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United States District Court, S.D. New York

May 3, 2004.

NIGEL NOBLE, on behalf of himself and all others similarly situated, Plaintiff, -against- 93 UNIVERSITY PLACE CORPORATION, d/b/a HEALTHY PLEASURES, and HELENE BURGESS, Defendants

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


Nigel Noble brings this action, on behalf of himself and all others similarly situated, against his former employer, 93 University Place Corp., d/b/a Healthy Pleasures ("Healthy Pleasures"), and its sole stockholder, Helene Burgess, alleging violations of New York Labor Law and the Fair Labor Standards Act ("FLSA").*fn1 Noble now moves pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3) for class certification of his state law overtime pay claim, defining the class as those Healthy Pleasures employees who worked more than forty hours per week and were denied overtime compensation. For the reasons set forth below, class certification is granted as to liability only.


  A. Procedural History

  On March 6, 2002, Noble filed a Complaint alleging that defendants violated: (1) New York Labor Law section 740 by terminating him in retaliation for refusing to participate in and for complaining about the mislabeling of food;*fn2 (2) section 7(a)(1) of the FLSA by failing to pay overtime to Noble and other similarly situated employees; and (3) New York Labor Law section 160 and N.Y. Comp. Codes R. & Regs. tit. 12, § 142-2.2 ("section 142-2.2") by failing to compensate Noble and other similarly situated employees at one-and-one-half times the regular rate when those employees worked in excess of forty hours per week.*fn3

  With respect to his federal claim, Noble sent a notice to potential plaintiffs, informing them of their right under section 16(b) of the FLSA to "opt into" the FLSA action by returning consent forms on or before April 1, 2003.*fn4 As a result, Jose Alberto Nunez and Sonam Tashi Gurung timely submitted consent forms; and Eugene B. Rozario filed his consent after the deadline, on April 16, 2003.*fn5 Defendants then moved for summary judgment, which this Court denied in an Opinion and Order dated November 18, 2003.*fn6 Noble now seeks to certify a class claiming a violation of the state law requiring overtime pay.

  B. Background

  Healthy Pleasures is a New York corporation that owns and operates three retail stores in New York City specializing in the preparation and sale of "natural food."*fn7 On January 11, 2001, Noble was hired to work at Healthy Pleasures's 93 University Place location.*fn8 In the first week of his employment, Noble complained to his supervisor, Omar Bashar, that the store sold mislabeled food.*fn9 In particular, Noble complained that the labels of salad-bar items omitted ingredients and that the labels of non-salad-bar items listed ingredients that were not contained in the food.*fn10 Approximately eight months later, on August 30, 2001, Omar confronted Noble because he had been informed that Noble had instructed someone to throw away "perfectly good" chicken, which he found in the garbage.*fn11 Omar then fired Noble and Noble filed this lawsuit.

  C. Class Certification Allegations

  1. Potential Class Representatives

  Noble asserts that both he and Nunez are qualified to serve as class representatives. Noble alleges that he agreed to work forty-eight hours per week for a flat salary,*fn12 but that he, like all "kitchen employees, and upon information and belief, all Healthy Pleasure[s] employees," was routinely required by Burgess to work "substantial amounts of overtime."*fn13 Specifically, Noble states that he was compelled to work ten hours each day, six days per week (sixty hours per week) but was not compensated for more than a forty-hour work week.*fn14

  Noble's position with Healthy Pleasures was that of "chef in the "Kitchen Department." Defendants contend that he was hired as head chef and kitchen manager.*fn15 They maintain that in these positions, Noble was in charge of a kitchen staff of between ten to twenty employees, and that the cooks and dishwashers reported directly to him.*fn16 They further submit that Noble had a number of different duties relating to the smooth running of the entire kitchen, including: (1) scheduling kitchen employees; (2) ordering food for the kitchen; (3) keeping track of kitchen inventory; (4) planning the daily menu; (5) creating new dishes; (6) giving daily instructions and delegating work to the kitchen staff; (7) keeping track of the amount of food leaving the kitchen; (8) training new kitchen employees; (9) interviewing job applicants; and (10) acting as liaison between the Kitchen Department and Omar.*fn17 Additionally, defendants claim that they granted Noble the authority to hire, fire, and discipline employees, and that Noble had acted on this authority.*fn18 They also allege that Noble had authority to approve overtime.*fn19 They assert that Noble was a managerial employee, and, as such, that he was not entitled to overtime compensation under federal law.

