United States District Court, W.D. New York
ZENAIDA ACEVEDO, KELESIE REED, JOANNA DWYER, AND COLLEEN PITTS, on behalf of themselves and all other employees similarly situated. Plaintiffs,
WORKFIT MEDICAL LLC, WORKFIT STAFFING LLC, DELPHI HEALTHCARE PLLC, DELPHI HOSPITALIST SERVICES LLC, and C. JAY ELLIE, JR., M.D., Defendants.
DECISION AND ORDER
ELIZABETH A. WOLFORD, District Judge.
Plaintiffs Zenaida Acevedo, Kelsie Reed, Joanna Dwyer, and Colleen Pitts (collectively "Plaintiffs") filed this action on May 2, 2014, claiming (1) unpaid wages and overtime under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (the "FLSA"); (2) unpaid wages under New York State law; (3) wage notice violations under New York State law; (4) untimely payment of wages under New York State law; (5) failure to maintain records under New York State law; (6) breach of express contract; (7) breach of implied contract; (8) breach of the implied covenant of good faith and fair dealing; (9) quantum meruit ; and (10) unjust enrichment/restitution. (Dkt. 1). Plaintiffs have moved for conditional certification and expedited notice with respect to their FLSA claim. (Dkt. 14). Defendants oppose Plaintiffs' motion (Dkt. 26) and have filed their own motion seeking dismissal of Plaintiffs' sixth, seventh, eighth, ninth, and tenth causes of action pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. 24).
For the reasons set forth below, Plaintiffs' motion for conditional certification is granted. The parties are instructed to meet and confer for the purpose of proposing a jointly acceptable form and method of notice. Defendants are ordered to provide Plaintiffs' counsel in both electronic and paper format a list of current and former hourly employees of Defendants during the three years preceding the filing of this lawsuit, including those individuals' names, addresses, telephone numbers, email addresses, and dates and location(s) of employment. Defendants' motion to dismiss is granted as to the eighth cause of action and as to the sixth, seventh, ninth, and tenth causes of action to the extent they are based on an alleged failure to pay overtime wages, and it is denied in all other respects.
Plaintiffs allege that defendant Dr. C. Jay Ellie, Jr. ("Dr. Ellie") formed defendants WorkFit Medical LLC ("WorkFit Medical"), WorkFit Staffing LLC ("Workfit Staffing"), Delphi Healthcare PLLC ("Delphi Healthcare"), and Delphi Hospitalist Services LLC ("Delphi Hospitalist Services") to provide hospital staffing, occupational health and related services in western New York. (Dkt. 1 at ¶¶ 9-12). According to Plaintiffs, Dr. Ellie owns and operates the four entity defendants, all of which are allegedly headquartered out of the same location in Rochester, New York. ( Id. at ¶¶ 15-26, 35).
Plaintiffs claim that Defendants employed hourly employees at several locations in the western New York area, including their headquarters on Chili Avenue and offices in Batavia and Medina. ( See Dkt. 16-4). Plaintiffs allege that hourly employees at Defendants' locations were subject to a "no overtime" policy pursuant to which employees who worked more than 40 hours in a workweek were not paid at time and a half their regular hourly rate for those hours worked but instead received compensatory time. ( Id. ). Plaintiffs claim that Defendants communicated this policy both verbally and in writing. ( Id. ). Plaintiffs contend that this policy violated both the FLSA and New York State law, as well as the terms of written and oral employment contracts they allegedly entered into with Defendants. (Dkt. 1).
Plaintiffs filed their complaint on May 2, 2014. (Dkt. 1). On May 23, 2014, Plaintiffs filed a motion for conditional certification of a collective action pursuant to the FLSA. (Dkt. 16). On June 27, 2014, Defendants filed their opposition to Plaintiffs' motion for conditional certification and a motion seeking dismissal of Plaintiffs' sixth, seventh, eighth, ninth, and tenth causes of action pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. 24, 26). Plaintiffs filed their opposition to Defendants' motion to dismiss and reply papers in further support of their motion for conditional certification on July 18, 2014. (Dkt. 29-32). Defendants filed reply papers in further support of their motion to dismiss on August 1, 2014. (Dkt. 32). Oral argument on the pending motions was held on August 19, 2014. (Dkt. 34).
I. Legal Standard
A. Conditional Certification Under the FLSA
"Although they are not required to do so by FLSA, district courts have discretion, in appropriate cases, to implement [§ 216(b) of the FLSA]... 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 (2d Cir. 2010) (quotation omitted). This is often referred to as certification, although as the Second Circuit Court of Appeals observed in Myers, it is not "certification" in the traditional class action sense and "nothing in the text of the statute prevents plaintiffs from opting in to the action by filing consents with the district court, even when the notice... has not been sent, so long as such plaintiffs are similarly situated' to the named individual plaintiff who brought the action." Id. at 554 n.10.
District courts in this circuit apply a two-step method for determining whether to exercise their discretion under § 216(b):
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. The court may send this notice after 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. 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.
