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Viriri v. White Plains Hospital Medical Center

United States District Court, S.D. New York

June 8, 2017

BRIAN VIRIRI, on behalf of himself and others similarly situated, Plaintiff,

          Todd J. Krakower, Esq. Erika Minerowicz, Esq. Krakower DiChiara LLC Park Ridge, N.J. Counsel for Plaintiff

          Andrew L. Zwerling, Esq. Salvatore Puccio, Esq. Michael J. Keane, Jr., Esq. Garfunkel Wild, P.C. Great Neck, NY Counsel for Defendant

          OPINION & ORDER


         Plaintiff 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.

         I. Background

         A. Factual Background

         The following facts are taken from the Amended Complaint and the supporting declarations of Plaintiff.

         Defendant 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.)

         While 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. ¶ 46.)

         Plaintiff 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. ¶ 63.)

         B. Procedural History

         Plaintiff 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.)

         On 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).

         II. Discussion

         A. FLSA Conditional Certification

         1. Standard for Conditional Certification

         The 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).

         The 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.

         This 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).

         Importantly, 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.

         2. ...

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