Case 1:22-cv-02865 Document 1 Filed 05/16/22 Page 1 of 11 PageID #: 1
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF NEW YORK
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`Renata Kociubinski, on behalf of herself and
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`others similarly situated in the proposed FLSA
`Collective Action,
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`Plaintiff,
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`Case No.:
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`Jury Trial Demanded
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`COMPLAINT
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`NYC Health and Hospital Corp. (d/b/a Coney
`Island Hospital),
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`Defendant.
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`--------------------------------------------------------------X
`Plaintiff Renata Kociubinski (“Plaintiff” or “Kociubinski”), on behalf of herself and others
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`- against -
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`similarly situated, by and through her attorneys, Levin-Epstein & Associates, P.C., upon personal
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`knowledge as to herself and upon information and belief as to others, brings this complaint against
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`Defendant NYC Health and Hospital Corp. (d/b/a Coney Island Hospital) (the “Defendant”), and
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`states as follows:
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`NATURE OF THE ACTION
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`Plaintiff brings this lawsuit seeking recovery, for herself and all other similarly
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`1.
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`situated individuals, against Defendant’s violations of the Fair Labor Standards Act, 29 U.S.C. §§
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`201 et seq. (“FLSA”), and violations of Articles 6 and 19 of the New York State Labor Law
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`(“NYLL”) and their supporting New York State Department of Labor regulations.
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`2.
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` Plaintiff seeks injunctive and declaratory relief and to recover unpaid minimum
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`wages, overtime wages, liquidated and statutory damages, pre- and post-judgment interest, and
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`attorneys' fees and costs pursuant to the FLSA, NYLL, and the NYLL's Wage Theft Prevention
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`Act ("WTPA").
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`JURISDICTION AND VENUE
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`3.
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`The Court has subject matter jurisdiction of this case pursuant to 29 U.S.C. § 216
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`(b), 28 U.S.C. § 1331 and 28 U.S.C. § 1337, and has supplemental jurisdiction over Plaintiff’s
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`claims under the NYLL pursuant to 28 U.S.C. § 1367(a).
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`4.
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`This Court has federal question jurisdiction over Plaintiff’s claims pursuant to 28
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`U.S.C. § 1331 because her claims arise under the FLSA.
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`5.
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`Venue is proper in the Eastern District of New York under 28 U.S.C. § 1391(b)
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`and (c), because all events relevant to this action occurred in this District, and the acts and
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`omissions giving rise to the claims herein alleged took place in this District.
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`THE PARTIES
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`PLAINTIFF RENATA KOCIUBINSKI
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`6.
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`Plaintiff Kociubinski was employed as a nurse at Defendant’s hospital and medical
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`services and care facility located at 2601 Ocean Pkwy Brooklyn, NY 11235 (“Coney Island
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`Hospital”) from on or around August 9, 1993 through and including the present date.
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`7.
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`Plaintiff Kociubinski was, and still is employed as a non-managerial manual
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`worker at Coney Island Hospital from on or around August 9, 1993 through and including the
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`present date.
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`8.
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`At all relevant times, Plaintiff has been an employee within the meaning of Section
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`3(e) of the FLSA, 29 U.S.C. § 203(e).
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`9.
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`At all relevant times, Plaintiff has been a manual worker within the meaning of
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`NYLL § 191(1)(a).
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`DEFENDANT NYC HEALTH AND HOSPITAL CORP. (D/B/A CONEY ISLAND
`HOSPITAL)
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`10.
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`Upon information and belief, Defendant NYC Health and Hospital Corp. (d/b/a
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`Coney Island Hospital) is a domestic corporation organized and existing under the laws of the
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`State of New York. Upon information and belief, it maintains its principal place of business at
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`2601 Ocean Pkwy Brooklyn, NY 11235.
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`11.
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`Defendant NYC Health and Hospital Corp. (d/b/a Coney Island Hospital) owns,
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`operates and/or controls a hospital and medical services and care facility known as “Coney Island
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`Hospital” located at 2601 Ocean Pkwy Brooklyn, NY 11235.
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`12.
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`At all times relevant to this Complaint, Defendant NYC Health and Hospital Corp.
