United States District Court, S.D. New York
BRIAN VIRIRI, on behalf of himself and others similarly situated, Plaintiff,
WHITE PLAINS HOSPITAL MEDICAL CENTER, Defendant.
J. Krakower, Esq. Erika Minerowicz, Esq. Krakower DiChiara
LLC Park Ridge, N.J. Counsel for Plaintiff
L. Zwerling, Esq. Salvatore Puccio, Esq. Michael J. Keane,
Jr., Esq. Garfunkel Wild, P.C. Great Neck, NY Counsel for
OPINION & ORDER
KENNETH M. KARAS UNITED STATES DISTRICT JUDGE
Brian Viriri brings this Action against Defendant White
Plains Hospital Medical Center, individually and on behalf of
others similarly situated, alleging that Defendant owes him
and others unpaid and overtime wages pursuant to the Fair
Labor Standards Act (the “FLSA”), 29 U.S.C.
§ 201 et seq., the New York Minimum Wage Act, N.Y. Labor
Law § 650 et seq., and the supporting regulations of the
New York State Department of Labor. (See Am. Compl.
(Dkt. No. 11).) Before the Court is Plaintiff's Motion
for Conditional Collective Certification. (See Dkt.
No. 28.) For the reasons to follow, the Motion is granted.
following facts are taken from the Amended Complaint and the
supporting declarations of Plaintiff.
is a domestic, not-for-profit corporation in Westchester
County, New York, that operates as a healthcare provider.
(See Am. Compl. ¶¶ 8-9.) At all relevant
times, Defendant was and continues to be an employer engaged
in commerce within the meaning of the FLSA and the New York
Minimum Wage Act. (See Id. ¶ 13.) From 2009
until approximately August 2013, Plaintiff was employed by
Defendant as a registered nurse in the medical surgical unit.
(See Id. ¶ 15; Decl. of Brian Viriri
(“Viriri Decl.”) ¶ 1 (Dkt. No. 30).)
Plaintiff also served as a registered nurse in
Defendant's operating room from December 2014 until July
13, 2015. (See Am. Compl. ¶ 15.)
he worked in the medical surgical unit, Plaintiff and other
nurses in the medical surgical unit were compensated on an
hourly basis. (See Id. ¶ 33; Viriri Decl.
¶ 5.) Nurses were regularly scheduled to work three to
four 12-hour shifts per week. (See Am. Compl. ¶
43; Viriri Decl. ¶ 11.) Those shifts ran from either
7:00 AM to 7:15 PM, or from 7:00 PM to 7:15 AM. (See
Am. Compl. ¶ 42; Viriri Decl. ¶ 10.) Nurses were
typically scheduled to work three 12hour shifts each week,
but one week each month, they were required to work four
12-hour shifts. (See Am. Compl. ¶¶ 44-45;
Viriri Decl. ¶¶ 12-13.) Due to short staffing,
however, each year, Plaintiff worked six additional weeks
with four 12-hour shifts. (See Am. Compl. ¶
alleges that although the nurses were paid on an hourly basis
pursuant to the predetermined work schedule, (see
Id. ¶ 38), they were required to arrive at least 15
minutes before their scheduled start time, (see Id.
¶ 48; Viriri Decl. ¶ 14), and were regularly
required to work one to two hours after their shift ended,
(see Am. Compl. ¶ 52; Viriri Decl. ¶ 16).
Plaintiff and the other nurses were not allowed to leave work
until they located the incoming nurse and discussed each
patient's status with that nurse. (See Am.
Compl. ¶ 54; Viriri Decl. ¶ 17.) Although the
nurses worked additional hours beyond the hours set forth in
the schedule, Defendant did not compensate Plaintiff and the
other nurses for that time. (See Am. Compl. ¶
56; Viriri Decl. ¶ 19.) Moreover, although the nurses
regularly worked more than 40 hours per week, (see
Am. Compl. ¶ 57; Viriri Decl. ¶ 18), Defendant did
not pay Plaintiff or the other nurses one-and-a-half times
their regular rate of pay for that overtime, (see
Am. Compl. ¶ 62; Viriri Decl. ¶ 20). Plaintiff
alleges that Defendant's failure to pay the nurses their
statutory wages was knowing. (See Am. Compl. ¶
filed his Complaint on March 30, 2016. (See Dkt. No.