  Noble contends that he was not hired as head chef or kitchen manager, but simply as a chef responsible for cooking and preparing food for the store's salad bar.*fn20 He claims he had no supervisory authority over other employees, and that neither cooks nor dishwashers reported to him.*fn21 As a chef, Noble maintains that he devoted 75 to 100 percent of his time to cooking.*fn22 Occasionally, however, Noble assisted with other tasks under the direction of Omar or other chefs, including: (1) re-arranging schedules that Omar had previously written up when other kitchen employees called in sick or failed to show up for work; (2) re-ordering commonly used kitchen supplies from the store's regular vendors; (3) collaborating with Burgess, Omar, and the other cooks on the daily menu; and (4) writing up the daily menu.*fn23 On a number of occasions, at Burgess's request, Noble spent a few hours explaining to new kitchen employees how certain dishes were prepared.*fn24 Noble denies that he was responsible for tracking kitchen inventory, or that he gave daily instructions or delegated work to kitchen staff.*fn25

  Noble contends that Omar and Burgess retained control over the hiring and firing of kitchen employees and that he himself had no authority to hire or fire anyone, or recommend that anyone be hired or fired.*fn26 He claims that he rarely participated in the interview process and never hired anyone.*fn27 He also maintains that he never fired anyone and that Omar regularly handled employee terminations.*fn28 Further, he asserts that he never had the authority to approve overtime.*fn29 Following Noble's departure, Nunez, another Kitchen Department employee who was hired on March 5, 2001, appears to have assumed many of Noble's responsibilities, until his own termination in January 2002.*fn30

  2. Potential Class Members

  Noble describes the potential class members as "cooks, stock clerks, cashiers, dishwashers[,] and the like" who were required to work overtime, but not compensated for their additional labor in accordance with state law.*fn31 These employees are or were employed at Healthy Pleasures's "two delicatessen-style retail food stores."*fn32 Noble avers that "most [of these employees] are immigrants and many are undocumented aliens."*fn33 He submits that defendants employ "hundreds of individuals, such that given defendants' rapid employee turnover, there is [sic] in all likelihood several hundred class members for the more than six year period at issue here."*fn34 Noble further alleges that most of these potential class members are unlikely to "file individual suits because they lack adequate financial resources or access to counsel and fear reprisal from defendants."*fn35 Finally, Noble alleges the existence of the following common questions of law and fact: (1) "whether class members' [sic] worked in excess of forty (40) hours per week, [(2)] whether class members were paid overtime for each hour worked in excess of forty (40) hours per week; and [(3)] whether defendants' violations were willful."*fn36


  A. Legal Standard

  Rule 23 sets forth the requirements for bringing and maintaining a class action in federal court.*fn37 "`In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.'"*fn38 While this Circuit has "directed district courts to apply Rule 23 according to a liberal rather than a restrictive interpretation,"*fn39 a court may not grant certification unless it is satisfied, after "`rigorous analysis,'" that the criteria set forth in Rule 23 are met.*fn40 Plaintiff bears the burden of establishing each requirement for class certification.*fn41

  The district court must accept all of the allegations in the pleadings as true on a motion for class certification, and avoid conducting a preliminary inquiry into the merits.*fn42 Nonetheless, the decision whether to certify a class "`may involve some considerations related to the factual and legal issues that comprise the plaintiffs cause of action.'"*fn43 Additionally, the presence of an affirmative defense should be considered in determining whether class certification is appropriate.*fn44

  B. Requirements for Class Certification

  To be certified as a class under Rule 23, the moving party must satisfy all four requirements of subsection (a). Additionally, the movant must demonstrate that the class is "maintainable" as defined in subsection (b).

