2 1

- 2579

- cv Ocampo , et al. v. Brown & Appel, LLC

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NO TATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 2 City of New York, on the 15 th day of December , two thousand twenty

- two

. 3 4 PRESENT: ROSEMARY S. POOLER , 5 RAYMOND J. LOHIER, J R. , 6 BETH ROBINSON , 7 Circuit Judges

. 8

------------------------------------------------------------------ ----- 9 CARLOS OCAMPO , on behalf o f themselves and all 10 others similarly situated, IGOR MOROZOV, on 11 behalf of themselves and all others similarly situated, 12 JORGE VILLANUEVA, on behalf of themse lves and 13 all others similarly situated, AMAURY ORTIZ, on 14 behalf of themselves and all others similarly situated, 15 PLINIO RETANA, on behalf of themselves and all 16 others similarly situated, MANUEL CALDERON, on 17 behalf of themselves and all others similarly sit uated, 18 SUTEE MONCHAITANAPAT, on behalf of 19 themselves and all others similarly situated, SONIA 20 GONZALEZ, ALBERTO GONZALES, PANFILO 21 ESCOBAR, F ELIPE BARRIGA, DOUGLAS MOLINA, 222 NELSON DELAROSA, FRANCISCO SOLIS, 1 CLARISA ROJAS

- DELAROSA, CANDIDO 2 SANCHEZ, ESTELA PENALO DIAZ, ALEJANDRO 3 GONZALEZ, MARIA LAMOTH, HILARIO KU, 4 JENNYS MOYA, EDWARD SURIEL, LUCIA ROJAS

5 ESCOLASTICO , 6 7 Plaintiff s

- Appellant s , 8 9

v. No. 2 1

- 2579

- cv 10 11 BROWN & APPEL, LLC, ALEXANDER 12 SIROTKIN , 13 14 Defendant s

- Appellee s

. ∗ 15

------------------------------------------------------------------ ----- 16 17 FOR PLAINTIFF S

- APPELLANT S : J OHN J. M ALLEY , Smith Buss & 18 Jacobs, LLP , Yonkers, NY 19 ( V INCENT V OLINO , Vincent 20 Volino PLLC, Yonkers, NY, on 21 the brief ) 22 23 FOR DEFENDANTS

- APPELLEE S : G REGORY A. B LUE , Lachtman 24 Cohen P.C., White Plains , NY 25 26 Appeal from a judgment of the United States District Court for the 27

Southern District of New York ( Kenneth M. Karas , Judge ). 28
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 29

AND DECREED that the judgment of the District Court is AFFIRMED

. 30

∗ The Clerk of Court is directed to amend the caption as set forth above.3 In this colle ctive action, Carlos Ocampo and twenty

- two other hourly 1
employees of the former Doubletree Hotel in Tarrytown, N ew Y o rk ( together, 2

“Plaintiffs

- Appellants”) appeal from a judgment of the United States District 3

Court for the Southern District of New York ( Karas , J. ) granting summary 4
judgment in favor of Defendants

- Appellees Brown & Appel, LLC (“B&A”) and 5

Alexander Sirotkin. We assume the parties’ familiarity with the underlying fac ts 6
and the record of prior proceedings, to which we refer only as necessary to 7
explain our decision to affirm. 8
At all times relevant to this appeal, t he Doubletree Hotel in Tarrytown was 9
owned and operated by 455 Hospitality, LLC (“455 Hospitality”)

. Plaintiffs

10
Appellants alleged principally that the hotel and its manager s failed to pay 11
overtime, unlawfully deducted lunch expenses, failed to distribute c ustomer tips, 12
and failed to reimburse them for the costs of purchasing supplies , among other 13

violations of the Fair Labor Standards Act (FLSA) and New York Labor Law 14
( NYLL)

. Jordan LLC , a co rporation , owned 50.02 percent , and B&A owned 15

between 16.66 and 33.32 percent, of 4 5 5 Hospitality

. Sirotkin owned 55 percent 16
of Jordan and signed at least two documents as Jordan’s “managing membe r

. ” 17
Sirotkin sometimes held himself out as the hotel’s “Managing Partner,” and at 184 least some em ployees believed that he was the managing partner

. 1

I n the operative Fourth Amended Complaint , Plaintiffs

- Appellants 2
claimed that Sirotkin was individually liable on account of his “operational 3

control” of the hotel . They further claimed that B&A and Sirotkin were liable for 4
claims against 455 Hospitality base d on a theory of corporate veil pier cing. 5

A fter discovery, Sirotkin and B&A moved for summary judgment, which 6
the District Court granted o n September 2 1 , 2021. The District Court concluded 7
that Sirotkin did not have employer liability under the FLSA and NYLL beca use 8
“Plaintiffs have plainly conceded the Carter factors” and also because “Sirotkin’s 9
involvement in . . . the Hotel completely separate and apar t from Plaintiffs’ 10
employment cannot support a finding that he exercised operational control over 11

them.” Spec. App’x 16, 18. The District Court also rejected Plaintiffs

- Appellants ’ 12
argument that Sirotkin and B&A are alter egos of 455 Hospitality , principally 13
because alter ego liability cannot operate as a freestanding claim

. 14

We review the District Court’s grant of summary judgment de novo , 15
construing the evidence in the light most favorable to Plaintiffs

- Appellants

. See 16
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc. , 715 F.3d 102, 108 (2d Cir. 17
2013). 185 I. Sirotkin’s Liability 1
We agree with the District Court’s conclusion that , based on the evidence 2
adduced at summary judgment, Sirotkin is not liable as an “employer” und er the 3

