. ¶¶ 51-53, taking minutes at management meetings, id. ¶ 55,

and meeting with students to ensure they “filled out [financial

aid] application[s] correctly,” id. ¶¶ 36-38. Two witnesses

submitted affidavits attesting that Mr. Nunez performed

“secretarial” work that did not involve significant “decision-

making,” Declaration of Janet Minas ¶¶ 5-6, ECF No. 108-3

(“Minas Decl.”); Declaration of Carol Ortega ¶ 9, ECF No. 108-4

(“Ortega Decl.”), and that his job duties included procuring

supplies and assisting students with “paper work,” Ortega Decl.

¶ 9, and the preparation of documentation and “data” in

connection with a government audit, Minas Decl. ¶¶ 14-16.6

Thus, the record reveals evidence that Plaintiff

performed a mix of routine and managerial duties. The question

is which set of duties were his “primary” ones. This involves

an inquiry into the amount of time Plaintiff spent performing

each of the various tasks described above. See, e.g., 29 C.F.R.

§ 541.700(b) (“[E]mployees who spend more than 50 percent of

their time performing exempt work will generally satisfy the

primary duty requirement.”). “The question of how the

[employees] spent their working time,” however, “is a question

of fact” which is not appropriate for summary judgment. Icicle

Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986);

Indergit v. Rite Aid Corp., Nos. 08-CV-9361, 08-CV-11364, 2010

WL 1327242, at *8 (S.D.N.Y. Mar. 31, 2010). So, too, with

6 There also is some dispute as to whether Mr. Nunez exercised

discretion or supervisory responsibility. Compare Nunez Decl. ¶ 42

(Plaintiff did not “make determinations as to which students received

Financial Aid”); id. ¶ 69 (Mr. Harmon “never gave me any significant leeway,”

“I did not work independently from him,” and “I reported daily to [him]”);

id. ¶ 88 (no “independent judgment” when helping students fill out financial-

aid applications); Minas Decl. ¶ 5 (Mr. Nunez “did not engage in the exercise

of discretion and independent judgment with respect to matters of

significance”); id. ¶ 6 (Mr. Nunez was “not involved in the decision-making

process” as it related to financial aid); id. ¶ 14 (Mr. Nunez had no

“decision/policy-making authority as it related to the government audit”);

Ortega Decl. ¶ 10 (Mr. Nunez was not “given the authority to be involved in

any significant decision making”) with Defs’ 56.1 Statement ¶ 49 (Mr. Nunez

confirmed at deposition he had “free rein” with respect to government-audit

projects); id. ¶ 54 (Mr. Harmon testified that he gave Mr. Nunez “the

opportunity to function as a general manager”).

regards to the conflicting witness testimony, which requires

credibility assessments. Jeffreys v. City of New York, 426 F.3d

549, 553-54 (2d Cir. 2005) (credibility assessments are “not for

the court on summary judgment” (internal quotations omitted)).

Ultimately, these are questions for trial.

The record does contain several datapoints that

suggest Mr. Nunez’s primary duties were more managerial than

routine, and that he did in fact possess meaningful discretion

and responsibility during his employment at MLI. This evidence

includes email correspondence indicating that Mr. Nunez reported

directly to defendant Boris Davidoff, MLI’s CEO, Defs’ Ex. R,

ECF No. 107-5; correspondence between MLI and government

auditors indicating that Mr. Nunez had significant involvement

in an important government audit, id. Ex. O; organizational

charts positioning Mr. Nunez above fifteen other employees

across six sub-departments (and just three rungs below MLI’s

CEO), id. Ex. G; and Mr. Nunez’s own resume, which represents

that he “[m]anage[d] staff, teachers and supervise[d] Financial

Aid Officers” at MLI, id. Ex. H. But the ultimate significance

of this evidence is to be determined at trial.

B. Retaliation

As previewed above, Plaintiff also claims that

Defendants’ state-court lawsuits violate the anti-retaliation

provisions of the FLSA and the NYLL. The FLSA’s anti-

retaliation provision provides that it “shall be unlawful for

any person . . . to discharge or in any other manner

discriminate against any employee because such employee has

filed any complaint . . . under or related to this chapter.”

29 U.S.C. § 215(a)(3). To establish a claim for retaliation

under the FLSA, a plaintiff must establish “(1) participation in

protected activity known to the defendant, like the filing of a

FLSA lawsuit; (2) an employment action disadvantaging the

plaintiff; and (3) a causal connection between the protective

activity and the adverse employment action.” Mullins v. City of

New York, 626 F.3d 47, 53 (2d. Cir. 2010).7

At this point, the Court is unpersuaded that

Defendants’ state-court lawsuits could constitute actionable

retaliation as a matter of law. The First Amendment generally

protects the right of private citizens to file lawsuits. See

Bill Johnson’s Rests., Inc. v. N.L.R.B., 461 U.S. 731, 741

(1983) (“[T]he right of access to the courts is an aspect of the

First Amendment right to petition the Government for redress of

grievances.”). Courts have carved out an exception where the

lawsuit in question was “groundless” or “baseless,” see, e.g.,

Shi-Hsin Chang v. Phoenix Satellite Television (U.S.), Inc., No.

7 “The elements of a retaliation claim under NYLL and FLSA are

comparable,” so the Court considers them as one. Romero v. Bestcare Mgmt.,

Inc., No. 15-CV-7397, 2018 WL 1702001, at *5 n.10 (E.D.N.Y. Feb. 28, 2018)

(citing cases); see also NYLL § 215(1)(a).

