Barahona v. Hebrew Academy of the Five Towns and Rockaway et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DANIEL BARAHONA,
Plaintiff,
v.
HEBREW ACADEMY OF THE FIVE TOWNS AND
ROCKAWAY, et al.,
Defendants.
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MEMORANDUM AND
ORDER
22-CV-0594-SJB-ARL
BULSARA, United States District Judge:
Plaintiff Daniel Barahona (“Barahona”) filed this action against his former
employer, the Hebrew Academy of the Five Towns and Rockaway (“HAFTR”), as well
as David Leibtag and Ari Solomon (collectively, “Defendants”), alleging violations of
the Fair Labor Standards Act (“FLSA”), New York Labor Law (“NYLL”), and New York
State Human Rights Law (“NYSHRL”). (Compl. dated Feb. 1, 2022, Dkt. No. 1 ¶¶ 2–3,
59–64, 70–76). Defendants have moved for summary judgment on all of Barahona’s
claims. (Defs.’ Mot. for Summ. J. dated Mar. 21, 2025 (“Defs.’ Mot.”), Dkt. No. 49-1).
For the reasons explained below, Defendants’ motion for summary judgment is granted
in part and denied in part.
LEGAL STANDARD
A “court shall grant summary judgment if the movant shows that 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
“A genuine issue of material fact exists if ‘the evidence is such that a reasonable jury
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could return a verdict for the nonmoving party.’” Nick’s Garage, Inc. v. Progressive Cas.
Ins. Co., 875 F.3d 107, 113 (2d Cir. 2017) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). “In determining whether summary judgment is appropriate, [the
Court] must resolve all ambiguities and draw all reasonable inferences against the
moving party.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
The movant bears the burden of “demonstrat[ing] the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323. “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion” in one of two ways. Fed. R. Civ. P.
56(c)(1). It may cite to portions of the record “including depositions, documents,
electronically stored information, affidavits or declarations, . . . admissions,
interrogatory answers, or other materials.” Id. R. 56(c)(1)(A). Alternatively, it may
show that “the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Id. R. 56(c)(1)(B); cf. Farid v. Smith, 850 F.2d 917, 924 (2d Cir. 1988).
In moving for summary judgment or answering such a motion, litigants are
required by the Local Rules to provide a statement (a Rule 56.1 statement) setting forth
purported undisputed facts or, if controverting any fact, responding to each assertion.
See Loc. Civ. R. 56.1(a)–(b). In both instances, the party must support its position by
citing to admissible evidence from the record. Id. R. 56.1(d); see also Fed. R. Civ. P. 56(c)
(requiring reliance on admissible evidence in the record in supporting or controverting
a purported material fact). “The purpose of Local Rule 56.1 is to streamline the
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consideration of summary judgment motions by freeing district courts from the need to
hunt through voluminous records without guidance from the parties.” Holtz v.
Rockefeller & Co., 258 F.3d 62, 74 (2d Cir. 2001), abrogated in part on other grounds by
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009).
Where claims in opposing Rule 56.1 statements are “genuinely disputed,” the
Court will consider the evidentiary sources of the claims. Halberg v. United Behav.
Health, 408 F. Supp. 3d 118, 146 (E.D.N.Y. 2019) (adopting report and recommendation).
In evaluating the sources of claims made in dueling Rule 56.1 statements, the Court
cannot—as is true for the summary judgment motion as a whole—weigh evidence or
assess the credibility of witnesses. See United States v. Rem, 38 F.3d 634, 644 (2d Cir.
1994). Furthermore, “[l]egal arguments are impermissible in any Rule 56.1 Statement
and are to be disregarded.” Taveras v. HRV Mgmt., Inc., No. 17-CV-5211, 2020 WL
1501777, at *2 (E.D.N.Y. Mar. 24, 2020); Lawrence v. Cont’l Cas. Co., No. 12-CV-412, 2013
WL 4458755, at *1 n.1 (E.D.N.Y. Aug. 16, 2013) (“Both parties have submitted Local Rule
56.1 statements and responses to each other’s statements that mix factual assertions
with legal argument and therefore fail to meet the requirements of Local Rule 56.1. The
facts . . . are taken from those assertions contained in the Local Rule 56.1 statements that
comply with Local Rule 56.1[.]” (citations omitted)). The court may not grant summary
judgment based on a fact in a Rule 56.1 statement—even if undisputed—not supported
by admissible evidence. E.g., Giannullo v. City of New York, 322 F.3d 139, 142–43 (2d Cir.
2003) (vacating grant of summary judgment to defendants based on facts enumerated in
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Rule 56.1 statement supported only by arguments in briefs rather than admissible
evidence).
