Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 1 of 11 PageID #: 1
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`--------------------------------------------------------------X
`Salena Greene, on behalf of herself and others
`similarly situated
`in
`
`the proposed FLSA
`Collective Action,
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`- against -
`
`
`
`
`NYC Health and Hospital Corp.,
`
`Defendant.
`
`
`
`
`
`--------------------------------------------------------------X
`
`Case No.:
`
`
`Jury Trial Demanded
`
`COMPLAINT
`
`
`
`
`Plaintiff Salena Greene (“Plaintiff” or “Greene”), on behalf of herself and others similarly
`
`situated, by and through her attorneys, Levin-Epstein & Associates, P.C., upon personal
`
`knowledge as to herself and upon information and belief as to others, brings this complaint against
`
`Defendant NYC Health and Hospital Corp. (the “Defendant”), and states as follows:
`
`NATURE OF THE ACTION
`
`Plaintiff brings this lawsuit seeking recovery, for herself and all other similarly
`
`1.
`
`situated individuals, against Defendant’s violations of the Fair Labor Standards Act, 29 U.S.C. §§
`
`201 et seq. (“FLSA”), and violations of Articles 6 and 19 of the New York State Labor Law
`
`(“NYLL”) and their supporting New York State Department of Labor regulations.
`
`2.
`
` Plaintiff seeks injunctive and declaratory relief and to recover unpaid overtime
`
`wages, spread of hours pay, liquidated and statutory damages, pre- and post-judgment interest,
`
`and attorneys' fees and costs pursuant to the FLSA, NYLL, and the NYLL's Wage Theft
`
`Prevention Act ("WTPA").
`
`
`
`JURISDICTION AND VENUE
`
`3.
`
`The Court has subject matter jurisdiction of this case pursuant to 29 U.S.C. § 216
`
`1
`
`
`
`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
`--------------------------------------------------------------X
`Salena Greene, on behalf of herself and others
`similarly situated
`in
`
`the proposed FLSA
`Collective Action,
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`- against -
`
`
`
`
`NYC Health and Hospital Corp.,
`
`Defendant.
`
`
`
`
`
`--------------------------------------------------------------X
`
`Case No.:
`
`
`Jury Trial Demanded
`
`COMPLAINT
`
`
`
`
`Plaintiff Salena Greene (“Plaintiff” or “Greene”), on behalf of herself and others similarly
`
`situated, by and through her attorneys, Levin-Epstein & Associates, P.C., upon personal
`
`knowledge as to herself and upon information and belief as to others, brings this complaint against
`
`Defendant NYC Health and Hospital Corp. (the “Defendant”), and states as follows:
`
`NATURE OF THE ACTION
`
`Plaintiff brings this lawsuit seeking recovery, for herself and all other similarly
`
`1.
`
`situated individuals, against Defendant’s violations of the Fair Labor Standards Act, 29 U.S.C. §§
`
`201 et seq. (“FLSA”), and violations of Articles 6 and 19 of the New York State Labor Law
`
`(“NYLL”) and their supporting New York State Department of Labor regulations.
`
`2.
`
` Plaintiff seeks injunctive and declaratory relief and to recover unpaid overtime
`
`wages, spread of hours pay, liquidated and statutory damages, pre- and post-judgment interest,
`
`and attorneys' fees and costs pursuant to the FLSA, NYLL, and the NYLL's Wage Theft
`
`Prevention Act ("WTPA").
`
`
`
`JURISDICTION AND VENUE
`
`3.
`
`The Court has subject matter jurisdiction of this case pursuant to 29 U.S.C. § 216
`
`1
`
`
`
`Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 2 of 11 PageID #: 2
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`(b), 28 U.S.C. § 1331 and 28 U.S.C. § 1337, and has supplemental jurisdiction over Plaintiff’s
`
`claims under the NYLL pursuant to 28 U.S.C. § 1367(a).
`
`4.
`
`This Court has federal question jurisdiction over Plaintiff’s claims pursuant to 28
`
`U.S.C. § 1331 because her claims arise under the FLSA.
`
`5.
`
`Venue is proper in the Eastern District of New York under 28 U.S.C. § 1391(b)
`
`and (c), because all events relevant to this action occurred in this District, and the acts and
`
`omissions giving rise to the claims herein alleged took place in this District.
`
`PLAINTIFF SALENA GREENE
`
`
`THE PARTIES
`
`
`6.
`
`7.
