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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, ยง 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 ...

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