The Court must also disregard conclusory denials that lack citations to
admissible evidence. Rodriguez v. Schneider, No. 95-CV-4083, 1999 WL 459813, at *1 n.3
(S.D.N.Y. June 29, 1999) (“Rule 56.1 statements are not argument. They should contain
factual assertions, with citation to the record. They should not contain conclusions[.]”),
aff’d, 56 F. App’x 27, 29 (2d Cir. 2003). Also, where the opposing party fails to
specifically controvert a numbered paragraph in the Rule 56.1 statement, the statement
by the moving party “will be deemed to be admitted.” Loc. Civ. R. 56.1(c). The Court
also does not give any consideration to hearsay, speculation, or inadmissible evidence
in evaluating declarations or affidavits. Pacenza v. IBM Corp., 363 F. App’x 128, 130 (2d
Cir. 2010) (“[A] court is obliged not to consider inadmissible evidence at the summary
judgment stage[.]”); Crawford v. Dep’t of Investigation, No. 05-CV-5368, 2007 WL 2850512,
at *2 (S.D.N.Y. Oct. 1, 2007) (“[A] non-moving party ‘must set forth specific facts
showing that there is a genuine issue for trial;’ he or she ‘may not rely on mere
conclusory allegations nor speculation, but instead must offer some hard evidence
showing that its version of the events is not wholly fanciful.’” (quoting Woodman v.
WWOR-TV, Inc., 411 F.3d 69, 75 (2d Cir. 2005))), aff’d, 324 F. App’x 139, 143 (2d Cir.
2009).
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FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court finds the following facts—drawn from the pleadings, the parties’
respective Rule 56.1 statements, and supporting affidavits and exhibits attached
thereto—are undisputed unless otherwise noted.
Barahona began working for Defendants as a maintenance worker in 2013, when
he was about 61 years old. (Defs.’ Rule 56.1 Statement dated Mar. 21, 2025 (“Defs.’ 56.1
Stmt.”), Dkt. No. 49-2 ¶¶ 1, 3–4; Pl.’s Rule 56.1 Statement dated Apr. 28, 2025 (“Pl.’s 56.1
Stmt.”), Dkt. No. 49-21 ¶¶ 1, 3–4). He continued to work for Defendants until March
2020, when HAFTR closed due to the COVID-19 pandemic. (Defs.’ 56.1 Stmt. ¶ 7; Pl.’s
56.1 Stmt. ¶ 7). Barahona’s regular assigned hours while working for Defendants were
7:00 a.m. to 3:30 p.m., with a thirty-minute lunch and two fifteen-minute breaks. (Defs.’
56.1 Stmt. ¶ 6; Pl.’s 56.1 Stmt. ¶ 6). Throughout his employment, Defendants paid
Barahona the minimum wage. (Defs.’ 56.1 Stmt. ¶ 28; Pl.’s 56.1 Stmt. ¶ 28).
Most of the remaining facts are disputed. There are four sets of factual disputes
central to the pending motion. First, the parties dispute the extent to which Barahona
worked overtime for Defendants, and whether he was properly compensated for all
overtime. Defendants contend that they paid Barahona the correct overtime rate at all
relevant times, (Defs.’ 56.1 Stmt. ¶ 28), but Barahona denies that Defendants properly
compensated him for all overtime worked, (Pl.’s 56.1 Stmt. ¶ 28). Defendants contend
that Barahona cannot identify a specific time or date when he worked overtime and was
not paid overtime by Defendants. (Defs.’ 56.1 Stmt. ¶ 35). Barahona contends that he
occasionally worked 42 hours per week, but Defendants only compensated him for
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overtime if he worked over ten hours in one day. (Pl.’s 56.1 Stmt. ¶ 35; Dep. of Daniel
Barahona (“Barahona Dep.”), attached to Pl.’s Opp’n to Defs.’ Mot. for Summ. J. as Ex.
2, Dkt. No. 49-24 at 102:5–103:14). The parties do not dispute that Defendants produced
Barahona’s wage-related records, including paystubs and timesheets. (Defs.’ 56.1 Stmt.
¶ 26; Pl.’s 56.1 Stmt. ¶ 26; Paystubs & Time Records, attached as Ex. 2 to Defs.’ Mot.,
Dkt. No. 49-6). But Defendants contend that Barahona does not challenge the veracity
of the records, (Defs.’ 56.1 Stmt. ¶ 27), which Barahona denies, (Pl.’s 56.1 Stmt. ¶¶ 27,
32).1
Second, the parties dispute whether Barahona was asked to return to HAFTR in
August 2020. Defendants contend that after speaking with Samuel Velez, Barahona’s
manager at HAFTR, Barahona decided he did not want to return. (Defs.’ 56.1 Stmt. ¶ 9).
Barahona denies this—he contends that he reached out to Velez after everyone else was
asked to return, and Velez told him that he was not asked back because of his age. (Pl.’s
56.1 Stmt. ¶¶ 7, 9; Barahona Dep. at 44:1-4, 47:4-15).
Third, the parties dispute whether Solomon, HAFTR’s Executive Director, was
involved in the hiring and compensation of the organization’s maintenance workers.
Defendants contend that Solomon “[did not] have any involvement in the management
of records, hiring, firing, or compensation of maintenance workers,” including
1 Barahona failed to cite to evidence from the record to support this denial in
paragraph 27 of his Rule 56.1 Statement. Nonetheless, Barahona elsewhere cites record
evidence for the same proposition, (Pl.’s 56.1 Stmt. ¶ 32)—that he has contested the
veracity of Defendants’ records—and the Court “has broad discretion to determine
whether to overlook a party’s failure to comply with local court rules” and conduct an
“assiduous review of the record,” see Holtz, 258 F.3d at 73, as it has done here. And it is
plain from that record that Barahona contests this fact, based on his testimony.
