607 F. App'x 121
2d Cir.
2015

Steven MEYER, on behalf of themselves and all others similarly situated, et al., Plaintiffs-Appellants, v. UNITED STATES TENNIS ASSOCIATION, Defendant-Appellee.

No. 14-3891-cv

United States Court of Appeals, Second Circuit

June 29, 2015

607 F. App‘x 121

PRESENT: JOSÉ A. CABRANES, ROSEMARY S. POOLER and DENNY CHIN, Circuit Judges.

See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007). The IJ was not compelled to credit Cheng‘s explanation that she feared for her family‘s safety if they were to mail corroborating letters, given that she had presumably put them at risk by having them mail her identity documents in support of her asylum application. See Majidi, 430 F.3d at 80-81. Given Cheng‘s inconsistent and vague testimony, as well as her evasive demeanor and lack of corroboration, the totality of the circumstances supports the agency‘s adverse credibility finding. See 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1231(b)(3)(C); Xiu Xia Lin, 534 F.3d at 167.

II. Motion to Reopen

We review the BIA‘s denial of a motion to reopen for an abuse of discretion, mindful of the Supreme Court‘s admonition that such motions are “disfavored.” INS v. Doherty, 502 U.S. 314, 322-23 (1992); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir. 2006). Aliens seeking to reopen proceedings may move to reopen no later than 90 days after the final administrative decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Cheng concedes that her motion to reopen was not made within this statutory period. However, the limitation period may be tolled if the alien can demonstrate ineffective assistance of counsel. Rashid v. Mukasey, 533 F.3d 127, 130 (2d Cir. 2008). To benefit from equitable tolling, the alien must demonstrate “that competent counsel would have acted otherwise, and that [s]he was prejudiced by h[er] counsel‘s performance.” Id. at 131 (quotation marks and alterations omitted).

The BIA reasonably determined that Cheng was not entitled to equitable tolling because she failed to demonstrate prejudice arising from her prior attorney‘s alleged ineffective assistance. Although Cheng argued that her attorney failed to corroborate her claims and present additional witnesses on her behalf, the BIA accurately found that she failed to specify the evidence or witnesses counsel should have presented and how additional actions by counsel would have altered the outcome of the hearing. See Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994). The BIA also reasonably found that Cheng did not persuasively explain how her counsel‘s ineffectiveness was the cause of her inconsistent and implausible testimony, or how the failure to amend the declaration in support of her asylum application prejudiced the outcome of her case. Cheng had an opportunity to amend the declaration prior to her hearing and failed to do so. She also failed to submit a revised declaration with her motion to reopen and contrary to Cheng‘s contention, the BIA considered and reasonably rejected her argument that she was prejudiced by her counsel‘s failure to challenge the IJ‘s adverse credibility finding on appeal.

For the foregoing reasons, the petitions for review are DENIED.

Steven MEYER, on behalf of themselves and all others similarly situated, et al., Plaintiffs-Appellants,

Marc Bell, on behalf of themselves and all others similarly situated, et al., Plaintiffs,

v.

UNITED STATES TENNIS ASSOCIATION, Defendant-Appellee.

Judith Lynne Spanier, Natalie Marcus, Abbey Spanier, LLP, New York, NY, Mitchell Schley, Law Offices of Mitchell Schley LLC, Piscataway, NJ, for Plaintiffs-Appellants.

Rex S. Heinke, Richard J. Rabin, Kelly Brown, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA, for Defendant-Appellee.

SUMMARY ORDER

Plaintiffs, a putative class of tennis umpires who worked at the U.S. Open, appeal from the District Court‘s September 15, 2014 entry of summary judgment in favor of defendant on plaintiffs’ claims for unpaid overtime under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA“), and the New York Labor Law (“NYLL“). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We review a grant of summary judgment de novo, viewing the facts “in the light most favorable to the non-moving party and draw[ing] all reasonable inferences in that party‘s favor.” Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 271 (2d Cir. 2011). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In determining whether individuals are “employees” or independent contractors for purposes of the FLSA, we consider the “economic reality test,” which weighs:

  1. (1) the degree of control exercised by the employer over the workers, (2) the workers’ opportunity for profit or loss and their investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer‘s business.

Brock v. Superior Care, Inc., 840 F.2d 1054, 1058-59 (2d Cir. 1988). “No one of these factors is dispositive; rather, the test is based on a totality of the circumstances.” Id. at 1059.1 Similarly, under the NYLL, “the critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results.” Bynog v. Cipriani Grp., Inc., 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090 (2003).

“Factors relevant to assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer‘s payroll and (5) was on a fixed schedule.” Id.

Upon review of the record and the relevant law, we conclude that the District Court correctly determined that plaintiffs were independent contractors, not employees, for purposes of the FLSA and the NYLL, substantially for the reasons stated in its thorough and well-reasoned September 11, 2014 opinion. Plaintiffs are highly skilled workers who exercise a high degree of independent initiative and control in officiating tennis matches. Although tennis umpires are an integral part of the U.S. Open and they invest little in the event, plaintiffs are free to decide independently each year whether to apply to officiate at the U.S. Open, which lasts for only a few weeks each year, and for how many days they wish to officiate. Plaintiffs also remain free to serve as umpires for other tennis associations and to maintain other non-umpiring jobs throughout the year, as many of them, in fact, do.

Moreover, under the NYLL factors, plaintiffs worked at their own convenience, were free to engage in other employment, did not receive fringe benefits, and were not on defendant‘s payroll. Plaintiffs also generally claimed independent contractor status on their income tax returns. See Bynog, 1 N.Y.3d at 199 & n. 3 (considering tax status as relevant factor in employment relationship analysis).

Accordingly, in view of the totality of the circumstances, the District Court did not err in determining that plaintiffs were independent contractors, not employees, for purposes of the FLSA and the NYLL.

CONCLUSION

We have considered all of the arguments raised by plaintiffs on appeal and find them to be without merit. For the reasons stated above, we AFFIRM the District Court‘s September 15, 2014 judgment.

Notes

1
“[A] district court‘s findings as to the underlying factors must be accepted unless clearly erroneous, while review of the ultimate question of employment status is de novo.” Id.
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