United States District Court, S.D. New York
CARMEN RODRIGUEZ DE CARRASCO, individually and on behalf of all other persons similarly situated, Plaintiffs,
LIFE CARE SERVICES, INC. d/b/a “Life Care, ” ROSELYN ZELMAN and JOHN DOES #1-10, Defendants.
OPINION & ORDER
KATHERINE B. FORREST UNITED STATES DISTRICT JUDGE.
24, 2017, plaintiff Carmen Rodriguez de Carrasco
(“Carrasco”) brought this action against
defendants Life Care Services, Inc. (“Life
Care”), and Roselyn Zelman, for violations of the Fair
Labor Standards Act of 1938 (“FLSA”), 29 U.S.C.
§ 201 et seq., and New York Labor Laws §
663(1) et seq., § 198(1-a), breach of contract,
and unjust enrichment.
October 30, 2017, plaintiff moved both to conditionally
certify a collective action under 29 U.S.C. § 216(b) and
also for class certification of her NYLL claims pursuant to
Rules 23(a) and 23(b)(2) and (3). Fed R. Civ. P. 23.
reasons set forth below, the motion is GRANTED in part and
DENIED in part.
support of her motion for certification, plaintiff submitted
a declaration from herself (ECF No. 18, Carrasco Decl.), and
Home Healthcare Aide (“HHA”) Marie Bellegarde
(ECF No. 19, Bellegarde Decl.). In opposition to
plaintiff's motion, defendants submitted a declaration
from defendant Zelman (ECF No. 23, Zelman Decl.), attached to
which were, inter alia, exhibits relating to
defendants' policies, payroll, and job descriptions.
is an HHA employed by defendant Life Care. Life Care is a New
York Corporation; its Executive Director and Chief Executive
Offer is Roselyn Zelman, who has held that position for the
last six years. (Compl. ¶¶ 9-11.)
has been employed by Life Care from about July 28, 2009 until
about January 8, 2016 (the “Time Period”).
(Id. ¶ 29.) In her capacity as an HHA,
plaintiff was sent to clients' homes to provide care, and
frequently worked twenty-four hour shifts. (Id.
¶ 1.) She alleges that during her twenty-four hour
shifts, she often did not receive meal breaks or get five
hours of uninterrupted sleep. (Id.) She also alleges
that she frequently worked more than forty hours a week, and
that when she worked more than forty hours, she was not
always paid time and one half the minimum wage or time and
one half her standard rate after January 1, 2015.
(Id. ¶¶ 2, 33.)
states that her duties included inter alia,
cleaning, cooking, laundry, taking out the garbage, and
cleaning the refrigerator; she alleges 30% of her work was
household work. (Id. ¶¶ 39, 46, 48, 49.)
alleges that defendants hired at least forty similar HHAs,
who were also not paid proper overtime, or properly
compensated for twenty-four hour shifts. (Id.
attach their policies-including: 1) a policy that requires
any HHA who does not take meal breaks or get uninterrupted
sleep to report to Life Care; 2) wage statements for Carrasco
and Bellegarde; and 3) the New York Labor Law 195.1 Notice of
Pay Rate for Carrasco and Bellegarde. (Zelman Decl., Exs. A,
F, G, H, I.)
seeks to certify two FLSA collective actions and five New
York State classes as follows:
FLSA Collective One: Employees Not
Paid Time and One Half for Overtime after January 1, 2015
(the “FLSA Overtime Collective”);
FLSA Collective Two: Employees Paid
Less than the Legally Required Minimum of 13 Hours for their
24 Hour Shifts (the “FLSA under 13 Collective”);
New York State Class One: Employees
Not Paid Time and One Half for Overtime after January 1, 2015
(the “NY Overtime Class”);
New York State Class Two: Employees
Paid Less than the Legally Required Minimum of 13 Hours for
their 24 Hour Shifts (the “NY under 13 Class”);
New York State Class Three:
Employees Not Paid a Full 24 Hours for 24 Hour Shifts (the
“New York 24 Class”);
New York State Class Four:
Employees Paid Less than Minimum Wages under the Wage Parity
Act (the “New York Wage Parity Class”);
New York State Class Five:
Employees who did not Receive Proper Wage Theft Prevention
Act Notices (the “New York Wage Theft Prevention
FLSA Collective Certification
216(b) of the FLSA authorizes employees to maintain
collective actions where they are “similarly
situated” with respect to the alleged violations of the
FLSA. 29 U.S.C. § 216(b); Myers v. Hertz Corp.,
624 F.3d 537, 555 (2d Cir. 2010). Similarly situated
employees must “opt in” to an action by filing a
“consent in writing to become . . . a party.” 29
U.S.C. § 216(b).
of a “collective action” is a two-step process in
the Second Circuit. See Myers, 624 F.3d at 554-55.
