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Ramirez v. Riverbay Corp.

United States District Court, S.D. New York

August 1, 2014

ROSALY RAMIREZ, ET AL., Plaintiffs,
v.
RIVERBAY CORP., ET AL., Defendants

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For Rosaly Ramirez, Katherine Bell, Lorna Thomas, Linda Williams, Jonathan Frias, on behalf of themselves and all others similarly situated, Plaintiffs: Brett Reed Gallaway, Lee Scott Shalov, McLaughlin and Stern, LLP, New York, NY; Louis Ginsberg, Law Firm of Louis Ginsberg, P.C., New York, NY; Wade Christopher Wilkinson, Silvermanacampora LLP, Jericho, NY.

For Riverbay Corp., Marion Scott Real Estate, Inc., Defendants: Christopher A. Smith, Jonathan Michael Bardavid, LEAD ATTORNEYS, Trivella & Forte LLP, White Plains, NY; Scott Paul Trivella, LEAD ATTORNEY, Trivella & Forte, White Plains, NY.

For Vernon Cooper, Peter Merola, Defendants: Christopher A. Smith, LEAD ATTORNEY, Trivella & Forte LLP, White Plains, NY.

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OPINION AND ORDER

John G. Koeltl, United States District Judge.

The plaintiffs bring this action under the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 201 et seq., and the New York Labor Law (" NYLL" ), § § 190 et seq. & 650 et seq., claiming various violations of their right to receive a minimum wage and overtime compensation. The plaintiffs are current and former hourly employees of RiverBay Corp. (" RiverBay" ). On December 20, 2013, the Court granted the plaintiffs' motion for conditional certification of a collective action pursuant to Section 216(b) of the FLSA. The plaintiffs now move for certification of three proposed NYLL Subclasses pursuant to Rule 23 of the Federal Rules of Civil Procedure. For the reasons that follow, the plaintiffs' motion is granted.

I.

The factual background and procedural history of this case are set forth in the Court's Opinion and Order addressing the defendants' motion to dismiss and the parties' cross-motions for summary judgment, which is being issued together with this Opinion. Familiarity with that Opinion is assumed. The following facts relevant to the present motion are undisputed unless otherwise noted.

A.

Named Plaintiffs Katherine Bell, Jonathan Frias, Rosaly Ramirez, Lorna Thomas, and Linda Williams are current and former hourly employees of RiverBay. (Am. Compl. ¶ ¶ 8-12.) Defendant RiverBay manages Co-Op City, which is the largest cooperative housing development in the world. (Am. Compl. ¶ 14.) Defendant Marion Scott is the exclusive property manager for all of RiverBay's residential and commercial properties. (Am. Compl. ¶ 15.) Individual Defendants Vernon Cooper and Peter Merola are RiverBay's General Manager and Director of Finance, respectively. (Am. Compl. ¶ ¶ 17-18.)

In this action, the plaintiffs claim various violations of their rights to minimum wage and overtime compensation under the FLSA and the NYLL. These claims fall into three categories: the plaintiffs allege that the defendants unlawfully provided compensatory time off in lieu of cash for overtime hours worked by the plaintiffs (the " comp time claims" ); that the defendants unlawfully failed to incorporate a nighttime wage differential in the plaintiffs' base pay when calculating the plaintiffs' overtime wages (the " nighttime differential claims" ); and that the defendants impermissibly reduced the plaintiffs' compensation by under-counting the hours

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that the plaintiffs worked in various ways (the " under-counting claims" ).

B.

In moving for class certification, the named plaintiffs seek to represent three proposed Subclasses of current and former hourly employees at RiverBay who have claims for the unlawful deprivation of wages in violation of the NYLL.

Proposed Subclass 1 includes hourly employees at RiverBay who allege that they clocked in and began working before the start of their scheduled shifts, or continued to work after the end of their scheduled shifts and then clocked out late, and were not compensated for work performed during these on-the-clock off-schedule " gap" periods.[1] These plaintiffs allege that RiverBay had a corporate policy of paying hourly employees according to their scheduled shifts even though the employees' payroll records indicated that they clocked in early or clocked out late, and that the deprivation of wages for hours earned during on-the-clock " gap" periods was unlawful under the NYLL.