`
`Plaintiff Greene is a resident of Brooklyn, New York.
`
`Plaintiff Greene was employed as a security person at Defendant’s hospital and
`
`medical services and care facilities located at 760 Broadway, Brooklyn, NY 11206 (“Woodhull
`
`Hospital”) and 100 N. Portland Avenue, Brooklyn, NY 11205 (“Cumberland Hospital”) from on
`
`or around December 14, 2020 through May 21, 2021.
`
`8.
`
`Plaintiff Greene was, and still is employed as a non-managerial manual worker at
`
`Woodhull Hospital and Cumberland Hospital from on or around December 14, 2020 through May
`
`21, 2021.
`
`9.
`
`At all relevant times, Plaintiff has been an employee within the meaning of Section
`
`3(e) of the FLSA, 29 U.S.C. § 203(e).
`
`10.
`
`At all relevant times, Plaintiff has been a manual worker within the meaning of
`
`NYLL § 191(1)(a).
`
`DEFENDANT NYC HEALTH AND HOSPITAL CORP.
`
`
`11.
`
`Upon information and belief, Defendant NYC Health and Hospital Corp. is a
`
`2
`
`
`
`Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 3 of 11 PageID #: 3
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`domestic corporation organized and existing under the laws of the State of New York. Upon
`
`information and belief, it maintains its principal place of business at 760 Broadway, Brooklyn,
`
`NY 11206 and 100 N. Portland Avenue, Brooklyn, NY 11205.
`
`12.
`
`Defendant NYC Health and Hospital Corp. owns, operates and/or controls a
`
`hospital and medical services and care facility known as “Woodhull Hospital” located at 760
`
`Broadway, Brooklyn, NY 11206, and “Cumberland Hospital” located at 100 N. Portland Avenue,
`
`Brooklyn, NY 11205.
`
`13.
`
`At all times relevant to this Complaint, Defendant NYC Health and Hospital Corp.
`
`(i) has had and continues to have employees engaged in commerce or in the production of goods
`
`and services for commerce and handling, selling, or otherwise working on goods or materials that
`
`have been moved in or produced for commerce by any person and (ii) has had and continues to
`
`have an annual gross volume of sales of not less than $500,000.00.
`
`14.
`
`At all times relevant to this Complaint, Defendant NYC Health and Hospital Corp.
`
`was and is a covered employer within the meaning of the FLSA, 29 U.S.C. § 203(d) and, at all
`
`times relevant to this Complaint, employed employees, including Plaintiff.
`
`15.
`
`At all times relevant to this Complaint, Defendant NYC Health and Hospital Corp.
`
`was and is an employer within the meaning of the 29 U.S.C. 201 et seq. and NYLL Section 190(3),
`
`and employed employees, including Plaintiff.
`
`16.
`
`Defendant NYC Health and Hospital Corp. possessed substantial control over
`
`Plaintiff’s (and other similarly situated employees’) working conditions, and over the policies and
`
`practices with respect to the employment and compensation of Plaintiff, and all similarly situated
`
`individuals, referred to herein.
`
`17.
`
`Defendant NYC Health and Hospital Corp. had the power to hire and fire Plaintiff,
`
`3
`
`
`
`Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 4 of 11 PageID #: 4
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`control the terms and conditions of employment, and determine the rate and method of any
`
`compensation in exchange for Plaintiff’s services.
`
`FACTUAL ALLEGATIONS
`
`Plaintiff and other similarly situated individuals are individuals who have worked
`
`18.
`
`for Defendant in similarly-titled, hourly paid position, during the statutory period.
`
`19.
`
`Plaintiff and other similarly situated individuals all shared similar job titles,
`
`training, job descriptions and job tasks, during the statutory period.
`
`20.
`
`21.
`
`Plaintiff was, and still is an employee of Defendant.
`
`Plaintiff worked as a security person at the hospital and medical services and care
`
`facilities known as “Woodhull Hospital” located at 760 Broadway, Brooklyn, NY 11206, and
`
`“Cumberland Hospital” located at 100 N. Portland Avenue, Brooklyn, NY 11205.
`
`22.
`
`From approximately December 14, 2020 through and including May 21, 2021,
`
`Defendant paid Plaintiff an hourly rate of $17 per hour.
`
`23.
`
`Defendant’s hospital and medical services and care facilities operate on a 24-hour,
`
`7 day a week basis.
`
`24.
