United States District Court, E.D. New York
BONNIE SHIBETTI and KATRINA PUCCINI, individually and on behalf of all others similarly situated, Plaintiffs,
Z RESTAURANT, DINER AND LOUNGE, INC., ADEL FATHELBAB, ADAM FATHELBAB, KAMAL FATHELBAB, ESSAM ELBASSIONY, MIKO ENTERPRISES, LLC, MICHAEL SIDERAKIS, CHRISTOS SIDERAKIS, KONSTANTINOS SIKLAS, CROWN CROPSEY A VENUE LLC, LGMALONEY LLC, XYZ CORP(s) 1-5, and JOHN DOE(s) 1-5, Defendants.
REPORT AND RECOMMENDATION
L. TISCIONE UNITED STATES MAGISTRATE JUDGE.
Bonnie Shibetti and Katrina Puccini bring this action against
the above-named Defendants alleging claims under the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §
201 et seq., New York Labor Law
(“NYLL”), N.Y. Lab. Law § 195(3), New York
City Human Rights Law (“NYCHRL”), N.Y.C. Admin.
Code, § 8-101 et seq., and New York common law.
See Dkt. Nos. 1 (Complaint), 90 (Third Amended
Complaint) (“TAC”). Plaintiffs seek to recover
unpaid: minimum wages, overtime compensation, and
spread-of-hours pay. In addition, Plaintiffs allege that
Defendants have engaged in a practice of creating and
maintaining a hostile work environment by refusing to take
notice of, investigate, or discipline repeated acts of sexual
assault and harassment taken by Kamal Fathalbab, a male
supervisor, and other male employees against Shibetti,
Puccini, and other female servers at the Parkview Diner. TAC
¶ 2. Plaintiffs also assert that Defendants unlawfully
retaliated against Shibetti for engaging in protected
activity, unlawfully discriminated against Puccini on the
basis of her pregnancy status, and engaged in negligent
hiring and supervision of various employees. TAC ¶¶
10, 2019, the Honorable Edward R. Korman referred
Plaintiffs' Motion to Certify FLSA Collective Action to
this Court for a Report and Recommendation. For the reasons
set forth below, I respectfully recommend that the District
Court deny Plaintiffs' motion.
is a current or former owner, operator, licensor, licensee,
lessee, or manager of a restaurant called Parkview Diner
located in Brooklyn, New York. TAC ¶ 12. In June 2015,
Shibetti was hired by Z Diner to work as a waitress at the
Parkview Diner. TAC ¶ 48. During her training period,
Shibetti worked three, eight-hour work shifts, for which she
did not receive pay. TAC ¶ 50. Following the training
period, Shibetti worked at the Diner on Wednesdays through
Sundays, from approximately 9:00 a.m. to 6:00 p.m. TAC ¶
51. From the beginning of her employment in June 2015 to her
termination in April 2016, Shibetti was paid at a rate of
$2.00 per hour; she was never paid for any hours she worked
in excess of forty hours in a given workweek. TAC ¶ 54.
The Complaint offers the following example as a typical
workweek: “during the week of February 24-28, 2016,
Shibetti was paid $80.00 for approximately forty-five (45) or
more hours she worked at the Parkview Diner for an
approximate effective rate of $1.78 per hour.” TAC
¶ 54. In April 2016, Shibetti approached her supervisors
to request that she be paid “on the books, ” at
an amount meeting or exceeding the minimum wage, plus regular
wage statements. TAC ¶ 83. A few days later Shibetti was
terminated from her position at the Diner. TAC ¶ 85.
also worked as a server at the Diner. TAC ¶ 87.
