Tammy Weinstein, MELISSA PALLINI, individually and on behalf of all others similarly situated who were employed by JENNY CRAIG OPERATIONS, INC., Plaintiffs,
Jenny Craig Operations, Inc., Defendant.
For plaintiffs Lloyd Ambinder Virginia & Ambinder, LLP.
For defendant Michael Volpe Venable LLP.
ANIL C. SINGH, J.
Plaintiffs move to certify this action as a class action pursuant to CPLR 901 et seq.
Plaintiffs, former employees of defendant's weight loss centers in New York, brought this action to recover earned but unpaid wages. Plaintiffs now seek to certify a class of 751 present and former non-managerial employees whose time cards were changed by center directors from May 2005 to the present to reflect they had taken a 30-minute lunch break during their shift when they in fact had worked through that break. These deductions were allegedly made pursuant to a company policy which imposed a mandatory 30-minute lunch break, yet encouraged employees to work during that break.
The proponent of class certification bears the burden of establishing the criteria promulgated by CPLR 901(a)..., and must do so by the tender of evidence in admissible form.... Conclusory assertions are insufficient to satisfy the statutory criteria" (Pludeman v. Northern Leasing Systems, Inc., 74 A.D.3d 420, 422 [1st Dept 2010], citations omitted). In support of their motion, the two named plaintiffs have, inter alia, submitted their own deposition testimony averring that they had been required to work through their supposed 30-minute meal breaks and had personally witnessed the directors of the weight loss centers where they worked change their time records to reflect the 30-minute break even though they had not taken a break (see Leeds supporting aff, exhibits F [Weinstein] and I [Pallini]), the affidavits of two other employees making the same averments (id., exhibits J [Castellano] and K [Puteri]), and the affidavit of a former center director stating that she had been ordered by her "direct and regional supervisors as well as corporate headquarters" to adjust employee records so as to reflect a 30-minute break for each shift and had done so regularly even when she knew the employee had worked through that break (id., exhibit H [Wheeler], ¶¶ 4-5, 7). Plaintiffs have also offered evidence of various class actions alleging wage violations brought against defendant in California (id., exhibits A [complaint in McBride v. Jenny Craig, Inc. ], B [complaint in Cleaves v. Jenny Craig, Inc. ], exhibit C [complaint in Dibel v. Jenny Craig, Inc. ] and exhibit D [complaint in Coleman v. Jenny Craig, Inc. ]), two of which (Cleaves and Dibel) have settled.
Defendant opposes plaintiffs' motion based on various elements of CPLR 901(a) which will be discussed below. The bulk of defendant's opposition, however, is to the merits of plaintiffs' action. Defendants argue that plaintiffs base their claim of a universal policy on the anecdotal evidence of a handful of employees, when defendant's time records show that center directors clocked in and out for putative class members only 28.7% of the time instead of 100%. In support of this argument, defendant has furnished the affidavit of Anthony Kocica, the computer consultant who studied and analyzed its time records for the 751 potential class members during the period in question herein. Mr. Kocica, through various mathematical calculations, attests in essence that each center and each employee had a different percentage of automatic breaks inserted, and only one of the 23 centers had the breaks inserted for more than half of the employee shifts during the class period. Using the data produced by Kocica, defendant challenges in detail the veracity of plaintiffs' testimony and that of plaintiffs' other affiants, Wheeler, Castellano and Puteri. Defendant contends that based on such scant, conclusory and false evidence it cannot be assumed that employees worked through their breaks every time the center director clocked them in and out for that break. To support that argument, defendant has submitted nearly identical affidavits from 30 of its current hourly employees who aver that they took a full 30-minute lunch break every day and were paid for every period of time they worked even if defendant's records show that on many days the center director deducted the lunch break from their compensable time even though they did not clock in or out for that break. Defendant has also submitted affidavits from various center directors attesting that they never removed hours actually worked by plaintiffs, and placed break periods only when the employees had actually taken a break, and then only at their request.
Defendant has also submitted the affidavit of its Division Director for East Coast Sales and Service, Laura Koutris (see also Koutris EBT, exhibit E to Leeds supporting aff), who avers that defendant has scheduled mandatory 30-minute breaks since at least 2005 in the 23 centers it operates in New York (¶¶ 3-4), but employees like to work through the breaks because even if they don't get paid their small hourly wage for that time, they still earn the commissions which comprise the bulk of their compensation (¶ 5). This testimony is undercut by that of plaintiffs. Pallini testified that she regularly got paid at the rate of $7 - $7.50 an hour (Pallini EBT, pp 96-97), and only earned commissions during her lunch break if she spent the time "sitting with a client"; if she spent her lunch break "helping and answering phones" she earned nothing (id., p 121). Weinstein testified that the commissions she earned (usually $2-$3) were less than her hourly rate for the 30 minutes that were taken from her, and she only got a commission if she made a sale (Weinstein EBT, pp 100-101).
The court finds these painstaking assaults on the merits of plaintiffs' case to be futile. "In determining whether an action should proceed as a class action, it is appropriate to consider whether the claims have merit.... However this inquiry is limited'... and such threshold determination is not intended to be a substitute for summary judgment or trial.... Class action certification is thus appropriate if on the surface there appears to be a cause of action which is not a sham" (Pludeman v. Northern Leasing Systems, Inc., supra, 74 A.D.3d at 422, citations omitted; see also Kudinov v. Kel-Tech Const. Inc., 65 A.D.3d 481, 482 [1st Dept 2009]). The court finds that plaintiffs have submitted sufficient evidence as discussed above to satisfy this minimal threshold. To the extent defendant has challenged the credibility of plaintiffs' affiants and deponents, it has merely raised issues to be determined by the trier of facts (cf. S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., 34 N.Y.2d 338, 341 ).
Finally, shortly before oral argument on this motion, defendant brought to the court's attention three out-of-state decisions rendered after defendant submitted its opposition (see Chammas July 8, 2013 letter,  exhibit A [ Ramirez v. United Rentals, Inc. (ND Cal)]; id., exhibt B [ Hernandez v. Ashley Furniture (ED Pa)]; id., exhibit C [ Creely v. HCR Manor Care (ND Ohio)]) where the court denied class certification in wage-and-hour cases involving automatic break deductions. Plaintiffs counter that those cases are factually distinguishable and that plaintiffs in those jurisdictions did not have the benefits of the liberal interpretation New York accords to CPLR Article 9 (see Klein July 9, 2013 letter). The court agrees. Furthermore, to the extent these cases might be said to support defendant's position, they are not controlling, since there are contrary decisions from this jurisdiction, discussed below, which this court is obligated to follow.
To proceed with this litigation as a class action plaintiffs must satisfy the five elements required by CPLR 901[a]:
(1) the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
(2) there are questions of law or fact common to the class which predominate over any questions ...