Perez v. Postgraduate Center for Mental Health

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JOSE PEREZ,

Plaintiff, MEMORANDUM & ORDER

19-CV-0931(EK)(PK)

-against-

POSTGRADUATE CENTER FOR MENTAL

HEALTH,

Defendant.

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ERIC KOMITEE, United States District Judge:

Jose Perez was the live-in superintendent at one of

Defendant’s residential facilities in Brooklyn. He claims that

he worked far in excess of the hours for which he was paid and

was regularly expected to be “available” to work day and night.

Plaintiff brought this action under the Fair Labor Standards Act

(“FLSA”) and the New York Labor Law (“NYLL”) for unpaid wages

and for alleged violations of the NYLL’s notice requirements.

The parties now cross-move for summary judgment on all claims.

For the following reasons, Plaintiff’s motion is denied;

Defendant’s motion is granted in part and denied in part. This

case will proceed to trial on all but the NYLL wage-notice and

wage-statement claims, and the unpaid wage claims regarding

meal-time hours.

Facts

The following facts are taken from the evidentiary

record and the parties’ Rule 56.1 statements, and are undisputed

unless otherwise noted.

Postgraduate Center for Mental Health (“PCMH”) is a

non-profit organization that provides healthcare services and

housing for people suffering mental illness, chronic

homelessness, and drug dependence. Def.’s 56.1 Statement ¶ 3,

ECF No. 38-1; Def.’s Response to Pl.’s 56.1 Statement ¶ 2, ECF

No. 45. PCMH operates residential facilities throughout New

York City. Def.’s 56.1 Statement ¶ 3.

Jose Perez worked at various PCMH residences between

June 2008 and June 2016. Def.’s Response to Pl.’s 56.1

Statement ¶ 5. This action arises from his employment from 2009

to 2016 as the live-in superintendent at the Columbia Street

residence in Brooklyn. See id. ¶ 6. Plaintiff’s

responsibilities there included maintenance and cleaning tasks

such as sweeping the floors, dusting furniture, maintaining the

compactor room and preparing vacant apartments. Perez was also

responsible for responding to building-related emergencies. See

Superintendent Job Description at 1, ECF No. 38-3 (“Job

Description”). Plaintiff lived at the residence in a rent-free,

one-bedroom apartment. See Live-in Superintendent Lease

Agreement at 1, ECF No. 38-3 (“Lease Agreement”). PCMH says

Plaintiff’s regular work schedule was Sunday through Thursday

from 8:00 a.m. to 4:00 p.m. See Deposition of PCMH’s Rule

30(b)(6) Witness 45:20-23, ECF No. 46-1 (“PCMH Dep.”). A

condition of Plaintiff’s rent-free apartment lease, however,

called for him to “address building situations after [his]

normal business hours.” Lease Agreement at 1.

PCMH operates a timekeeping system to keep track of

employee hours. Plaintiff was required to “clock in” and “clock

out” at the beginning and end of his shift, as well as whenever

he worked outside of that period. See Declaration of Danielle

Hunter ¶¶ 9-10, ECF No. 46 (“Hunter Decl.”). PCMH would then

use the time records to pay Plaintiff for hours worked. See id.

¶¶ 7-10.

Plaintiff testified that he regularly worked outside

of his scheduled 8:00 a.m. to 4:00 p.m. hours, but was not

compensated for that work. He testified that director Harold

Moss (to whom he reported directly) and supervisor Steven Pinks1

both instructed him to clock out at the end of his shift at

4:00 p.m. and then continue to work. Deposition of Jose Perez

38:8-22, 60:4-15, 63:18-64:2, ECF No. 45-2 (“Perez Dep.”).

1 Plaintiff had at least three supervisors at PCMH: Steven Pinks,

Sabrina Taylor, and Nicole Henry (who Plaintiff sometimes referred to as

Sabrina Henry at his deposition). Plaintiff vacillated between calling these

employees “director” and “supervisor.” Perez Dep. 36:11-14; 219:6-10. This

Order will refer to them by the “supervisor” title.

According to Plaintiff, Moss told him that the Columbia Street

residence is a “24 hour[] establishment,” id. 38:15-19, and that

he “had to spend whatever time was necessary to care for the

building,” Declaration of Jose Perez ¶ 20, ECF No. 43-3, and

Pinks told Plaintiff that when he was “needed,” he “need[s] to

come out of [his] apartment.” Perez Dep. 63:13-17. Plaintiff

also stated that when he worked overtime, “I didn’t go to the

time clock and punch in and that was something I wasn’t doing.

