16‐3218
Sandler v. Benden, 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
ASUMMARY 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, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 13th day of November, two thousand
seventeen.
PRESENT: DENNIS JACOBS,
ROBERT D. SACK,
BARRINGTON D. PARKER,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
TRACEY SANDLER,
Plaintiff‐Appellant,
‐v.‐ 16‐3218
JOSEPH BENDEN, BAYVIEW MANOR LLC d/b/a
SOUTH POINT PLAZA NURSING AND
REHABILITATION CENTER, ILENE L.
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NATHANSON, PAMELA BRODLIEB, AND LONG
ISLAND UNIVERSITY,
Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐X
FOR APPELLANT: DAVID ZEVIN; Roslyn, NY.
FOR APPELLEES BENDEN W. MATTHEW GROH (Clifford
and BAVIEW MANOR LLC P. Chaiet, on the brief),
d/b/a SOUTH POINT PLAZA Naness, Chaiet, & Naness,
NURSING and LLC; Jericho, NY.
REHABILITATION CENTER:
FOR APPELLEES NATHANSON, CATHERINE M. MURPHY;
BRODLIEB, AND LONG Brookville, NY.
ISLAND UNIVERSITY:
Appeal from a judgment of the United States District Court for the Eastern
District of New York (Feuerstein, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the district court is
AFFIRMED.
Tracey Sandler appeals from the judgment of the United States District
Court for the Eastern District of New York (Feuerstein, J.) dismissing her claim
for unpaid wages under the New York Labor Law on a Rule 12(c) motion for
judgment on the pleadings. At issue is the district court’s ruling that Sandler
was an intern and not an employee for the purposes of the New York Labor Law
under Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528 (2d Cir. 2015). We
assume the parties’ familiarity with the underlying facts, the procedural history,
and the issues presented for review.
Sandler was a part‐time student in Long Island University’s Master of
Social Work (“MSW”) program during the 2013‐14 academic year. As part of the
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program, Long Island University (“LIU”) placed Sandler in an internship at
Bayview Manor LLC d/b/a South Point Plaza Nursing and Rehabilitation Center
(“Bayview Manor”) under the supervision of Joseph Benden. Sandler alleges
that she performed only “secretarial tasks” and “grunt work,” such as “filing,
typing, photocopying, fetching food, wheeling patients, etc.,” and that she
received nearly nothing of educational value. After Sandler complained about
the quality of the internship in a February 28, 2014 memorandum, she was
dismissed from Bayview Manor and expelled from LIU. Sandler was later
reinstated at LIU, but did not receive course credit for her year‐long internship or
a refund of tuition.
In return for the internship, Sandler alleges that Bayview Manor received
the benefit of her services, which otherwise would have been performed by a
paid employee, as well as benefits from LIU. She alleged that LIU benefited
through tuition and continued accreditation (which in turn supported higher
tuition).
Sandler brought claims pursuant to both the Fair Labor Standards Act
(“FLSA”) and the New York Labor Law (“NYLL”). The district court invoked
supplemental jurisdiction pursuant to 28 U.S.C. § 1367 to hear the latter claim.
Sandler now appeals only the district court’s dismissal of the NYLL claim, which
raises the issue of whether we have jurisdiction to hear an appeal on a state‐law
claim when the federal claim that conferred supplemental jurisdiction has not
been appealed. We conclude that we do.
“The scope of a federal courtʹs jurisdictional power [] does not fluctuate
with the fate of a federal claim at trial or on appeal, but exists if the federal claim
initially had substance sufficient to confer subject matter jurisdiction on the
court.” United Intern Holdings, Inc. v. Wharf, 210 F.3d 1207, 1219‐20 (10th Cir.
2000) (citation and quotation marks omitted); see also Hatch v. Town of
Middletown, 311 F.3d 83, 84 n.2 (1st Cir. 2002) (same). We rely also on Gelboim
v. Bank of America Corp., 135 S. Ct. 897, 902 (2015), which held that 28 U.S.C.
§ 1291 gives the courts of appeals jurisdiction over all final decisions of the
district courts, even if a district court dismisses only a single case that has been
consolidated with other actions in a multidistrict litigation: “A final decision is
one by which a district court disassociates itself from a case. . . . [T]he statute’s
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core application is to rulings that terminate an action.” Id. (citations and
quotation marks omitted). Notwithstanding Sandler’s appeal of the NYLL claim
only, the district court’s granting of the defendants’ motions to dismiss was a
final order that terminated the action below. Accordingly, the Court has
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
We review the grant of a motion to dismiss on the pleadings de novo, see
Karedes v. Ackerley Group, Inc., 423 F.3d 107, 113 (2d Cir. 2005), “accepting all
factual allegations in the complaint as true, and drawing all reasonable
inferences in the plaintiff’s favor,” Velez v. Sanchez, 693 F.3d 308, 313 (2d Cir.
2012) (citation and quotation marks omitted). “To survive a Rule 12(c) motion,
the complaint must contain sufficient factual matter to state a claim to relief that
is plausible on its face.” Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178‐79 (2d
Cir. 2013) (citation and quotation marks omitted).
We construe the NYLL definition of employee as the “same in substance”
as the FLSA definition. Glatt, 811 F.3d at 534. To determine whether an unpaid
employee is entitled to compensation under FLSA and the NYLL, we apply the
primary beneficiary test:
The primary beneficiary test has three salient features. First, it focuses on
what the intern receives in exchange for his work. Second, it also accords
courts the flexibility to examine the economic reality as it exists between
the intern and the employer. Third, it acknowledges that the intern‐
employer relationship should not be analyzed in the same manner as the
standard employer‐employee relationship because the intern enters into
the relationship with the expectation of receiving educational or vocational
benefits that are not necessarily expected with all forms of employment
(though such benefits may be a product of experience on the job).