Id. at 555 (internal citations and quotations omitted). The first of these steps is typically referred to as "conditional certification." Winfield v. Citibank, N.A., 843 F.Supp.2d 397, 402 (S.D.N.Y. 2012). On a motion for conditional certification, "the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations." Cunningham v. Elec. Data Sys. Corp., 754 F.Supp.2d 638, 644 (S.D.N.Y. 2010) (internal citations omitted).
B. Motion to Dismiss
"In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.'" Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)). A court should consider the motion "accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (internal quotations and citation omitted). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration in original) (internal quotations and citations omitted). Thus, "at a bare minimum, the operative standard requires the plaintiff [to] provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level." Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (alteration in original) (internal quotations and citations omitted).
II. Plaintiffs' Motion for Conditional Certification
Plaintiffs have moved for conditional certification of an FLSA collective action. (Dkt. 14). In particular, Plaintiffs ask the Court to: (1) require the issuance of an expedited notice, as set forth in the form attached to their moving papers, to current and former hourly employees of Defendants during the three years preceding the filing of this lawsuit; (2) require Defendants to provide Plaintiff's counsel a list of all potential opt-in plaintiffs containing those individuals' names, addresses, phone numbers, locations of employment, dates of employment, last four digits of social security numbers, dates of birth, and e-mail addresses; and (3) require Defendants to post a notice and consent form prominently at all of the worksites where hourly employees work. ( Id. ).
Defendants oppose Plaintiffs' motion on multiple grounds. First, Defendants argue that Plaintiffs have failed to meet their modest burden of demonstrating that they and the potential opt-in plaintiffs were the victims of a common policy or plan that violated the law. (Dkt. 26 at 16). Second, Defendants contend that Plaintiffs cannot show that they are similarly situated to the potential opt-in plaintiffs. ( Id. at 20). Third, Defendants argue that ordering notice would prejudice Defendants, but that not ordering notice would not prejudice Plaintiffs. ( Id. at 23). Finally, Defendants oppose conditional certification on the basis that they have submitted numerous affidavits from potential opt-in plaintiffs indicating that they do not wish to participate in the collective action. ( Id. at 24). Defendants also argue in the alternative that the Court should limit the conditional certification by company, department, and/or geography. ( Id. at 25).
A. Plaintiffs' Burden
Plaintiffs' burden on a conditional certification motion is "minimal, especially since the determination that potential plaintiffs are similarly situated is merely a preliminary one." Gjurovich v. Emmanuel's Marketplace, Inc., 282 F.Supp.2d 101, 104 (S.D.N.Y. 2003) (quotation omitted). In this case, Plaintiffs have met this burden by producing affirmations that state, under penalty of perjury, that Plaintiffs and their coworkers (several of whom are identified by name) were subject to a "no overtime" policy pursuant to which they received compensatory time for hours worked over 40 in a week rather than overtime pay. (Dkt. 16-4). Plaintiffs have also affirmed, under penalty of perjury, that this "no overtime" policy was communicated to employees verbally and in writing and was presented as company policy. ( Id. ).
Plaintiff Joanna Dwyer alleges that she received emails from Defendants' human resources manager, director of operations, human resources director, and certified public accountant instructing her not to record more than 40 hours of work in a week and informing her that she would not be paid for overtime. ( Id. at 14). Ms. Dwyer produces one of these emails and a corresponding letter that: (1) inform Ms. Dwyer of her "comp balance"; and (2) state that "any time over 40 hours will be tracked as comp time." ( Id. at 19). Ms. Dwyer explains that these emails were sent to employees with "WorkFit and Delphi email addresses" and that she is therefore aware that all hourly employees were receiving the same instructions regarding overtime pay. ( Id. at 14). Ms. Dwyer and fellow named plaintiff Colleen Pitts have also produced copies of documents provided to them by Defendants entitled "Notice and Acknowledgement of Pay Rate and Payday under Section 195.1 of the New York State Labor Law" that indicate an overtime pay rate of zero dollars. ( Id. at 21, 32). Susan Tabone and Tracy Slocum, a former and a current employee of WorkFit Medical who have opted-in to this lawsuit, have also produced their "Notice and Acknowledgement of Pay Rate and Payday under Section 195.1 of the New York State Labor Law" documents, each of which reflects an overtime pay rate of zero dollars. ( Id. at 48; Dkt. 31-1 at 7). These documents state that they were prepared by Elizabeth Wagner, Human Resources Manager. (Dkt. 16-4 at 48, Dkt. 31-1 at 7). Ms. Tabone has also produced a document entitled "WorkFit Medical Comp Time Sheet" that she claims she was required to use to record the hours per week she worked over 40. (Dkt. 16-4 at 50).
Plaintiffs have met their minimal burden of making a modest factual showing that they and the potential opt-in plaintiffs were the victims of a common "no overtime" policy and that they are similarly situated to the potential opt-in plaintiffs. As discussed below, Defendants' attempts to rebut this showing are unavailing.
B. Employee Handbook Language
Defendants' first argument is that their employee handbook, which allegedly applies to WorkFit Medical, WorkFit Staffing, Delphi Healthcare, and Delphi Hospitalist Services (Dkt. 26-2 at ¶ 10), states that non-exempt employees must be compensated for overtime hours at a time-and-a-half rate and that overtime pay requirements cannot be met through the use of compensatory time. ...