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De Carrasco v. Life Care Services, Inc.

United States District Court, S.D. New York

December 15, 2017

CARMEN RODRIGUEZ DE CARRASCO, individually and on behalf of all other persons similarly situated, Plaintiffs,
v.
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.

         On July 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.

         On 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.

         For the reasons set forth below, the motion is GRANTED in part and DENIED in part.

         I. FACTUAL BACKGROUND

         In 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.

         Plaintiff 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.)

         Plaintiff 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.)

         Carrasco 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.)

         Plaintiff 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. ¶¶ 51-52).

         Defendants 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.)

         Plaintiff 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 Class”).

         II. LEGAL STANDARDS

         A. FLSA Collective Certification

         Section 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).

         Certification 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).

         At the 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.

         B. Rule 23

         A 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(b)(3).[1]

         1. Rule 23(a) Prerequisites

         Pursuant 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 representation.

         In this 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).

         To 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.

         Typicality 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).

         To 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.

         2. Rule 23(b) Requirements

         In 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)'s subsections.

         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, or ...


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