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Barahona. (Defs.’ 56.1 Stmt. ¶ 42). Barahona denies this, contending that Solomon was
involved in his hiring and firing because Velez, Barahona’s manager, reported directly
to Solomon. (Pl.’s 56.1 Stmt. ¶ 42).
Fourth, the parties dispute whether HAFTR is a non-profit organization.
Defendants contend that HAFTR is a non-profit organization, (Defs.’ 56.1 Stmt. ¶ 2),
while Barahona contends that HAFTR has earned profits from various sub-entities and
different sources of business income, (Pl.’s 56.1 Stmt. ¶ 2).
Barahona filed this lawsuit on February 1, 2022. (Compl., Dkt. No. 1). In his
Complaint, Barahona asserts the following claims: (1) violation of FLSA’s overtime
wage requirements, (id. ¶¶ 59–65); (2) violation of NYLL’s overtime wage requirements,
(id. ¶¶ 66–69); (3) violation of FLSA’s minimum wage requirements, (id. ¶¶ 70–76); (4)
violation of NYLL’s minimum wage requirements, (id. ¶¶ 77–82); (5) violation of NYLL
Section 191’s pay frequency requirements, (id. ¶¶ 83–86); (6) violation of NYLL Section
195(1)’s notice and recordkeeping requirements, (Compl. ¶¶ 87–89); (7) violation of
NYLL Section 195(3)’s wage statement requirements, (id. ¶¶ 90–92); and (8) age
discrimination in violation of NYSHRL Section 296, (id. ¶¶ 93–100). He asserted these
claims against HAFTR, his former employer, as well as David Leibtag (alleged to be the
owner of HAFTR in the Complaint) and Ari Solomon (HAFTR’s Executive Director).
(Id. ¶¶ 2, 12, 18). Defendants now seek summary judgment on all of Barahona’s claims.
(Defs.’ Mot. at 20).2
2 This case was reassigned from the Honorable Diane Gujarati to the undersigned
on January 7, 2025.
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DISCUSSION
As an initial matter, Barahona abandoned several of his claims in his summary
judgment motion papers. Specifically, he “concedes on the minimum wage and NYLL
195 arguments made in Defendants’ . . . motion” and “concedes that David Leitbag [sic]
is not a proper party in this action and agrees that the claims against him should be
dismissed.” (Pl.’s Opp’n to Defs.’ Mot. for Summ. J. dated Apr. 28, 2025 (“Pl.’s Opp’n”),
Dkt. No. 49-20 at 2 n.1). Because Barahona conceded these claims, the Court deems
them abandoned and grants summary judgment in favor of Defendants on them.3 See
Ziming Shen v. City of New York, 725 F. App’x 7, 17 (2d Cir. 2018) (affirming the district
court’s dismissal of two claims “on the basis that [plaintiff’s] opposition to summary
judgment did not address those claims”); Ostroski v. Town of Southold, 443 F. Supp. 2d
325, 340 (E.D.N.Y. 2006) (“Because plaintiff’s opposition papers did not address
defendants’ motion for summary judgment on [a] claim, [that] claim is deemed
abandoned and summary judgment could be granted on that basis alone.”) (collecting
cases); LPD New York, LLC v. Adidas Am., Inc., No. 15-CV-6360, 2022 WL 4450999, at *27
(E.D.N.Y. Sep. 24, 2022) (granting defendants summary judgment as to counterclaims
3 Barahona also abandoned the collective action component of his case initially
asserted in the Complaint. (Pl.’s Opp’n at 14); see Cooper v. Fire & Ice Trucking, Corp., No.
23-CV-1675, 2024 WL 3344001, at *9 (E.D.N.Y. July 9, 2024) (“Because Plaintiff did not
reiterate his collective action certification request in his Motion for Default Judgment,
the Court considers the collective action abandoned.”).
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because plaintiff did not dispute or respond to them) (collecting cases). These claims
are dismissed with prejudice.4
The Court proceeds to analyze the following remaining issues: (1) Barahona’s
claim for unpaid overtime wages under FLSA and NYLL; (2) Solomon’s status as an
“employer” under FLSA and NYLL; (3) the willfulness of any FLSA violation by
Defendants; (4) Barahona’s age discrimination claim under the NYSHRL; and (5)
Barahona’s claim for violation of NYLL Section 191’s pay frequency requirements.
I. 	Unpaid Overtime Under FLSA and NYLL
FLSA’s overtime wage requirement provides that an employee working “in
excess of” 40 hours in a given workweek be compensated for that “excess work ‘at a
rate not less than one and one-half times the regular rate at which he is employed.’”
Lundy v. Catholic Health Sys. of Long Island Inc., 711 F.3d 106, 113–14 (2d Cir. 2013)
(quoting 29 U.S.C. § 207(a)(1)). And “the NYLL adopts this same standard.” Nakahata v.
New York-Presbyterian Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013) (citing N.Y.
Lab. Law § 142-2.2). To establish liability for unpaid overtime under the FLSA or the
NYLL, “a plaintiff must prove that he performed work for which he was not properly
compensated, and that the employer had actual or constructive knowledge of that
4 Barahona asks the Court to dismiss his NYLL Section 195 claims without
prejudice “so that he can pursue them in the proper forum.” (Pl.’s Opp’n at 15).
Barahona cites no cases to support a without prejudice dismissal in these circumstances.