At the first step-conditional certification-the Court simply
authorizes notice to be sent to potential similarly situated
plaintiffs. Id. at 555. Plaintiffs bear the light
burden of making a “modest factual showing” that
the named initial plaintiffs and the potential opt-in
plaintiffs “together were victims of a common policy or
plan that violated the law.” Id. (quoting
Hoffman v. Sbarro, Inc., 982 F.Supp. 249, 261
(S.D.N.Y. 1997). The burden may be satisfied through the
pleadings and affidavits alone. Iglesias-Mendoza v. La
Bell Farm, Inc., 239 F.R.D. 363, 367 (S.D.N.Y. 2007).
second step, defendants have the opportunity to move for
decertification if, after additional discovery, the record
shows that the opt-in plaintiffs are not, in fact, similarly
situated to the named plaintiffs. See Myers, 624
F.3d at 555.
plaintiff seeking certification of a class must prove by a
preponderance of the evidence that his or her proposed class
meets the requirements of Federal Rule of Civil Procedure
23(a) and, if those requirements are met, that the class is
maintainable under at least one of the subdivisions of
Federal Rule of Civil Procedure 23(b). See Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011);
Teamsters Local 445 Freight Div. Pension Fund v.
Bombardier Inc., 546 F.3d 196, 201-02 (2d Cir. 2008).
Here, defendants assert they have met all the requirements of
Rule 23(a) Prerequisites
to Rule 23(a), a court must determine whether a proposed
class satisfies four requirements: (1) numerosity, (2)
commonality, (3) typicality, and (4) adequacy of
Circuit, “numerosity is presumed at a level of 40
members.” Consol. Rail Corp. v. Town of Hyde
Park, 47 F.3d 473, 483 (2d Cir. 1995) (citations
omitted); however, “[p]laintiffs need not set forth an
exact class size to establish numerosity.” In re
Bank of Am. Corp., 281 F.R.D. 134, 138 (S.D.N.Y. 2012).
establish commonality, plaintiff must prove that “the
class members have suffered the same injury.”
Wal-Mart, 564 U.S. at 350. This does not necessarily
mean that all class members must have “suffered a
violation of the same provision of the same law;”
rather it requires a “common contention . . . capable
of class-wide resolution-which means that its truth or
falsity will resolve an issue that is central to the validity
of each one of the claims in one stroke.” Id.
is satisfied when “each class member's claim arises
from the same course of events and each class member makes
similar legal arguments to prove the defendant's
liability.” In re Flag Telecom Holdings, Ltd. Secs.
Litig., 574 F.3d 29, 35 (2d Cir. 2009). While there may
be variations in fact pattern as between the named plaintiff
and the other members of the class, if the same allegedly
unlawful conduct was directed at or affected both the named
plaintiff and the class sought to be represented, the
typicality requirement is usually met. See Robidoux v.
Celani, 987 F.2d 931, 936-37 (2d Cir. 1993). The
possibility that damages may have to be determined on an
individualized basis is not itself a bar to class
certification. See Seiias v. Republic of Arg., 606
F.3d 53, 58 (2d Cir. 2010).
satisfy the adequacy requirement, plaintiff must prove that
the interests of the named plaintiff are not antagonistic to
other members of the class, and that plaintiff's attorney
is qualified, experienced, and able to conduct the
litigation. See In re Flag Telecom, 574 F.3d at 35.
Rule 23(b) Requirements
addition to meeting the Rule 23(a) requirements, in order to
continue to maintain status as a class, the moving party must
be able to demonstrate by a preponderance of the evidence
that the class meets the requirements of one of Rule
23(b)(3) allows certification if “the questions of law
or fact common to all class members predominate over any
questions affecting only individual members, and . . . a
class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.”
Fed.R.Civ.P. 23(b); see Johnson v. Nextel Commc'ns
Inc., 780 F.3d 128, 137 (2d Cir. 2015). In determining
whether class certification is appropriate, the district
court must receive enough evidence-by affidavits, documents,