*1 ‐ cv Thomas Servs.,

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX 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 stated term United States Court Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City New York, th day October, two thousand sixteen. PRESENT: DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges BRIAN M. COGAN,

District Judge . ^[*] ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x CECIL THOMAS, individually behalf all

others similarly situated, JOHN DEAN, individually behalf all others similarly situated, Appellants

MUHAMMAD ASIF, NARESH BOORANI, MARK

BOURNE, EDGAR CAMPOS, JOSE H. CANCELA,

CUSH RACK CUNNINGHAM, SOLOMON

DESNOES, OSCAR F. GONZALEZ, JAMES CORNELIUS GRANT, DONALD HENDRICKS,

CARL HENRY, KORHAN KIZIL, DERELL LEWIS, WINSTON LINDSAY, ROSA MARIN, GONZALO

*2 V. MORALES, ANITA MOROCHO, PATRICIA E.

MUNOZ, VICTOR A. OGUNBEDEDE, ALMA D.

POPOCOL, ANDREW THOMPSON, IAN GEORGE THOMPSON, IREAL B. WADADA, COURTNEY

SMITH, NICHOLAS BARATTA, IBRAHIM

TAKANE, MARLON OLIVEIRA, MANUEL A.

MIRANDA, BRANNE GONZALEZ, HAMILTON

VASCO, WUILINTON MEJIA, DIOGENES A.

GARCIA, AUDRE MAURICE HOLMES, HECTOR

RODOLFO MARTINE ANDRADE, LAMONTE

DAVID DEFRECCE, JOSEPH MORRIS, RUPPERTO

PIZZO, TERENCE TOMLIN, LIONEL SMITH, LUIS

D. FLORES, ISIDORO D. DIZON, JR., ERNST

DENIZARD, OSCAR RODRIGUEZ, GERMAN A.

MORAN RIOS, TEJDHARI RAGHUBIR, THOMAS J. GARGER, BORIS BABAEW, ADRIANA

ORTELLADO, DENIZHAN OZTURK, ALEJANDRO

SOLIS, HECTOR R. MARTINEZ, JOSE E. PICO, JOSE PLUTARCO PICO ‐ ALVIA, DAISY E.

ALVANADO, KARL DONOVAN BUCKLE, WON S.

HAN, ABRAHIEM MOHAMAD, DEXTER C. ALEXANDER, LESTER ALEXANDER, LUIS

XAVIER VILLALVA, ROBERT PERDUE, HARPAL

SAWHNEY, EDUARDO FERNANDEZ, STEPHEN

ANTHONY JOHN, MUHAMMAD ASHIQ,

KONSTANTINOS VASILIOU, RICHARD S.

ARMSTRONG, TYRONE DAVIS, ELWOOD

CHAPMAN, OLIVER JACQUES SIMON, DEGOU GEORGE PAUL, HECTOR R. MARTINEZ,

Plaintiffs, ‐ cv SERVICES, INC., PATRICIA DOUGAN HUNT,

Defendants Appellees. ^[**] ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

*3 FOR PLAINTIFFS ‐ APPELLANTS: DENISE A. SCHULMAN, D. Maimon

Kirschenbaum, Joseph & Kirschenbaum LLP, New York, New York.

FOR DEFENDANTS ‐ APPELLEES: JEFFREY W. PAGANO, Ira M. Saxe, Crowell &

Moring LLP, New York, New York. Appeal the United States District Court the Eastern District New York (Feuerstein, J.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED judgment court is VACATED case is REMANDED further proceedings consistent this order. appellants appeal entered October awarding appellees Services, ( ʺ ʺ ) Patricia Dougan Hunt pursuant Federal Rule Civil Procedure dismissing plaintiffs ʹ claims. By order entered September accepted report recommendation magistrate judge (Locke, M.J. ) recommending grant favor defendants, grounds independent contractors Fair Labor Standards Act ( ʺ ʺ ), U.S.C. §§ et seq. New York Labor Law ( ), N.Y. Lab. Law §§ et seq. We assume parties familiarity underlying facts, procedural history, appeal. transportation company delivers freight customers

receiving freight its facility engaging deliver freight retailers. *4 Hunt owner shareholder TXX. former and current delivery who, through entities, entered into contracts to deliver freight for customers. They allege defendants violated by withholding overtime wages violated reducing wages, failing to pay wages a timely manner, withholding overtime wages, failing to comply notice requirements.

In November defendants filed a motion for pleadings relied affidavits. The referred matter to magistrate judge (Wall, M.J. ), who recommended motion be converted a motion for summary judgment, parties be permitted conduct additional limited discovery, motion, which treated a motion dismiss under Federal Rule Civil Procedure 12(b)(6), be denied. decided convert defendants motion pleadings into a motion for judgment, set deadline supplemental submissions, allow take deposition Federal Rule Civil Procedure 30(b)(6), but no depositions.

In September filed motion referred another magistrate judge (Locke, M.J. On May magistrate judge filed report recommendation applied multi ‐ factor tests set forth Brock v. Superior Care, F.2d (2d Cir. 1988), Deboissiere Am. Modification Agency No. CV (JS)(MLO), WL *5 (E.D.N.Y. Oct. 22, 2010), (2) concluded plaintiffs were independent contractors and employees under FLSA and NYLL, and recommended district court grant summary judgment in favor of defendants.