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`(d/b/a Coney Island Hospital) (i) has had and continues to have employees engaged in commerce
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`or in the production of goods and services for commerce and handling, selling, or otherwise
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`working on goods or materials that have been moved in or produced for commerce by any person
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`and (ii) has had and continues to have an annual gross volume of sales of not less than
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`$500,000.00.
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`13.
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`At all times relevant to this Complaint, Defendant NYC Health and Hospital Corp.
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`(d/b/a Coney Island Hospital) was and is a covered employer within the meaning of the FLSA,
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`29 U.S.C. § 203(d) and, at all times relevant to this Complaint, employed employees, including
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`Plaintiff.
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`14.
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`At all times relevant to this Complaint, Defendant NYC Health and Hospital Corp.
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`(d/b/a Coney Island Hospital) was and is an employer within the meaning of the 29 U.S.C. 201
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`et seq. and NYLL Section 190(3), and employed employees, including Plaintiff.
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`15.
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`Defendant NYC Health and Hospital Corp. (d/b/a Coney Island Hospital)
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`possessed substantial control over Plaintiff’s (and other similarly situated employees’) working
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`conditions, and over the policies and practices with respect to the employment and compensation
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`of Plaintiff, and all similarly situated individuals, referred to herein.
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`16.
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`Defendant NYC Health and Hospital Corp. (d/b/a Coney Island Hospital) had the
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`power to hire and fire Plaintiff, control the terms and conditions of employment, and determine
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`the rate and method of any compensation in exchange for Plaintiff’s services.
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`FACTUAL ALLEGATIONS
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`Plaintiff and other similarly situated individuals are individuals who have worked
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`17.
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`for Defendant in similarly-titled, hourly paid position, during the statutory period.
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`18.
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`Plaintiff and other similarly situated individuals all shared similar job titles,
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`training, job descriptions and job tasks, during the statutory period.
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`19.
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`20.
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`Plaintiff was, and still is an employee of Defendant.
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`Plaintiff worked as a nurse at the Catlab, Cardiology division of the hospital and
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`medical services and care facility known as “Coney Island Hospital” located at 2601 Ocean Pkwy
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`Brooklyn, NY 11235 from on or around August 9, 1993 through and including the present date.
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`21.
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`Defendant’s hospital and medical services and care facility operate on a 24-hour,
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`7 day a week basis.
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`22.
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`In addition to working their regularly assigned schedules, Defendants’ nurses,
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`including Plaintiff, are required to be “on-call” approximately three (3) or four (4) days per week.
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`23.
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`An “on-call” shift generally spans twelve (12) hours, e.g., 8:30 p.m. to 8:30 a.m.,
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`or 7:30 a.m. to 7:30 p.m.
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`24. Whenever they work an “on-call” shift, Defendants’ nurses, including Plaintiff,
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`receive an hourly, “on-call” rate.
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`25.
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`For example, Plaintiff’s hourly “on-call” rate, as of the date of this filing, is $29.30
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`per hour.
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`26.
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`In addition to working their regularly assigned schedules, and “on-call” schedules,
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`Defendants’ nurses, including Plaintiff, are also required to respond to pages, on an emergency,
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`as-needed basis.
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`27. Whenever they respond to an emergency page, Defendants’ nurses, including
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`Plaintiff, receive an overtime rate, with a guaranteed minimum of four (4) overtime hours.
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`28.
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`29.
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`These emergency page shifts are colloquially known as “overtime cards.”
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`Beginning on or around September 2021, Plaintiff noticed that she was not being
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`fully compensated for her “on-call” shifts or “overtime card” shifts.
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`30.
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`Plaintiff regularly worked “on-call” shifts for the Defendant, but never received
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`her agreed-upon regular rate of pay for those hours.
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`31.
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`Plaintiff regularly worked “overtime card” shifts for the Defendant, entitling her
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`to a guaranteed minimum of four (4) overtime hours, per shift, but never received an overtime
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`premium of one and one-half times her agreed-upon regular rate of pay for those hours.
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`32.
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`No notification, either in the form of posted notices, or other means, was ever given
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`to Plaintiff regarding wages are required under the FLSA or NYLL.
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`33.
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`Defendant did not provide Plaintiff a statement of wages, as required by NYLL
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`195(3).
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`34.
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`Defendant did not give any notice to Plaintiff of her rate of pay, employer’s regular
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`pay day, and such other information as required by NYLL § 195(1).
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`35.
