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Hernandez v. Immortal Rise

September 24, 2012


The opinion of the court was delivered by: Bloom, United States Magistrate Judge


Plaintiffs Amelia Hernandez, Edith Hernandez Rojas, and Juan Eduardo Hernandez*fn1 bring this action on behalf of themselves and all others similarly situated against defendants Immortal Rise, Inc. d/b/a C-Town ("Immortal Rise"), Ahmad Saleh, and/or any other entities affiliated with or controlled by Immortal Rise, Inc. and/or Ahmad Saleh, to recover unpaid overtime compensation, minimum wages, and "spread of hours" payments pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., and the New York Labor Law. Plaintiffs seek an order conditionally certifying a class of similarly situated employees and authorizing plaintiffs to distribute their proposed Notice of Lawsuit to the class pursuant to §216(b) of the FLSA. The Honorable Roslynn R. Mauskopf referred plaintiffs' motion to me. Plaintiffs' motion is granted subject to the following modifications.*fn2


Defendant Immortal Rise, Inc. operates multiple supermarkets in New York including a C-Town supermarket located at 4705 Fifth Avenue, Brooklyn, NY 11220 ("C-Town Fifth"). (Docket entry 12, Am. Compl., ¶ 2.) Plaintiffs allege that defendant Saleh is an officer and owner of Immortal Rise, Inc. and exercises managerial authority at C-Town Fifth including managing day-to-day operations, making personnel decisions, organizing work schedules, setting employee wages, and maintaining employment records. (Am. Compl., ¶¶ 36-37.) Plaintiffs are former employees of Immortal Rise, Inc. (Am. Compl., ¶¶ 12-14; docket entry 19, Ans., ¶¶ 12-14.)

Plaintiff Amelia worked as a cashier at C-Town Fifth from November 2004 through September 2010. (Docket entry 26-2, Amelia Decl., ¶¶ 2-3.) She asserts that she typically worked six days a week for at least twelve hours a day, often without any breaks. (Id. at ¶¶ 5-6.) Although she regularly worked more than forty hours a week, Amelia alleges she received a flat weekly salary of $380.00 in cash, regardless of the number of hours she worked. (Id. at ¶¶ 4, 7.) Plaintiff Edith normally worked more than forty hours a week at C-Town Fifth from January 2002 until August 2011, first in the meat department and later as a cashier. (Docket entry 26-1, Edith Decl., ¶¶ 2-3, 7.) From 2002 to 2009, Edith worked at least twelve hours a day, six days a week. (Id. at ¶ 5.) Then from 2009 to 2011, she worked approximately six or eight hours a day, six or seven days a week. (Id. at ¶¶ 8-9.) She states that she originally received a flat weekly salary of $180 which increased to $400 during the course of her employment. (Id. at ¶ 4.) Both Amelia and Edith never received overtime pay. (Id. at ¶ 11; Amelia Decl., ¶ 8.) Additionally, if the cash register was ever short of money, the difference was deducted from plaintiffs' wages. (Edith Decl., ¶ 15; Amelia Decl., ¶ 12.)

C-Town Fifth employed plaintiff Juan as a grocery packager, stocker, and delivery person from March 2008 until September 2010. (Docket entry 26-3, Juan Decl., ¶¶ 2-3, 7.) Juan typically worked more than twelve hours a day, six days a week. (Id. at ¶ 5.) Although he regularly worked more than seventy hours a week, he alleges he never received time-and-a-half overtime wages. (Id. at ¶¶ 7-8.) Instead, regardless of the number of hours he worked, he earned a flat salary of $275 a week and an occasional daily tip of $20. (Id. at ¶ 4.)

Plaintiffs estimate that C-Town employed no fewer than sixty employees at any given time while they worked there. (Amelia Decl., ¶ 13; Edith Decl., ¶ 16; Juan Decl., ¶ 12.) Plaintiffs allege that they compared and discussed their wages with their co-workers and learned that C-Town similarly paid their co-workers below the minimum wage and denied them overtime pay as well. (Amelia Decl., ¶¶ 11, 14; Edith Decl., ¶¶ 14,17; Juan Decl., ¶¶ 11, 13.) Plaintiffs further assert that many of their co-workers are immigrants and are thus unaware of their right to fair wages or afraid to raise their claims against defendants. (Amelia Decl., ¶ 15; Edith Decl., ¶ 18; Juan Decl., ¶ 14.)

Plaintiff commenced this action on September 9, 2011, on behalf of themselves as well as other similarly situated past and present employees of Immortal Rise, Inc. at C-Town Fifth. (Docket entry 1.) Plaintiffs allege that defendants failed to pay them the statutory minimum wage, overtime compensation, and "spread of hours" wages. (Am. Compl. ¶ 25.) On August 14, 2012, plaintiffs filed the instant motion for conditional certification of collective action. (Docket entries 25.) Defendants oppose plaintiffs' motion and plaintiffs have replied. (Docket entry 28, Defs.' Mem. of Law in Opp'n to Pls.' Mot. to Proceed as a Collective Action Under the FLSA ("Defs.' Opp'n"); docket entry 30, Pls.' Reply Mem. of Law in Further Supp. of the Mot. for Conditional Certification and Notice to the Class ("Pls.' Reply").) On August 17, 2012, defendants moved for leave to file a sur-reply. (Docket entry 32.) Defendants' motion was granted and defendants timely filed their sur-reply on August 24, 2012; plaintiffs filed their response, albeit untimely, on September 6, 2012. (Docket entry 35, Decl. of Clemente Mestizo; docket entry 36, Pls.' Mem. of Law in Further Supp. of the Mot. for Conditional Certification and Notice to the Class, and in Resp. to Defs.' Sur-Reply.)