I would just go straight to the problem. Big mistake.” Id.

223:2-6. In addition, Plaintiff testified that (1) he would

regularly work through his one-hour lunch break, but that PCMH

would automatically deduct that hour from his wages, id. 123:10-

20, and (2) he was “on call” after hours, responding to an

“emergency” at least every other night. E.g., id. 41:16-43:14;

64:5-11.

Plaintiff testified that he worked “thousands” of

uncompensated overtime hours. Id. 183:4-5. He also contends

that even when Defendant did pay overtime, it did so at too low

a rate because PCMH omitted the value of Plaintiff’s rent-free

apartment from the base compensation to which his overtime rate

was applied. Plaintiff also maintains that PCMH did not provide

the wage notices and statements required by the NYLL. He seeks

unpaid wages and liquidated damages under the state and federal

laws, in addition to statutory damages under sub-sections 195(1)

and 195(3) of the NYLL.

Plaintiff moves for summary judgment on all claims.

Defendant cross-moves, arguing that Plaintiff has failed to

carry his evidentiary burden on his overtime, on-call, and meal-

break claims; that the wage-notice claims are precluded as a

matter of law; the NYLL overtime claims are precluded by the so-

called “janitorial exemption”; and the FLSA claims are time-

barred.

Summary Judgment Standard

Summary judgment is appropriate when “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 genuine dispute of material fact exists “if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986).

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 v.

Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223-

24 (2d Cir. 1994) (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). 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). The same standard

of review applies where, as here, the parties cross move for

summary judgment. E.g., Ethelberth v. Choice Sec. Co., 91 F.

Supp. 3d 339, 349 (E.D.N.Y. 2015). “When evaluating cross-

motions for summary judgment, the Court reviews each party’s

motion on its own merits and draws all reasonable inferences

against the party whose motion is under consideration.”

Gustavia Home, LLC v. Hoyer, 362 F. Supp. 3d 71, 78 (E.D.N.Y.

2019) (citing Morales v. Quintel Entm't, Inc., 249 F.3d 115, 121

(2d Cir. 2001)).

Discussion

A. Off-the-Clock Claims

Plaintiff seeks damages for the unpaid time that he

allegedly worked, but admittedly did not record in Defendant’s

timekeeping system (his “off-the-clock” claims). He claims to

have worked off-the-clock regularly during his one-hour lunch

break and after 4:00 p.m.

To establish liability for unpaid overtime, an

employee must prove that he “performed work for which he was not

properly compensated, and that the employer had actual or

constructive knowledge of that work.” Kuebel v. Black & Decker

Inc., 643 F.3d 352, 361 (2d Cir. 2011) (citing Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 687–88 (1946)). Whether an

employer has actual or constructive knowledge that a plaintiff

worked overtime is an issue of fact. Murray v. City of New

York, No. 16-CV-8072, 2020 WL 615053, at *8 (S.D.N.Y. Feb. 10,

2020).

“[I]f an employer’s records are inaccurate or

inadequate, an employee need only present ‘sufficient evidence

to show the amount and extent of the uncompensated work as a

matter of just and reasonable inference.’” Kuebel, 643 F.3d at

362 (quoting Anderson, 328 U.S. at 687). An employee can meet

this burden “based on his own recollection.” Id. “The burden

then shifts to the employer to come forward with evidence of the

precise amount of work performed or with evidence to negative

the reasonableness of the inference to be drawn from the

employee’s evidence.” Anderson, 328 U.S. at 687–88.

Shift Continuing After Clocking Out

Plaintiff claims that he regularly worked after the

conclusion of his 8:00 a.m. to 4:00 p.m. shift, but was not

compensated for that work.

The FLSA does not prohibit an employer from requiring

employees to log their time in order to receive pay for time

worked, as PCMH did here. Desilva v. N. Shore-Long Island

Jewish Health Sys., Inc., 27 F. Supp. 3d 313, 322 (E.D.N.Y.

2014). An employer may not, however, “prevent an employee from

reporting overtime work that he or she actually performed.” Id.

Plaintiff testified that he regularly clocked out at

4:00 p.m. and kept working. E.g., Perez Dep. 40:8-9. He admits

that he failed to clock in for at least some overtime hours that

he worked. See Perez Dep. at 223:3-6 (“I didn’t go to the time

clock and punch in and that was something I wasn’t doing. I

would just go straight to the problem. Big mistake.”); see also

151:5-15 (“And at that point I didn’t even punch in or nothing

actually. Just go right to whatever the problem was on my day

off and get the job done, whatever the case may be.”).