Barahona chose to concede his NYLL Section 195 claims, while simultaneously
opposing summary judgment on the remaining claims. In doing so, he abandoned his
opposition to dismissal of the claim on the merits.
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work.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 361 (2d Cir. 2011); Nakahata, 723 F.3d
at 200–01 (applying the same standard to FLSA and NYLL overtime claims).5
To start, Defendants’ contention that Barahona failed to satisfy the pleading
standard for an unpaid overtime claim is without merit. The Second Circuit has
addressed the level of specificity required to successfully plead an unpaid overtime
claim in a series of four cases. See Lundy, 711 F.3d at 114; Nakahata, 723 F.3d at 201;
Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 89–90 (2d Cir. 2013); Herrera v. Comme des
Garcons, Ltd., 84 F.4th 110, 114–15 (2d Cir. 2023). “[T]o state a plausible FLSA overtime
claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well
as some uncompensated time in excess of the 40 hours.” Lundy, 711 F.3d at 114. A
plaintiff must allege “sufficient factual matter.” Id. It is not enough to allege that
overtime was “regularly worked” or occurred in “some or all workweeks”—such
conclusory statements do nothing more than paraphrase the statute. Dejesus, 726 F.3d
at 89–90 (quotations omitted). Instead, “[p]laintiffs must provide sufficient detail about
the length and frequency of their unpaid work to support a reasonable inference that
they worked more than forty hours in a given week.” Nakahata, 723 F.3d at 201. In
Lundy and Nakahata, the Court of Appeals concluded that the plaintiffs failed to state
unpaid overtime claims because the plaintiffs did not allege they regularly worked a 40-
hour workweek, and therefore their overtime allegations, even taken as true, did not
establish that there was a week in which they worked in excess of 40 hours. Lundy, 711
5 Defendants do not contest that HAFTR is an employer subject to FLSA, or that
Barahona is a covered employee under FLSA.
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F.3d at 115; Nakahata, 723 F.3d at 201. That is not the case here. There is no dispute that
Barahona’s regularly scheduled workweek consisted of 40 hours. (Defs.’ 56.1 Stmt. ¶ 6;
Pl.’s 56.1 Stmt. ¶ 6; see, e.g., Paystubs & Time Records at 115, 161 (recording 8 hours of
work each weekday)). And in addition, Barahona testified that he occasionally worked
an extra two hours per week but was only compensated for overtime if he worked more
than ten hours in one day. (Pl.’s 56.1 Stmt. ¶ 35; Barahona Dep. at 103:13-18). Taken
together, these allegations make it plausible that Barahona worked 40 hours a week and
worked uncompensated overtime in excess of the 40 hours. See, e.g., Aguilar v. Calexico
Cinco LLC, No. 22-CV-6345, 2024 WL 3837669, at *5 (E.D.N.Y. June 28, 2024) (finding
plaintiff’s overtime claim sufficiently pled where he alleged facts indicating a 40-hour
workweek and claimed that “[a]pproximately twice per week” he was “required to stay
back fifteen (15) minutes after clocking out of his shift to help finish cleaning the
kitchen”).
Dejesus, cited by Defendants in support of their argument that Barahona has
failed to sufficiently plead his overtime claims, (Defs.’ Mot. at 10), does not support
dismissal. Although some “specificity” is required, plaintiffs are not required to “keep
careful records” of time worked or “plead their hours with mathematical precision.”
Dejesus, 726 F.3d at 89–90. In Dejesus, the plaintiff alleged that “she worked more than
forty hours per week during ‘some or all weeks’ of her employment.” Id. at 86.
Barahona has done more—he testified that he occasionally worked 42 hours per week
and was only compensated if he worked more than ten hours in one day. (Pl.’s 56.1
Stmt. ¶ 35; Barahona Dep. at 102:5–103:2, 103:13-18). And while Defendants highlight
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that Barahona could not provide “any specific dates or any specific times in which he
was asked to work overtime and was not paid,” (Defs.’ Mot. at 10; Defs.’ 56.1 Stmt. ¶ 35
(citing Barahona Dep. at 107:3-24)), that is not the relevant requirement, see Dejesus, 726
F.3d at 88 (“We therefore declined to make an approximation of overtime hours a
necessity in all cases. We remarked, however, that an approximation ‘may help draw a
plaintiff’s claim closer to plausibility.’” (quoting Lundy, 711 F.3d at 114 n.7)); Herrera, 84
F.4th at 116–17 (“The pleading standard is satisfied, however, if plaintiffs allege that
their regularly scheduled workweek for a given period of time included more than forty
hours of work, so that they were eligible for overtime during every week in which they
worked their regular schedule. In that case, a plaintiff . . . need only allege the period of
time during which they were employed.”).6 Barahona has pled his unpaid overtime
claims with sufficient specificity.7
6 Defendants also cite Daniels v. 1710 Realty LLC, 497 F. App’x 137 (2d Cir. 2012),
in support of their arguments that Barahona’s allegations are not sufficient to survive
summary judgment. (Defs.’ Mot. at 10–11; Defs.’ Reply in Supp. of Mot. for Summ. J.
dated May 22, 2025 (“Defs.’ Reply”), Dkt. No. 49-26 at 4). But Daniels was an appeal
from a bench trial, and the Second Circuit concluded that the district court, as the
factfinder, was entitled to make a credibility determination to discredit the plaintiff’s
testimony. Daniels, 497 F. App’x, at 138–39.