  1. Rule 23(a)

  Rule 23(a) permits one or more members of a class to sue as representative parties only if:

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
In addition, while "`Rule 23(a) does not expressly require that a class be definite in order to be certified[,] a requirement that there be an identifiable class has been implied by the courts.'"*fn45 This requirement is often referred to as "ascertainability."*fn46

  a. Implied Requirement of Ascertainability

  To bridge the "wide gap" between an individual's claim and "the existence of a class of persons who ha[s] suffered the same injury as the individual," plaintiff must demonstrate the existence of an "aggrieved class."*fn47 Plaintiff must also demonstrate that the aggrieved class can be readily identified.*fn48 "A class's definition will be rejected when it `requires addressing the central issue of liability in a case' and therefore the inquiry into whether a person is a class member `essentially require [s] a mini-hearing on the merits of each [plaintiffs] case.'"*fn49 Class members need not be ascertained prior to certification, but must be ascertainable at some point in the case.*fn50

  b. Numerosity

  Rule 23(a)(1) requires that the class be "so numerous that joinder of all members is impracticable." "Impracticability does not mean impossibility of joinder, but rather difficulty or inconvenience of joinder."*fn51 Generally, a class composed of more than forty members satisfies the numerosity requirement.*fn52 Although a plaintiff need not present a precise calculation of the number of class members*fn53 and it is permissible for the court to rely on reasonable inferences drawn from available facts,*fn54 the movant "`must show some evidence of or reasonably estimate the number of class members.'"*fn55 "Where the plaintiff's assertion of numerosity is [based on] pure speculation or bare allegations, the motion for class certification fails."*fn56

  c. Commonality

  Commonality requires a showing that common issues of fact or law affect all class members.*fn57 The commonality requirement may be met when individual circumstances of class members differ, but "their injuries derive from a unitary course of conduct."*fn58 A single common question may be sufficient to satisfy the commonality requirement.*fn59 "The critical inquiry is whether the common questions are at the `core' of the cause of action alleged."*fn60

  d. Typicality

  A class representative's claims are "typical" under Rule 23(a)(3), where each class member's claims arise from the same course of events and each class member makes similar legal arguments to prove defendants' liability.*fn61 "While it is settled that the mere existence of individualized factual questions with respect to the class representative's claim will not bar class certification, class certification is inappropriate where a putative class representative is subject to unique defenses which threaten to become the focus of the litigation."*fn62 e. Adequacy of Representation

  The movant must also show that the proposed action will fairly and adequately protect the interests of the class.*fn63 To do so, proposed class representatives must demonstrate that they have no interests that are antagonistic to the proposed class members.*fn64 In addition, courts have considered other factors, such as whether the putative representative is familiar with the action, whether he has abdicated control of the litigation to class counsel,*fn65 and whether he is of sufficient moral character to represent a class.*fn66

  2. Rule 23(b)(3)

  a. Predominance

  "[T]o meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole . . . predominate over those issues that are subject only to individualized proof."*fn67 The predominance inquiry "tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation."*fn68

  This requirement is far more demanding than the commonality requirement of Rule 23(a).*fn69 Because Rule 23(b)(3) requires that common issues predominate, courts often deny certification where common issues of law are not present or where resolving the claims for relief would require individualized inquiries.*fn70 To that end, a court evaluating whether a movant has satisfied the requirements of Rule 23(b)(3) must examine both the claims and the defenses. But the fact that a defense "`may arise and [] affect different class members differently does not compel a finding that individual issues predominate over common ones.'"*fn71 The relevant inquiry is "not whether a defense exists, but whether the common issues will predominate over the individual questions raised by that defense."*fn72

  b. Superiority

  The superiority question under Rule 23(b)(3) requires a court to consider whether a class action is superior to other methods of adjudication. The court should consider, inter alia, "the interest of the members of the class in individually controlling the prosecution or defense of separate actions" and "the difficulties likely to be encountered in the management of a class action."*fn73

