ROBLES v. VORNADO REALTY TRUST et al

Filing 34

OPINION. Signed by Judge Jose L. Linares on 8/21/15. (DD, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PAULA ROBLES individually and on behaif
ofall other persons similarly situated,

Civil Action No 15-1406 (JLL) (JAD)

Plaintiff,

OPINION

v.
VORNADO REALTY TRUST et al,
Defendants.

LINARES, District Judge.
This matter comes before the Court upon Plaintiffs’ Motion to Conditionally Certify the
Class. (ECF No. 29). The Court has carefully considered the submissions made in support of and
in opposition to the instant motion. Pursuant to Federal Rule of Civil Procedure 78, no oral
argument was heard. For the reasons stated below, Plaintiffs’ Motion, (ECF No. 29), is
GRANTED.

I. BACKGROUND

On February 24, 2015, Plaintiff Paula Robles, on behalf of herself and all other persons
similarly situated, brought this action against Vomado Realty Trust (“Vornado”) and Urban
Edge Properties (“UEP”) for, inter alia, damages and other relief relating to overtime
violations of the Fair Labor Standards Act, 29 U.S.C.

§ 201 et seq.(hereinafler the “FLSA”).

(See Complaint, ECF No. 1, ¶1). On April 28, 2015, Defendants answered the Complaint
denying that they violated the FLSA. (Answers, ECF Nos. 24, 26, 1). Plaintiff(and five of
the
¶

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current opt-in Plaintiffs) were employed as Lease Accountants in the Financial Operations
Department by Defendant, Vomado Realty Trust. (Pis.’ Br., ECF No. 29-1 at 6).’ Defendant
UEP is a real estate investment trust and was one of Vomado’s subsidiaries until it became
a
publically traded company on the NYSE by January 15, 2015. (Id. at 8). Plaintiffs’ claims stem
from their working of more than forty hours per week but failing to be compensated for
this
overtime by Defendants Vornado and UEP.
On July 10, 2015, Plaintiffs moved for: 1) conditional collective action certification; 2)
court authorized notice; and 3) production of names and addresses of prospective members of the
class pursuant to 29 U.S.C.

§ 216 (b). Specifically, Plaintiff seeks certification of a proposed class

of: “[P]ersons who were employed by Defendants anywhere in the State of New Jersey in the
Financial Operations Department, or any other equivalent position, and who were not paid
overtime compensation for all hours worked in excess of 40 hours per workweek in violation
of
the FLSA during the three year period preceding th{ej Complaint.” (Complaint, ECF No. 1, ¶l).2
As to conditional certification, Plaintiffs argue the Lease Accountants and the majority of the
Financial Operations Group are similarly situated in that: 1) they routinely work in excess of 40
hours per week without being paid overtime compensation as required by section 7(a) of the FLSA,
29 U.S.C.

§ 207(a); and 2) they perform non-exempt, functionally equivalent job duties for their

job titles regardless of their work for Vomado or UEP. (Id.). Defendants claim however, that
Plaintiffs have failed to show that the putative class is similarly situated for three overarching
reasons.

2

Page numbers of briefing refer to ECF Header numbers.
The operative Complaint was filed February 24, 2015.
2

First, Defendants assert Plaintiffs lack personal knowledge as to whether putative class
members, and other Lease Accountants, were receiving overtime compensation for hours
worked
in excess of forty per week. (Defs.’ Br., ECF No. 32 at 15). Next, Defendants state that
Plaintiffs
improperly seek to challenge the designation of the administrative exemption
of multiple
categories of employees in different departments with different job functions while having
this
Court grant wholesale certification of all these different positions. (Id. at 17). This is improper,
according to Defendants, because an individualized, factual inquiry into each position is necessary
to determine liability (i.e. determine whether each of the different positions satisfies
the
administrative exemption), the nature of this action itself precludes proceeding on a collective
basis. (Id. at 17-18).

Finally, Defendants argue that they have affirmatively shown that the

proposed class members are not similarly situated insofar as certain proposed class members (i)
have been classified as non-exempt throughout the entirety of the applicable statute of limitations
period; (ii) hold a variety of job positions; (iii) perform dissimilar job duties and responsibilities;
and (iv) are supervised by four different supervisors. (Id. at 20).

II. LEGAL STANDARD

The FLSA requires employers to pay overtime compensation for an employee’s work in
excess of 40 hours per week. 29 U.S.C.

§ 207. Adami v. Cardo Windows, Inc., 299 F.R.D, 68, 78

(D.N.J. 2014). Pursuant to 29 U.S.C.

