16‐2869‐cv
Volpe v. Am. Language Commc’n Ctr., Inc., et al.
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 NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second
2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
3 Square, in the City of New York, on the 5th day of June, two thousand seventeen.
4
5 PRESENT: ROBERT D. SACK,
6 RAYMOND J. LOHIER, JR.,
7 Circuit Judges,
8 PAUL A. CROTTY,
9 District Judge.*
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11 JOHN VOLPE, individually and on behalf of others
12 similarly situated,
13
14 Plaintiff‐Appellant,
15
16 v. No. 16‐2869‐cv
17
18 AMERICAN LANGUAGE COMMUNICATION
19 CENTER, INC., DBA AMERICAN LANGUAGE
20 COMMUNICATION CENTER, JEAN PACHTER,
21 PETER PACHTER,
22
23 Defendants‐Appellees.
24 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
25
26 FOR APPELLANT: JOSHUA S. ANDROPHY, Michael
27 Faillace & Associates, P.C., New
28 York, NY.
29
* Judge Paul A. Crotty, of the United States District Court for the Southern District of New York, sitting by
designation.
1 FOR APPELLEES: ANDREW M. SPURCHISE (Sean A.
2 Malley, on the brief), Littler
3 Mendelson P.C., New York, NY.
4
5 Appeal from a judgment of the United States District Court for the
6 Southern District of New York (George B. Daniels, Judge).
7 UPON DUE CONSIDERATION, it is HEREBY ORDERED, ADJUDGED,
8 AND DECREED that the judgment of the District Court is AFFIRMED.
9 John Volpe appeals from a judgment of the District Court (Daniels, J.)
10 dismissing his complaint. Volpe argues that he and other similarly situated
11 teachers are not exempt from the Fair Labor Standards Act’s overtime
12 requirements, see 29 U.S.C. § 213(a)(1), because facilities like American Language
13 Communication Center (“ALCC”), where Volpe taught, are not “educational
14 establishment[s]” under Department of Labor regulations, see 29 C.F.R.
15 §§ 541.303(a), 541.204(b). We assume the parties’ familiarity with the facts and
16 record of the prior proceedings, to which we refer only as necessary to explain our
17 decision to affirm.
18 In another case involving both Volpe and his counsel, we recently held that
19 certain other facilities providing English‐language instruction were “educational
20 establishment[s]” under 29 C.F.R. § 541.204(b). Fernandez v. Zoni Language
21 Ctrs., Inc., No. 16‐1689, 2017 WL 2293544, at *1 (2d Cir. May 26, 2017). At oral
2
1 argument, Volpe’s counsel conceded that a decision in Fernandez would control
2 this appeal, as the cases involved the same issues except for one (in our view
3 immaterial) factual distinction regarding the date on which ALCC was
4 accredited. See Oral Arg. Audio at 0:30–2:48. Here, as in Fernandez, “the
5 pleadings themselves established” that Volpe was a teacher employed by ALCC
6 “‘with a primary duty of teaching’ in order to ‘impart[] knowledge,’” and
7 therefore was a “teacher in an educational establishment.” Fernandez, 2017 WL
8 2293544, at *7 (quoting 29 C.F.R. § 541.303(a)). “Other evidence . . . such as
9 [ALCC’s] state licensure and national accreditation . . . only reinforces that
10 conclusion.” Id.
11 We have considered Volpe’s remaining arguments and conclude that they
12 are without merit. For the foregoing reasons, the judgment of the District Court
13 is AFFIRMED.
14 FOR THE COURT:
15 Catherine O’Hagan Wolfe, Clerk of Court
3