Plaintiff stated that he worked “several thousands of hours” of

unrecorded overtime, for example. Id. 183:4-7.

This failure might preclude a claim for overtime pay

if it were probative of the employer’s lack of knowledge of the

overtime work at issue. Cf. Kuebel, 643 F.3d at 365 (denying

summary judgment where employee specifically complained to his

supervisor that he was working more than forty hours per week

but recording only forty). But Perez testified, here, that his

failure to clock in was due at least in part to orders he

received from his supervisors. Specifically, he testified that

director Harold Moss and supervisor Steven Pinks told him to

“punch [out] at 4 o’clock and then [] continue to work.” Perez

Dep. 38:6-22; 60:3-11; 65:3-9; see also Perez Decl. ¶ 20.

(Harold Moss told Plaintiff to clock out at 4:00 p.m. and

continue working).

There is also evidence that one of Plaintiff’s

supervisors, Sabrina Taylor, was on notice that he was working

overtime. Plaintiff “constantly” told Ms. Taylor that he was

getting called in to work almost every night. Perez Dep.

136:22-137:3. He states that she responded that it was “the

nature of the job.” Id. 137:20-138:4. Plaintiff understood

that when he told Ms. Taylor something, Ms. Taylor would relay

that information to Mr. Moss. Id. 137:6-8. Plaintiff also

testified that he told the “front desk person” and the “program

director” whenever he had to work. Id. 119:22-120:5. He stated

at his deposition that the “people [at] the front desk” and

another of his supervisors, Nicole Henry, would be able to

verify his overtime claims. Id. 219:2-15. Plaintiff deposed

none of these employees, however.

PCMH points to evidence that Plaintiff knew he had to

record his time in order to receive overtime compensation and

still failed to do so. Plaintiff testified that he was “allowed

. . . to punch in” for certain “special assignments,” such as

stripping and waxing the floors, and would get paid overtime for

that work. Id. 157:19-158:25; see also id. 220:19-22 (“I was

told to punch in at specific times to do specific jobs.”). In

addition, Plaintiff testified that he would tell his supervisor

when he forgot to record his time. Id. 192:6-25 (Plaintiff

testified that he would tell his supervisor, “listen[,] I came

out and I worked a little overtime,” and she “would put the time

in” for him). This is not a defense, however, if the employer

nevertheless had notice of the overtime work. Kuebel, 643 F.3d

at 363.

In the end, Plaintiff’s evidence in support of his

“off-the-clock” claim is relatively thin, consisting almost

entirely of his own testimony. Some of his assertions are in

tension with one another, if not contradictory. He blames Moss

for telling him to clock out daily at 4:00 pm, but he seems

simultaneously to take the blame on himself for not clocking

overtime hours after that. Compare Perez Dep. 38:6-22 (Moss

told Plaintiff to “punch [out] at 4 o’clock and then [] continue

to work”) with id. 223:2-6 (“I didn’t go to the time clock and

punch in and that was something I wasn’t doing. I would just go

straight to the problem. Big mistake.”).

But summary judgment is not appropriate on this

record. In the Second Circuit, “once an employer knows or has

reason to know that an employee is working overtime, it cannot

deny compensation simply because the employee failed to properly

record or claim his overtime hours.” Kuebel, 643 F.3d at 363.

That “an employee is required to submit his own timesheets does

not necessarily preclude him from invoking Anderson's standard

where those records appear to be incomplete or inaccurate.” Id.

The time and pay records that Defendant produced, though

extensive, do not negate the inference that Plaintiff worked

hours for which he was not compensated where the nature of

Plaintiff’s claim is that he was told not to clock in. E.g.,

Copper v. Cavalry Staffing, LLC, 132 F. Supp. 3d 460, 465

(E.D.N.Y. 2015) (“Consideration of this extrinsic evidence

provides little probative value for this claim because

plaintiffs plausibly allege that defendants did not account for

hours they worked ‘off-the-clock;’ therefore, these unaccounted-

for hours would not appear in the wage statements furnished by

defendants.”).2

There thus remains a dispute of material fact as to

whether PCMH was on notice that Plaintiff worked overtime hours

that were not recorded, which precludes summary judgment on

Plaintiff’s overtime-wage claim regarding post-clock-out work.

Working Over the Lunch Break

Plaintiff also contends that Defendant’s automatic

deduction for lunch was improper because he regularly worked

2 Moreover, Plaintiff did not concede that Defendant’s overtime records

are correct, as Defendant contends. For example, Plaintiff testified that he

was uncertain if the 2015 overtime records were accurate, Perez Dep. 244:19-

245:15, and that he believed the 2016 overtime records to be accurate in

“some cases,” id. 220:19-22.

through his lunch break. Courts in this Circuit have held that

automatic meal-deduction policies are not per se illegal.