Proposed Subclass 2 includes hourly employees at RiverBay who allege that they were provided overtime compensation in the form of compensatory time off (" comp time" ) in lieu of cash for time worked in excess of forty hours per week. These plaintiffs allege that RiverBay had a corporate policy of permitting hourly employees to receive overtime compensation in the form of comp time, and that this policy is unlawful under the NYLL.

Finally, Proposed Subclass 3 includes hourly employees at RiverBay who earned premium compensation for work performed during night shifts (" nighttime differential" pay), and who allege that RiverBay had a policy of excluding this nighttime differential pay from their regular wages when calculating their overtime compensation, in violation of the NYLL.

C.

On December 20, 2013, the Court granted the plaintiffs' motion for conditional certification of a collective action and Court-authorized notice pursuant to Section 216 of the FLSA, 29 U.S.C. § 216. (See Dec. 20, 2013 Hr'g Tr. at 59.) The Court approved the final language for the notice in a Memorandum Opinion and Order dated January 30, 2014, and on February 20, 2014, the notice was sent to a list of approximately 1,700 potential plaintiffs that had been furnished by the defendants. At the time the present motion was filed, ninety-six opt-in plaintiffs had consented to joining the conditionally certified collective action. (Decl. of Wade C. Wilkinson in Supp. of Pls.' Mot. for Certification of the N.Y. Subclasses (" Wilkinson Decl." ) ¶ 6.)

On January 27, 2014, the defendants moved to dismiss the plaintiffs' federal and state comp time and nighttime differential claims on the ground that they are preempted under § 301 of the Labor-Management Relations Act (" LMRA" ), 29 U.S.C. § 185(a), and to dismiss Defendant Merola from the action on the ground that he is not individually liable under the

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FLSA or the NYLL. On February 6, 2014, Plaintiffs Frias, Thomas, and Williams moved for summary judgment on their comp time claims, and Plaintiffs Bell, Frias, Ramirez, Thomas, and Williams moved for summary judgment on their nighttime differential claims. On March 10, 2014, the defendants cross-moved for summary judgment on these same claims. In the accompanying Opinion, the Court denied the motion to dismiss, granted the summary judgment motions brought by Frias and Thomas for liability on their comp time claims, and denied all other summary judgment motions. The plaintiffs filed the present motion for certification of three NYLL Subclasses on March 17, 2014.

II.

Before certifying a class, the Court must determine that the party seeking certification has satisfied the four prerequisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. See Fed.R.Civ.P. 23(a); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier, Inc., 546 F.3d 196, 202-03 (2d Cir. 2008); In re Initial Pub. Offering Sec. Litig. (" In re IPO" ), 471 F.3d 24, 32 (2d Cir. 2006). The Court must find, more specifically, that: " (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a). The Court must also find that the class qualifies under one of the three sets of criteria set forth in Rule 23(b). See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Teamsters, 546 F.3d at 203; In re IPO, 471 F.3d at 32.

The plaintiffs here seek certification under Rule 23(b)(3), which provides for a class to be maintained where " the questions of law or fact common to the class members predominate over any questions affecting only individual members, and . . . a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3); see also Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1431, 185 L.Ed.2d 515 (2013). If the requirements of 23(a) have been met, and the claims fall within the scope of Rule 23(b)(3), a court may, in its discretion, certify the class. See In re IPO, 471 F.3d at 41 (" [A] district judge may certify a class only after making determinations that each of the Rule 23 requirements has been met." ).

" Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule-that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc." Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). Plaintiffs seeking class certification bear the burden of demonstrating by a preponderance of the evidence that the proposed class meets each of the requirements for class certification set forth in Rule 23. Teamsters, 546 F.3d at 202. When assessing whether plaintiffs have met this burden, courts must take into account " all of the relevant evidence admitted at the class certification stage." In re IPO, 471 F.3d at 42. A court may certify a class only after determining that " whatever ...


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