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Gucciardo v. Titanium Construction Services, Inc.

United States District Court, S.D. New York

August 30, 2017




         Plaintiff Charles Gucciardo (“Plaintiff” or “Named Plaintiff”), on behalf of a putative class of current and former employees of Defendants Titanium Construction Services, Inc. (“Titanium”) and Anthony O'Donnell (together, “Defendants”), moves for class certification under Federal Rule of Civil Procedure 23(b)(3). Plaintiff also moves to appoint Virginia & Ambinder, LLP as class counsel. Defendants cross-move to decertify the conditionally certified class, and request that costs be imposed on Plaintiff. For the reasons that follow, Plaintiff's motions to certify the class and to appoint Virginia & Ambinder, LLP as class counsel are granted, and Defendants' motion to decertify the conditionally certified class is denied as moot. Defendants' request for costs is denied.

         I. BACKGROUND

         A. Procedural Background

         On February 12, 2016, Plaintiff, together with former Plaintiff Vinicio Samaniego, filed their Complaint, asserting claims under the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). The Complaint specifically alleges that Defendants have a policy and/or plan to violate FLSA and NYLL, which involves “willfully” and “purposefully” “failing to maintain proper and complete timesheets and payroll records.” The Complaint further alleges that Defendants violated FLSA and NYLL by paying employees by check for hours worked up to 40 hours per week, and by cash for hours worked above 40 hours per week, at the employees' regular hourly wage rate.

         On June 7, 2016, then-Named Plaintiffs Samaniego and Gucciardo moved for conditional certification of the FLSA collective, which the Court granted on September 1, 2016. Plaintiffs' counsel filed consent to join forms on behalf of seven Opt-In Plaintiffs.

         On November 22, 2016, then-Named Plaintiffs filed a letter requesting a pre-motion conference regarding their intended motion for Rule 23 class certification. Defendants then filed a letter, in which they stated their intention to oppose the motion on the ground that then-Named Plaintiffs Samaniego and Gucciardo were inadequate class representatives. On December 6, 2016, at the conference, the Court suggested that it likely would find Samaniego and Gucciardo to be inadequate representatives and not certify the class, and recommended that Samaniego and Gucciardo be replaced with “more suitable” individuals from among the Opt-In Plaintiffs. Although the Court stated that it would consider the class certification motion, it suggested that the Complaint be amended to substitute Samaniego and Gucciardo as named plaintiffs, and cautioned that leave to amend would not be granted again.

         On January 31, 2017, counsel filed a motion to amend the Complaint to remove Samaniego as Named Plaintiff, leaving Gucciardo as the sole Named Plaintiff. The motion also seeks class certification under Rule 23 for the NYLL claims. In their Reply, then-Named Plaintiffs withdrew the consent to join forms of all three remaining Opt-In Plaintiffs who had not already withdrawn.[1] The motion for leave to amend the Complaint was granted, and an Amended Complaint naming Charles Gucciardo as the sole named plaintiff, was filed on August 15, 2017. The motion to certify the class accordingly is construed as being brought solely by Gucciardo. Defendants oppose class certification and seek to have costs imposed on Plaintiff.

         B. Factual Background

         Defendants Titanium Construction Services, Inc. and Anthony O'Donnell employed Named Plaintiff Charles Gucciardo from approximately February 2012 through July 2015. Named Plaintiff was hired as a laborer. In around January 2015, he received a raise and began performing the duties of a supervisor, and in March 2015, he was formally promoted. In this role, Named Plaintiff supervised other employees and had authority to hire and fire and determine employees' hours. Named Plaintiff also was responsible for tracking employees' hours and paying employees. On this motion, Plaintiff submitted a cell phone “note” written in October 2014, in which he recorded nine employees' hours worked. Per the note, eight of the nine employees worked overtime during that week. Of those eight, three were deposed in this action, and all three testified that they were paid their straight wages for those (and all) overtime hours worked.

         At his deposition, Named Plaintiff testified that he gave each employee one envelope containing a check for hours worked up to 40 hours, and a second envelope containing cash for hours worked above 40 hours, in the amount of an employee's regular hourly wage rate. Named Plaintiff's testimony was largely corroborated by the deposition testimony of five other members of the proposed class, each of whom testified that he often worked more than 40 hours per week, and that Defendants failed to pay him overtime compensation on those occasions. Each further testified that Defendants paid him his straight wages, in cash, for hours worked in excess of 40 hours per week. Named Plaintiff also testified that he maintained a “logbook, ” in which he recorded employees' hours, including his own, and that he lost the logbook during the six-month period between the time Defendants fired him and the time he commenced this action.

         In May 2015, Defendants demoted Named Plaintiff back to a laborer role because of multiple, unexcused absences from work. On one such occasion, Named Plaintiff missed work because he was pulled over and arrested for Oxycodone possession -- specifically, for carrying the legally prescribed drug in a clear plastic bag rather than a bottle. Named Plaintiff admitted that he had lied to his supervisors about the reasons for his absence on this and other occasions. Defendants assert that Named Plaintiff was fired in July 2015, in part, because of these unexcused absences, and for other reasons not directly relevant to the disposition of this motion.

         In opposition to Plaintiff's motion for class certification, Defendants submitted the deposition testimony of Anthony O'Donnell, Titanium's Managing Director, and Leslie Hogan, its Superintendent. Both testified that Titanium laborers typically worked from 7 a.m. to 3:30 p.m., or from 10 a.m. to 6 p.m., and that Titanium employees rarely or never worked overtime. Both also testified that Titanium never paid laborers in cash, and that employees received either a single envelope containing a check, or a direct deposit to their bank account for their hours worked. Defendants also submitted payroll records for seven Titanium employees -- the original two Named Plaintiffs and five of the Opt-In Plaintiffs.


         Federal Rule of Civil Procedure 23(a) provides that plaintiffs may sue on behalf of a class where:

(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

         Where, as here, Plaintiff seeks to certify a class under Rule 23(b)(3), Plaintiff also must show “that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” The Second Circuit gives Rule 23 a “liberal rather than restrictive construction, and courts are to adopt a standard of flexibility.” Marisol A. v. Giuliani, 126 F.3d 372, 377 (2d Cir. 1997); accord In re J.P. Morgan Stable Value Fund ERISA Litig., No. 12 Civ. 2548, 2017 WL 1273963, at *5 (S.D.N.Y. Mar. 31, 2017). But “Rule 23 does not set forth a mere pleading standard.” Wal-mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). Plaintiff must establish by a preponderance of the evidence that each of Rule 23's requirements is met. In re Vivendi, S.A. Sec. Litig., 838 F.3d 223, 264 (2d Cir. 2016).


         A. Motion for ...

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