14-CV-2686, 2014 WL 5017838, at *5 (S.D.N.Y. Sept. 22, 2014)

(stating that “retaliatory lawsuits, if baseless, are potential

violations” of Title VII); Torres v. Gristede’s Operating Corp.,

628 F. Supp. 2d 447, 473 (S.D.N.Y. 2008) (stating, in FLSA

action, that “[b]ad faith or groundless . . . legal proceedings

against employees who assert statutory rights are actionable

retaliation precisely because of their in terrorem effect”);

Kreinek v. Showbran Photo, Inc., 02-CV-1172, 2003 WL 22339268,

at *6 (S.D.N.Y. Oct 4, 2003) (courts in the Second Circuit have

“expressly refused to adopt a rule stating that counterclaims,

or any other legal cause of action cannot, as a matter of law,

constitute retaliation in violation of the employment

discrimination laws” (internal quotations omitted)). But it is

far from clear that Defendants’ state-court complaints fit this

definition, given Plaintiff’s admission that he engaged in a

sexual relationship with the student in question. See Nunez

Decl. ¶ 94.

Should the merits of Defendants’ state-court lawsuits

rise above the “baseless” threshold, the Court would be faced

with an open question in this Circuit: whether a non-frivolous

lawsuit may qualify as actionable retaliation under the FLSA.

Cf. Rodriguez v. Nat’l Golf Links of Am., No. 19-CV-7052, 2020

WL 3051559, at *5 (E.D.N.Y. June 8, 2020) (“To date, the Second

Circuit has yet to rule on the circumstances, if any, under

which a meritorious lawsuit could constitute an adverse

employment action for the purposes of a former employee’s FLSA

retaliation claim.”); Lawrence v. NYC Med. Prac., P.C., No. 18-

CV-8649, 2019 WL 4194576, at *9 (S.D.N.Y. Sept. 3, 2019)

(whether “an employee can claim retaliation because he or she

has been sued in a well-founded lawsuit is an open question”).

The Court need not reach this question now, though, because

Defendants did not raise it in their opening brief. See, e.g.,

Haywin Textile Prods., Inc. v. Int’l Fin. Inv., 137 F. Supp. 2d

431, 434 n.2 (S.D.N.Y. 2001) (“It is well settled that courts

should not consider arguments first raised in a party’s reply

brief which afford no opportunity for response from the opposing

party.”).8

Instead, Defendants argue only one discrete point:

that Plaintiff failed to establish he suffered harm to his

employment or career prospects as a result of the state-court

lawsuit, as they claim is required to establish an “employment

action disadvantaging the plaintiff.” Plaintiff does not

contend that he has shown employment-specific harm.

8 To the extent Defendants intended to raise this argument through a

footnote in their opening brief — which is far from obvious — the Court need

not consider it. See, e.g., F.T.C. v. Tax Club, Inc., 994 F. Supp. 2d 461,

471 n.1 (S.D.N.Y. 2014) (“It is well settled . . . that a court need not

consider arguments relegated to footnotes . . . .”).

This brings another question to the fore: whether

plaintiffs asserting anti-retaliation claims under the FLSA must

show that a defendant not only took retaliatory action, but that

the action caused employment-specific harm. This, too, is an

open question in this Circuit. But applying the Supreme Court’s

reasoning in Burlington Northern & Santa Fe Railway Corporation

v. White, which read the similar retaliation provision in Title

VII to encompass any action that “well might have dissuaded a

reasonable worker from making or supporting” similar charges,

548 U.S. 53, 68 (2006), I see no absolute requirement that

plaintiffs demonstrate employment-specific harm when asserting

retaliation claims under the FLSA. Cf. Darveau v. Detecon,

Inc., 515 F.3d 334, 341-42 (4th Cir. 2008) (reversing dismissal

of FLSA retaliation claim because district court’s conclusion

that retaliatory lawsuit must cause harm in the form of “an

ultimate employment decision related to hiring, leave,

discharge, promotion, or compensation” was based on “outdated

. . . precedent”); Jian Zhong Li v. Oliver King Enters., Inc.,

No. 14-CV-9293, 2015 WL 4643145, at *3 (S.D.N.Y. 2015) (“Courts

have held that . . . instituting bad faith litigation against

[an] employee constitutes actionable retaliation.”); Torres, 628

F. Supp. 2d at 472 (former employee established prima facie case

of retaliation under the FLSA because defendant filed baseless

counterclaims in federal action). Defendants suggest no reason

why other types of harm, including the need to expend resources

defending a potentially retaliatory lawsuit, would not suffice.

Thus, I decline to adopt Defendants’ contention that employment-

specific harm need be shown as a matter of law.9

For the reasons stated above, the Court denies

Defendants’ motion for summary judgment on Plaintiff’s

retaliation claim. At trial, Defendants will of course be free

to press the issue of whether their state-court lawsuit

constituted actionable retaliation as a matter of law.

IV. Conclusion

For the foregoing reasons, Defendants’ motion for

summary judgment is denied.

____/s/ Eric Komitee_________

ERIC KOMITEE

United States District Judge

Dated: Brooklyn, New York

March 29, 2021

9 Defendants rely primarily on Calderon v. Mullarkey Realty, LLC, No. 14-

CV-2616, 2018 WL 2871834 (E.D.N.Y. June 10, 2018), which granted summary

judgment on a retaliation claim under the FLSA in part because the plaintiff

“presented no evidence that [it] had any impact on his employment prospects or

that Plaintiff even sought work after Defendants terminated him.” Id. at *16.

But Calderon did not say explicitly that harm to employment prospects is a

condition precedent to an FLSA retaliation claim. Moreover, Calderon relied on

Patel v. Lutheran Med. Ctr., Inc., 753 F. Supp. 1070, 1074 (E.D.N.Y. 1990),

which predated the Supreme Court’s decision in Burlington Northern.