Opinion
No. 02-CV-344.
March 25, 2005
DECISION AND ORDER
INTRODUCTION
On May 7, 2002, plaintiff Gerald Barry brought this action against the defendants, Town of Elma ("Town"), Audrey Murdoch, Salvatore Valvo, and Dennis Powers, alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b), a claim under 42 U.S.C. § 1983 for violation of his federal civil rights, and violation of New York Labor Law § 201-d.
The case was referred to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. § 636(b)(1). On August 31, 2004, the defendants moved for summary judgment. Plaintiff opposed the motion for summary judgment. On December 23, 2004, Magistrate Judge Scott issued a Report and Recommendation recommending that the defendant's motion for summary judgment be granted as to plaintiff's FLSA, § 1983 and New York Labor Law claims.
Both parties filed objections to the Report and Recommendation. On February 3, 2005, this Court heard oral argument on the objections.
BACKGROUND
The plaintiff, Gerald Barry, was employed as the building inspector for the Town of Elma from February 1995 to August 2003. When plaintiff was appointed, the Town Supervisor was John DiJoseph. In 1996, defendant Audrey Murdoch became Town Supervisor. Defendants Salvatore Valvo and Dennis Powers have been Town Council members since January 2000.
Plaintiff's duties as building inspector included issuing building permits, supervising a small staff and attending occasional fires to determine whether there was structural damage to the building.
Plaintiff alleges that he and Supervisor DiJoseph had a verbal agreement regarding compensatory time. The agreement was that if the plaintiff was required to work in excess of 40 hours in a given week, he would be entitled to take compensatory time off whenever he desired. See Pl. Local Rule 56.1 Statement, at ¶ 6;see also Barry Deposition, Dkt. 28, Exh. H, at 81. The agreement was never reduced to writing or formally approved by the Town Council. Plaintiff was never required to account to DiJoseph as to the amount of compensatory hours that he had accrued. Instead, DiJoseph "trusted" plaintiff as to the amount of time that he had earned.Id., at 84.
In 1996, defendant Murdoch became the Town Supervisor. Plaintiff alleges that beginning in the Summer of 1999, he began to experience difficulty using his accrued compensatory time. He claims that Murdoch refused to approve a leave request in 1999 and advised him to take the matter up before the entire Town Council. It is not clear whether the plaintiff did so.
In February 2001, the plaintiff received the Republican Party's endorsement to run for Town Supervisor. From April 2001 to June 2001, plaintiff used accrued compensatory time to take 11 days off from work. In August 2001, however, Murdoch refused to permit plaintiff to take another day off using accrued compensatory time and advised him to take the matter up with the entire Town Council. Plaintiff claims that he tried to do so but the defendants refused to address the issue. Plaintiff claims that the defendants refused to approve his August 2001 leave request because they were upset about his receiving the Republican endorsement for Town Supervisor.
Plaintiff brought the instant action on May 7, 2002, alleging that the defendants violated § 216(b) of the FLSA when they failed to pay him overtime or compensatory time for working in excess of his regular work week, which consisted of working from 8 a.m. to 4 p.m., Monday through Friday, with one hour off for lunch. Plaintiff also alleges that the defendants retaliated against him for exercising his right to engage in political activity, in violation of 42 U.S.C. § 1983 and § 201-d of the New York Labor Law.
DISCUSSION
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon de novo review, and after reviewing the submissions of the parties and hearing argument from counsel, the Court hereby adopts the Magistrate Judge's Report and Recommendation and grants the defendants' motion for summary judgment as to plaintiff's FLSA, § 1983 and New York Labor Law claims.
1. FSLA Claim
The Magistrate Judge correctly determined that summary judgment was appropriate as to plaintiff's FLSA claim. Plaintiff alleges that the defendants violated § 216(b) of the FLSA when they failed to pay him overtime or compensatory time for hours worked in excess of a 40-hour work week. The FLSA requires compensation at one and a half times the regular rate when an employer requires the employee to work more than 40 hours per week. See 29 U.S.C. § 207(a)(2). To establish an FLSA claim, plaintiff must prove that: (i) he was an employee who was eligible for overtime (i.e., that he was not exempt from the overtime pay requirements called for under the Act); and (ii) that he actually worked overtime hours for which he was not compensated. See 29 U.S.C. §§ 207; Morales v. Zondo, Inc., No. 00 Civ. 3494, 2001 WL 64745, *3 (S.D.N.Y. Jan. 25, 2001).
Pursuant to § 207(o) of the FLSA, a municipal employer may substitute compensatory time off in lieu of compensatory overtime, provided that the employee receives one and one-half hours off for each hour worked in excess of 40 hours.