7 Defendants also ask the Court to disregard Barahona’s Affidavit as a “sham
affidavit.” (Defs.’ Reply at 1–2). But Defendants fail to allege any inconsistences
between Barahona’s Affidavit and his deposition testimony. See Crawford v. Franklin
Credit Mgmt. Corp., 758 F.3d 473, 482 (2d Cir. 2014) (“The principle is that a party may
not create an issue of fact by submitting an affidavit in opposition to a summary
judgment motion that, by omission or addition, contradicts the affiant’s previous
deposition testimony.” (quotations omitted)). In any event, the Court does not rely on
the Affidavit in denying Defendants’ motion.
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In assessing Defendants’ motion for summary judgment on Barahona’s claims
for unpaid overtime, the burden-shifting framework set forth in Anderson v. Mt. Clemens
Pottery Co. applies. 328 U.S. 680 (1946), superseded by statute on other grounds, 29 U.S.C.
§ 254(a); see Kuebel, 643 F.3d at 361–64. An employee must prove “that he performed
work for which he was not properly compensated, and that the employer had actual or
constructive knowledge of that work.” Kuebel, 643 F.3d at 361. “When the employer
has kept proper and accurate records the employee may easily discharge his burden by
securing the production of those records.” Anderson, 328 U.S. at 687. However, “if an
employer’s records are inaccurate or inadequate, an employee need only present
‘sufficient evidence to show the amount and extent of [the uncompensated work] as a
matter of just and reasonable inference.’” Kuebel, 643 F.3d at 362 (quoting Anderson, 328
U.S. at 687). “[A]n employee’s burden in this regard is not high,” and “it is possible for
a plaintiff to meet this burden through estimates based on his own recollection.” Id.
Doing so permits a plaintiff to survive a defendant’s summary judgment motion. Id.
A similar standard applies to unpaid overtime claims under the NYLL, “[b]ut
under the NYLL, an employer who fails to keep accurate records shoulders a more
stringent burden of proof,” at trial. Gamero v. Koodo Sushi Corp., 272 F. Supp. 3d 481, 498
(S.D.N.Y. 2017), aff’d, 752 F. App’x 33 (2d Cir. 2018). Under the FLSA, if an employee
has met his burden, at trial, “[t]he burden then shifts to the employer to come forward
with evidence of the precise amount of work performed or with evidence to negative
the reasonableness of the inference to be drawn from the employee’s evidence.”
Anderson, 328 U.S. at 687–88. But “the NYLL—unlike the FLSA—does not permit an
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employer to discharge this burden by undermining the reasonableness of an employee’s
evidence that he was underpaid.” Gamero, 272 F. Supp. 3d at 498. The NYLL provides
that the ultimate trial burden is greater for an employer: “where an employer fails to
keep adequate records or provide statements of wages to employees as required by the
statute, the employer shall bear the burden of proving that the complaining employee
was paid wages, benefits, and wage supplements.” Id. (quotations omitted). Therefore,
“[i]f an employer cannot satisfy its burden under the FLSA, it cannot satisfy [the] more
demanding burden of the NYLL.” Id. (quotations omitted). And the same is true for
summary judgment: should a party survive summary judgment on a FLSA overtime
claim, based on the absence of accurate records and through competent employee
evidence, the NYLL claim cannot be dismissed at that stage either. See e.g., Lawrence v.
NYC Med. Prac., P.C., No. 18-CV-8649, 2023 WL 4706126, at *6 (S.D.N.Y. July 21, 2023)
(denying summary judgment on FLSA and NYLL overtime claims where plaintiffs
stated in their declarations that defendants’ time records were “inaccurate because
Defendants modified or tampered with them”).
Here, the parties dispute the accuracy of Defendants’ records—specifically the
timesheets produced by Defendants.8 (Defs.’ 56.1 Stmt. ¶ 27; Pl.’s 56.1 Stmt. ¶¶ 27, 32).
Defendants contend that Barahona has not disputed their accuracy, (Defs.’ 56.1 Stmt.
¶ 27), which Barahona disputes, (Pl.’s 56.1 Stmt. ¶ 27). The record reflects a genuine
8 The parties do not genuinely dispute the accuracy of the paystubs, (see, e.g.,
Paystubs & Time Records at 1), as a reflection of what Plaintiff was actually paid. (See
Barahona Dep. at 87:17-90:7). But the paystubs flowed from the time sheets, which
Barahona disputes were accurate, so they do not provide an independent basis for
summary judgment on Barahona’s overtime claims.
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dispute over the accuracy of Defendants’ time records. During his deposition,
Defendants showed Barahona one of the timesheets they produced, and Barahona
stated that he “d[id not] know who” completed the form, “but the one that would
complete it . . . would be Samuel,” referring to another person. (Barahona Dep. at
100:21-23). He stated that the handwriting on the form was not his. (Id. at 100:24–
101:2). And as noted earlier, Barahona also testified that Defendants would only pay
him overtime if he worked more than ten hours in one day. (Id. at 103:10–104:4).