`
`At Woodhull Hospital, Plaintiff regularly worked in excess of forty (40) hours per
`
`week.
`
`25.
`
`From approximately December 14, 2020 through and including May 21, 2021,
`
`Plaintiff regularly worked sixty (60) hours a week.
`
`26.
`
`For example, during the week of May 9, 2021, Defendant required Plaintiff to work
`
`– and she did in fact work – five (5) days a week, 7:30 a.m. to 12:30 a.m. (i.e., 17 hours a day)
`
`two (2) days per week, 7:30 a.m. to 4:00 p.m. one (1) day a week, and 7:30 a.m. to 4:15 p.m. (2)
`
`days per week, for a total of sixty (60) hours per week.
`
`4
`
`
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`Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 5 of 11 PageID #: 5
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`27.
`
`For this workweek, Defendant should have paid Plaintiff, $680 in regular wages,
`
`equal to her regular rate of pay of $17 multiplied by 40 regular hours worked, plus an additional
`
`$510 in overtime wages, equal to her overtime premium of $25.5 multiplied by 20 overtime hours
`
`worked, plus an additional $30 in spread-of-hours pay, for a combined total of $1,220.
`
`28.
`
`Throughout her employment with Defendant, Plaintiff was paid her wages in
`
`check.
`
`29.
`
`Throughout her employment with Defendant, Plaintiff was paid her wages bi-
`
`weekly.
`
`30.
`
`Plaintiff regularly worked for the Defendant in excess of forty (40) hours a week
`
`but never received an overtime premium of one and one-half times her agreed-upon regular rate
`
`of pay (i.e., $25.5 per hour) for those hours.
`
`31.
`
`At all relevant times, Defendant did not compensate Plaintiff for one hour’s pay at
`
`the basic minimum hourly wage rate for each day her shift exceeded ten (10) hours.
`
`32.
`
`No notification, either in the form of posted notices, or other means, was ever given
`
`to Plaintiff regarding wages are required under the FLSA or NYLL.
`
`33.
`
`Defendant did not provide Plaintiff a statement of wages, as required by NYLL
`
`195(3).
`
`34.
`
`Defendant did not give any notice to Plaintiff, in English (Plaintiff’s primary
`
`language), of her rate of pay, employer’s regular pay day, and such other information as required
`
`by NYLL § 195(1).
`
`35.
`
`At all relevant times, Defendant did not pay Plaintiff at the rate of one and one-
`
`half times her hourly wage rate for hours worked in excess of forty per workweek.
`
`
`
`5
`
`
`
`Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 6 of 11 PageID #: 6
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` FLSA COLLECTIVE ACTION ALLEGATIONS
`
`Plaintiff brings the First, Second, and Third Claims for Relief as a collective action
`
`36.
`
`pursuant to FLSA §16(b), 29 U.S.C. §216(b), on behalf of all non-exempt persons (including but
`
`not limited to security persons) employed by Defendant on or after the date that is six years before
`
`filing of the Complaint in this case, as defined herein (“FLSA Collective Plaintiffs”).
`
`37.
`
`At all relevant times, Plaintiff and FLSA Collective Plaintiffs are and have been
`
`similarly situated, have had substantially similar job requirements and pay provisions, and are and
`
`have been subject to Defendant’s decision, policy, plan and common policies, programs, practices,
`
`procedures, protocols, routines and rules willfully failing and refusing to pay them at the legally
`
`required overtime wage for all hours worked in excess of forty hours per work week. These claims
`
`of the Plaintiff are essentially the same as those of the FLSA Collective Plaintiffs.
`
`38.
`
`The First, Second, Third, Fourth and Fifth Claims for Relief are properly brought
`
`under and maintained as an opt-in collective action pursuant to under FLSA §16(b), 29 U.S.C.
`
`§216(b). The FLSA Collective Plaintiffs are readily ascertainable. For purpose of notice and
`
`others related to this action, their names and addresses are readily available from the Defendant.
`
`Notice can be provided to the FLSA Collective Plaintiffs via first class mail to the last address
`
`known to Defendant.
`
`39.
`
`Plaintiff reserves the right to re-define the FLSA Collective Plaintiffs prior to
`
`notice or collective certification, and thereafter, as necessary.
`
`FIRST CLAIM
`(FLSA – Unpaid Overtime Wages, 29 U.S.C. §§ 201 et seq.)
`
`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
`
`
`40.
`
`herein.
`
`41.
