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McGlone v. Contract Callers, Inc.

United States District Court, S.D. New York

August 25, 2014

MICHAEL MCGLONE, on behalf of himself individually and others similarly situated, Plaintiffs,
v.
CONTRACT CALLERS, INC., MICHAEL MAGUIRE, an individual, and WILLIAM " TIM" WERTZ, an individual, Defendants

Page 365

For Michael Macglone, On behalf of himself and others similarly situated, Robert Schantz, Joseph Frangiosa, Salvatore Fischetti, Rafael Soto, Domenic Fanelli, Thomas Murphy, Scott Vaaler, Charles P Buffalino, Anthony J Buffalino, Jesse J Kay, Brian Nicholas, Jesse Dimirco, Hubert R Brooks, Rocco Ceparano, Joseph Frische, Anthony Gandolfo, Robert Gandolfo, Michael Ceraldi, Ariel Peniche, Plaintiffs: Penn Ueoka Dodson, LEAD ATTORNEY, Anderson Dodson, P.C., New York, NY, USA.

For Contract Callers Inc., Michael Maguire, an individual, William Tim Wertz, an individual, Defendants: Ira Leonard Blank, PRO HAC VICE, The Enterprise Law Group LLC, St Louis, MO, USA; Lauren Katz Kluger, Reitler Kailas & Rosenblatt, L.L.C., New York, NY, USA; Lawrence Wittels, PRO HAC VICE, The Enterprise Law Group, St. Louis, MO, USA.

Page 366

MEMORANDUM AND ORDER

ANALISA TORRES, United States District Judge.

In this action, Plaintiffs, Michael McGlone, on behalf of himself individually and others similarly situated, allege that Defendants, Contract Callers, Inc. (" CCI" ), Michael Maguire, and William " Tim" Wertz, violated the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § § 201 et seq. and the New York Labor Law (" NYLL" ), § § 650 et seq. Defendants move to decertify the conditionally certified collective action under 29 U.S.C. § 216(b). Plaintiffs move for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure and request final collective certification. Maguire also moves for summary judgment. For the reasons stated below, Defendants' motion to decertify the conditionally certified collective action is DENIED. Plaintiffs' request for final certification is GRANTED. Plaintiffs' motion for partial summary judgment is GRANTED. Maguire's motion for summary judgment is DENIED.

BACKGROUND

CCI is a corporation headquartered in Augusta, Georgia, with twelve operating divisions throughout the United States. Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1. Certain divisions of CCI provide utility disconnect and reconnect service under contracts with local utility companies. ECF No. 29 at 2. CCI's New York City division entered into a contract with the New York City Department of Environmental Protection (" DEP" ) to install water meters and associated devices that transmit the meter readings back to the DEP (thus avoiding the need for a meter reader to read them manually). See Peniche Decl. 2. Plaintiffs are plumbers who worked for CCI installing the automatic meter reading devices during its limited duration contract with the DEP. See id.; McGlone Dep. 17:2-24, Mar. 14, 2013.

Plaintiffs contend that they were required to sign in at 8:00 a.m. and sign out at 4:30 p.m. and record a half-hour break for lunch each day, for a total of 40 hours of work each week. Dodson Decl. Exs. B, C, Jan. 6, 2014. Plaintiffs were allegedly " shorted" on their hours by being required to work " off the clock" before and after their standard shifts and to record a half-hour meal break even though they were unable to take a bona fide half-hour break to eat. See id.

DISCUSSION

I. Collective Certification

The FLSA authorizes a plaintiff to file suit on behalf of " other employees similarly situated." 29 U.S.C. § 216(b). Courts in this Circuit use a two-step method in assessing whether to certify a collective action. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). At the first stage, plaintiffs must " make a 'modest factual showing' that they and potential opt-in

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plaintiffs 'together were victims of a common policy or plan that violated the law.'" Id. at 555 (citation omitted). Once a plaintiff meets this standard, the court may authorize the plaintiff to send out notices to potential opt-in plaintiffs who may be " similarly situated" to the named plaintiffs with respect to the FLSA violation alleged. Id.

