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Shibetti v. Z Restaurant, Diner and Lounge, Inc.

United States District Court, E.D. New York

September 3, 2019

BONNIE SHIBETTI and KATRINA PUCCINI, individually and on behalf of all others similarly situated, Plaintiffs,



         Plaintiffs 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 ¶¶ 3-4.

         On June 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.

         I. BACKGROUND

         Z Diner 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.

         Puccini 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.

         On 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.

         II. ANALYSIS

         Defendants 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.

         Under 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).

         The 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).

         Courts 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 555.

         The 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).

         If the 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 ...

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