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Robreno v. Eataly America, Inc.

United States District Court, S.D. New York

June 25, 2018

ROBERTO ROBRENO, EARON BRATHWAITE, and RICARDO BARCENAS, on behalf of themselves and others similarly situated, Plaintiffs,
v.
EATALY AMERICA, INC., EATALY USA LLC, EATALY NY LLC d/b/a EATALY NYC FLATIRON, EATALY NY FIDI, INC. d/b/a EATALY NYC DOWNTOWN, NICOLA FARINETTI, ADAM SAPER, and ALEX SAPER, Defendants.

          OPINION & ORDER

          KATHERINE B. FORREST, DISTRICT JUDGE

         Roberto Robreno (“Robreno”) and Earon Brathwaite (“Brathwaite”), on behalf of themselves and others similarly situated, originally commenced this action against defendants Eataly America, Inc. and associated parties (collectively, “Eataly” or “defendants”) on November 29, 2017. (See generally Compl., ECF No. 1.) Plaintiffs subsequently filed an Amended Complaint on January 5, 2018 which added a named plaintiff (Ricardo Barcenas (“Barcenas”) (together with Robreno and Brathwaite, (“plaintiffs”)) and removed certain defendants, but retained substantially the same core allegations. (See generally Amend. Compl. (“FAC”), ECF No. 36.)[1] Plaintiffs allege, in sum, that defendants engaged in a number of illegal employment practices under the Fair Labor Standards Act (“FLSA”) and New York Labor Law (“NYLL”). (Id.)

         Currently pending before the Court is plaintiffs' motion for conditional certification of a collective action pursuant to 29 U.S.C. § 216(b). (ECF No. 54.) Specifically, plaintiffs seek conditional certification of a class comprising all non-exempt employees employed by defendants within six years of the initial Complaint being filed. (See Mem. of Law. in Supp. of Pls.' Mot. (“Pls.' Mem.”) at 1, ECF No. 55.) The key to plaintiffs' argument is the alleged existence of a company-wide policy or practice encompassing all Eataly locations and all supervisors with authority over wages and hours worked as to the prospective plaintiffs. As an initial matter, a six year period is not available under the FLSA. The FLSA has a statute of limitations of two years plus one additional year if willfulness is proven. Thus, from the outset, the maximum duration of any certification is three years.

         Defendants oppose certification, arguing that plaintiffs have failed to sufficiently demonstrate that putative class members were subject to a company-wide policy or practice that violated the law, and therefore plaintiffs are not “similarly situated” to the potential opt-in plaintiffs under § 216(b). (See generally Defs.' Mem. of Law in Opp'n to Pls.' Mot. (“Defs.' Opp'n”), ECF No. 69.) Plaintiffs' replied on April 27, 2018 (ECF No. 80). Defendants submitted a supplemental opposition on May 18, 2018 (ECF No. 93), and plaintiffs submitted a supplemental reply on May 31, 2018 (ECF No. 98).

         I. LEGAL PRINCIPLES

         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. See 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).

         In the Second Circuit, certification of a “collective action” is a two-step process. 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). In addition, the Court may consider affidavits and/or declarations submitted by potential opt-in class members. See, e.g., Flood, 2015 WL 260436, at *2 (internal quotation omitted).

         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.

         II. DISCUSSION

         A. Conditional Certification

         At this stage of the litigation, plaintiffs have made a sufficient showing to warrant conditional certification of a collective action under § 216(b), but not of the breadth requested. Accordingly, and for the reasons stated below, the Court hereby conditionally certifies a § 216(b) collective comprised of non-exempt employees supervised by certain managers/supervisors (as specified below) during the duration of the corresponding plaintiffs' employment.

         As an initial matter, defendants have stipulated that between August 2016 and the present, they operated as a “single integrated enterprise” for purposes of the FLSA and NYLL. (ECF No. 78.) Accordingly, the fact that the corporate defendants in this action are technically different entities with different retail locations does not impact the pending § 216(b) motion (though such facts, if proven, could be relevant for purposes of decertification or on summary judgment).

         Plaintiffs seek certification of a collective action comprising every non-exempt Eataly employee, working at every location, for the past six years. As previously noted, however, the FLSA has a maximum statute of limitations of three years. Thus, the request for certification of class extending six years is too long. In addition, plaintiffs have not made even a “modest factual showing” that all non-exempt Eataly employees were victims of a company-wide policy or plan that violated the FLSA and NYLL. See Myers, 624 F.3d at 554-55. At most, plaintiffs have sufficiently demonstrated that specific supervisors and/or managers at Eataly violated the relevant statutes by engaging in “time shaving” and other illegal practices. Specifically, plaintiffs have made allegations against the following persons:

• Robreno alleges, in sum, that he was routinely instructed by managers “Ogy (a/k/a Austin) and Marcos” to perform unpaid off-the-clock work during the course of his employment at Eataly Flatiron from June 2010 until June 12, 2017 (see Decl. of Roberto ...

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