Glatt, 811 F.3d at 536 (citations omitted).
Glatt further instructs courts to consider seven non‐exhaustive factors in
determining whether an intern is an employee for the purposes of FLSA and the
NYLL:
1. The extent to which the intern and the employer clearly understand that
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there is no expectation of compensation. Any promise of compensation,
express or implied, suggests that the intern is an employee‐‐and vice versa.
2. The extent to which the internship provides training that would be
similar to that which would be given in an educational environment,
including the clinical and other hands‐on training provided by educational
institutions.
3. The extent to which the internship is tied to the internʹs formal education
program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the internʹs academic
commitments by corresponding to the academic calendar.
5. The extent to which the internshipʹs duration is limited to the period in
which the internship provides the intern with beneficial learning.
6. The extent to which the internʹs work complements, rather than
displaces, the work of paid employees while providing significant
educational benefits to the intern.
7. The extent to which the intern and the employer understand that the
internship is conducted without entitlement to a paid job at the conclusion
of the internship.
Glatt, 811 F.3d at 536‐37.
In applying these non‐exhaustive factors, courts “weigh[] and balanc[e]”
the totality of the circumstances. Id. at 537. “No one factor is dispositive and
every factor need not point in the same direction for the court to conclude that
the intern is not an employee entitled to the minimum wage.” Id. Furthermore,
“because the touchstone of this analysis is the economic reality of the
relationship, a court may elect . . . to consider evidence about an internship
program as a whole rather than the experience of a specific intern.” Id.
(quotation marks omitted).
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Sandler argues that determining whether a worker is an intern or an
employee for the purposes of the NYLL is a fact‐intensive inquiry requiring
discovery. She therefore requests that the Court vacate the district court’s
dismissal and remand the case for discovery.
The first, second, and third Glatt factors weigh in favor of finding that
Sandler was an intern. There was no expectation of compensation: the Amended
Complaint states that “LIU required that, beginning in the second year of school,
students, including Ms. Sandler, complete an unpaid internship.” App. 218 (Am.
Compl. ¶ 25) (emphasis added). Sandler also contends that the internship
provided her with “nearly nothing of educational value.” However, the
pleadings show that Sandler did receive educational training during her
internship: she was assigned one individual client at Bayview Manor and
received one group assignment; she participated in integrated coursework at LIU
in the form of a “field work class”; and her internship responsibilities included
writing three “process recordings” per week that described her experiences as a
social work intern. App. 227, 231‐32 (Am. Compl. ¶¶ 53, 66‐67). Finally, the
Amended Complaint makes clear that she would have received academic credit
toward her MSW degree had she performed the internship in a satisfactory
manner. App. 218‐19 (Am. Comp. ¶ 25); see Lucia Vlad‐Berindan v. NYC Metro.
Trans. Auth., No. 14‐cv‐10304 (VEC), 2016 WL 1317700, at *8 (S.D.N.Y. Apr. 1,
2016) (“It is unfortunate, if true, that Plaintiff learned nothing during her
internship but even if that is true, it does not erase the fact that she received
credit toward her degree by virtue of the internship.”).
The fourth, fifth, and seventh factors also weigh in favor of finding that
Sandler was an intern. The duration of Sandler’s internship coincided with and
was limited to LIU’s academic calendar “during the fall, 2013 semester and part
of the spring, 2014 semester.” App. 210 (Am. Compl. ¶ 2). Sandler worked
approximately 16 hours per week from September to December 2013 and
approximately 17 hours per week from January 2014 until her termination in
March of that year. App. 226 (Am. Compl. ¶ 49). It is also undisputed that
Sandler was never promised a paid position at Bayview Manor upon the
completion of her internship. App. 226 (Am. Compl. ¶ 49).
Sandler argues that the sixth factor weighs in her favor because work she
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was required to perform displaced the work of a secretary or assistant and
because the internship failed to provide significant educational benefits. The
sixth factor may favor the plaintiff when an employer merely passes drudge
work on to interns, but that is not dispositive: Glatt specifically acknowledges
that employers could receive an immediate advantage from unpaid interns. See
811 F.3d at 535‐36. Moreover, the Amended Complaint acknowledges that
Sandler did perform complementary work and that she received significant
educational benefits, as set out above. The best that can be said is that the sixth
factor is a wash.
Sandler argues that discovery is needed to flesh out the totality of the
circumstances: namely, the extent to which Bayview Manor received benefits
from its relationship with LIU and the monetary amount Bayview Manor would
have expended to have an employee perform Sandler’s work. However, so long
“as the relationship at issue has the qualities of a bona fide internship, providing
educational or vocational benefits in a real‐world setting, the intern can be the
primary beneficiary of the relationship even if her activities provide direct
benefit to the employer.” Mark v. Gawker Media LLC, No. 13‐cv‐4347 (AJN),
2016 WL 1271064, at *7‐*8 (S.D.N.Y. Mar. 29, 2016); see Vlad‐Berindan, 2016 WL
1317700, at *8 (finding that an intern was the primary beneficiary when she
received academic credit necessary for her degree, even though she displaced the
work of an employee). Accordingly, Sandler did not plausibly plead that she
was an employee under the analysis set out in Glatt; she therefore failed to state a
claim for relief under the NYLL and is not entitled to proceed to discovery.
We have considered Sandler’s remaining arguments and conclude that
they are without merit. For the foregoing reasons, the judgment of the district
court is AFFIRMED, with costs borne by the respective parties.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK
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Sandler v. Benden
Combined Opinion