United States District Court, S.D. New York
MARCIO RAMOS, individually and on behalf of all others similarly situated, Plaintiff,
MORRIS PLATT, PALISADE CONSTRUCTION, LLC, and PALISADE REALTY, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, District Judge.
Plaintiff Marcio Ramos brings this lawsuit on behalf of himself and other similarly situated employees of Morris Platt, Palisade Construction, LLC, and Palisade Realty, LLC (collectively, the "Defendants") alleging that they violated provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the New York Labor Law ("NYLL"), N.Y. Lab. Law § 650 et seq., and related New York state regulations. Before the Court is Ramos's motion for conditional certification of an opt-in collective action class pursuant to 29 U.S.C. § 216 for his overtime claim under the FLSA. For the reasons that follow, the motion is granted in part and denied in part.
Ramos was employed as a laborer by the Defendants from May 2007 through late 2013. May 27, 2014 Declaration of Marcio Ramos, Dkt. No. 24-4 ("Ramos Decl. I"), ¶ 2. He was paid by Palisade Construction, LLC, Palisade Realty, LLC, and other corporations. Ramos Decl. I ¶ 5. There were about 8 to 15 employees who worked for Defendants at any given time, doing demolition, renovation, construction, and remodeling work. Id. ¶¶ 3, 7-8.
Ramos alleges that he and other laborers regularly worked more than 40 hours a week but that Defendants failed to pay him and other employees overtime premiums for those hours. Compl. ¶¶ 24-26; Ramos Decl. I ¶ 11. Two paystubs submitted by Ramos appear to show that he was paid the same rate of $18 per hour for all hours worked, including those over 40 hours per week. Id. ¶ 12; Dkt. No. 24-5. Ramos further alleges that Defendants failed to accurately record actual hours worked, and hours were rounded down by management, resulting in further failures to compensate Ramos and other employees for all overtime worked. Compl. ¶ 27; Ramos Decl. I ¶ 10. In 2012, Ramos complained to defendant Platt's son-in-law about not being properly paid for overtime, to which the son-in-law replied that Platt does not pay for overtime. Ramos Decl. I ¶ 13. Other laborers, which Ramos has identified by name, apparently also complained "throughout the years" about the failure to pay overtime. Id. ¶ 14; May 30, 2014 Declaration of Marcio Ramos, Dkt. No. 28 ("Ramos Decl. II"), ¶ 6. Finally, Ramos states that Defendants "never posted any notices at worksites that I have worked at describing workers' rights to minimum wages or overtime." Ramos Decl. I ¶ 8.
Ramos moves to conditionally certify a collective action in order to receive certain information from Defendants about the identities of its former and current employees and to send notice of this suit to those potential opt-in plaintiffs. He seeks to provide notice to potential plaintiffs employed by Defendants within six years prior to the filing of the complaint because of Defendants' alleged failure to post the required notices under 29 C.F.R. § 516.4. Defendants oppose the motion, arguing primarily that Ramos has filed this motion prematurely and therefore there are not sufficient facts beyond hearsay to support the relief Ramos seeks. Def. Br. at 2-3, 5-8. Defendants also argue that Ramos was uniquely situated amongst Defendants' employees because he was paid on a different structure due to problems with overstating his hours and working slowly to accrue more hours. Id. at 7; Declaration of Morris Platt, Dkt. No. 33 ("Platt Decl."), ¶¶ 3-5. Defendants further argue that a six-year notice period is inappropriate because Ramos has admitted he and other employees were aware that they were entitled to overtime and because Defendants did post the requisite notices in their corporate headquarters. Def. Br. at 8-11; Declaration of Mordechai Koppel, Dkt. No. 32 ("Koppel Decl."), ¶ 4.
A. Certification of a Collective Action
The FLSA provides that an action for unlawful employment practices may be brought "by any one or more employees for and on behalf of himself or themselves and other employees similarly situated." 28 U.S.C. § 216(b). Unlike class actions, FLSA collective actions need not satisfy the requirements of Fed.R.Civ.P. 23, and only plaintiffs who "opt in" by filing consents to join the action are bound by the judgment. Mendoza v. Ashiya Sushi 5, Inc., No. 12 Civ. 8629 (KPF), 2013 WL 5211839, at *2 (S.D.N.Y. Sept. 16, 2013). District courts have "discretion, in appropriate cases, to implement [§ 216(b)]... by facilitating notice to potential plaintiffs' of the pendency of the action and of their opportunity to opt-in as represented plaintiffs." Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010) (quoting Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989) (alteration in original)).
