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 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5th day of June, two thousand seventeen.

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, 14 Plaintiff‐Appellant, 16 v. No. 16‐2869‐cv 18 AMERICAN LANGUAGE COMMUNICATION 19 CENTER, INC., DBA AMERICAN LANGUAGE 20 COMMUNICATION CENTER, JEAN PACHTER, 21 PETER PACHTER, 23 Defendants‐Appellees.

24 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐ 26 FOR APPELLANT: JOSHUA S. ANDROPHY, Michael 27 Faillace & Associates, P.C., New 28 York, NY.

* 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.

5 Appeal from a judgment of the United States District Court for the Southern District of New York (George B. Daniels, Judge).

7 UPON DUE CONSIDERATION, it is HEREBY ORDERED, ADJUDGED, 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 teachers are not exempt from the Fair Labor Standards Act’s overtime requirements, see 29 U.S.C. § 213(a)(1), because facilities like American Language Communication Center (“ALCC”), where Volpe taught, are not “educational establishment[s]” under Department of Labor regulations, see 29 C.F.R. §§ 541.303(a), 541.204(b). We assume the parties’ familiarity with the facts and record of the prior proceedings, to which we refer only as necessary to explain our decision to affirm.

18 In another case involving both Volpe and his counsel, we recently held that certain other facilities providing English‐language instruction were “educational establishment[s]” under 29 C.F.R. § 541.204(b). Fernandez v. Zoni Language Ctrs., Inc., No. 16‐1689, 2017 WL 2293544, at *1 (2d Cir. May 26, 2017). At oral

1 argument, Volpe’s counsel conceded that a decision in Fernandez would control this appeal, as the cases involved the same issues except for one (in our view immaterial) factual distinction regarding the date on which ALCC was accredited. See Oral Arg. Audio at 0:30–2:48. Here, as in Fernandez, “the pleadings themselves established” that Volpe was a teacher employed by ALCC “‘with a primary duty of teaching’ in order to ‘impart[] knowledge,’” and 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 [ALCC’s] state licensure and national accreditation . . . only reinforces that conclusion.” Id. 11 We have considered Volpe’s remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk of Court