Desilva v. N. Shore-Long Island Jewish Health Sys., Inc., 27 F.

Supp. 3d 313, 321 (E.D.N.Y. 2014) (collecting cases). But “meal

periods are compensable under the FLSA when employees during a

meal break perform duties predominantly for the benefit of the

employer.” Reich v. S. New Eng. Telecomms. Corp., 121 F.3d 58,

65 (2d Cir. 1997). Again, in order to claim such overtime, the

employee must demonstrate that the employer had constructive or

actual knowledge of the time worked. Desilva, 27 F. Supp. 3d at

322.

It is undisputed that PCMH’s policy was to

automatically deduct one-hour for lunch. PCMH Dep. 42:20-43:11;

Perez. Decl. ¶ 29. Plaintiff testified that he never took the

full hour; he would instead “go out and get a quick bite real

quick at the bodega.” Perez Dep. 123:17-20. Plaintiff also

addressed this issue at length in his declaration. He attests

that one day a week, he “did not eat lunch at all because of the

demands of the job”; two days a week, he “would take about 5-10

minutes to eat food [he] bought from the bodega in the morning”;

and two days a week, he would “take 10-15 minutes to buy a snack

at the nearby bodega and eat and come back and start working

right away.” Perez Decl. ¶ 29. On this claim, too, Plaintiff’s

evidence of overtime work consists entirely of his own

testimony.

Defendant submitted an affidavit from Edna Sams, the

Regional Director of PCMH, attesting that she visited the

Columbia Street residence on “multiple occasions” during the

“mid-day period” and “plaintiff always took his lunch break for

the entire hour and generally went off site to do so.”

Declaration of Edna Sams ¶ 23, ECF No. 47 (“Sams Decl.”). In

addition, she avers that “should an employee work during a meal

break, the employee is required to notify a supervisor so that

the time and pay may be reflected in the attendant wage

statement.” Id. ¶ 22. Plaintiff attests that he was “never

instructed or required by Defendant to notify Defendant if [he]

took less than an hour to eat/have a meal or did not take any

time to eat.” Perez Decl. ¶ 31. Plaintiff has produced no

evidence, however, from which a jury could conclude that he

informed his supervisors that he was working through lunch, that

they observed him doing so, or that they otherwise had actual or

constructive knowledge of this alleged work. Desilva, 27 F.

Supp. 3d at 322.

There is therefore no dispute of material fact as to

whether Defendant knew Plaintiff worked during his lunch hour.

Defendant’s summary judgment motion as to the unpaid wage claim

regarding meal-time work is granted (and Plaintiff’s is denied).

B. On-Call Claim

Plaintiff claims that he was “on call” twenty-four

hours a day at the Columbia Street residence but was not

compensated for that time. “On call” time can be compensable

under the FLSA where an employer restricts an employee’s ability

to freely use his time for his own benefit. O'Neill v. Mermaid

Touring Inc., 968 F. Supp. 2d 572, 582 (S.D.N.Y. 2013) (citing

Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944)). Justice

Jackson explained (in reference to a security guard’s overtime

claim): “Readiness to serve may be hired, quite as much as

service itself, and time spent lying in wait for threats to the

safety of the employer’s property may be treated by the parties

as a benefit to the employer.” Armour & Co., 323 U.S. at 133.

Plaintiff’s claim thus implicates a question that

frequently recurs in the “on call” context: was he “engaged to

wait” or “waiting to be engaged”? “Engaged to wait” — the

circumstance described in Armour — is now defined by regulation

to mean that “waiting [was] an integral part of the job” and any

period of inactivity was “unpredictable” and of “short

duration.” 29 C.F.R. § 785.15. An employee waits to be engaged

(and is entitled to no compensation for waiting), on the other

hand, when the period(s) of inactivity are “long enough to

enable [him] to use the time effectively for his own purposes.”

29 C.F.R. § 785.16; see also Skidmore v. Swift & Co., 323 U.S.

134, 137 (1944).

Plaintiff has adduced evidence that, as the live-in

super, he was expected to be available at all hours.

Plaintiff’s lease agreement provided that he “will be required

to address building situations after [his] normal business

hours.” Lease Agreement at 1. His job description stated that

he would have to “respond to emergency situations,” Job

Description at 1, which Plaintiff testified occurred every other

night on average. Perez. Dep. 41:16-43:14; 64:5-11; 88:2-6.