The Second Circuit has approved a two-step method to certify FLSA collective actions. Myers, 624 F.3d at 555. "The first step involves the court making an initial determination to send notice to potential opt-in plaintiffs who may be similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred." Id. Courts may approve sending notice if "plaintiffs make a modest factual showing' that they and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law.'" Id. (quoting Hoffman v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.)). Although "unsupported assertions" are not sufficient, the factual showing required "should remain a low standard of proof because the purpose of this first stage is merely to determine whether similarly situated' plaintiffs do in fact exist." Id. ; see also Damassia v. Duane Reade, Inc., No. 04 Civ. 8819 (GEL), 2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5, 2006) ("[A] plaintiff's burden at this preliminary stage is minimal." (quotations omitted)).
"This initial burden is limited, in part, because the determination that the parties are similarly situated is merely a preliminary one and may be modified or reversed" at the second stage of the inquiry. Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 369 (S.D.N.Y. 2007) (quotations omitted). This second stage occurs after notice is sent, the opt-in period ends, and discovery closes. Mendoza, 2013 WL 5211839, at *2. At this stage, the district court will have a "fuller record" and can then "determine whether a so-called collective action' may go forward by determining whether the plaintiffs who have opted in are in fact similarly situated' to the named plaintiffs." Myers, 624 F.3d at 555.
The Court concludes that Ramos has met his burden to conditionally certify a collective action. As an initial matter, contrary to Defendants' arguments, conditional certification may be granted on the basis of the complaint and the plaintiff's own affidavits. "Indeed, courts in this circuit have routinely granted conditional collective certification based solely on the personal observations of one plaintiff's affidavit." Hernandez v. Bare Burger Dio Inc., No. 12 Civ. 7794 (RWS), 2013 WL 3199292, at *3 (S.D.N.Y. June 25, 2013); see also Hallissey v. Am. Online, Inc., No. 99 Civ. 3785 (KTD), 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008) (modest factual showing can be made by "relying on [plaintiffs'] own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members"). This is so even though Ramos's declaration includes hearsay regarding other potential opt-in plaintiffs' overtime pay. In fact, "courts in this Circuit regularly rely on hearsay evidence to determine the propriety of sending a collective action notice" - an approach that is "consistent with the purpose of conditional certification which is only a preliminary determination as to whether there is a sufficient showing to warrant notice being sent to the purported collective class to allow members to opt-in to the lawsuit." Winfield v. Citibank, N.A., 843 F.Supp.2d 397, 403 (S.D.N.Y. 2012) (alteration and quotations omitted).
The Court concludes that Ramos has made the modest factual showing required at this stage. Ramos's complaint and sworn declarations that describe his discussions with several coworkers that were also allegedly not paid overtime, along with the paystubs submitted, provide a factual basis to conclude that Ramos and his coworkers - including certain ones identified by name - were together affected by a policy to not pay a premium for overtime work. Defendants' arguments in opposition largely amount to merits contentions that are inappropriate at this stage. "At this procedural stage, the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations." Lynch, 491 F.Supp.2d at 368. The merits of the underlying claims or defenses should not be weighed at this stage, because the focus of the inquiry at this juncture is not whether there has been a violation of the law but whether similarly situated plaintiffs exist. Id. Thus, issues that Defendants contest, including but not limited to whether or not Ramos was told that Defendants did not pay overtime, compare Ramos Decl. I ¶ 13 with Koppel Decl. ¶ 6; precisely how the alleged violations may have occurred and been reflected in pay records, compare Ramos Decl. II ¶¶ 3-5 with Platt Decl. ¶ 7; and whether defendant Palisade Realty, LLC ever issued paychecks to plaintiff, compare Ramos Decl. I ¶ 5 with Koppel Decl. ¶ 12, are irrelevant to the instant motion.
Defendants' argument that "not a single potential class member referenced by Plaintiff has chosen to opt-in to the class, " Def. Br. at 11, misses the point. Of course, this motion seeks to provide notice to potential plaintiffs so that they may choose to opt-in to this action. Further, Defendants' argument that Ramos "has provided no information" about his coworkers is also misplaced, given that Defendants do not deny that the employees identified in the Ramos Decl. II ¶ 6 worked for them and in fact admit that between 15-30 employees would be members of the proposed collective action notice class. Koppel Decl. ¶ 9. Although Ramos believes there are far more potential ...