Following her start in late 2015, she worked one, 4-hour
training shift, for which she did not receive pay. TAC ¶
89. In 2015 and 2016, Puccini worked at the Diner on
Wednesdays and Thursdays, from approximately 5:00 p.m. to
12:00 a.m.; Fridays, from 9:00 p.m. to 6:00 a.m., Saturdays,
from 6:00 p.m. to 6:00 a.m.; and Sundays, from 5:00 p.m. to
12:00 a.m. TAC ¶ 90. At all times, Puccini was paid at a
rate of $5.00 per hour and never paid any wages for any hours
worked in excess of forty hours in a workweek. TAC ¶ 93.
February 8, 2018, Shibetti filed an initial Complaint.
See Dkt. No. 1. An Amended Complaint was filed on
March 2, 2018, and a Second Amended Complaint was filed on
June 29, 2018. See Dkt. Nos. 6, 77. After the Court
granted leave to amend, Plaintiffs filed a Third Amended
Complaint on October 12, 2018, adding Puccini as a named
Plaintiff in the action, and adding class allegations.
See Dkt. No. 90. On June 5, 2019, Plaintiffs filed a
Motion to Certify FLSA Collective Action with this Court.
See Dkt. No. 120.
argue that Plaintiffs have not met their burden of showing
that they are entitled to conditional certification under the
FLSA. Defendants assert that Plaintiffs have not set forth
sufficient factual information to infer that the other
employees are similarly situated with respect to the
allegations set forth by Plaintiffs in their complaint.
See Defendants' Memorandum in Opposition to
Conditional Certification (“Defs.' Mem.”),
Dkt. No. 124, at 3-4.
the FLSA, an employee may sue on behalf of herself and other
employees who are “similarly situated.” 29 U.S.C.
§ 216(b). Those “similarly situated”
employees may opt-in to a collective action brought under the
FLSA, and therefore become plaintiffs, by filing a written
consent form with the Court. Varghese v. JP Morgan Chase
& Co., Nos. 14-CV-1718 (PGG), 15-CV-3023 (PGG), 2016
WL 4718413, at *5 (S.D.N.Y. Sept. 9, 2016); see 29
U.S.C. § 216(b).
conditional certification of an FLSA collective action is a
discretionary exercise of the Court's authority; it is
useful as a case management tool, facilitating the
dissemination of notice to potential class members. Myers
v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010)
(quoting Hoffmann-La Roche Inc. v. Sperling, 493
U.S. 165, 169, 174 (1989)). Because it is discretionary, a
motion for conditional certification involves a “far
more lenient” standard than a motion for class
certification under Rule 23 of the Federal Rules of Civil
Procedure. Feng v. Soy Sauce LLC, No. 15-CV-3058
(ENV) (LB), 2016 WL 1070813, at *2 (E.D.N.Y. Mar. 14, 2016).
in the Second Circuit apply a two-step process to determine
whether an action should be certified as an FLSA collective
action. Myers, 624 F.3d at 554-55. In the first
step, the Court looks at the pleadings, affidavits, and
declarations to determine whether the plaintiffs and
potential opt-in plaintiffs are sufficiently “similarly
situated” to issue notice and allow the case to proceed
as a collective action through discovery. Id. at
first step requires only a “modest factual
showing” that plaintiffs and potential opt-in
plaintiffs “together were victims of a common policy or
plan that violated the law.” Id. (internal
quotation marks and citations omitted). The standard of proof
is low “because the purpose of this first stage is
merely to determine whether ‘similarly
situated' plaintiffs do in fact exist.”
Id. (emphasis in original). Participants in a
potential collective action need not have held identical jobs
or been subject to identical treatment; rather, conditional
certification is appropriate where all putative class members
are employees of the same enterprise and allege the same
types of FLSA violations. See Lin v. Benihana Nat'l
Corp., 275 F.R.D. 165, 173 (S.D.N.Y. 2011).
plaintiffs satisfy this first step and are granted
conditional certification, the Court will then, on a fuller
record, determine whether the actual opt-in plaintiffs are in
fact “similarly situated” to the named
plaintiffs. Myers, 624 F.3d at 555. If the record
reveals that the opt-in plaintiffs are not, then the Court
may decertify the ...