And Defendant’s Rule 30(b)(6) witness acknowledged that “as part

of the requirements in his lease, [Plaintiff] was on call

twenty-four hours; that was the condition.” PCMH Dep. 50:7-10;

see also 47:14-20 (stating Plaintiff “was on call for twenty-

four hours”). Plaintiff testified that he would start getting

calls to come back to work around 6:30 p.m., Perez Dep. 134:3-5,

that he was always “waiting on calls” at night, id. 134:15-21,

and that he was woken up about four nights out of the week with

“emergency” work calls. Id. 141:24-25.

Defendant disputes that Plaintiff actually responded

to emergencies with any frequency, pointing to the paucity of

“incident reports” at Columbia Street. During his employment in

2016, for example, there were six documented emergency incidents

at the residence, and of those six, Plaintiff worked on one

incident, which occurred during his regular shift. See 2016

Incident Reports at 628-42, ECF No. 45-2. Defendant also points

to evidence that Plaintiff was able to use his time after work

freely. Plaintiff testified that he would watch television in

the evenings, Perez Dep. 47:10-16, have his girlfriend and other

guests over to his apartment, id. 47:17-48:24, 49:24-50:2, and

go to a bar nearby and consume alcohol. Id. 51:22-24, 52:4-14.

Nevertheless, Defendant does not dispute that Perez

had to remain close by, or that the lease required him to

respond to emergencies at all hours. On this record, a genuine

issue of material fact remains as to how much time Plaintiff was

required to stay on premises waiting for after-hours calls. See

Redzepagic v. Hammer, No. 14-CV-9808, 2017 WL 780809, at *8

(S.D.N.Y. Feb. 27, 2017) (questions of fact existed as to “how

much time spent on the premises constitutes work” where

superintendent testified that he was “able to watch TV, use the

computer, go to the gym, and run errands” while he was on call);

O'Neill, 968 F. Supp. 2d at 582 (“There is conflicting evidence

as to whether Plaintiff was able to use time spent ‘on-call’ for

[his] personal use. This is a fact-specific inquiry best left

to the fact finder.”); cf. Moon v. Kwon, 248 F. Supp. 2d 201,

230 (S.D.N.Y. 2002) (finding, after a bench trial, that “[w]hile

the defendants argue that the hotel did not require [plaintiff]

to spend his evenings in the hotel and that [plaintiff] in fact

spent much of this time socializing with his friends and

coworkers in the hotel basement, rather than actually performing

any work, the evidence supports [plaintiff’s] contention that he

was not as free to leave the premises during the evening as the

defendants claim and he routinely spent his evenings performing

maintenance and repair tasks . . . .”). Plaintiff must prove at

trial, however, the particular hours outside of 8:00 a.m. to

4:00 p.m. that he was “engaged to wait.” See, e.g., Moon, 248

F. Supp. 2d at 224 (finding plaintiff was not on-call during

night-time (as opposed to evening) hours where “defendant made

no effort at trial to distinguish between the time he spent at

night working and the time he spent waiting or sleeping in the

hotel — which, after all, was his home at the time — or to

quantify the frequency and extent of his night-time work

assignments”).

The parties’ cross-motions for summary judgment on the

overtime claim for on-call work are denied.

C. Value of the Superintendent Apartment

Plaintiff contends that even when PCMH did pay him

overtime, it calculated his overtime wage incorrectly. PCMH did

this, he argues, by failing to include the value of the

superintendent’s apartment — provided free of charge as part of

Perez’s compensation — in the calculation of his overtime rate.

Defendant concedes it did not do so, but argues it was not

necessary because the apartment had no value.

The definition of “wage” under the FLSA “includes the

reasonable cost . . . to the employer of furnishing such

employee with board, lodging, or other facilities, if such

board, lodging, or other facilities are customarily furnished by

such employer to his employees.” 29 U.S.C. § 203(m)(1). The

FLSA regulations require that “[w]here board, lodging, or other

facilities are customarily furnished as additions to a cash

wage, the reasonable cost of the facilities to the employer must

be considered as part of the employee's regular rate of pay.”

29 C.F.R. § 531.37.

It is undisputed that, as the live-in superintendent,

Plaintiff was provided a rent-free one-bedroom apartment at the

Columbia Street residence between October 2009 and June 2016.

The parties dispute, however, the value of the apartment.

Defendant submitted a report drafted by a real estate appraiser

that valued the apartment’s “market” rent at zero. The

appraiser based this valuation on the fact that the building

houses tenants in need of homeless services and that it is

located in a middle-class neighborhood. Report at 15, ECF No.

