     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: __________________________




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