United States District Court, S.D. New York
ALLISON HYPOLITE, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff,
HEALTH CARE SERVICES OF NEW YORK INC. Defendants.
OPINION AND ORDER
G. Koeltl United States District Judge.
plaintiff, Allison Hypolite, on behalf of a putative class
has moved this Court to grant a conditional certification and
provide notice to a proposed class pursuant to § 216(b)
of the Fair Labor Standards Act ("FLSA"), 29 U.S.C.
§ 201 et seq.The defendants, Home Health Care
Services of New York Inc. d/b/a HCS Healthcare
("HCS") and Agnes Shemia ("Shemia"),
oppose the motion. The defendants have also moved to strike
portions of the reply papers filed by the plaintiff.
plaintiff seeks conditional certification of a class
consisting of all current and former employees of the
defendants (a) who are or were formerly employed by the
defendants as home health aides at any time since June 24,
2010 to the entry of judgment in this case (the
"Collective Action Period"); and (b) who were
non-exempt employees within the meaning of the FLSA, who were
not paid minimum wages and/or overtime wages at rates not
less than one and one-half times their regular rate of pay
for hours worked in excess of forty (40) hours per workweek.
following reasons, the plaintiff's conditional
certification motion is denied in part and granted in part,
and the defendants' motion to strike is denied.
defendants' motion to strike portions of the
plaintiff's reply memorandum and the Rand Reply
Declaration is without merit. Pursuant to a stipulation
entered into after the parties had begun briefing the
conditional certification motion, the parties agreed that the
plaintiff could rely on newly produced factual material ---
specifically, payroll information --- in her reply papers and
that the defendants could file a sur-reply. See Dkt.
39. The defendants protest that the plaintiff's reply
papers exceeded the scope of the stipulation, but the reply
papers were fair comment on the payroll information and the
arguments raised by the defendants in their opposition
papers. Moreover, the defendants filed a sur-reply, which
cured any potential prejudice. Accordingly, the
defendants' motion to strike is denied.
§ 216(b) of the FLSA, employees may maintain actions to
recover unpaid wages collectively where the employees are
"similarly situated" and give consent in writing
"to become . . . a party [to the action] and such
consent is filed [with the Court]." 29 U.S.C. §
216(b). "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."
Klimchak v. Cardrona, Inc., No. 09 Civ. 4311, 2011
WL 1120463, at *4 (E.D.N.Y. Mar. 24, 2011) (quoting Myers
v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010)). The
Court of Appeals for the Second Circuit has endorsed a
two-step method of certification in an opt-in collective
action under the FLSA. Myers, 624 F.3d at 554-55. At
the first step, the Court must determine whether it is
appropriate 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, " id. at 555, thus issuing a
"conditional certification" of the collective
action, see Schwerdtfeger v. Demarchelier Mgmt.,
Inc., No. 10 Civ. 7557, 2011 WL 2207517, at *3 (S.D.N.Y.
June 6, 2011); Guillen v. Marshalls of MA, Inc., 750
F.Supp.2d 469, 475 (S.D.N.Y. 2010) ("Orders authorizing
notice are often referred to as orders 'certifying' a
collective action, even though the FLSA does not contain a
exercising its discretion at the conditional certification
stage, "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) (citations omitted). The plaintiffs need only 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." Myers
r 624 F.3d at 555 (citations and internal
quotation marks omitted).
plaintiffs demonstrate that "similarly situated"
employees exist, the Court should conditionally certify the
class, order that appropriate notice be given to putative
class members, and the action should continue as a
"collective action throughout the discovery
process." Cunningham, 754 F.Supp.2d at 644.
"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
Me-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;
see also Winfield v. Citibank, N.A., 843
F.Supp.2d 397, 401-02 (S.D.N.Y. 2012).
following facts are taken from the parties' submissions.
provides home health care services to clients living in the
New York City metropolitan area. See Shemia Decl.
¶ 1. Shemia is the Administrator of HCS. Shemia Decl.
about June 2013, HCS has employed approximately 6, 600 home
health aides. Shemia Decl. ¶ 12. HCS's home health
aides provide in-home care services to HCS's clients.
Shemia Decl. ¶ 1. Home health aides may work with more
than one client over the course of their employment with HCS.
Am. Compl. ¶ 2; Shemia Decl. ¶ 12. However,
typically a single home health aide works with a single
client at any given time. Am. Compl. ¶ 2; Shemia Decl.
¶ 12. From approximately 2013 through 2015, HCS served
around 2, 200 clients. Shemia Decl. ¶ 12.
assigning a home health aide to a client, HCS or a referring
agency develops an individualized care plan for the client.
See Shemia Decl. ¶¶ 2, 8, 12, 17; Shemia
Decl., Ex. 2 (Examples of Care Plans). The tasks each home
health aide performs for each client vary, as does their
frequency, according to the specific needs of the client.
Shemia Decl. ¶ 17. The HCS Policy Manual, a copy of
which was provided to HCS's home health aides, states
that home health aides should "CALL THE OFFICE
IMMEDIATELY TO NOTIFY YOUR COORDINATOR IF . . . The patient,
the patient's doctor, or family asks you to do something
that is not on the plan of care." Shemia Decl., Ex. 1
(The HCS Policy Manual) at 60; see also Shemia Decl.
¶¶3, 7. The HCS Policy Manual also provides:
SLEEP AND MEAL PERIODS:
Specifically, under this policy, you are permitted 8 hrs. for
sleep, 5 hrs of which must be uninterrupted, and a total of 3
hrs for meals ...