§ 216(b), an employee who has been denied overtime

compensation may bring an action “for and in behalf ofhimself or themselves and other employees
similarly situated” who were affected by their employer’s common policy. The FLSA provides
employees with the ability to bring a “collective action” on behalf of themselves and “similarly
situated” employees. See 29 U.S.C.

§ 216(b). Unlike an opt-out class action brought pursuant to
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Federal Rule of Civil Procedure 23(b) (3), a collective action brought under the FLSA is an “opt
in” action. That means that all members of the collective action must affirmatively elect to
participate. Barrios v. Suburban Disposal, Inc., No. 2:1 2-CV-03663 WJM, 2013 WL 6498086,
at
*2 (D.N.J. Dec. 11,2013).
Courts routinely treat collective action certification under the FLSA as a two-step process.
First, courts consider whether to grant “conditional certification”—the kind of certification which
is the issue of this current Motion. However, “conditional certification’ is not really a certification
but rather is “the district court’s exercise of [its] discretionary power to facilitate the sending of
notice to potential class members, and is neither necessary nor sufficient for the existence of a
representative action under [the] FLSA.” Zavala v. Wal—Mart Stores, Inc., 691 F.3d 527, 536 (3d
Cir.20 12) (internal quotations and citations omitted) (citing Symczyk v. Genesis Health Care Corp.,

656 F.3d 189, 194 (3d Cir.2011) rev’d on other grounds, Symczyk, 133 S.Ct. at 1526 (internal
quotations omitted)).
At the current stage, this Court applies a “fairly lenient standard” to determine whether the
named plaintiffs have made a “modest factual showing” that the employees identified within the
complaint are “similarly situated.” Id. A “modest factual showing” requires plaintiffs to “produce
some evidence, beyond pure speculation, of a factual nexus between the manner in which the
employer’s alleged policy affected her and the manner in which it affected other employees.” Id.
at 536 n. 4 (quoting Symczyk, 656 F.3d at 193). Generally, courts make this determination by
examining the pleadings and affidavits in support or opposition to the proposed collective action.
Adami v. Cardo Windows, Inc., 299 F.R.D. 68, 78 (D.N.J. 2014) (citing Herring v. Hewitt
Associates, Inc., Civ. 06—267(GEB), 2007 WL 2121693, at *5 (D.N.J. July 24, 2007). If the

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plaintiff is successful in making this showing, the court “conditionally certifies” the collect
ive
action for the purposes of notice and pretrial discovery. Zavala, 691 F.3d at 536.

III. DISCUSSION
Given that the parties have not engaged in discovery sufficient to make a final
determination, the Court reviews the parties’ arguments under the first-stage analysis. The
Court
has thoroughly examined the pleadings and declarations in support of and in opposition
to the
proposed collective action. The Court finds that Plaintiffs have made the modest factual showin
g
required for conditional certification but finds certain alterations to Plaintiffs’ purported Notice
to
the Class are appropriate.

A. Plaintiffs are Similarly Situated

The Declarations submitted by Plaintiffs are substantially similar. That is, all of the opt-in
3
Plaintiffs submitted declarations stating that they worked as Lease Accountants for Defend
ant
Vomado until January 1, 2015 when each became a UEP employee as a result of UEP’s spin-o
ff
from Vornado. (ECF Nos. 29-4, 29-5, 29-6, 29-7, 29-8, 29-9, ¶2). Plaintiffs also state their
department and categorize such as a “subgroup in the Financial Operations Department.” (Id. ¶J56). Following UEP’s spin-off from Vomado, each Plaintiffmaintains that UEP’s General Counsel
stated that all members of the Financial Operations Department has been misclassified as exemp
t
under the FLSA and that going forward, they would be reclassified as non-exempt and
paid
overtime. (Id. ¶1 3).4 However, prior to 2015, Plaintiffs claim that they worked more than 40
hours
Specifically, Plaintiffs Vasilenko, Young, Vera, Isidro, Wallace, and Robles each submit
ted
declarations. (ECF Nos. 29-4, 29-5, 29-6, 29-7, 29-8, 29-9).
Thus, refuting Defendants’ assertion that what Plaintiffs are really challenging is the
determination of whether they are exempt under the FLSA.
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per week, and that they were not paid overtime because “Defendants never mainta
ined a system
to accurately track overtime hours.” (Id. at ¶J10, 12). Plaintiffs also indicat
e that they are not
aware of a single member in the Financial Operations Department who
was paid overtime until
the 2015 reclassification.

(Id. ¶24). Accordingly, Plaintiffs have “produce[d] some evidence,

‘beyond pure speculation,’ of a factual nexus between the manner in which the employ
er’s alleged
policy affected her and the manner in which it affected other employees.” Zavala
, 691 F.3d at 536
(quoting Syinczyk, 656F.3dat 189).
Despite the aforementioned Declarations, Defendants contend that Plainti
ffs are not
similarly situated to Plaintiff Robles.

