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Neftali Diaz and Amorilis Collado, On Behalf of Themselves and v. S&H Bondi's Department Store

January 18, 2012


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:


In this putative collective and class action, Plaintiffs Neftali Diaz and Amorilis Collado assert claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the New York Labor Law, §§ 650 et seq., on behalf of themselves and all others similarly situated, for failure to pay the statutory minimum wage and overtime compensation. Plaintiffs also assert individual claims for retaliation under the Labor Law. Plaintiffs have moved the court to authorize notice to potential opt-in plaintiffs pursuant to 29 U.S.C. § 216(b).*fn1 Plaintiffs also seek contact information for current and former employees of Defendants who are potential plaintiffs.

For the reasons stated below, Plaintiffs' motion for court-authorized notice will be granted, and Defendants will be directed to provide Plaintiffs with contact information for potential opt-in plaintiffs.


On October 7, 2010, Plaintiffs Diaz and Collado brought suit on behalf of themselves and others similarly situated against their former employer, S&H Bondi's Department Store, Inc., S&S Bondi's Department Store, Inc., S&H Bargain Time Stores, Inc., (collectively "Bondi's"), as well as Solomon "Sam" Kafif,*fn2 owner of the stores. (Kafif Aff. ¶ 1) The Complaint alleges that Bondi's employees were not paid in compliance with the statutory minimum wage, and were required to work in excess of forty hours per week without overtime compensation. (Cmplt. ¶¶ 14-15) The Complaint alleges that the same compensation policies were in effect at all Bondi's locations. (Cmplt. ¶¶ 9, 31)

Plaintiff Diaz was hired in 2001 as a general store worker. (Cmplt. ¶ 28) His duties included setting up the sales floor, sales, stocking, cleaning, and cashier work. (Id. ¶ 28) Diaz worked at Bondi's stores on Jerome Avenue and White Plains Road in the Bronx. (Valli Aff. Ex. 4 ("Diaz Aff.") ¶ 2) Diaz claims that he was required to work six days a week from 10:00 a.m. until 8:00 p.m, for a total of sixty hours a week, without any overtime pay. (Diaz Aff. ¶¶ 4-5; Cmplt. ¶¶ 33-34) Diaz claims that he was paid $350 per week from July 2004 through July 2006; $400 per week from August 2006 through March 2008; and $500 per week from March 2008 through August 2010. (Diaz Aff. ¶¶ 8-10)

Plaintiff Collado was hired in 1998 and worked at Bondi's Jerome Ave location until July 2009. (Cmplt. ¶¶ 29-30) Like Diaz, Collado was a general store worker who worked approximately 60 hours per week.*fn3 (Cmplt. ¶ 36-37) Collado alleges that she was paid $350 per week. (Id. ¶ 38)

Diaz and four other Bondi's employees have submitted affidavits alleging that they were required to work over forty hours a week, did not receive the required minimum wage, and were not paid the statutorily required overtime pay. (Valli Aff. Exs. 1-5) The affiants also claim that they have spoken with other Bondi's workers who were denied minimum wage and overtime pay. (Calderon Aff. ¶ 18) Seven Bondi's workers have filed consent forms to join Plaintiffs' suit. (Rose Aff., Ex. 3)

Defendants present several arguments in opposition to Plaintiffs' application for court-authorized notice. Defendants first contend that Plaintiff Diaz is not "similarly situated" to potential opt-in plaintiffs, because Defendants have brought a conversion counterclaim against him alleging that he sold Bondi's merchandise and kept the proceeds. (Kafif Aff., ¶ 2; see Answer ¶¶ 19-26) Defendants also object to notice being sent to workers at a Bondi's location where no current plaintiff was ever employed. (Kafif Aff., ¶ 2) Defendants further argue that Plaintiffs' motion is premature in light of a number of affidavits they submit from Bondi's workers, in which the workers assert that they have been paid the required minimum wage and do not work more than forty hours per week. (Kafif Aff., Ex. A) Finally, Defendants argue that the proposed notice submitted by Plaintiffs is deficient in a number of respects. (Kafif Aff., ¶¶ 24-31)

Because Plaintiffs have offered sufficient evidence that all general store workers may have been subjected to the allegedly unlawful compensation practices, they have met the lenient standard for obtaining court-authorized notice pursuant to 29 U.S.C. § 216(b). Accordingly, Plaintiffs will be authorized to send notice to these potential optin plaintiffs in the form attached as Appendix A to this Opinion and Order.



A.Legal Standard for Obtaining Court-Authorized Notice

Under the FLSA, an employee may sue on behalf of himself and all other employees who are "similarly situated." 29 U.S.C. § 216(b). The FLSA permits those similarly situated employees to "opt in" to the litigation and become party plaintiffs by filing a written consent form with the Court. See Damassia v. Duane Reade, Inc., No. 04 Civ. 8819(GEL), 2006 U.S. Dist. LEXIS 73090, at *7 (S.D.N.Y. Oct. 5, 2006) (citing Masson v. Ecolab, Inc., No. 04 Civ. 4488 (MBM), 2005 WL 2000133, at *13, (S.D.N.Y. Aug. 17, 2005)). In contrast to the procedures for a class action under Fed. R. Civ. P. 23, "only plaintiffs who affirmatively opt in can benefit from the judgment or be bound by it." Damassia, 2006 U.S. Dist. LEXIS 73090, at *7 (S.D.N.Y. 2006) (citing Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 103-04 (S.D.N.Y. 2003)).

