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

(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

(b). Fernandez v. Zoni Language

21 Ctrs., Inc., No. 16‐1689,

(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,

2293544, at *7 (quoting

(a)). “Other evidence . . . such as

9 [ALCC’s] state licensure and national accreditation . . . only reinforces that

10 conclusion.”

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

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