" At the second stage, the district court will, on a fuller record, 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. 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 (citation omitted). But, " [i]f the record shows all putative class members are 'similarly situated,' the 'conditional' aspect is removed, the collective action is finally certified, and the matter proceeds to trial." Morano v. Intercontinental Capital Grp., Inc., No. 10 Civ. 2192, 2012 WL 2952893, at *6 (S.D.N.Y. July 17, 2012). At this second stage, the " burden is on the named plaintiff to prove that the other employees are similarly situated." Zivali v. AT& T Mobility, LLC, 784 F.Supp.2d 456, 460 (S.D.N.Y. 2011). Although " the standard is higher at this second stage, the 'similarly situated' requirement of 29 U.S.C. § 216(b) is considerably less stringent than the requirement of Fed.R.Civ.P. 23(b)(3) that common questions 'predominate.'" Alonso v. Uncle Jack's Steakhouse, Inc., No. 08 Civ. 7813, 2011 WL 4389636, at *3 (S.D.N.Y. Sept. 21, 2011) (citation and internal quotation marks omitted). " All that is required is a persuasive showing that the original and opt-in plaintiffs were common victims of a FLSA violation pursuant to a systematically-applied company policy or practice such that there exist common questions of law and fact that justify representational litigation." Pefanis v. Westway Diner, Inc., No. 08 Civ. 2, 2010 WL 3564426, at *4 (S.D.N.Y. Sept. 7, 2010). " The Second Circuit has yet to prescribe a particular method for determining whether members of a class are similarly situated . . . ." Morano, 2012 WL 2952893, at *5. However, district courts typically review several factors, including (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to the defendant which appear to be individual to each plaintiff; and (3) fairness and procedural considerations. Id.; see also Ayers v. SGS Control Sen's., Inc., No. 03 Civ. 9077, 2007 WL 646326, at *5 (S.D.N.Y. Feb. 27, 2007).

A. Factual and Employment Settings of the Opt-in Plaintiffs

Defendants argue that the opt-in Plaintiffs are not similarly situated regarding meal breaks or hours worked because there were wide variations in their meal break and hours worked practices. Defendants point to evidence that some opt-ins " never" took meal breaks, while others testified that they were not afforded a half-hour meal break " most of the time." Def. Cert. Mem. 9. Defendants also argue that " [variations in schedules . . . days worked, and actual hours worked per day mandate individualized determinations about whether each particular [p]lumber is entitled to overtime pay if he, in fact, worked uncompensated time off the clock and during meals." Id. at 11. These arguments are unavailing. Courts have found opt-in plaintiffs similarly situated " in large off-the-clock cases despite the individualized issues such cases present . . . [e]ven where individualized testimony into damages is required." Barry v. S.E.B. Senv. of New York, Inc., No. 11 Civ. 5089, 2013 WL 6150718, at *6 (E.D.N.Y. Nov. 22, 2013); see also Alonso, 2011 WL 4389636,

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at *3 ( rejecting argument that " decertification is appropriate because individualized proof would be required as to each [p]laintiff's claim for overtime wages" ); Ayers, 2007 WL 646326, at *5 (rejecting argument that individual inquiries into hours worked required decertification of the collective action).

Indeed, " individual differences in number of hours worked . . . will not warrant decertification as long as [p]laintiffs show they are subject to a 'single decision, policy, or plan.'" Alonso, 2011 WL 4389636, at *3 (citation omitted). Here, Plaintiffs have adduced evidence that they were common victims of a FLSA violation. Section 207 of the FLSA requires employers to pay each employee overtime compensation equal to at least " one and one-half times the regular rate at which [the employee] is employed," for all hours worked in excess of 40 per week. 29 U.S.C. § 207(a)(1). Bona fide meal breaks may be excluded from an employee's work time if the employee is " completely relieved from duty for the purposes of eating regular meals. Ordinarily 30 minutes or more is long enough for a bona fide meal period." 29 C.F.R. § 785.19.

Plaintiffs contend that they were required to sign in at 8:00 a.m. and sign out at 4:30 p.m. and record a half-hour break for lunch each day, for a total of 40 hours of work each week. Dodson Decl. Exs. B, C. Plaintiffs' deposition testimony indicates they were " shorted" on their hours by being required to work " off the clock" before and after their standard shifts and that a half hour was deducted for meal breaks even though they were unable to take a bona fide half-hour break to eat. See id. Additionally, Plaintiffs all held the same job position, were geographically located in the same CCI facilities, and had the same supervisors. Accordingly, the first factor weighs in favor of finding that Plaintiffs are similarly situated.

B. Defenses Available to Defendants

Defendants contend that they had no actual or constructive knowledge of the off-the-clock work performed and that some of the alleged unpaid off-the-clock work involved de minimis periods of time, which are not counted as hours worked for overtime purposes, among other potential defenses. See Def. Cert. Mem. 12-14. Defendants argue that the action must be decertified because individual determinations are necessary to resolve Defendants' defenses to Plaintiffs' claims. Plaintiffs argue that Defendants' defenses " are common to the class [and] their inability or lack thereof should be decided once rather than 20 times, lest there be inconsistent results." Pl. Cert. Mem. 11. The Court is not persuaded that the various defenses available to Defendants are so individualized as to each Plaintiff that decertification is required. To the extent that Defendants allege an actual or constructive knowledge defense, it is unlikely to vary between individual Plaintiffs. Plaintiffs shared the same supervisors, so to the extent that the supervisors knew that some of Plaintiffs worked off-the-clock before and after shifts and during lunch breaks, they likely knew that most or all of Plaintiffs did so as well. Defendants' de minimis defense will also likely succeed or fail across the entire collective. Plaintiffs correctly note that if Defendants assert that defense, there will probably be two stories told at trial: " Defendants will put on ...


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