Although § 216(b) does not explicitly address court-authorized notice to potential opt-in plaintiffs, "it is 'well settled' that district courts have the power to authorize an FLSA plaintiff to send such notice." Gjurovich, 282 F. Supp.2d at 104 (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 260 (S.D.N.Y. 1997) (additional citations and internal quotation marks omitted)); see also Amendola, 558 F. Supp.2d at 467 ("Thus, '[a]lthough one might read the [FLSA], by deliberate omission, as not providing for notice, . . . it makes more sense, in light of the "opt-in" provision of § 16(b) of the Act, 29 U.S.C. § 216(b), to read the statute as permitting, rather than prohibiting notice in an appropriate case.'" (quoting Braunstein v. E. Photographic Labs., Inc., 600 F. 2d 335, 336 (2d Cir. 1978) (per curiam))).

Typically, "a federal court authorizes notice of the litigation to employees after making a preliminary determination that the employees who will be receiving the notice are similarly situated to the plaintiff." Amendola, 558 F. Supp.2d at 467 (citing Lynch v. United Servs. Auto Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)). If a plaintiff meets his or her burden to demonstrate that the proposed recipients are in fact "similarly situated," the court authorizes that notice be sent to these potential plaintiffs. Lynch, 491 F.Supp.2d at 368-69. The potential plaintiffs may then opt-in to the lawsuit pursuant to § 216(b) by filing a consent form with the Court. Id.

To demonstrate that proposed recipients of notice are "similarly situated," a plaintiff need "make only a 'modest factual showing' that she and the other putative collective action members 'were victims of a common policy or plan that violated the law.'" Amendola, 558 F. Supp.2d at 467 (quoting Realite v. Ark Rests. Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998)). The "modest factual showing" requirement is met where plaintiffs offer "'substantial allegations' of a factual nexus between [them] and potential opt-in plaintiffs with regard to their employer's alleged FLSA violation." Davis v. Abercrombie & Fitch Co., No. 08 Civ. 1859 (PKC), 2008 U.S. Dist. LEXIS 86577, at *27 (S.D.N.Y. Oct. 22, 2008) (citing Ayers v. SGS Control Servs., Inc., No. 03 Civ. 9078 (RMB)(RLE), 2004 WL 2978296, at *5 (S.D.N.Y. Dec. 21, 2004); Mendoza v. Casa de Cambio Delgado, Inc., No. 07 Civ. 2579 (HB), 2008 WL 938584, at *2 (S.D.N.Y. Apr. 7, 2008) (noting that in order to meet the "low bar for allegations required for collective action certification," the plaintiff's complaint or affidavits must allege a factual nexus with other employees of the defendant)). "Plaintiff's burden is minimal because the determination that the parties are similarly situated is merely a preliminary one," and that determination may be modified or reversed after discovery. Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006); see also Damassia, 2006 U.S. Dist. LEXIS 73090, at *9-10 ("a plaintiff's burden at this preliminary stage is 'minimal'"); Wraga v. Marble Lite, Inc., No. 05 Civ. 5038 (JG) (RER), 2006 WL 2443554, at *1-2 (E.D.N.Y. Aug. 22, 2006); Kreher v. City of Atlanta, No. 04 Civ. 2651 (WSD), 2006 WL 739572, at *3 (N.D. Ga. Mar. 20, 2006); Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005); Gjurovich, 282 F. Supp. 2d at 104; Young v. Cooper Cameron Corp., 229 F.R.D. 50, 55 (S.D.N.Y. 2005) (describing plaintiffs' burden as "very limited")).

When evaluating whether court-authorized notice is appropriate, "the court does not resolve factual disputes, decide ultimate issues on the merits, or make credibility determinations." Davis, 2008 U.S. Dist. LEXIS 86577, at *27-28 (citing Lynch, 491 F.Supp.2d at 368-69)); see also Francis v. A&E Stores, Inc., No. 06 Civ. 1638 (CS)(GAY), 2008 WL 4619858, at *2 (S.D.N.Y. Oct. 15, 2008) ("Plaintiffs must make 'a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law,' but the merits of plaintiff's claims are not evaluated until later in the litigation." (quoting Hoffmann, 982 F. Supp. at 261-62 (S.D.N.Y. 1997)). Indeed, in considering such a motion, "[a] court need not evaluate the underlying merits of a plaintiff's claims . . . ." Damassia, 2006 U.S. Dist. LEXIS 73090, at *10 (citing Scholtisek, 229 F.R.D. at 391; Gjurovich, 282 F. Supp. 2d at 105; Hoffmann, 982 F. Supp. at 262). Because courts do not weigh the merits of the claim, extensive discovery is not necessary at the notice stage. See Masson, 2005 WL 2000133, at *15 (noting that defendant's stated need for "extensive" discovery does "not bear on whether this case can proceed as a collective action. Indeed, approval of this collective action is for purposes of discovery as well as notice."). Plaintiffs may satisfy their "minimal" burden by relying on their own pleadings and affidavits, or the affidavits of other potential class members. Anglada v. Linens 'N Things, Inc., No. 06 Civ. 12901(CM)(LMS), 2007 WL 1552511, at *4 (S.D.N.Y. Apr. 26, 2007).