`
`At all relevant times to this action, Plaintiff is a covered, non-exempt employee
`
`6
`
`
`
`Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 7 of 11 PageID #: 7
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`within the meaning of the FLSA.
`
`42.
`
`Defendant was required to pay Plaintiff one and one-half (1 1/2) times the regular
`
`rate at which Plaintiff was employed for all hours worked in excess of forty hours in a workweek
`
`pursuant to the overtime wage provisions set forth in the FLSA, 29 U.S.C. § 207, et seq.
`
`43.
`
`Defendant failed to pay Plaintiff the overtime wages to which he is entitled under
`
`the FLSA.
`
`44.
`
`Defendant willfully violated the FLSA by knowingly and intentionally failing to
`
`pay Plaintiff overtime wages.
`
`45.
`
`Due to Defendant’s willful violations of the FLSA, Plaintiff, on behalf of herself
`
`and FLSA Collective Plaintiffs, is entitled to recover her unpaid overtime wages, liquidated
`
`damages, reasonable attorney’s fees and cost of the action and pre-judgment and post-judgment
`
`interest.
`
`
`46.
`
`herein.
`
`SECOND CLAIM
`(NYLL – Unpaid Overtime Wages)
`
`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
`
`47.
`
`Plaintiff is covered, non-exempt employee within the meaning of the NYLL and
`
`supporting New York Department of Labor (“NYDOL”) Regulations.
`
`48.
`
`Under the NYLL and supporting NYDOL Regulations, Defendant is required to
`
`pay Plaintiff one and one half times the regular rate of pay, which shall not be less than the
`
`minimum wage, for all hours they worked in excess of forty.
`
`49.
`
`Defendant failed to pay Plaintiff the overtime wages to which he is entitled under
`
`the NYLL.
`
`50.
`
`Defendant willfully violated the NYLL by knowingly and intentionally failing to
`
`7
`
`
`
`Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 8 of 11 PageID #: 8
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`pay Plaintiff overtime wages at one and one-half times her agreed-upon regular rate of pay (i.e.,
`
`$25.5 per hour).
`
`51.
`
`Due to Defendant’s willful violations of the NYLL, Plaintiff is entitled to recover
`
`her unpaid overtime wages, liquidated damages, reasonable attorney’s fees and cost of the action
`
`and pre-judgment and post-judgment interest.
`
`THIRD CLAIM
`(NYLL – Spread-of-Hours Pay)
`
`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
`
`52.
`
`herein.
`
`53.
`
`Defendant willfully failed to pay Plaintiff additional compensation of one hour’s
`
`pay at the basic minimum hourly wage rate for each day during which the Plaintiff’s shifts spread
`
`over more than ten (10) hours.
`
`54.
`
`By Defendant’s failure to pay Plaintiff spread-of-hours pay, Defendant willfully
`
`violated §650 et seq. of the NYLL and violated the supporting NYDOL regulations, including,
`
`but not limited to, 12 N.Y. C.R.R. §146-1.6.
`
`55.
`
`Due to Defendant’s willful violations of the NYLL, Plaintiff is entitled to recover
`
`an amount prescribed by statute, liquidated damages, reasonable attorney’s fees and cost of the
`
`action and pre-judgment and post-judgment interest.
`
`FOURTH CLAIM
`(NYLL WTPA– Failure to Provide Wage Notices)
`
`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
`
`
`56.
`
`herein.
`
`57.
`
`The NYLL and the WTPA require employers to provide all employees with a
`
`written notice of wage rates at the time of hire.
`
`8
`
`
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`Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 9 of 11 PageID #: 9
`
`58.
`
`In violation of NYLL §195 (1), Defendant failed to furnish to Plaintiff at the time
`
`of hiring, or whenever their rate(s) of pay changed, with a wage notice containing the rate or rates
`
`of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or
`
`other, allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging
`
`allowances; the regular pay day designated by the employer in accordance with NYLL §191; the
`
`name of the employer; any “doing business as” names used by the employer; the physical address
`
`of the employer’s main office or principal place of business, and a mailing address, if different;
`
`the telephone number of the employer, and anything otherwise required by law.
`
`59.
`
`Due to Defendant’s violations of NYLL §195 (1), Plaintiff is entitled to recover
`
`her liquidated damages, reasonable attorney’s fees and cost and disbursement of the action,
`
`pursuant to the NYLL §198 (1-b).