45-3. Plaintiff contends that the apartment is worth

approximately $2,000 a month. Perez Dep. 110:13-111:2. He

determined this figure by asking local realtors the monthly rent

of one-bedroom apartments in the neighborhood. Id. 111:4-20.

This raises a disputed issue of fact for a jury. The

parties’ cross-motions for summary judgment on this issue are

therefore denied.

D. NYLL Annual Wage-Notice Claim

Plaintiff claims that he is also entitled to damages

for Defendant’s alleged failure to provide him with annual wage

notices under Section 195(1) of the NYLL. This claim is

precluded as a matter of law.

Section 195(1), as amended by New York’s Wage Theft

Prevention Act (“WTPA”) in April 2011, required employers to

provide wage notices on paper or electronically at the time of

hiring (the “initial notice”) and on or before the February of

each subsequent year of employment (the “annual notice”). N.Y.

Lab. Law § 195(1-a) (effective April 9, 2011 to Feb. 27, 2015).

An employee hired after April 2011 could seek damages if the

employer did not provide the initial wage notice; this

provision, however, did not authorize a private cause of action

for the annual wage-notice violation. Cabrera v. Canela, 412 F.

Supp. 3d 167, 184–85 (E.D.N.Y. 2019) (collecting cases). In

2015, when the WTPA was amended, the annual wage-notice

requirement was removed entirely. Gamero v. Koodo Sushi Corp.,

272 F. Supp. 3d 481, 510 n.13 (S.D.N.Y. 2017), aff'd, 752 F.

App'x 33 (2d Cir. 2018).

PCMH hired Plaintiff in June 2008 — almost three years

before the initial wage-notice requirement went into effect.

Perez Dep. 25:3-6. He therefore cannot seek damages on the

initial wage-notice claim. E.g., Cabrera, 412 F. Supp. 3d at

184-86. In addition, New York state law provided no private

right of action for an employer’s failure to provide annual wage

notices between 2011 and 2015. Id. Accordingly, Defendant’s

motion for summary judgment on the wage-notice claim is granted

and Plaintiff’s is denied.

E. NYLL Wage Statement Claim

Plaintiff also claims that his wage statements failed

to comply with Section 195(3) of the NYLL. That section

dictates the contents of the statement that an employer must

provide an employee upon payment of wages. The wage statement

must contain:

the dates of work covered by that payment of wages;

name of employee; name of employer; address and phone

number of employer; rate or rates of pay and basis

thereof, whether paid by the hour, shift, day, week,

salary, piece, commission, or other; gross wages;

deductions; allowances, if any, claimed as part of the

minimum wage; and net wages . . . 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.

N.Y. Lab. Law § 195(3).

Defendant produced the Plaintiff’s wage statements for

2013 through 2016, covering the six-year NYLL statute of

limitations period. Plaintiff argues that Defendant violated

Section 195(3) because they omitted Defendant’s “correct legal

name” and address. Pl.’s Br. in Support of Motion at 17, ECF

No. 43-1. This argument is unavailing.

The statements from 2013 to 2014 listed “Postgraduate

Center” as the employer and those from 2015 to 2016 listed

“Postgraduate Center for Mental Health.” And all of the

statements contained the Defendant’s headquarters’ address at

158 East 35th Street in Manhattan. To the extent Plaintiff is

arguing that he is entitled to damages because the wage notices

showed his employer’s name as “Postgraduate Center” rather than

the fuller “Postgraduate Center for Mental Health,” his claim

falters on Article III standing grounds. In Spokeo, Inc. v.

Robins, the Supreme Court held that Article III’s “injury-in-

fact requirement requires a plaintiff to allege an injury that

is both ‘concrete and particularized.’” 136 S. Ct. 1540, 1545

(2016) (quoting Friends of the Earth, Inc. v. Laidlaw Env’t

Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000)). The

“concrete” requirement refers to the “realness” of the injury,

the Court held; the injury cannot be merely “abstract.” Id. at

1548. The particularity requirement, in turn, means that an

injury “must affect the plaintiff in a personal and individual

way.” Id.

Spokeo’s majority went on to hypothesize a specific

example of a statutory violation that causes no concrete harm,

and that example is strikingly similar to Perez’s NYLL

Section 195(3) allegation here. The Court wrote that “not all

inaccuracies cause harm or present any material risk of harm.

An example that comes readily to mind is an incorrect zip code.

It is difficult to imagine how the dissemination of an incorrect

zip code, without more, could work any concrete harm.” Spokeo,

Inc., 136 S. Ct. at 1550. The same sentiment applies to the

omission of the words “for Mental Health” in PCMH’s name.