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`At all relevant times, Defendant did not pay Plaintiff at the rate of one and one-
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`half times her hourly wage rate for hours worked in excess of forty per workweek.
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` FLSA COLLECTIVE ACTION ALLEGATIONS
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`Plaintiff brings the First and Third Claims for Relief as a collective action pursuant
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`36.
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`to FLSA §16(b), 29 U.S.C. §216(b), on behalf of all non-exempt persons (including but not limited
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`to nurses) employed by Defendant on or after the date that is six years before filing of the
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`Complaint in this case, as defined herein (“FLSA Collective Plaintiffs”).
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`37.
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`At all relevant times, Plaintiff and FLSA Collective Plaintiffs are and have been
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`similarly situated, have had substantially similar job requirements and pay provisions, and are and
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`have been subject to Defendant’s decision, policy, plan and common policies, programs, practices,
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`procedures, protocols, routines and rules willfully failing and refusing to pay them at the legally
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`required overtime wage for all hours worked in excess of forty hours per work week. These claims
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`of the Plaintiff are essentially the same as those of the FLSA Collective Plaintiffs.
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`38.
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`The First and Third Claims for Relief are properly brought under and maintained
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`as an opt-in collective action pursuant to under FLSA §16(b), 29 U.S.C. §216(b). The FLSA
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`Collective Plaintiffs are readily ascertainable. For purpose of notice and others related to this
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`action, their names and addresses are readily available from the Defendant. Notice can be provided
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`to the FLSA Collective Plaintiffs via first class mail to the last address known to Defendant.
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`39.
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`Plaintiff reserves the right to re-define the FLSA Collective Plaintiffs prior to
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`notice or collective certification, and thereafter, as necessary.
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`FIRST CLAIM
`(FLSA – Unpaid Minimum Wages, 29 U.S.C. § 201 et seq.)
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`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
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`40.
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`herein.
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`41.
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`Defendants willfully and intentionally failed to compensate the Plaintiff with the
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`applicable minimum hourly wage in violation of the FLSA, 29 U.S. Code § 206.
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`42.
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`Defendants have failed to make a good faith effort to comply with the FLSA with
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`respect to compensation of Plaintiff.
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`43.
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`Due to Defendants’ violations of the FLSA, Plaintiff, on behalf of himself and
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`FLSA Collective Plaintiffs, is entitled to recover from Defendants, jointly and severally, their
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`unpaid minimum wages and an equal amount in the form of liquidated damages, as well as
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`reasonable attorneys’ fees and costs of the action, pursuant to the FLSA, all in an amount to be
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`determined at trial. 29 U.S.C. § 216(b).
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`SECOND CLAIM
`(NYLL – Unpaid Minimum Wages, N.Y. Stat. § 650 et seq.)
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`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
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`44.
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`herein.
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`45.
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`Defendants willfully and intentionally failed to compensate the Plaintiff with the
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`applicable minimum hourly wage in violation of the NYLL §650 et seq.
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`46.
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`Defendants have failed to make a good faith effort to comply with the NYLL with
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`respect to compensation of Plaintiff.
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`47.
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`Due to Defendants’ violations of the NYLL, Plaintiff, on behalf of himself and
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`FLSA Collective Plaintiffs, is entitled to recover from Defendants, jointly and severally, their
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`unpaid minimum wages and an equal amount in the form of liquidated damages, as well as
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`reasonable attorneys’ fees and costs of the action, in an amount to be determined at trial, pursuant
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`to the NYLL § 663.
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`THIRD CLAIM
`(FLSA – Unpaid Overtime Wages, 29 U.S.C. §§ 201 et seq.)
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`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
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`48.
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`herein.
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`49.
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`At all relevant times to this action, Plaintiff is a covered, non-exempt employee
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`within the meaning of the FLSA.
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`50.
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`Defendant was required to pay Plaintiff one and one-half (1 1/2) times the regular
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`rate at which Plaintiff was employed for all hours worked in excess of forty hours in a workweek
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`pursuant to the overtime wage provisions set forth in the FLSA, 29 U.S.C. § 207, et seq.
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`51.
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`Defendant failed to pay Plaintiff the overtime wages to which he is entitled under
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`the FLSA.
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`52.
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`Defendant willfully violated the FLSA by knowingly and intentionally failing to
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`pay Plaintiff overtime wages.