The dispute over the accuracy of Defendants’ records presents a factual dispute that
cannot be resolved at summary judgment. Because Barahona has contested the
accuracy of Defendants’ records, he need only present sufficient evidence to show the
amount and extent of the uncompensated work “as a matter of just and reasonable
inference.” See Kuebel, 643 F.3d at 363 (“[W]e hold that because Kuebel has presented
evidence indicating that his employer’s records are inaccurate . . . the district court
should have afforded Kuebel the benefit of Anderson’s ‘just and reasonable inference’
standard.”). And he may rely on his own testimony to do so. Id. at 362; see, e.g.,
Aponte v. Mod. Furniture Mfg. Co., LLC, No. 14-CV-4813, 2016 WL 5372799, at *12
(E.D.N.Y. Sep. 26, 2016) (“The records submitted by the Defendants do not reflect [the
additional overtime hours plaintiffs testified to at their depositions] . . . . Thus, crediting
the Plaintiffs’ testimony—which the Court must do at this stage of the litigation—a
reasonable jury could conclude that the time records submitted by the Defendants are
not accurate or complete because they did not account for the Plaintiffs’ claimed
overtime hours.”). Barahona’s testimony that he occasionally worked 42 hours per
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week, an amount of time not reflected in Defendants’ records, coupled with his
testimony that Defendants only paid him for overtime if he worked more than ten
hours in a day, is sufficient to show the amount and extent of his uncompensated work
as a matter of just and reasonable inference. And that is enough to survive summary
judgment. To resolve the dispute between Barahona’s testimony and the time records
submitted by Defendants would require the Court to weigh the evidence and make a
credibility determination, which is inappropriate at summary judgment. See Donnelly v.
Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 146 (2d Cir. 2012) (“A jury reviewing the
evidence in this record might well conclude that the evidence that Donnelly presents is
insufficient to persuade it to find that he spent three or more hours beyond the CBA-
maximum time engaged in activities integral to his employment. That factual inquiry is
not ours to answer.”); e.g., Pest v. Bridal Works of N.Y., Inc., 268 F. Supp. 3d 413, 426
(E.D.N.Y. 2017) (“Even if plaintiff’s allegations are inconsistent or lack specificity as to
certain weeks during her employment when she did not work Saturdays, or certain
weeks when she worked fewer than 57 hours, it is not appropriate for the Court to
determine, at this stage, whether plaintiff’s testimony is credible.” (citation omitted));
Pierre v. Hajar, Inc., No. 15-CV-2772, 2018 WL 2393158, at *4 (E.D.N.Y. Mar. 28, 2018)
(collecting cases).
II. 	Solomon’s Employer Status Under FLSA and NYLL
Under the FLSA, an “employer” is “any person acting directly or indirectly in the
interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). An individual
may be jointly and severally liable to an employee under FLSA where the individual
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exercises “operational control” over that employee. Irizarry v. Catsimatidis, 722 F.3d 99,
110 (2d Cir. 2013). “A person exercises operational control over employees if his or her
role within the company, and the decisions it entails, directly affect the nature or
conditions of the employees’ employment.” Id. “In identifying the persons or entities
who qualify as ‘employers,’ . . . statutory definitions sweep broadly.” Barfield v. N.Y.C.
Health & Hosps. Corp., 537 F.3d 132, 140 (2d Cir. 2008).
In making this determination, the “economic reality” of the employment
relationship is the core of the inquiry. Irizarry, 722 F.3d at 104. That is, courts look to
“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.” Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984) (quotations
omitted); see, e.g., Irizarry, 722 F.3d at 110 (applying Carter). “[T]he ‘economic reality’
test encompasses the totality of the circumstances,” and no single factor is dispositive.
Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999). New York courts
interpret the definition of “employer” under NYLL coextensively with the definition
under FLSA. Copantitla v. Fiskardo Estiatorio, Inc., 788 F. Supp. 2d 253, 308 n.21 (S.D.N.Y.
2011); see also Sanchez Juarez v. Siderakis, No. 23-7972, 2024 WL 5135383, at *2 n.3 (2d Cir.
Dec. 17, 2024) (“For purposes of this appeal, we assume, without deciding, that the tests
for ‘employer’ status are the same under the FLSA and the NYLL.” (quotations
omitted)).
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Ari Solomon is the Executive Director of HAFTR. (Defs.’ 56.1 Stmt. ¶ 42; Pl.’s
56.1 Stmt. ¶ 42). The parties dispute whether Solomon had any involvement in the
hiring, firing, and compensation of maintenance workers like Barahona, as well as
whether he was involved in the management of records. (Defs.’ 56.1 Stmt. ¶ 42; Pl.’s
56.1 Stmt. ¶ 42).
Looking to the underlying evidence cited by the parties, Defendants are not
entitled to summary judgment on Solomon’s employer status. While Solomon may not
have had direct involvement in the hiring or firing of maintenance workers at HAFTR,
(see Dep. of Ari Solomon (“Solomon Dep.”), attached to Pl.’s Opp’n as Ex. 3, Dkt. No.
