United States District Court, S.D. New York
MICKEY BAHR, on behalf of himself and those similarly situated individuals, Plaintiff,
PNW ENTERPRISES, LLC d/b/a NEW YORK KIDS CLUB, Defendant.
MEMORANDUM AND ORDER
Kevin Castel United States District Judge.
Mickey Bahr moves for the conditional certification of a
collective action in this case brought pursuant to the Fair
Labor Standards Act (“FLSA”). See 29
U.S.C. § 216(b). Defendant PNW Enterprises, LLC
(“PNW”) provides children's programming at
ten locations in New York City. (Richardson Dec. ¶¶
3-5.) According to Bahr, he and approximately 29 other
location managers employed by PNW were not paid the overtime
wages required by the FLSA. For the purposes of this motion,
the Court assumes that the FLSA's wage-and-hours laws
apply to location managers employed by PNW.
Bahr has not made a modest factual showing that other
location managers were similarly situated, his motion for
conditional certification is denied.
FLSA permits employees to create a collective by opting-in to
a backpay claim brought by a similarly situated employee. 29
U.S.C. § 216(b). The unique FLSA collective differs from
a Rule 23 class because plaintiffs become members of the
collective only after they affirmatively consent to join
it.” Glatt v. Fox Searchlight Pictures, Inc.,
811 F.3d 528, 540 (2d Cir. 2016). Certification of a
collective action is determined by a two-step method.
“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.” Myers v. Hertz Corp., 624 F.3d 537,
555 (2d Cir. 2010). A plaintiff moving for certification must
make a “modest factual showing” of similarly
situated employees, which “cannot be satisfied simply
by ‘unsupported assertions.'” Id. At
the same time, plaintiffs are held to “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.
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.
states that he was employed by PNW from January 20, 2014
through November 9, 2015. (Bahr Dec. ¶ 3.) After being
promoted to the job title of “location manager”
in December 2014, he was responsible for selling PNW's
classes and providing customer service at one of the ten PNW
locations. (Bahr Dec. ¶¶ 4-5.)
states that location managers were “frequently
required” to work evenings and weekends, and to miss
lunch breaks. (Bahr Dec. ¶ 14.) As a result, he states
that he regularly worked between 49 and 55 hours per week but
that he was never paid overtime wages. (Bahr Dec.
¶¶ 15, 19.) He states that while employed at PNW,
he never saw postings that advised employees of their rights
under the FLSA or the New York Labor Law - presumably at the
branch where he served as location manager. (Bahr Dec. ¶
to Bahr, PNW employed approximately 29 location managers
across ten different branch locations. (Bahr Dec.
¶¶ 16-17.) He asserts that PNW failed to pay other
location managers overtime wages. (Bahr Dec. ¶ 19.)
has not made the minimal showing that other “similarly
situated” employees were denied overtime wages by PNW.
See Myers, 624 F.3d at 555. His declaration contains
no observations concerning the wages, hours worked or
experiences of PNW's other 29 location managers. He does
not describe the wage-and-hour practices of any PNW
locations, aside from his own experiences at the unidentified
location that he managed. Bahr's sole statement
concerning the circumstances of other location managers is
the conclusory assertion that “PNW failed to pay me and
other Location Managers overtime wages for time worked excess
of forty (40) hours a week.” (Bahr Dec. ¶ 19.)
This statement is not supported by observations or
conversations that describe the circumstances of Bahr's
fellow location managers.
reply submissions, Bahr annexes four anonymous internet
postings that purport to be from current and former PNW
employees, which describe an unhappy and poorly managed
workplace. One of these reviews, dated September 15, 2016,
complains that employees are expected to work “late
nights” and “outside events” without
recognition or additional compensation, but the remaining
posts make no reference to a denial of overtime compensation.
(Walker Dec. Ex. E.) The Court affords some weight to this
post, but it is limited in light of its anonymity and the
absence of additional evidence in support of Bahr's
“the bar for conditional certification of a collective
action under the FLSA is low, it is not this low.”
Sanchez v. JMP Ventures, L.L.C., 2014 WL 465542, at
*1 (S.D.N.Y. Jan. 27, 2014) (Forrest, J.). Bahr has offered
no evidence to show that his hours and pay reflect a common
practice imposed on other location managers at other PNW
branches. See id. at *1-2 (denying
conditional certification when movant submitted only vague
and conclusory assertions of common practices across three
restaurant locations); She Jian Guo v. Tommy's Sushi
Inc., 2014 WL 5314822, at *3 (S.D.N.Y. Oct. 16, 2014)
(denying conditional certification when
“[p]laintiffs' submissions do not contain any
allegations regarding, for example, the specific hours worked
by, or the amounts paid to, other employees.”);
Mata v. Foodbridge LLC, 2015 WL 3457293, at *3, 4
(S.D.N.Y. June 1, 2015) (denying conditional certification
when plaintiffs “brief declaration”
“includes no concrete facts evidencing a common scheme
or plan of wage and hour violations for employees engaged in
different job functions.”) (Ramos, J.).
Bahr has not made a modest factual showing that other PNW
location managers were similarly situated, his motion is
DENIED. The Clerk is ...