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`53.
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`Due to Defendant’s willful violations of the FLSA, Plaintiff, on behalf of herself
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`and FLSA Collective Plaintiffs, is entitled to recover her unpaid overtime wages, liquidated
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`damages, reasonable attorney’s fees and cost of the action and pre-judgment and post-judgment
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`interest.
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`54.
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`herein.
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`FOURTH CLAIM
`(NYLL – Unpaid Overtime Wages)
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`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
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`55.
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`Plaintiff is covered, non-exempt employee within the meaning of the NYLL and
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`supporting New York Department of Labor (“NYDOL”) Regulations.
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`56.
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`Under the NYLL and supporting NYDOL Regulations, Defendant is required to
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`pay Plaintiff one and one half times the regular rate of pay, which shall not be less than the
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`minimum wage, for all hours they worked in excess of forty.
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`57.
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`Defendant failed to pay Plaintiff the overtime wages to which he is entitled under
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`the NYLL.
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`58.
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`Defendant willfully violated the NYLL by knowingly and intentionally failing to
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`pay Plaintiff overtime wages at one and one-half times her agreed-upon regular rate of pay (i.e.,
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`$25.5 per hour).
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`59.
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`Due to Defendant’s willful violations of the NYLL, Plaintiff is entitled to recover
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`her unpaid overtime wages, liquidated damages, reasonable attorney’s fees and cost of the action
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`and pre-judgment and post-judgment interest.
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`FIFTH CLAIM
`(NYLL WTPA– Failure to Provide Wage Notices)
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`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
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`60.
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`herein.
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`61.
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`The NYLL and the WTPA require employers to provide all employees with a
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`written notice of wage rates at the time of hire.
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`62.
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`In violation of NYLL §195 (1), Defendant failed to furnish to Plaintiff at the time
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`of hiring, or whenever their rate(s) of pay changed, with a wage notice containing the rate or rates
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`of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or
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`other, allowances, if any, claimed as part of the minimum wage, including tip, meal, or lodging
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`allowances; the regular pay day designated by the employer in accordance with NYLL §191; the
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`name of the employer; any “doing business as” names used by the employer; the physical address
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`of the employer’s main office or principal place of business, and a mailing address, if different;
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`the telephone number of the employer, and anything otherwise required by law.
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`63.
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`Due to Defendant’s violations of NYLL §195 (1), Plaintiff is entitled to recover
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`her liquidated damages, reasonable attorney’s fees and cost and disbursement of the action,
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`pursuant to the NYLL §198 (1-b).
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`SIXTH CLAIM
`(Violation of the Wage Statement Provisions of the NYLL)
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`Plaintiff repeats and incorporates all foregoing paragraphs as if fully set forth
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`64.
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`herein.
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`65. With each payment of wages, Defendant failed to provide Plaintiff with a statement
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`listing each of the following the dates of work covered by the payment of wages; name of
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`employee; name of employer; address and phone number of employer; rate or rates of pay and
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`basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or other; gross
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`wages; deductions; allowances, if any, claimed as part of the minimum wage; the number of
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`regular hours worked; the number of overtime hours worked, as required by the NYLL § 195(3).
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`66.
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`As a result of Defendant’s violation of the WTPA, Plaintiff is entitled to damages
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`of at least $150 per week during which the violations occurred.
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`PRAYER FOR RELIEF
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`b.
`c.
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`WHEREFORE, the Plaintiff, on behalf of herself and FLSA Collective Plaintiffs,
`respectfully requests that this Court enter a judgment:
`authorizing Plaintiff at the earliest possible time to give notice of this collective
`a.
`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 minimum wages and 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;
`declaring that Defendants violated the minimum wage provisions of the FLSA, the
`NYLL and the NYDOL regulations;
`declaring that Defendant violated the overtime wage provisions of the FLSA, the
`NYLL and the NYDOL regulations;
`10
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`d.
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`e.
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`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 minimum wages;
`awarding Plaintiff unpaid overtime wages;
`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
`Such other relief as this Court deems just and proper.
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`f.
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`g.
`h.
`i.
`j.
`k.
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`l.
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`m.
`n.
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`o.
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`Dated: New York, New York
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`May 16, 2022
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`Respectfully submitted,
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`
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`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
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`11
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