49-25 at 167:1–169:16), the economic realities test asks not only whether he hired and
fired employees, but whether he had the power to do so, and more broadly whether he
engaged with employees in a substantive way that exhibited control over their hours
and work schedules, Carter, 735 F.2d at 12; see also Herman, 172 F.3d at 139 (“[S]uch
status does not require continuous monitoring of employees, looking over their
shoulders at all times, or any sort of absolute control of one’s employees. Control may
be restricted, or exercised only occasionally, without removing the employment
relationship from the protections of the FLSA.”). The record contains sufficient
evidence from which a jury could conclude that Solomon had such power—even if he
did not frequently exercise it. Solomon testified that Velez had “the right to hire and let
go of staff members, and set their salaries.” (Solomon Dep. at 166:21-25). He also
testified that Velez only had to go through HR to hire or fire a maintenance worker, and
that Velez did not have to report that to him. (Id. at 167:1–24). But, when asked
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whether HR lets him know “I spoke with [Velez], this is what he wants to do, is that
cool with you, anything like that?”, Solomon responded “not all the time.” (Id. at 168:4-
7). And Solomon further testified that Velez reports directly to him. (Id. at 65:10-17).
Moreover, Defendants’ contention that Solomon had no involvement in the
compensation of maintenance workers, (Defs.’ 56.1 Stmt. ¶ 42), is flatly inconsistent
with the record. Solomon testified that he and Velez would “go through raises” and he
would “basically scan it to make sure nothing looks . . . outrageous.” (Solomon Dep. at
66:5-12). When asked specifically whether “to make employment decisions, like the rate
of pay of a worker” Solomon was the one Velez reported to, Solomon responded “yes.”
(Id. at 65:14-17). This suggests Solomon had at least some involvement in the
compensation of maintenance workers. The record contains sufficient facts for a jury to
conclude that Solomon exercised enough “operational control” over Barahona to be
considered his “employer” under FLSA and NYLL. Therefore, Defendants’ motion for
summary judgment on the issue of Solomon’s employer status is denied.
III. 	Willfulness Under FLSA
“An employer willfully violates the FLSA when it either knew or showed
reckless disregard for the matter of whether its conduct was prohibited by the Act.”
Kuebel, 643 F.3d at 366 (quotations omitted). While Barahona has provided sufficient
evidence to survive summary judgment on his unpaid overtime claims under the FLSA,
Barahona has not offered any evidence to suggest that Defendants’ alleged violation
was willful. The parties’ 56.1 statements do not contain any facts that suggest
Defendants knew they were violating the FLSA by not compensating Barahona for the
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alleged additional two hours per week or showed a reckless disregard for the fact that
the FLSA prohibits such conduct. Barahona does not separately defend the willfulness
claim in his opposition papers, and the Court finds no evidence establishing willfulness.
Accordingly, Defendants’ motion for summary judgment on the issue of willfulness is
granted.
IV. 	NYSHRL Age Discrimination Claim
The NYSHRL provides that it is unlawful “[f]or an employer . . . because of an
individual’s age . . . to refuse to hire or employ or to bar or to discharge from
employment such individual or to discriminate against such individual in
compensation or in terms, conditions, or privileges of employment.” N.Y. Exec. Law
§ 296(1)(a) (McKinney 2025). In most cases, “NYSHRL discrimination claims are
governed at the summary judgment stage by the burden-shifting analysis first
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 [] (1973).” Tolbert, 790 F.3d
at 434. Under the three-step McDonnell Douglas framework, a plaintiff bears the initial
burden of establishing a prima facie case of age discrimination, by showing “(1) that
[]he was within the protected age group, (2) that []he was qualified for the position,
(3) that []he experienced [an] adverse employment action, and (4) that the action
occurred under circumstances giving rise to an inference of discrimination.” Lively v.
WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 302 n.3. (quoting Bucalo v. Shelter Island
Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012)). “Once a prima facie case is
established,” the defendant must produce evidence of a “legitimate, non-discriminatory
reason for the adverse action.” Id. (quotations omitted). And finally, the plaintiff must
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in turn “rebut [this] by showing that the employer’s determination was in fact the result
of [age] discrimination.” Id. (quotations omitted). Where there is direct evidence of
discrimination, a court may be able to dispense with the second and third parts of the
framework. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (noting that
McDonnell Douglas applies on summary judgment “where there is no direct or overt
evidence of discriminatory conduct”).
Barahona has put forth sufficient evidence to establish a prima facie case of age
discrimination. The parties do not dispute that Barahona was within the protected age
group when he was asked not to return, or that Barahona was qualified for the position.
Barahona has also offered evidence that he experienced an adverse employment
action—not being asked to return to work after being placed on furlough. See Payne v.
Cornell Univ., No. 21-0109, 2022 WL 453441, at *2 (2d Cir. Feb. 15, 2022) (stating that
employer’s “decisions not to rehire [plaintiff] for different roles” after her layoff were
“adverse employment actions” under NYSHRL). And lastly, he has put forth evidence
that he was not asked to return to HAFTR because of his age. He testified that he called
Velez to ask why he was not called to return to work when everyone else was,
(Barahona Dep. at 120:13–121:5), and that Velez said he was not getting his job back due
to his age, (id. at 121:6-19), which is direct evidence of discriminatory intent, see, e.g.,
Ames v. Cartier, Inc., 193 F. Supp. 2d 762, 768 (S.D.N.Y. 2002) (describing “an
unequivocal statement by an employer that an employee is being terminated for an
impermissible reason” as “direct evidence”).
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Defendants do not attempt to demonstrate an absence of material fact on any
other aspect of the McDonnell Douglas inquiry. And, they cannot, therefore, prevail on
summary judgment. Tolbert, 790 F.3d at 438 (“There was no argument in the district
court or before us that summary judgment should be granted at the second or third
stages of the McDonnell Douglas analysis. Therefore, because we conclude that Mr.
