15-2460-cv
Domenech v. Parts Authority, Inc.

                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                           SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
17th day of June, two thousand sixteen.

Present:         ROSEMARY S. POOLER,
                 RAYMOND J. LOHIER, JR.,
                 SUSAN L. CARNEY,
                            Circuit Judges.

_____________________________________________________

ROY DOMENECH,

                                    Plaintiff-Appellant,

                         v.                                                 15-2460-cv

PARTS AUTHORITY, INC.,

                        Defendant-Appellee.
_____________________________________________________

Appearing for Appellant:            Abdul K. Hassan, Queens Village, NY.

Appearing for Appellee:             Douglas E. Rowe, Certilman Balin Adler & Hyman, LLP, East
                                    Meadow, NY.

       Appeal from the United States District Court for the Eastern District of New York
(Glasser, J.).
        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is VACATED and
the case is REMANDED.

        Plaintiff-appellant Roy Domenech appeals from the August 3, 2015 memorandum and
order of the United States District Court for the Eastern District of New York (Glasser, J.),
granting summary judgment to defendant-appellee Parts Authority, Inc., on Domenech’s claims
of violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and the New
York Labor Law (“NYLL”), Art. 6, § 190, et seq., and Art. 19, § 650, et seq. We assume the
parties’ familiarity with the underlying facts, procedural history, and specification of issues for
review.

         Domenech first argues that he is entitled to summary judgment because Parts Authority
waived the right to raise the affirmative defense that Domenech falls under the FLSA’s outside
salesperson exemption by failing to plead the affirmative defense with particularity. Even if Parts
Authority did not plead the affirmative defense at all, it could raise the defense for the first time
at summary judgment, so long as there was no showing of prejudice or bad faith. See Curry v.
City of Syracuse, 316 F.3d 324, 330-31 (2d Cir. 2003); Block v. First Blood Assocs., 988 F.2d
344, 350 (2d Cir. 1993); see also Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997); Magana v.
Com. of the N. Mariana Islands, 107 F.3d 1436, 1446 (9th Cir. 1997). Domenech has not alleged
bad faith on the part of Parts Authority, and his claims of prejudice are unavailing. Domenech
claims that he did not seek certain relevant discovery because he was operating under the
assumption that Parts Authority had waived the right to raise the outside salesperson exemption.
But the record demonstrates that Domenech was aware that Parts Authority intended to assert
this affirmative defense no later than September 3, 2014, months before fact discovery closed.
Because Domenech did not show prejudice or bad faith, Parts Authority would be entitled to
raise this affirmative defense for the first time at summary judgment, even if Parts Authority
failed to adequately plead the affirmative defense. Domenech therefore is not entitled to
summary judgment on his claims.

          However, contrary to the district court, we find genuine disputes as to material facts that
must be resolved by a jury. Under the FLSA and the NYLL, covered employers must pay an
employee who has a “workweek longer than forty hours . . . compensation for his employment in
excess of the hours above specified at a rate not less than one and one-half times the regular rate
at which he is employed.” 29 U.S.C. § 207(a)(1); see also N.Y. Comp. Codes R. & Regs. tit. 12,
§ 142-2.2. But, as is relevant here, the overtime rules do not apply to “any employee employed
. . . in the capacity of outside salesman.” 29 U.S.C. § 213(a)(1). “Because the FLSA is a remedial
law, [courts] must narrowly construe its exemptions.” Reiseck v. Universal Commc’ns of Miami,
Inc., 591 F.3d 101, 104 (2d Cir. 2010) (footnote omitted). Moreover, an employer bears the
burden of establishing that an exemption applies. See Young v. Cooper Cameron Corp., 586 F.3d
201, 204 (2d Cir. 2009).

        As is relevant here, an outside salesman is an employee whose “primary duty” is “making
sales” and who is “customarily and regularly engaged away from the employer’s place or places
of business in performing such primary duty.” 29 C.F.R. § 541.500(a). The FLSA’s
implementing regulations list four non-exclusive factors to be considered in determining an


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employee’s primary duty: “the relative importance of the exempt duties as compared with other
types of duties; the amount of time spent performing exempt work; the employee’s relative
freedom from direct supervision; and the relationship between the employee’s salary and the
wages paid to other employees for the kind of nonexempt work performed by the employee.” Id.
§ 541.700(a). The regulations further instruct that “work performed incidental to and in
conjunction with the employee’s own outside sales or solicitations, including incidental
deliveries and collections, shall be regarded as exempt outside sales work,” and that “[o]ther
work that furthers the employee’s sales efforts also shall be regarded as exempt work including,
for example, writing sales reports, updating or revising the employee’s sales or display
catalogue, planning itineraries and attending sales conferences.” Id. § 541.500(b).

        While the record contained evidence tending to show that Domenech fit into the outside
salesperson exemption, the district court erred in dismissing Domenech’s testimony that his
primary duty was to service, install, and inspect equipment and that any sales were incidental to
this work. Although “a party may not create an issue of fact by submitting an affidavit in
opposition to a summary judgment motion that, by omission or addition, contradicts the affiant’s
previous deposition testimony,” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 482
(2d Cir. 2014) (quoting Hayes v. N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996)), we do
not conclude that Domenech’s affidavit directly contradicted his deposition testimony, see
Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 22-23 (2d Cir. 2014) (explaining
that the contradiction must be “real, unequivocal, and inescapable”). Nor do we conclude that his
deposition testimony is so patently unreliable that it could not be given any weight by a
reasonable juror. This case inherently involves credibility determinations that should be resolved
by a jury. The district court erred in picking between competing plausible inferences that could
have been drawn from the evidence submitted, and the court therefore erred in granting summary
judgment to Parts Authority.

       We have considered the remainder of Domenech’s arguments and find them to be
without merit. Accordingly, the order of the district court hereby is VACATED, and the case is
REMANDED.


                                                    FOR THE COURT:
                                                    Catherine O’Hagan Wolfe, Clerk




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