`
`FIFTH CLAIM
`(Violation of the Wage Statement Provisions of the NYLL)
`
`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
`
`
`60.
`
`herein.
`
`61. With each payment of wages, Defendant failed to provide Plaintiff with a statement
`
`listing each of the following the dates of work covered by the 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; the number of
`
`regular hours worked; the number of overtime hours worked, as required by the NYLL § 195(3).
`
`62.
`
`As a result of Defendant’s violation of the WTPA, Plaintiff is entitled to damages
`
`of at least $150 per week during which the violations occurred.
`
`
`
`9
`
`
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`
`SIXTH CLAIM
`(Failure to Pay Timely Wages)
`
`Plaintiff repeats and realleges all paragraphs above as though fully set forth herein.
`
`NYLL § 191(1)(a) prohibits employers from paying manual workers at no less than
`
`63.
`
`64.
`
`on a weekly basis.
`
`65.
`
`As described above, throughout her employment with Defendant, Plaintiff was paid
`
`her wages bi-weekly.
`
`66.
`
`As a result of Defendant’s violation of NYLL § 191(1)(a), Plaintiff is entitled to
`
`recover her liquidated damages, reasonable attorney’s fees and cost and disbursement of the
`
`action, pursuant to the NYLL §198 (1-a).
`
`PRAYER FOR RELIEF
`
`WHEREFORE, the Plaintiff, on behalf of herself and FLSA Collective Plaintiffs,
`
`respectfully requests that this Court enter a judgment:
`
`a.
`
`authorizing Plaintiff at the earliest possible time to give notice of this collective
`
`action, or that the Court issue such notice, to all persons who are presently, or have
`
`up through the extent allowable under the statute of limitations and including the
`
`date of issuance of court-supervised notice, been employed by Defendant as
`
`nonexempt employees. Such notice shall inform them that the civil notice has been
`
`filed, of the nature of the action, of their right to join this lawsuit if they believe
`
`they were denied premium overtime wages;
`
`certification of this case as a collective action pursuant to the FLSA;
`
`issuance of notice pursuant to 29 U.S.C. § 216(b), to all similarly situated members
`
`of the FLSA opt-in class, apprising them of the pendency of this action, and
`
`permitting them to assert timely FLSA claims and state claims in this action by
`
`filing individual Consent to Sue forms pursuant to 29 U.S.C. § 216(b), and
`
`appointing Plaintiff and her counsel to represent the FLSA Collective Plaintiffs;
`
`b.
`
`c.
`
`d.
`
`declaring that Defendant violated the overtime wage provisions of the FLSA, the
`
`NYLL and the NYDOL regulations;
`
`10
`
`
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`Case 1:21-cv-04380-DG-PK Document 1 Filed 08/04/21 Page 11 of 11 PageID #: 11
`
`e.
`
`f.
`
`g.
`
`h.
`
`i.
`
`j.
`
`k.
`
`l.
`
`m.
`
`n.
`
`declaring that Defendant violated the spread-of-hours pay provisions of the NYLL
`
`and NYDOL Regulations;
`
`declaring that Defendant violated the notice statement pay provisions of the NYLL
`
`and WTPA;
`
`declaring that Defendant violated the timely pay provisions of the NYLL;
`
`awarding Plaintiff unpaid overtime wages;
`
`awarding Plaintiff unpaid spread-of-hours pay;
`
`awarding unpaid wages under New York State law for failure to pay timely wages;
`
`awarding Plaintiff liquidated damages in an amount equal to the total amount of
`
`wages found to be due;
`
`awarding Plaintiff statutory damages as a result of Defendant’s failure to furnish
`
`accurate wage notice pursuant to the NYLL;
`
`awarding Plaintiff pre- and post-judgment interest under the NYLL;
`
`awarding Plaintiff reasonable attorneys’ fees and the costs and disbursements of
`
`this action; and
`
`o.
`
`Such other relief as this Court deems just and proper.
`
`Dated: New York, New York
`
`August 4, 2021
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`
`
`By: /s/ Joshua Levin-Epstein
`Joshua Levin-Epstein
`Jason Mizrahi
`Levin-Epstein & Associates, P.C.
`60 East 42nd Street, Suite 4700
`New York, New York 10165
`Tel: (212) 792-0046
`Email: Joshua@levinepstein.com
`Attorneys for the Plaintiff and proposed FLSA
`Collection Action Plaintiffs
`
`11
`
`
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