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Summa v. Hofstra University

August 14, 2008


The opinion of the court was delivered by: Arlene R. Lindsay United States Magistrate Judge


LINDSAY, Magistrate Judge

Presently before the court is plaintiff's motion seeking: (1) to conditionally certify a collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b); (2) for court-authorized notice of the action to potential opt-in plaintiffs; and (3) for an order directing defendant to provide the names, addresses, e-mail addresses, Social Security numbers, and dates of employment of each person employed by Hofstra as an Undergraduate or Graduate Assistant during the last six years. For the reasons that follow, plaintiff's motion should be granted in part and denied in part.


Defendant Hofstra University ("Hofstra") is a private university that employs students on its Hempstead, New York campus in three categories relevant to this matter: Undergraduate Assistant, Graduate Assistant and Graduate Assistantship. Plaintiff, Lauren E. Summa ("Summa"), is a former Hofstra student who maintained an Undergraduate Assistant position as Football Team Manager during the 2006 Fall semester. (Compl. at ¶¶ 12, 16). According to the complaint, the plaintiff received a $700 stipend for her work as Football Team Manager although she was working at least 40 hours each week in that position. (Compl. at ¶ 16). Plaintiff also alleges that she was simultaneously working in other hourly paid positions she held on-campus for Hofstra. (Id.) According to the plaintiff, the accumulation of hours worked in all of the positions she held with Hofstra during the same time period entitled her to overtime compensation for the hours worked beyond 40 hours in any given week. (Id.)

On August 9, 2007, plaintiff commenced the instant action on behalf of herself and others similarly situated who were allegedly not paid the prevailing minimum wage or overtime compensation in violation of § 216(b) of the FLSA. Plaintiff specifically alleges that: (1) she regularly worked in excess of 40 hour per week for Hofstra between her multiple on-campus jobs and was not paid overtime; (2) based upon her job responsibilities she was not "exempt" from the FLSA's overtime wage requirement; and (2) all Undergraduate or Graduate Assistants had similar basic job duties and assignments and all are or were subject to Hofstra's common policy and practice of classifying Undergraduate and Graduate Assistants as exempt or otherwise excluded from the provisions of the FLSA. (Compl. at ¶¶ 2-4, 18-28, 31).


The FLSA provides a private right of action to recover unpaid prevailing minimum wages and/or overtime compensation and liquidated damages from an employer who violates the Act's provisions. See 29 U.S.C. § 216(b). Congress's purpose in passing the FLSA was "to protect all covered workers from substandard wages and oppressive working hours, and 'labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.'" Barrentine v. Arkansas-Best-Freight System, Inc., 450 U.S. 728, 739, 101 S.Ct. 1437 (1981) (quoting 29 U.S.C. § 202(a)). The FLSA is construed by the courts "liberally to apply to the furthest reaches consistent with congressional direction." Tony and Susan Alamo Found. v. Sec'y of Labor, 471 U.S. 290, 296, 101 S.Ct. 1953 (1985) (internal quotation marks and citation omitted).

Pursuant to the FLSA, employees such as the plaintiff may sue on behalf of themselves and "other employees similarly situated" for violations of the statute's minimum wage and overtime provisions. 29 U.S.C. § 216(b). Unlike class action suits brought pursuant to Federal Rule of Civil Procedure 23, only potential plaintiffs who affirmatively "opt in" by filing a written consent may be bound by or benefit from the judgment in an FLSA collective action. See Francis v. A&E Stores, Inc., CV 06-1638(CLB)(GAY), 2008 WL 2588851, *1 (S.D.N.Y. June 26, 2008) (citing Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006)). Also unlike a Rule 23 class action, "no showing of numerosity, typicality, commonality and representativeness need be made" for certification of an FLSA collective action. Francis, 2008 WL 2588851 at *1 (citing Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005)) .

In determining whether a suit may proceed as a collective action under the FLSA, [c]courts typically undertake a two-stage review . . . . As a first step the court examines pleadings and affidavits, and if the court finds that proposed class members are similarly situated, the class is conditionally certified; potential class members are then notified and given an opportunity to opt-in to the action.

Cuzco v. Orion Builders, Inc., 477 F. Supp .2d 628, 632 (S.D.N.Y. 2007); Patton v. Thomson Corp., 364 F. Supp.2d 263, 266-67 (E.D.N.Y. 2005) ("The threshold issue in deciding whether to authorize such opt-in notice is to determine whether other employees to whom notice might be sent are 'similarly situated.'") (citation and internal quotation omitted). At the initial assessment stage, before discovery is completed, the court does not resolve factual disputes, decide substantive issues going to the ultimate merits or make credibility determinations. Young, 229 F.R.D. at 54. In assessing whether the proposed class members are similarly situated, the court is to consider the pleadings together with any affidavits or other evidence submitted. Lee, 236 F.R.D. at 197 (citing Scholtisek v. Eldre Corp., 22 F.R.D. 381 (W.D.N.Y. 255)). If the court finds that the putative plaintiffs are similarly situated to the named plaintiff, the court conditionally certifies the class and permits notice to be sent to the proposed class members. Laroque v. Domino's Pizza, LLC, CV 06-6387(DLI), 2008 WL 2303493, at *6 (E.D.N.Y. May 30, 2008) (citations omitted).

Then, after completion of discovery, the court examines the record and again makes a factual finding regarding the similarly situated requirement; if the claimants are similarly situated, the collective action proceeds to trial, and if they are not, the class is decertified, the claims of the opt-in plaintiffs are dismissed without prejudice, and the class representative may proceed on his or her own claims.

Francis, 2008 WL 2588851, at *1 (quoting Lee, 236 F.R.D. at 197).

Neither the FLSA nor its implementing regulations define "similarly situated." Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997). Courts in this Circuit have held that "plaintiff has only a minimal burden to show that [s]he is similarly situated to the potential class," which requires "a modest factual showing sufficient to demonstrate that [she] and potential plaintiffs together were victims of a common policy or plan that violated the law." Cuzco, 477 F. Supp.2d at 632-33 (quotation and citation omitted); Hoffmann, 982 F. Supp. at 261; Patton, 364 F. Supp.2d at 267; Scholtisek, 229 F.R.D. at 390. Accordingly, district courts have long held that to satisfy the "similarly situated" standard, "the named plaintiff need only demonstrate a "factual nexus" between his or her situation and the situation of other current and former employees." Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (citing Hoffmann, 982 F. Supp. at 262; Jackson v. N.Y. Tel. Co., 163 F.R.D. 429, 431 (S.D.N.Y. 1995) ("Because this litigation is in its early stages, plaintiffs need merely provide 'some factual basis from which the court can determine if similarly situated potential plaintiffs exist.'" )(quoting Schwed v. Gen. Elec. Co., 159 F.R.D. 373, 376 ...

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