Assuming without deciding that the plaintiff has met the first element of his claim, plaintiff has not shown that he actually worked overtime hours for which he was not compensated. As the Magistrate Judge found, the undisputed evidence showed that plaintiff's work week consisted of only 35 hours. Plaintiff worked from 8 a.m. to 4 p.m. Monday through Friday, and took an hour off for lunch each day. Plaintiff was not required to perform any work during his lunch hour, and therefore his lunch period was not "work time." See 29 C.F.R. § 785.19.
The Magistrate Judge found that a material issue of fact exists as to whether the plaintiff was an exempt employee. The Court finds it unnecessary to reach that issue.
Plaintiff argues that a question of fact exists as to whether his lunch hour was paid or unpaid. That issue is irrelevant. The FLSA does not prohibit an employer from paying an employee for his lunch period, even if no work is performed during that period. See Barefield v. Village of Winnetka, 81 F.3d 704, 711 (7th Cir. 1996); Marshall v. Valhalla Inn, 590 F.2d 306, 308 (9th Cir. 1979). However, the fact that an employer does so does not mean that the lunch period automatically counts as work time. Instead, there must be an explicit agreement to treat the paid lunch hour as "work time" within the meaning of the FLSA. See 28 C.F.R. § 778.320; Harris v. City of Boston, 253 F. Supp. 2d 136 (D. Mass. 2003).
Plaintiff argues that there was such an agreement in this case. He claims that he had an "informal" agreement with the former Town Supervisor, John DiJoseph, that he could take compensatory time whenever he was required to appear at fires or attend meetings beyond his typical work day. See Barry Deposition, Dkt. 28, Exh. H, at 81. An agreement to permit the plaintiff to take compensatory time off is not the same thing as an agreement to treat lunch time as hours worked within the meaning of the FLSA. In fact, the plaintiff admitted at his deposition that there was no agreement regarding his lunch hour because the lunch hour was never discussed. Id., at 68. Absent an explicit agreement to treat lunch hours as work time under the FLSA, the plaintiff's work week consisted of only 35 hours. It also bears noting that the defendants were not parties to this unwritten and informal arrangement between the plaintiff and the Town's former supervisor, nor is there evidence that it was agreed to by the Town Council.
The arrangement between the plaintiff and DiJoseph, as described by plaintiff, was: "if I'm out at fire calls for two, three hours a night, take time off when I needed a day off or something. Simple." Barry Deposition. Dkt. 28, Exh. H, at 81.
Where as here the employee's work week is only 35 hours, there is no FLSA violation unless his employer required him to work more than 5 hours beyond his 8 a.m. to 4 p.m., schedule in any given week, without paying overtime or compensatory time. Nowhere has he alleged that he worked more than 5 hours beyond his regular 8 a.m. to 4 p.m., work week. Nor has he presented any evidence showing how much overtime he purportedly worked in any given week so as to permit the Court to make that determination. Instead, plaintiff alleges only generally that he was not compensated for time worked in excess of his normal 8 a.m. to 4 p.m., schedule, which he erroneously believes to be a 40-hour work week. Since the plaintiff has failed to provide any evidence showing that he was required to work more than 40 hours in any given work week, he has failed to establish the second element of his FLSA claim.
2. Section 1983 Claim
The Magistrate Judge also correctly determined that summary judgement should be granted as to plaintiff's § 1983 claim. To make out a claim for retaliation under 42 U.S.C. § 1983, plaintiff must demonstrate that: (1) his speech was constitutionally protected; (2) he suffered an adverse employment action; and (3) a causal connection exists between the protected speech and the adverse employment action. Phillips v. Bowen, 278 F.3d 103 (2d Cir. 2002); Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999).
There appears to be no dispute that the first element was met — the plaintiff engaged in constitutionally protected speech in running for Town Supervisor. However, the Court finds that the plaintiff has failed to establish that he suffered an adverse employment action.
Plaintiff claims that he suffered harassment and was denied compensatory time off in retaliation for his political activity. For the purposes of a First Amendment retaliation claim, an adverse employment action includes "discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand."Id. at 109 (quotation omitted). Plaintiff does not allege any of these "classic examples" of adverse employment actions. See Phillips, 278 F.3d at 109. Harassment is not a "classic example" of an adverse employment action, id., and the denial of compensatory time does not constitute a "reduction in pay." In Phillips, the Second Circuit held that:
The grant of compensatory time does not increase an employee's salary in any way, it simply affects his ability to get time off for having worked more than 40 hours in a particular week. Therefore, the denial of compensatory time could not possibly reduce the employees salary. See Johnson-Carter v. B.D.O. Seidman, LLP, 169 F. Supp. 2d 924, 938 (N.D. Ill. 2001);Sedwick v. West, 92 F. Supp. 2d 813, 823 (S.D. Ind. 2000);see also Tyler v. Ispat Inland, Inc., 245 F.3d 969, 972-73 (7th Cir. 2001) ("[T]he denial of a monetary perk . . . does not constitute an adverse employment action if it is wholly within the employer's discretion to grant or deny and is not a component of the employee's salary.").