On September accepted and adopted magistrate judge ʹ s report recommendation, over plaintiffs ʹ objections, and granted defendants ʹ motion summary judgment. The then dismissed plaintiffs ʹ claims October 2015. appeal award judgment as improper because they claim resolved factual disputes in ʹ favor, failed credit plaintiffs evidence draw reasonable inferences in favor, erred holding under FLSA NYLL.

We review award de novo will affirm only if record, viewed favor party against whom entered, shows are no genuine material fact moving party entitled as matter law. Barfield N.Y.C. Health Hosps. Corp. F.3d (2d Cir. 2008). inquiry into employee status concerns whether,

based totality circumstances matter economic reality, workers depend upon someone else business opportunity render service themselves. ʺ Brock F.2d 1059. Under fact intensive economic reality test, courts consider

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

Id. at 1058 59. The existence degree of each factor is question of fact while legal conclusion be drawn those facts ‐‐ whether workers or independent contractors ‐‐ question of law. ʺ Id. at 1059.

A determination whether worker qualifies as employee depends upon factors such whether or she (1) worked at his [or her] own convenience, (2) was free engage employment, (3) received fringe benefits, (4) employer ʹ s payroll, (5) was fixed schedule. ʺ Deboissiere , WL at *3 (citing Bynog Cipriani Grp., Inc. , N.Y.3d (2003), Velu v. Velocity Exp., F. Supp. 2d (E.D.N.Y. 2009)). analysis focuses degree control exercised by purported employer over results produced or means used achieve results. ʺ Bynog N.Y.3d 198.

We conclude erred granting defendants. First, instead determining whether issues fact existed trial, resolved fact itself. For example, (1) found have ultimate control over routes, ʺ (2) concluded exercised only limited control ʺ over drivers, concluded many requirements dictated nature its imposed by *7 customers, rather than by TXX itself, (4) found that each bid essentially a separate job, even though some plaintiffs had provided services to TXX many years. ʺ S. App. at 39.

Second, record demonstrates that material fact that preclude judgment. parties, example, disputed whether (1) TXX required drivers to drive delivery vehicles conforming to TXX specifications; (2) drivers could take breaks their delivery routes without facing disciplinary action by TXX; (3) TXX required drivers a minimum number hours; (4) plaintiffs economically dependent TXX; TXX controlled plaintiffs and, if so, what extent.

Third, did rely simply conclusory assertions in opposing judgment, but submitted sufficiently detailed affidavits. Indeed, parties submitted conflicting evidence. Defendants provided declarations signed non party drivers stating that they used vehicles their own choosing that they did follow TXX rules. Plaintiffs, turn, proffered own signed declarations asserting them use vans over particular size particular weight ensure vans had tinted windows. Defendants presented declarations *8 suggesting that drivers had full discretion to take their own breaks and make personal stops. ^[3] Plaintiffs provided signed declaration another driver declaring that, when he tried to take breaks or deviate from his route, he received calls from TXX reprimanding him and instructing him to return to his deliveries. ^[4] Plaintiffs offered a signed declaration from a driver claiming that he sometimes received calls from TXX afternoon and on weekends directing him to complete more deliveries. ^[5] Defendants, other hand, provided copies contracts with drivers expressly specify that drivers can reject assignments for any reason and not required to work certain number hours. ^[6] claimed that ʺ they worked exclusively for TXX ʺ and ʺ could share work others without TXX approval, ʺ Appellants Reply Br. at 8 (citing App. at 406, 414, 423), while ʹ contracts drivers explicitly state that drivers can perform services for other companies and hire assistants or helpers to complete deliveries. ^[7] deliveries ʺ and ʺ requires that I tint windows my van order to continue performing work for them ʺ ).

[3] See, e.g., id. at 73 (driver declaration averring ʺ at all times have decided[] . . .whether or to take any stops personal reasons, nature those stops duration those stops ʺ ). Id. at (driver declaration asserting [w]hen I deviated from my route, I

would receive call reprimand[ing] me instructing me get back to delivery ). Id. (driver declaration stating times when called me afternoon Saturdays perform more ʺ his compliance required). See, e.g., id. at (contract providing an Owner Operator may accept or reject any opportunities offered TXX, without any reason is NOT perform services minimum maximum number hours per day or per week See, e.g., id. at (contract stating Owner Operator is encouraged free offer his services others perform services more than one company

On this record, ʹ s award of summary judgment issue of status as under FLSA was unwarranted. See Velez v. Sanchez F.3d (2d Cir. 1984) (vacating an award of an FLSA case in part because there were genuine of material facts as whether plaintiff was an ʺ employee ʺ within meaning of FLSA); see also Graziadio Culinary Inst. Am. F.3d (2d Cir 2016) (vacating an award action brought Family Medical Leave Act (FMLA) part because factual disputes whether FMLA ʹ s definition employer, ʺ tracks ʹ s definition employer, ʺ covered defendant).

Accordingly, we VACATE REMAND matter further proceedings consistent with this order.

FOR THE COURT: Catherine O ʹ Hagan Wolfe, Clerk time ʺ provide services personally may hire assistants or helpers complete ); id. (driver declaration asserting I allowed share stops routes without approval prohibited me having contracts any customers whom I made deliveries

[*] Judge Brian M. Cogan, United States District Court Eastern District New York, sitting designation.

[**] Clerk Court directed amend caption conform above.

[1] See, e.g., App. at (driver declaration asserting delivered freight secure vehicles choosing [the entities]

[2] See, e.g., id. at (driver declaration claiming requires vehicles weigh less than 10,000lbs order use passenger routes, opposed commercial routes ); id. (driver declaration stating requires I use van certain size