Plaintiff testified that he “of course” understood “Post

Graduate Center” to be his employer and also that he had visited

the 158 East 35th Street office on more than one occasion.

Perez Dep. 32:19-33:19; 76:18-77:25. Therefore, Defendant’s

motion for summary judgment on the Section 195(3) claim is

granted and Plaintiff’s is denied.

F. “Residential Janitor” Exemption to NYLL

Defendant moves for summary judgment on the NYLL

overtime claims on the contention that the state law exempts

employers from paying overtime to people with Plaintiff’s job

description. The New York Department of Labor’s Minimum Wage

Order for the Building Service Industry mandates that “[a]n

employer shall pay an employee, except a janitor in a

residential building, for overtime at a wage rate of 1½ times

the employee’s regular rate for hours worked in excess of 40

hours in a workweek.” 12 N.Y.C.R.R. § 141–1.4. A defendant

invoking the “janitorial exemption” bears the burden of

establishing it applies. E.g., Koljenovic v. Marx, 999 F. Supp.

2d 396, 399 (E.D.N.Y. 2014). “Deciding whether the exemption

applies may require the court to consider both questions of fact

and law.” Id.

The Minimum Wage Order (“MWO”) creating the exemption

applies only to employers in the “building service industry,”

however, and the parties dispute whether PCMH is in that

industry. The MWO defines “building service industry” to

exclude “any building owned, operated and used solely for

religious, charitable or educational purposes by a nonprofit

organization organized exclusively for religious, charitable or

educational purposes, no part of the net earnings of which

inures to the benefit of any private shareholder or individual.”

12 N.Y.C.R.R. § 141-3.1(b). Whether a given set of activities

qualify as religious, charitable or educational (so as to render

the employer exempt) is a question of law. Koljenovic, 999 F.

Supp. 2d at 399.

Defendant claims it does not use the building “solely

for religious, charitable, or educational purposes.” Def.’s

Reply Br. at 4, ECF No. 50. PCMH does collect rent from

tenants: it generates over $500,000 in such revenues annually.

Def.’s Response to Pl.’s 56.1 Statement ¶¶ 1, 3. But it is

undisputed that Defendant is a non-profit organization,

chartered by the New York Board of Education, that provides

healthcare services and housing to persons with mental illness.

PCMH Dep. 34:2-6; Def. Response to Pl.’s 56.1 Statement ¶¶ 1-3.

Defendant’s Rule 30(b)(6) witness testified that PCMH has no

shareholders and no earnings are distributed to any person at

the end of the year, PCMH Dep. 34:2-13, and this testimony, too,

is undisputed. It is accordingly clear that PCMH is excluded

from the MWO’s terms. Defendant’s summary judgment motion on

the residential janitor exemption is denied.

G. FLSA Statute of Limitations

Defendant also moves for summary judgment on the basis

that Plaintiff’s FLSA claims are all time-barred. The FLSA

“provides a two-year statute of limitations on actions to

enforce its provisions, except that a cause of action arising

out of a willful violation may be commenced within three years

after the cause of action accrued.” Parada v. Banco Indus. de

Venezuela, C.A., 753 F.3d 62, 70 (2d Cir. 2014) (citing

29 U.S.C. § 255(a)). “Mere negligence is insufficient.” Young

v. Cooper Cameron Corp., 586 F.3d 201, 207 (2d Cir. 2009)

(citing McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133

(1988)). Plaintiff was terminated by PCMH on June 6, 2016, and

he brought this case more than two (but less than three) years

later, on February 15, 2019. Defendant argues that because

Plaintiff cannot establish “willfulness,” the FLSA’s two-year

statute of limitations bars his federal claims.3

An employer willfully violates the FLSA when it

“either knew or showed reckless disregard for the matter of

whether its conduct was prohibited by the statute.” McLaughlin,

486 U.S. at 133. Reckless disregard involves “deliberate

disregard of the risk that one is in violation” of a known legal

requirement. Damassia v. Duane Reade, Inc., No. 04-CV-8819,

2005 WL 1214337, at *3 n.2 (S.D.N.Y. May 20, 2005). The

employee bears the burden of proof on the willfulness issue.

Parada, 753 at 71. Willfulness is generally a question of fact

for the jury. See e.g., Eschmann v. White Plains Crane Serv.,

Inc., No. 11-CV-5881, 2014 WL 1224247, at *5 (E.D.N.Y. Mar. 24,

2014) (collecting cases).