A.Conditional Certification for Collective Action

1. The Legal Standard for Granting Conditional Certification

Plaintiff seeks conditional certification as a collective action pursuant to 29 U.S.C. § 216(b) of the FLSA which provides in pertinent part that:

An action . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b). "Although the FLSA does not contain a class certification requirement, such orders are often referred to in terms of 'certifying a class.'" Bifulco v. Mortgage Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009) (citations omitted). The "certification" of a FLSA collective action "is only the district court's exercise of the discretionary power, upheld in [Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165 (1989)], to facilitate the sending of notice to potential class members." Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010). As such, "'certification' is neither necessary nor sufficient for the existence of a representative action under FLSA, but may be a useful 'case management' tool for district courts to employ in 'appropriate cases.'" Id. (quoting Hoffmann-La Roche Inc., 493 U.S. at 169). "[U]nlike class certification under Fed. R. Civ. P. 23, no showing of numerosity, typicality, commonality and representativeness need be made for certification of a representative action." Cuzco v. Orion Builders, Inc., 477 F. Supp. 2d 628, 632 (S.D.N.Y. 2007) (citations omitted) (internal quotation marks omitted). Rather, for conditional class certification under the FLSA, "[t]he similarly situated standard is far more lenient, and indeed, materially different, than the standard for granting class certification under Fed. R. Civ. P. 23."Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 643 (S.D.N.Y. 2010)(citations omitted) (internal quotation marks omitted). Courts within this Circuit apply a two-step process to determine whether an action should be certified as a FLSA collective action. See Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 367-68 (S.D.N.Y. 2007); see also Myers, 624 F.3d at 554-555 ("[T]he district courts of this Circuit appear to have coalesced around a two-step method, a method which, while again not required by the terms of FLSA or the Supreme Court's cases, we think is sensible."). "The first step is the notice stage in which the court determines, based on plaintiffs' pleadings and affidavits, whether the plaintiffs and potential opt-in plaintiffs are sufficiently 'similarly situated' to issue notice and allow the case to proceed as a collective action through discovery." Lynch, 491 F. Supp. 2d at 368 (citations omitted). "During the second stage, the court undertakes a more stringent factual determination as to whether members of the class are, in fact, similarly situated." Id. (citations omitted). "The action may be 'de-certified' if the record reveals that they are not, and the opt-in plaintiffs' claims may be dismissed without prejudice." Myers, 624 F.3d at 555 (citations omitted).

The present motion concerns only the first step of the process. At this stage, plaintiff's burden is "minimal." Lynch, 491 F. Supp. 2d at 368. "[P]laintiffs need only 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.'" Doucoure v. Matlyn Food, Inc., 554 F. Supp. 2d 369, 372 (E.D.N.Y. 2008) (quoting Hoffman v. Sbarro, 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). Although only a modest factual showing is required, this standard "cannot be satisfied simply by 'unsupported assertions.'" Myers, 624 F.3d at 555.

2. Plaintiffs Make The Modest Factual Showing Required for Conditional Certification In this case, plaintiffs allege that Immortal Rise, Inc. maintained a common policy or plan to not pay their employees the minimum wage, spread of hours wages, or appropriate overtime compensation. (Docket entry 27, Pls.' Mem. of Law in Supp. of Mot. for Conditional Certification and Notice to the Class ("Pls.' Mem.") 2.*fn3 ) In support of the instant motion, plaintiffs submit their own sworn declarations as well as employment letters they received while employed at C-Town Fifth. (Docket entries 26-1-3, 31-1.) Plaintiffs allege that they consistently worked more than forty hours a week and were paid a flat weekly salary regardless of the number of hours they worked, denying them both minimum and overtime wages. (Edith Decl., ¶¶ 4, 7, 10-11, 13; Amelia Decl., ¶¶ 4, 7-8, 10; Juan Decl., ¶¶ 4, 7-8, 10.) Plaintiffs further assert that based on their observations and conversations with co-workers, they believe this practice to be widespread at C-Town Fifth. (Edith Decl., ¶¶ 12, 14, 17; Amelia Decl., ¶¶ 9, 11, 14; Juan Decl., ¶¶ 9, 11, 13.)

Defendants argue that plaintiffs have failed to meet the minimal burden required for conditional certification. First, defendants maintain that plaintiffs' evidence "consists entirely of inadmissible hearsay and conclusory statements" (Defs.' Opp'n 8.) Specifically, defendants contend that naming additional similarly situated employees is a "requirement" of a motion for conditional certification. (Id. at 10.) Admittedly, many cases granting conditional certification have been supported by affidavits which identify similarly situated employees by name. See, e.g., Rosario v. Valentine Ave. Disc. Store, Co., 828 F. Supp. 2d 508, 515 (E.D.N.Y. 2011) (stating that conditional certification is "regularly" granted where plaintiffs set forth an employer's violations and name similarly situated plaintiffs); Cano v. Four M Food Corp., No. 08-CV-3005 (JFB)(AKT), 2009 U.S. Dist. LEXIS 7780, at *17 (E.D.N.Y. Feb. 3, 2009) (considering plaintiffs' naming of co-workers as a factor in ...

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