Tolbert met his initial burden of establishing a prima facie case of discrimination, we
vacate and remand with respect to the § 1981, Title VII, and NYSHRL discrimination
claims.”). Defendants’ arguments amount to nothing more than a request that the
Court discredit Barahona’s testimony. (See Defs.’ Mot. at 17–18). Barahona testified that
he called Velez and Velez told him he was not asked to return to HAFTR because of his
age. (Pl.’s 56.1 Stmt. ¶ 9; Barahona Dep. at 121:18-19). Defendants contest this based on
Velez’s Affidavit, which states “on or about August 1, 2020, I spoke with Plaintiff and
offered him his job back, which he declined.” (Defs.’ 56.1 Stmt. ¶ 9; Aff. of Samuel
Velez dated Mar. 21, 2025, attached to Defs.’ Mot. as Ex. 9, Dkt. No. 49-16 ¶ 8). This
dispute boils down to a credibility determination between two people inappropriate for
summary judgment resolution. See Knox v. CRC Mgmt. Co., LLC, 134 F.4th 39, 48–49 (2d
Cir. 2025); Walsh v. N.Y.C. Hous. Auth., 828 F.3d 70, 80 (2d Cir. 2016) (“In discrimination
cases . . . the issue frequently becomes one of assessing the credibility of the parties. At
summary judgment, however, that issue is necessarily resolved in favor of the
nonmovant.” (quotation omitted)). Because the only issue that remains is one of
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credibility,9 summary judgment is inappropriate on the NYSHRL claim. A reasonable
jury could conclude that Defendants discriminated against Barahona based on his age.10
V. 	NYLL Section 191 Claim
NYLL Section 191 provides that “[a] manual worker shall be paid weekly and
not later than seven calendar days after the end of the week in which the wages are
earned.” N.Y. Lab. Law § 191(1)(a) (McKinney 2025). However, manual workers
employed by “non-profitmaking organization[s] shall be paid in accordance with the
agreed terms of employment, but not less frequently than semi-monthly.” Id. The
NYLL defines a “non-profitmaking organization” as “a corporation, unincorporated
association, community chest, fund or foundation organized and operated exclusively
for religious, charitable or educational purposes, no part of the net earnings of which
inure to the benefit of any private shareholder or individual.” Id. § 190(9).
The parties dispute whether HAFTR is a non-profitmaking organization under
the NYLL, (Defs.’ 56.1 Stmt. ¶ 2; Pl.’s 56.1 Stmt. ¶ 2), which would make it exempt from
Section 191’s weekly pay requirement for manual workers. Looking to the evidentiary
sources cited by each of the parties, the Court concludes that there is no genuine factual
dispute as to whether HAFTR is a non-profitmaking organization. Defendants
submitted HAFTR’s New York ST-119 tax-exemption form as evidence of its non-profit
9 Arguably, Barahona has cited direct evidence of age discrimination, namely
that Velez told him he was asked not to come back because of his age. That obviates
any need to analyze whether Defendants have a non-discriminatory reason for the
adverse action. But in any event, Defendants do not offer such a reason.
10 Defendants cursorily attempt to dismiss Solomon from the NYSHRL claim, (see
Defs.’ Mot. at 19), but provide no legal or factual support for concluding that he is not
an employer.
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status.11 (Exempt Organization Certificate, attached to Defs.’ Mot. as Ex. 7B, Dkt. No.
49-12). Barahona cites a portion of Solomon’s deposition, in which Solomon states he is
not aware of whether any of HAFTR’s financial documents indicated that it may have
turned a profit, (Pl.’s 56.1 Stmt ¶ 2; Solomon Dep. at 147:8–16), to dispute HAFTR’s non-
profit status. These statements are insufficient to create a fact issue as to whether
HAFTR is a non-profit under the NYLL. Defendants’ motion for summary judgment is
granted as to Barahona’s NYLL Section 191 claim, because non-profit entities are
exempt.
CONCLUSION
For the reasons explained above, Defendants’ motion for summary judgment is
granted in part and denied in part. Defendants’ motion is granted with respect to the
claims Barahona abandoned—the minimum wage claims under the FLSA and the
NYLL and the NYLL § 195(1) and § 195(3) claims—and the Court dismisses these claims
with prejudice. All claims against David Leibtag are also dismissed with prejudice.
The Clerk of Court is respectfully directed to remove David Leibtag from the docket.
Defendants’ motion for summary judgment is also granted on Barahona’s NYLL
§ 191 claim, and on the issue of willfulness under the FLSA. However, the Court denies
Defendants’ motion with respect to Barahona’s claims for unpaid overtime under FLSA
and NYLL, Solomon’s status as an employer under FLSA and NYLL, and Barahona’s
claim for age discrimination in violation of the NYSHRL. The parties are directed to
11 Defendants also purported to submit a copy of HAFTR’s 501(c)(3) paperwork,
but failed to actually attach that paperwork to the motion.
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submit a joint proposed pretrial order by March 13, 2026, consistent with the
undersigned’s Individual Practices.
SO ORDERED.
/s/ Sanket J. Bulsara
SANKET J. BULSARA
United States District Judge
Date: 	February 11, 2026
Central Islip, New York
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