Defendant contends that it did not act willfully

because it “maintained appropriate time records, policies, and

practices regarding the payment of overtime.” Def.’s Br. in

Support of Motion at 10, ECF No. 41. Indeed, Defendant produced

3 The NYLL has a six-year statute of limitations regardless of

willfulness. NYLL § 663(3). Therefore, claims accruing prior to February

15, 2013 are barred under the NYLL.

extensive and detailed time records and wage statements from

2013 to 2016. The wage statements indicate that Defendant paid

Plaintiff for overtime that he recorded on Defendant’s

timekeeping system. Defendant also made those wage statements

available to the Plaintiff at the Columbia Street residence

front desk, though he admits that he did not always look at

them. Perez Dep. 110:4-12. Nonetheless, Plaintiff testified

that Defendant’s employees instructed him not to record his

hours outside of his 8:00 a.m. to 4:00 p.m. schedule, and at the

same time to “spend whatever time was necessary to care for the

building.” Perez Decl. ¶ 20. He also testified that his

supervisors knew that he was working uncompensated overtime.

As noted above, Plaintiff has adduced virtually no

proof for these contentions apart from his own testimony. His

own testimony may, however, suffice as a matter of law if

credited by the jury. Eschmann, 2014 WL 1224247, at *5. And if

proved, these allegations could suffice to establish willfulness

— especially if the jury credits Perez’s testimony that the

Defendant’s employees ordered him not to record the majority of

his overtime hours. See Kuebel, 643 F.3d at 366 (willfulness

established where defendant was “aware that Retail Specialists’

responsibilities would push them very close to, if not over, the

forty-hour threshold,” and plaintiff’s “managers conveyed to him

that he should do what it takes to finish the job, but not

record any overtime”); Foster v. City of New York, No. 14-CV-

4142, 2017 WL 11591568, at *22 (S.D.N.Y. Sept. 30, 2017)

(denying summary judgment on willfulness where there was

evidence that plaintiff’s manager told her not to submit

overtime requests). This testimony creates a genuine dispute of

material fact, and Defendant’s summary judgment motion on

willfulness is denied. If willfulness is not proved at trial,

the jury will, of course, be left to find for Defendant on

statute-of-limitations grounds.

H. Liquidated Damages

Finally, Plaintiff seeks summary judgment on his

claims for liquidated damages. 29 U.S.C. §§ 216(b), 260; N.Y.

Lab. Law § 663(1). An employer who violates the overtime-wage

provisions is liable for “the payment of wages lost and an

additional equal amount as liquidated damages,” 29 U.S.C.

§ 216(b), unless the employer can show that it acted in “good

faith and that [it] had reasonable grounds for believing that

[the] act or omission was not a violation” of the FLSA. 29

U.S.C. § 260.4. To avoid liquidated damages based on “good

faith, the employer must take active steps to ascertain the

dictates of the [labor laws] and then act to comply with them.”

Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 142 (2d Cir.

1999). New York State’s labor law, too, provides for liquidated

damages. “While the wording of the FLSA and NYLL liquidated

damages provisions are not identical, there are no meaningful

differences.” Rana v. Islam, 887 F.3d 118, 123 (2d Cir. 2018).

For the reasons discussed above, there are material

facts in dispute as to whether Plaintiff is entitled to summary

judgment on his liquidated damages claims. Defendant has

adduced evidence that it kept records of Plaintiff’s time,

provided wage statements to Plaintiff, and paid Plaintiff for

all of the overtime work that he recorded. At this stage,

viewing the evidence in the light most favorable to the defense

(as I must on Plaintiff’s motion), a reasonable juror could find

that the Defendant acted in good faith. Worley v. City of New

York, No. 17-CV-4337, 2020 WL 730326, at *10 (S.D.N.Y. Feb. 12,

2020) (dispute of fact regarding “good faith” where defendants

proffered evidence that they took measures to comply with the

FLSA’s compensable work and overtime compensation provisions).

In any event, “liability has not yet been determined, which is,

of course, a prerequisite for liquidated damages.” Fernandez v.

Kinray, Inc., 406 F. Supp. 3d 256, 266 n.7 (E.D.N.Y. 2018).

Plaintiff’s motion for summary judgment on liquidated

damages is therefore denied.

Conclusion

Plaintiff’s motion for summary judgment is denied.

Defendant’s motion is granted as to the New York Labor Law

claims under Sections 195(1) and 195(3) and denied as to the

remaining claims.

SO ORDERED.

_/s Eric Komitee____________

ERIC KOMITEE

United States District Judge

Dated: August 18, 2021

Brooklyn, New York