in order to prove a claim of First Amendment retaliation in a situation other than the classic examples of discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand, plaintiff must show that (1) using an objective standard; (2) the total circumstances of [his] working environment changed to become unreasonably inferior and adverse when compared to a typical or normal, not ideal or model, workplace.Phillips, 278 F.3d at 109. A merely discourteous work environment does not rise to the level of a First Amendment retaliation. Id. However, "a combination of seemingly minor incidents [can] form the basis of a constitutional retaliation once they reach a critical mass." Id. "Incidents that are relatively minor and infrequent will not meet the standard, but otherwise minor incidents that occur over a longer period of time may be actionable if they attain the critical mass of unreasonable inferiority." Id.
The facts alleged by the plaintiff fail to "attain the critical mass of unreasonable inferiority" so as to constitute an adverse employment action. Plaintiff alleges that after he received the Republican endorsement for Town Supervisor in March 2001, the defendants began denying his requests for compensatory time "outright". Compl. at ¶ 10(g). Nevertheless, he admits that he was permitted to use 11 days of accured compensatory time between April and July of 2001. Indeed, after the plaintiff received the Republican endorsement, there was only one occasion (in August 2001) when defendant Murdoch refused to grant his request for compensatory time off.
Plaintiff also claims that the defendants harassed him by "openly and publicly" supporting the candidacy of his political opponent. He also claims that at an October 2001 Town Board meeting, defendant Valvo "publically made insinuations that [plaintiff], in his role as Building Inspector, had taken money from a developer in exchange for favorable treatment." Id. at ¶ 10(h).
None of these allegations, either individually or collectively, rise to the level of an adverse employment action. Instead, they show only a discourteous relationship between the plaintiff and some of the other Council members. The constitutional protection of an employee's right to free speech and association should not be interpreted as an attempt to constitutionalize employee grievances. Connick v. Myers, 461 U.S. 138, 154 (1983). Moreover, the defendant's public support of the plaintiff's political opponent was not an adverse action, but simply an exercise of the defendants' own First Amendment rights to support another political candidate. In any event, it cannot be said that the defendants' actions created an "unreasonably inferior and adverse" work environment. Phillips, 278 F.3d at 109.
Even if the conduct complained of did rise to the level of an adverse employment action, plaintiff has failed to establish the third element of his § 1983 claim — a causal connection between the protected speech and the adverse employment action. Here the protected activity complained of is the plaintiff's decision to run for Town Supervisor in February 2001. See Compl. at ¶ 10(f). To succeed on his retaliation claim, plaintiff must show that the protected activity (running for Town Supervisor) was a substantial or motivating factor in the adverse action. Petario v. Cutler, 187 F. Supp. 2d 26, 32 (D. Conn. 2002). Plaintiff has failed to make such a showing because, as the Magistrate Judge stated, plaintiff complains that he was denied compensatory time long before he engaged in the protected political activity. See Compl. at ¶ 10(e) (alleging that plaintiff began to experience difficulty using his compensatory time beginning in 1999). There can be no causal link where the alleged adverse action predated the protected activity.
Plaintiff's admission that he was permitted to take 11 days of accrued compensatory time even after he received the Republican endorsement further negates any causal connection. Plaintiff offers nothing more than conclusory assertions to support his claim of retaliatory motive. Such unsupported assertions are simply insufficient to create a material issue of fact. See Morris, 196 F.3d at 111 ("Plaintiff may not rely on conclusory assertions of retaliatory motive, but must offer instead some tangible proof to demonstrate that [his] version of what occurred was not imaginary."). Accordingly, summary judgment is appropriate as to plaintiff's § 1983 retaliation claim. 3. New York Labor Law Claim
Summary judgment is also appropriate as to plaintiff's claim under New York Labor Law § 201-d. Section 201-d provides:
Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of . . . an individual's political activities outside of working hours, off of the employer's premises and without use of the employer's equipment or other property, if such activities are legal. . . .
N.Y. Labor Law, § 201-d(2)(a). As with plaintiff's § 1983 claim, plaintiff has failed to show that he suffered "discrimination . . . in compensation, promotion or terms, conditions of employment." Nor has he established a causal connection between his protected political speech and the purported discriminatory conduct (refusal to grant compensatory time) because the alleged discrimination predated plaintiff's political activity.
CONCLUSION
For the reasons stated above and in the Magistrate Judge's Report and Recommendation, summary judgment is granted to the defendants as to plaintiff's FLSA, § 1983 and New York Labor Law claims. The Clerk of the Court is directed to enter judgment in favor of the defendants and to take all steps necessary to close this case.
IT IS SO ORDERED.