Salazar v. Bowne Realty Associates, L.L.C., 796 F. Supp. 2d 378

Background

Salazar was employed 2001–2005 as a Construction Worker by Bowne Realty Associates, LLC and Swartz at multiple Bowne buildings, earning $325/week and not covered by a union contract.
In August 2005 Salazar was promoted to Superintendent at the Flushing building, with responsibilities including on-call maintenance; he continued regular Construction Worker duties in addition to Superintendent duties.
As a non-union Construction Worker, Salazar was paid at the Construction Worker rate, while the Superintendent position was governed by a CBA with overtime rights and specific weekly pay schedules ($770–$785).
The CBA provided that Supervisors’ workdays would not exceed eight hours and that Supervisors were available for emergencies; Salazar alleged underpayment for Superintendent duties from August 2005 to July 2007, with arbitration ultimately awarding back pay.
The Union filed a grievance on Salazar’s behalf (Superintendant Arbitration) and, on November 16, 2009, the arbitrator ordered Bowne to compensate Salazar for the August 2005–July 2007 period; Bowne paid the award.
After Salazar notified Bowne of his intent to assert CBA rights in October 2007, he alleges retaliation including vacation denials, parking charges, and eventually prohibiting parking at the Flushing building.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether time-barred FLSA claims should be dismissed.	Salazar contends a three-year willfulness period applies.	Two-year limitations applies for non-willful claims; time-barred claims should be dismissed.	Time-barred claims prior to May 24, 2007 are dismissed; applicable period (two or three years) not resolved here as to willfulness.
Whether Salazar’s Superintendant damages from August 2005 to July 2007 are duplicative.	Only liquidated damages remain for those Superintendant duties not covered by arbitration.	Damages already paid under arbitration cannot be recovered again.	Damages for August 2005–July 2007 related to Superintendant duties were dismissed as duplicative; arbitration award settled that period.
Whether the proposed post-complaint retaliation claims are futile.	Salazar should be allowed to add retaliation claims based on events after the initial complaint.	Proposed claims lack plausibility and may be futile.	Amendment to add post-complaint retaliation claims is granted; plaintiff plausibly alleged causation and adverse action.
Whether Salazar can state a prima facie retaliation claim under FLSA and NY Labor Law.	Salazar engaged in protected activity and faced retaliatory actions (termination, Parking Litigation, eviction).	Causal connection insufficient and timing too attenuated; there is a gap since filing.	Plaintiff plausibly states a prima facie retaliation claim; temporal proximity plus additional retaliatory acts support causation.

Key Cases Cited

Mullins v. City of New York, 626 F.3d 47 (2d Cir. 2010) (protected activity includes filing an FLSA lawsuit; prima facie standard for retaliation)
Higueros v. New York State Catholic Health Plan, Inc., 526 F. Supp. 2d 342 (E.D.N.Y. 2007) (overlaps in retaliation standards between FLSA and NY Labor Law)
Galabya v. N.Y. City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000) (adverse employment action includes termination)
Gorman-Bakos v. Cornell Co-op Extension of Schenectady County, 252 F.3d 545 (2d Cir. 2001) (causal connection can be inferred from temporal proximity)
Espinal v. Goord, 558 F.3d 119 (2d Cir. 2009) (temporal proximity as evidence supporting causation in retaliation cases)
Luce[n]te v. IBM Corp., 310 F.3d 243 (2d Cir. 2002) (pleading standard for retaliation claims under Twombly framework)
Patane v. Clark, 508 F.3d 106 (2d Cir. 2007) (causation considerations in retaliation claims)
Katz v. NYC Dep’t of Educ. (NYSE Specialists Secs. Litig.), 503 F.3d 89 (2d Cir. 2007) (standard for evaluating complex securities litigation claims)
Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566 (2d Cir. 2005) (application of Foman standard to amendment decisions)
Hertz Corp. v. City of New York, 1 F.3d 121 (2d Cir. 1993) (retaliation pleading standards in civil actions)
Grant v. Bethlehem Steel Corp., 622 F.2d 43 (2d Cir. 1980) (causal relationship in retaliation cases; temporal proximity considerations)