FLSA and NYLL

. 1 As explained below, Plaintiffs

- Appellants failed to show that 4
they satisfied any of the Carter factors . Nor did they show that the total ity of the 5

circumstances demonstrate s that Sirotkin otherwise exercised operationa l control 6

over their employment. 7
To begin, at summary judgment , Plaintiffs

- Appellants conceded in their 8

Rule 56.1 Counterstatement of Facts that none of the four Carter factors are 9

satisfied

. 2 Specifically, Plaintiffs

- Appellants admitted the following: (1) Sirotkin 10

“ did not hire any of the Plaintiffs, or any hourly employees” or “fire any of the 11
Plaintiffs, or any hourly employees” ( the first Carter factor) ; (2) S i rotkin “did not 12

1 Plaintiffs

- Appellants argue that Sirotkin was liable as an “employer” under both the FLSA and NYLL by relying exclusively on cases that interpret the FLSA’s definition of “employer.” For the purposes of this appeal, we assume without deciding that “the tests for ‘employer’ status are the same un der the FLSA and the NYLL.” Tapia v. BLCH 3rd Ave LLC , 906 F.3d 58, 61 n.1 (2d Cir. 2018) (quoting Irizarry v. Catsimatidis , 722 F.3d 99, 117 (2d Cir. 2013) ) ; see Irizarry , 722 F.3d at 117 (observing that “this question has not been answered by the New Yo rk Court of Appeals”)

.

2 These factors are “whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.” Barf ield v. N.Y.C. Health & Hosps. Corp. , 537 F.3d 132, 142 (2d Cir. 2008) (quoting Carter v. Dutchess Cmty. Coll

. , 735 F.2d 8, 12 (2d Cir. 1984)).6 supervise any of the Plaintiffs , ” “control the work schedule for any of the 1

Plaintiffs , ” or “set the conditions of employment for any of the Plaintiffs” ( the 2

second Carter factor) ; (3) S i rotkin “did not determine the rate of pay for any of 3

the Plaintiffs” or “determine the method of payment for any of the Plaintiffs” 4
( the third Carter factor) ; and (4) S i rotkin “did not maintain employment records 5
for any of the Plaintiffs” ( the fourth Carter factor). App’x 1022 (Plaintiff s’ Rule 6

56.1 Counterstate ment of Facts ) ; s ee Barfield , 537 F.3d at 142. “Parties are bound 7
by their concessions in Rule 56.1 statements.” McKinney v. City of Middletown , 8
49 F.4th 730, 744 (2d Cir. 2022) (quotation marks omitted)

. 9
In considering Sirotkin’s liability, w e may also more broadly consider 10
“evidence showing an individual’s authority over management, supervision, and 11
oversight of a company’s affairs in general” if it is “relevant to the totality of the 12
circumstances in determining the individual’s operational control of the 13
company’s employme nt of the plaintiff employees .” Irizarry , 722 F.3d at 110 14
(emphasis added) (quotation marks omitted)

. With that standard in mind, w e 15
agree with the District Court that there was no admissible evidence of Sirotkin ’s 16
operational control of 455 Hospitality’s employment of Plaintiffs

- Appellants. 17

Plaintiffs

- Appellants point out that the h iring of managerial employees is 187 “a strong indication of control” where those managers are “in charge of the 1
[plaintiffs]

. ” Herman v. RSR Sec. Servs. Ltd. , 172 F.3d 132, 140 (2d Cir. 1999)

. 2

Here, Sirotkin was involved in interviewing and hiring managerial employees 3

such as the General Manager, the Director of Marketing and Sales , the Director of 4

Finance, and the Chief Financial Officer

. But o n appeal, t he Plaintiffs

- Appellants 5

do not cla im that any of these managerial employees , including the General 6
Manager, themselves qualif y as supervisors who were “in charge of ” them. And 7

in any event, Plaintiffs

- Appellants have not pointed us to evidence of such 8
authority. At most, according to the record , Sirotkin’s c ommunication s with the 9

managers were limited to discussi ng hotel sales and employees who worked in 10

sales. 11

Plaintiffs

- Appellants also argue that Sirotkin’s frequent and regular 12

demands for financial documents establish es his operational control. We 13
disagree. Sirotkin testified that, c onsistent with his focus on sales, he requested 14

these documents to see if the hotel was profitable. Plaintiffs

- Appellants did not 15
adduce evidence that rebutted this testimony

. A nd “ [e] vidence tha t an 16
individual is an owner or officer of a company, or oth erwise makes corporate 17
decisions that have nothing to do with an employee’s function, is insufficient to 188 demonstrate ‘employer’ status.” Irizarry , 722 F.3d at 109

. 1

II. Alter Ego Liability 2

Plaintiffs

- Appellants’ alternative claim of veil

- piercing liability is similarly 3

without merit. A veil

- piercing claim “is a means of imposing liability on an 4
underlying cause of action,” Peacock v. Thomas , 516 U.S. 349, 354 (1996) , and 5
cannot stand as an independent claim , see Morris v. Ne w York State Dep’t of 6

Tax’n & Fin. , 82 N.Y.2d 135, 141 (1993)

. Here, Plaintiffs

- Appellants claim that 7

Sirotkin “left 455 [Hospitality] undercapitalized with insufficient resources to 8
pay employees.” Pls.

- Appellants’ Br. at 54. But they do not further assert that 9

their claims under the FLSA and NYLL stemmed from the hotel’s financial 10

difficulties. Therefore, Plaintiffs

- Appellants ’ alter ego liability claim is 11
independent of their claims under the FLSA and NYLL and fails for that reason. 12

We have considered the Plaintiffs

- Appellants’ remaining arguments and 13
conclude that they are without merit. For the foregoing reasons , t he judg ment of 14

the District Court is AFFIRMED

. 15

FOR THE COURT: 16 Catherine O ’ Hagan Wolfe, Clerk of Court 17 18