  3. Rule 23(g)*fn74

  If certification is granted, Rule 23(g) provides that the court must appoint class counsel. To that end, the court must consider the following: "[(1)] the work counsel has done in identifying or investigating potential claims in the action, [(2)] counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, [(3)] counsel's knowledge of the applicable law, and [(4)] the resources counsel will commit to representing the class."*fn75 The court may consider any "other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."*fn76

  C. New York Law

  New York Labor Law provides for a six-year statute of limitations for wage claims.*fn77 One such wage claim relates to an employer's failure to properly compensate employees for time spent at work in excess of forty hours per week.*fn78

  Specifically, section 142-2.2 provides, in relevant part:

  An employer shall pay an employee for overtime at a wage rate of 1 ½ times the employee's regular rate in the manner and methods provided in and subject to the exemptions of section[] . . . 13 of . . . the [FLSA]. . . . In addition, an employer shall pay employees subject to the exemptions of section 13 of the [FLSA] . . . overtime at a wage rate of 1 ½ A times the basic minimum hourly rate. Under section 13(a)(1) of the FLSA, statutory protection is not extended to those employees "employed in a bona fide executive, administrative, or professional capacity."*fn79 The regulations promulgated by the Secretary of Labor pursuant to section 13(a)(1) define which employees qualify as "bona fide executives." Federal regulations, in turn, provide that employees earning $250 or more per week are "bona fide executives" if they satisfy the following requirements: (1) their "primary duty" must be managerial; and (2) they must regularly direct the work of two or more employees.*fn80


  A. Certification of New York Wage Claims Generally

  As a threshold matter, defendants argue that Noble's motion should be denied because "[certification of [the] class would expand plaintiffs' Labor Law claim beyond the parameters authorized by the Legislature under New York law."*fn81 Specifically, defendants assert that because the statute under which Noble seeks relief provides for a penalty of liquidated damages,*fn82 section 901 of New York's Civil Practice Law and Rules ("C.P.L.R.") bars certification.*fn83 Although section 901 precludes the use of the class action mechanism where the underlying statute provides for a penalty, section 901 is not a complete bar to certification. Rather, courts have found that where the plaintiffs have "offer[ed] to waive any right to recover liquidated damages as a condition of being certified, New York law authorizes [certification]."*fn84 Because the right to liquidated damages has been waived,*fn85 section 901 does not preclude certification. B. Certification of Noble's State Wage Claim

  1. Rule 23(a)

  Whether Noble's state overtime pay claim is amenable to class certification depends first upon satisfaction of the requirements set forth in Rule 23(a). That is, in addition to showing that an identifiable class exists, Noble must demonstrate: (1) the class is so numerous that joinder is impracticable, (2) there are common questions of fact and law, (3) Noble's claim is typical of the claims of other class members, and (4) Noble will fairly and adequately protect class interests.

  a. Implied Requirement of Ascertainability

  Defendants argue that the proposed class, which includes "all non-exempt employees who were not paid overtime compensation for each hour worked in excess of forty hours per week. . . . is not defined by the characteristics of an identifiable group."*fn86 They submit that "[i]f the Court were to certify [the] proposed class, it would be impossible to determine if an employee was a member of the class until there was an analysis of each employee's claim. This could result in a series of mini-trials for each employee. . . ."*fn87 Noble counters by characterizing defendants' argument as "frivolous," noting that the Court "cannot consider or resolve the merits, and must assume, for purposes of the certification motion, that plaintiffs will prove their claims at trial."*fn88

