United States District Court, S.D. New York
FRANCISCO ALVARADO, on behalf of himself, FLSA collective plaintiffs and the class, Plaintiff,
VILLAS MARKET PLACE INC. d/b/a GARDEN GOURMET MARKET, and ANDREAS ZOITAS, Defendants.
MEMORANDUM OPINION AND ORDER
Valerie Caproni, United States District Judge.
Francisco Alvarado has sued his former employer and its owner
for violations of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 201 et seq.,
and the New York Labor Law (“NYLL”), N.Y. Lab.
Law § 190 et seq. See Compl. (Dkt. 1)
¶¶ 1-2. Plaintiff moves for conditional
certification of a collective pursuant to section 216(b) of
the FLSA. See Notice of Mot. (Dkt. 30). For the
following reasons, Plaintiff's motion is granted in part.
worked as a porter for Defendant Villas Market Place, Inc.
(“Villas Market”) between January 2016 and March
2019. See Compl. ¶ 20; Alvarado Decl. (Dkt. 32)
¶ 1. During that time, Villas Market was owned by
Defendant Andreas Zoitas. See Compl. ¶ 7;
Zoitas Decl. (Dkt. 36) ¶ 2.
alleges that, each week, Defendants rounded down the hours
Plaintiff worked to the nearest hour and paid wages only on
those reduced hours instead of actual hours worked.
See Alvarado Decl. ¶ 8. Plaintiff alleges that
Defendants' payroll practices resulted in him being
undercompensated. See id.; see generally
Time Card and Payroll Register (Dkt. 31-2, Ex. B).
Additionally, Plaintiff alleges that, on a daily basis,
Defendants required Plaintiff to arrive at work 15 minutes
before clocking in, and, on Fridays only, required Plaintiff
to stay 30 minutes after clocking out, resulting in unpaid
work. See Alvarado Decl. ¶ 5. Plaintiff also
asserts that, from October 20, 2017, to January 7, 2018,
Defendants required Plaintiff to clock out for 30 minutes per
workday for a meal break, but Defendants did not give him an
actual meal break; instead, he was required to work through
the “break.” Id. ¶ 6. On January 8,
2018, that policy, according to Plaintiff, increased to one
hour per day. Id. ¶ 7.
finally asserts that he observed his co-workers being
subjected to similar policies, identifying four co-workers in
particular with whom he had discussions about those policies.
Id. ¶¶ 2-9. Plaintiff moves for
conditional certification of a collective action on behalf of
“all current and former non-exempt employees” who
were employed by Defendants during the six years preceding
the date that Plaintiff filed the Complaint. Compl. ¶
13; see Proposed Order (Dkt. 30, Ex. 1).
FLSA permits employees to maintain an action “for and
in behalf of . . . themselves and other employees similarly
situated.” 29 U.S.C. § 216(b). In determining
whether to certify a collective action, courts in the Second
Circuit use a two-step process. Myers v. Hertz
Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). At the
notice stage, plaintiffs must establish that other employees
“may be ‘similarly situated'” to them.
Id. at 555. To meet this burden, a plaintiff need
only “make a ‘modest factual showing' that
they and potential opt-in plaintiffs ‘together were
victims of a common policy or plan that violated the
law.'” Id. (citations omitted).
plaintiff's burden at this stage is modest, “it is
not non-existent, ” Fraticelli v. MSG Holdings,
L.P., No. 13-CV-6518, 2014 WL 1807105, at *1 (S.D.N.Y.
May 7, 2014) (quoting Khan v. Airport Mgmt. Servs.,
LLC, No. 10-CV-7735, 2011 WL 5597371, at *5 (S.D.N.Y.
Nov. 16, 2011)), and generally cannot be satisfied by
“unsupported assertions, ” Myers, 624
F.3d at 555. Nonetheless, courts employ a “low standard
of proof because the purpose of this first stage is merely to
determine whether ‘similarly situated'
plaintiffs do in fact exist.” Id. (citation
omitted). At this first stage, therefore, courts do not
examine “whether there has been an actual violation of
law.” Young v. Cooper Cameron Corp., 229
F.R.D. 50, 54 (S.D.N.Y. 2005) (citing Krueger v. N.Y.
Tel. Co., No. 93-CV-178, 1993 WL 276058, at *2 (S.D.N.Y.
July 21, 1993)).
second stage, when the court has a more developed record, the
named plaintiffs must prove that “the plaintiffs who
have opted in are in fact ‘similarly
situated' to the named plaintiffs” and that they
were all subject to an illegal wage practice. She Jian
Guo v. Tommy's Sushi Inc., No. 14-CV-3964, 2014 WL
5314822, at *2 (S.D.N.Y. Oct. 16, 2014) (quoting
Myers, 624 F.3d at 555). The action may be
“‘de-certified' if the record reveals that
[the opt-in plaintiffs] are not [similarly situated], and the
opt-in plaintiffs' claims may be dismissed without
prejudice.” Myers, 624 F.3d at
The Motion to Certify a Collective Is Granted in
offers sufficient evidence to conditionally certify a
collective of porters, cooks, and stock clerks who worked at
Villas Market. Plaintiff has not presented evidence that
other types of employees (such cashiers, cleaners, and