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Hypolite v. Health Care Services of New York Inc.

United States District Court, S.D. New York

June 23, 2017

ALLISON HYPOLITE, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff,
v.
HEALTH CARE SERVICES OF NEW YORK INC. Defendants.

          OPINION AND ORDER

          John G. Koeltl United States District Judge.

         The 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.[1]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.

         The 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.

         For the following reasons, the plaintiff's conditional certification motion is denied in part and granted in part, and the defendants' motion to strike is denied.

         I.

         The 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.

         II.

         Under § 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 certification requirement.").

         In 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).

         If the 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).

         III.

         The following facts are taken from the parties' submissions.

         HCS 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. ¶ 1.

         Since 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.

         Before 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:

         LIVE-IN 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 ...

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