1.) After Defendant sought leave to file a motion to dismiss,
(see Dkt. No. 8), Plaintiff requested leave to file
an Amended Complaint, (see Dkt. No. 9). Leave was
granted, (see Dkt. No. 10), and Plaintiff filed his
Amended Complaint on June 30, 2016, (see Dkt. No.
11). Defendant again sought leave to file a motion to
dismiss, (see Dkt. No. 12), but after a conference
before the Court on September 21, 2016, (see Dkt.
(minute entry for Sept. 21, 2016)), Defendant decided not to
pursue the motion, (see Dkt. No. 19). A case
management order was thereafter entered. (See Dkt.
No. 22.) On October 19, 2016, Defendant filed its Answer.
(See Dkt. No. 27.)
October 20, 2016, Plaintiff filed its Motion for Conditional
Collective Certification, seeking an order conditionally
certifying its proposed FLSA collective action. (See
Dkt. No. 28.) In addition to conditional certification,
Plaintiff requests that the Court approve the content and
manner of the notice, and that the Court equitably toll the
statute of limitations for the class members. (See
Mem. of Law in Supp. of Pl.'s Mot. for Conditional
Collective Certification (“Pl.'s Mem.”) (Dkt.
No. 31).) Defendant filed its opposition on November 14,
2016, (see Dkt. No. 32), and Plaintiff filed his
reply on November 21, 2016, (see Dkt. No. 33).
FLSA Conditional Certification
Standard for Conditional Certification
FLSA provides that an employee whose rights under the FLSA
were violated may file an action in any federal or state
court of competent jurisdiction “for and in behalf of
himself or themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). Although the FLSA
does not require them to do so, “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 (2d Cir. 2010) (alterations and internal
quotation marks omitted).
Second Circuit has endorsed “a two step-method of
certification in an opt-in collective action under the
FLSA.” Amador v. Morgan Stanley & Co., No.
11-CV-4326, 2013 WL 494020, at *2 (S.D.N.Y. Feb. 7, 2013)
(internal quotation marks omitted). First, the district court
must make “an initial determination and 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. (some
internal quotation marks omitted). “Once a court
conditionally certifies a collective action, it may then
facilitate notice to all of the putative class members by
approving a notice form.” Jenkins v. TJX Cos.,
853 F.Supp.2d 317, 320 (E.D.N.Y. 2012). After discovery is
completed, “if it appears that some or all members of a
conditionally certified class are not similarly situated,
” a “defendant may move to challenge
certification, at which point a court will conduct a more
searching factual inquiry as to whether the class members are
truly similarly situated.” Id. at 320-21.
case comes before the Court at the first phase, which means
Plaintiff need only make a “modest factual
showing” that “[he] and potential opt-in
plaintiffs together were victims of a common policy or plan
that violated the law.” Myers, 624 F.3d at 555
(internal quotation marks omitted). Although this
“modest factual showing” cannot “be
satisfied simply by unsupported assertions, ” it
remains 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. (internal quotation marks omitted).
“Plaintiffs may satisfy this requirement by relying on
their own pleadings, affidavits, declarations, or the
affidavits and declarations of other potential class
members.” Hallissey v. Am. Online, Inc., No.
99-CV-3785, 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008).
Because “the court applies a fairly lenient standard,
” courts “typically grant conditional
certification.” Malloy v. Richard Fleischman &
Assocs. Inc., No. 09-CV-322, 2009 WL 1585979, at *2
(S.D.N.Y. June 3, 2009) (internal quotation marks omitted).
at this stage, “a court should not weigh the merits of
the underlying claims in determining whether potential opt-in
plaintiffs may be similarly situated.” Amador,
2013 WL 494020, at *3 (internal quotation marks omitted).
“[A]ny factual variances that may exist between the
plaintiff and the putative class do not defeat conditional
class certification, ” Lynch v. United Servs. Auto.
Ass'n, 491 F.Supp.2d 357, 369 (S.D.N.Y. 2007), and
even if “dates of employment and hours worked are
unique to each employee, ” that “does not
necessarily create dissimilarity under the FLSA, ”
Hallissey, 2008 WL 465112, at *2.