  The problem presented by these arguments is the tension between the proposed class definition and "a basic tenet of class certification [ — that] a court may not inquire into the merits of the case at the class certification stage."*fn89 However, certification is routinely granted where the proposed class definition relies in part on the consideration of defendants' alleged liability.*fn90 Were it otherwise, the benefits of the class action mechanism could be significantly undermined because plaintiffs seeking relief based upon a defendant's alleged unlawful practice or policy might be precluded from collectively bringing suit. Moreover, rejection of defendants' argument as to the inadequacy of Noble's class definition is consistent with this Circuit's liberal interpretation of the requirements of Rule 23.

  b. Numerosity

  Noble hypothesizes that there are "in all likelihood several hundred class members,"*fn91 given the number of people that Healthy Pleasures has employed during the relevant six-year period.*fn92 That only three employees have opted-into the FLSA action casts doubt on Noble's claim regarding the estimated class size. However, because Noble has provided evidence tending to suggest that potential class members may have failed to join the FLSA collective action because they feared reprisal, particularly given their citizenship status, it is reasonable to believe that many employees fall within the ambit of the defined class.*fn93 The putative class, defined by Noble to include those employees who worked more than forty hours per week but were not paid overtime wages, appears to be sufficiently large such that joinder would "make litigation needlessly complicated and inefficient."*fn94 c. Commonality

  Despite defendants' arguments to the contrary, there are common questions of law and fact sufficient to satisfy Rule 23(a)(2). Based on Noble's allegations, there is substantial commonality among the proposed class members. During the relevant six-year period, each potential class member was employed by Healthy Pleasures to prepare or sell food, was required to work in excess of forty hours each week, and was not properly compensated for this additional labor. Although there are some differences among employees — i.e., responsibilities, hours worked, and salaries — these differences are relatively minor and relate primarily to the level of damages, if any, owing to each individual.*fn95 All potential class members are alleged to have been harmed by a common practice — defendants' failure to adequately compensate employees for overtime hours. The legal theory set forth in Noble's Complaint is common to all class members — that this alleged failure to pay overtime violates New York's labor law. Accordingly, the commonality requirement is satisfied. d. Typicality

  As an initial matter, defendants assert, and Noble does not dispute, that because neither Gurung nor Rozario were produced for deposition, only Noble and Nunez are eligible to serve as potential class representatives.*fn96 Thus, only the claims of Noble and Nunez are evaluated with respect to the typicality requirement of Rule 23(a)(3).*fn97 Although Noble's claim arises from the same course of conduct as that of the other class members — Healthy Pleasures's requirement that its employees work overtime without compensation — resolution of his claim will depend on whether he is exempt from coverage under New York Labor Law. This, in turn, will require a fact-intensive inquiry into the scope of his responsibilities. Although unique defenses do not necessarily destroy typicality where, as here, the defense "threaten[s] to become the focus of the litigation,"*fn98 the plaintiff cannot be considered "typical" of the class.*fn99

  Based on his deposition testimony, Nunez may also be exempt from coverage under state overtime law for part of the time he was employed by defendants.*fn100 However, unlike Noble, the parties do not dispute that Nunez was a non-exempt employee for at least a portion of his employment. Specifically, for approximately six months — from March 5, 2001 until August 29, 2001 — Nunez worked in the Kitchen Department, apparently under Noble's supervision,*fn101 and it was only for the last four or five months of his employment that Nunez may have assumed managerial responsibilities. Because Nunez was non-exempt for at least six months, the "unique defense" relating to his exemption cannot be characterized as central to the litigation, but may only limit his recoverable damages to the initial six-month period. As such, it does not pose a danger of distraction sufficient to defeat typicality. e. Adequacy of Representation

  Plaintiff must also show that the proposed action will fairly and adequately protect the interests of the class by demonstrating that the interests of the putative class representatives are not antagonistic to the proposed class members.*fn102 There is no indication that Nunez has any interests that are antagonistic to the potential class members or that he lacks sufficient moral character to represent a class.*fn103