It should be noted that the standard for class certification under Federal Rule of Civil Procedure 23 is not relevant to an FLSA collective action. Unlike under Rule 23, "'no showing of numerosity, typicality, commonality, or representativeness need be made.'" Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y. 2007) (quoting Young, 229 F.R.D. at 54). As a result, the "similarly situated" standard for authoring that notice be made to potential opt-in plaintiffs is "considerably more liberal than class certification under Rule 23." Id.

"Plaintiffs who opt in to a collective action after a court authorizes notice do not necessarily remain parties to the action through trial. After discovery, courts typically engage in a 'second tier' of analysis to determine on a full record -- and under a more stringent standard -- whether the additional plaintiffs are in fact similarly situated . . . . If the factual record reveals that the additional plaintiffs are not similarly situated to the original plaintiffs, the collective action is 'decertified,' and the claims of the opt-in plaintiffs are dismissed without prejudice." Damassia, 2006 U.S. Dist. LEXIS 73090, at *11 (citing Lee, 236 F.R.D. at 197; Scholtisek, 229 F.R.D. at 387)).


Here -- in submitting affidavits from Diaz and four other Bondi's employees (Valli Aff., Exs. 1-5) -- Plaintiffs have satisfied their minimal burden of showing that similarly situated employees exist. Courts regularly authorize notice to potential opt-in plaintiffs based on employee affidavits setting forth an employer's failure to pay required minimum wage or overtime compensation. See, e.g., Sipas v. Sammy's Fishbox, Inc., No. 05 Civ. 10319, 2006 WL 1084556, at *2 (S.D.N.Y. Apr. 24, 2006); Masson, 2005 WL 2000133, at *14. Here, the affiants allege that they were not paid the required minimum wage and that they worked more than forty hours per week and were not paid overtime. The affidavits make the required "'modest factual showing' that [the affiants] and the other putative collective action members 'were victims of a common policy or plan that violated the law.'" Amendola, 558 F. Supp. 2d at 467 (citing Realite, 7 F.Supp.2d at 306 (collecting cases).)

1.Plaintiffs' Motion is Not Premature

Defendants argue that factual disputes concerning hours worked, pay received, and Diaz's ability to serve as a representative render Plaintiffs' motion premature. The standard for court-authorized notice under the FLSA does not require resolution of these factual issues, however. Plaintiffs have put forth sufficient evidence supporting a preliminary determination that the employees who will receive the notice are similarly situated to them. The factual issues raised by Defendants "do not bear on whether this case can proceed as a collective action." Masson, 2005 WL 2000133, at *15. While Defendants dispute how many hours Plaintiffs worked and deny that their policies violate the FLSA, these issues go to the merits of the case, and are not appropriate for resolution now. Fasanelli v. Heartland Brewery, Inc.. 516 F.Supp.2d 317, 322 (S.D.N.Y. 2007); Hoffmann, 982 F.Supp. at 262 ("the Court need not evaluate the merits of plaintiffs' claims in order to determine that a definable group of similarly situated plaintiffs can exist here.").

2.Diaz is "Similarly Situated" to the Potential Opt-in Plaintiffs

Defendants argue that Diaz is not "similarly situated" to the potential optin plaintiffs because of the conversion allegations set forth in their answer, and because he allegedly arrived late to work and left early. Diaz's adequacy as a named plaintiff is not the issue, however.*fn4

"The proper inquiry in a § 216(b) determination is whether plaintiffs are similarly situated with respect to their allegations that the law has been violated." Chowdhury v. Duane Reade, No. 06 Civ. 2295(GEL), 2007 WL 2873929, at *5 (S.D.N.Y. Oct. 2, 2007) (emphasis in original) (citation omitted). As Plaintiffs have made this showing based on the Complaint and supporting affidavits, any other inquiries are irrelevant at this juncture. "[O]nce Plaintiffs have met their burden at the notice stage, Defendant cannot overcome Plaintiff's showing by arguing that individual issues may dominate; rather, if after notice to the putative plaintiffs it appears that individual issues do in fact dominate, the Defendant may move the Court to decertify the class." Francis v. A & E Stores, Inc., 2008 WL 4619858 at *3 (citing White v. MWP Industrial Servs., 236 F.R.D. 363, 373 (E.D.Tenn. 2006)).

The conversion counterclaim against Diaz is not relevant to the question of whether Diaz, Collado, and others like them suffered violations of the FLSA. Arguments about the merits, or about the ...

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