  There is some question as to whether he is familiar with the action and has the ability to "ensure vigorous prosecution of the litigation" by "at least minimally supervising] class counsel."*fn104 But these concerns do not require a finding of inadequacy. First, although he has difficulty reading and speaking English,*fn105 Nunez has exhibited a basic understanding of the instant action, i.e., that it involves overtime pay. Moreover, Nunez has prior experience testifying in court, which shows some familiarity with the legal system.*fn106 Second, even though Nunez arguably lacks the ability effectively to supervise class counsel, a rigid application of this requirement is inappropriate where, as here, the class comprises relatively low-skilled laborers. Such inflexibility runs counter to a principal objective of the class action mechanism — to facilitate recovery for those least able to pursue an individual action. As such, Nunez is an adequate representative for the putative class.*fn107 2. Rule 23(b)(3)

  a. Predominance

  Defendants argue that predominance is lacking because the determination of liability will depend on whether each employee: (1) is an exempt employee; (2) worked overtime hours for which compensation was not paid; and (3) "had an agreement with defendants to have their weekly salary include overtime compensation for all hours worked in excess of forty each week."*fn108 Additionally, defendants argue that the differences between the amount of damages to which each non-exempt employee is entitled defeats predominance. But defendants' argument fails because the issues that are subject to generalized proof predominate over those issues premised on individualized findings. Specifically, the class action is based on defendants' alleged policy of requiring employees to work overtime hours without adequate compensation. Thus, to prevail on the merits of this claim, plaintiffs must produce evidence that defendants implemented an illegal policy with respect to overtime pay. Indeed, the gravamen of the claim is that defendants engaged in a course of conduct that deprived employees of their right to overtime pay. Although determinations as to damages, exempt status, and alleged labor agreements will require individualized findings, common liability issues otherwise predominate.*fn109 As such, these individualized damages inquires do not bar certification.*fn110 However, it seems sensible to limit class certification at this stage solely to the issue of liability.*fn111

  b. Superiority

  A class action is superior to other available methods of fairly and efficiently adjudicating Noble's state law overtime claim. First, the proposed class members are "sufficiently numerous" and seem to possess relatively small claims "unworthy of individual adjudication due to the amount at issue."*fn112 Second, there is reason to believe that class members may fear reprisal and lack familiarity with the legal system, discouraging them from pursuing individual claims.*fn113 Thus, the superiority requirement is easily satisfied by the facts in this case.

  3. Rule 23(g)

  Noble proposes that his attorney, Karl Stoecker, serve as class counsel. Defendants counter that Stoecker is inadequate, primarily due to his failure to: (1) provide the information necessary to satisfy the requirements of Rule 23(g) and (2) discuss any of the requirements of Rule 23(b) in his class certification moving papers.*fn114 Stoecker, however, addressed these deficiencies in the Reply Memorandum of Law and accompanying exhibits.

  Pursuant to Rule 23(g), this Court has considered the work that Stoecker has done in identifying or investigating potential claims in this action. Stoecker has clearly conducted discovery to identify potential class members and, based on the evidence before the Court, has diligently prosecuted this action. As for his experience in handling class actions and other complex litigation, Stoecker has indicated that, since the founding of his practice four years ago, he has been "devoted primarily to representing employees in wage and hour class action litigation" and that, recently, he successfully litigated an employment case, obtaining a "substantial jury verdict."*fn115 Stoecker also appears to be familiar with the applicable law, and to possess the legal and financial resources necessary to represent the class.*fn116 IV. CONCLUSION

  For the foregoing reasons, Noble's motion for certification is granted as to liability only. The Clerk of the Court is directed to close this motion [#35]. A conference is scheduled for May 6, 2004 at 2:45 p.m. in Courtroom 15C.


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