A review of Defendants’ submissions is worthwhile.

Defendants essentially attack Plaintiffs’ claims that the sub..groups of the Financ
ial Operations
Department purport similar salaries and circumstances of employment. First, Defend
ants submit
the Declaration of David Perl, Vornado’s Vice President of Lease Administratio
n who explains
that Lease Accountants and Lease Administrators have different work obligations.
(ECF No. 321, ¶5). Defendants also provided the Court with a Declaration from the Vice Presid
ent of Financ

ial

Operations at UEP, Howard Goodman, who states that during his employment
at Vomado there
was no “Financial Operations Department” and to the best of his knowledge
the functions under
UEP’s Financial Operations Department were part of several other departments
under Vomado.
(ECF No. 32-2, ¶3).

Mr. Goodman also states that Lease Accountants perform completely

different work that staff members in accounts payable, cash collections, cash
application and lease
administration.

(Id. ¶11).

Further, Jayne Higgins, Vornado’s Vice President of “Accounts

Payable” also bolstered this point, stating that Accounts Payable Processors
have different duties
from Lease Accountants. (ECF No. 32-3, ¶J5-6). And finally, Vornado’s “Acco
unts Receivable”

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Vice President, Jill Rothschild, explained that Lease Accountants are not similarly
situated to cash
and collection employees as their responsibilities are different. (ECF No. 32-4,
¶J5-7).
The Court however, remains convinced that at this juncture, Plaintiffs have
provided
enough evidence that they are similarly situated. Specifically, Plaintiffs, by way
of Reply Brief,
concede that they have only offered evidence of the following sub-groups within
the Financial
Operations Department: 1) the Accounts Receivable Billing Group; 2) the Lease
Administration
Group; and 3) the Cash Applications Group. (See ECF No. 33 at 2, 16). For this
reason the Court
will conditionally certify only these groups. More to the point, the various Declar
ations submitted
by Defendants miss the mark in that they describe a different structure at UEP but fail
to show that
opt-in plaintiffs bring different claims and/or seek a different form of relief. Pearsa
il-Dineen v.
Freedom Mortgage Corp., 27 F. Supp. 3d 567, 570 (D.N.J. 2014) (citing Adami
, 299 F.R.D. at
79).

Indeed, Plaintiffs claim that they are entitled to overtime compensation prior
to the

reclassification and Defendants do not contend that the relevant sub-groups of
the Financial
Operations Department were inapplicable to this reclassification. Further, Plainti
ffs purport that
they shared the same job responsibilities and were all subject to policies requiring
them to work in
excess of forty hours per week but were not compensated for those excess hours. The
conditional
certification decision “typically results in ‘conditional certification’ of a representative
class,” and
this case is no exception. See Morisky v. Public Serv. Elec. & Gas Co., 111 F.Supp
.2d 493, 496
(D.N.J.2000)(internal quotation and citation omitted).
B Notice

Upon conditional certification of a FLSA collective action, a court has discretion to provid

e

court-facilitated notice to potentially eligible members of the collective action.
Hoffinann—La
Roche Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)
. Such notice
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ensures that employees receive “accurate and timely notice concerning the
pendency of the
collective action, so that they can make informed decisions about whether
to participate.” Id. The
notice also “serves the legitimate goal of avoiding a multiplicity of duplica
tive suits and setting
cut off dates to expedite the disposition of the action.” Id. at 172, 110 S.Ct. 482.
Defendants claim that the proposed notice submitted by Plaintiffs is inappropriate
as it fails
to alert potential plaintiffs of certain contingencies affecting their rights to partici
pate in the instant
lawsuit. For example, these include: 1) their right to obtain their own counse
l or bring their own
case within the relevant statute of limitations period; 2) the Court’s later possib
le determination
that some Plaintiffs may not be part of this collective action; 3) the possibility
that opt-in plaintiffs
may be required to participate in written discovery; 4) the possibility that if Defend
ants prevail,
the opt-in plaintiffs may be responsible for certain litigation costs; and 5) Defend
ants’ counsel’s
contact information. (ECF No. 32 at 21). Plaintiffs do not appear to specifically
oppose these
additions but rather indicate that these notice provisions were accepted in a previo
us case in this
District. (Citing Pearsall-Dineen v. Freedom Mortgage Corp., 27 F. Supp. 3d 567
(D.N.J. 2014).
Indeed, the proposed notice form provides a short description of the lawsuit, explain
s class
members’ right to make a claim, the effect of doing so, the relevant statute of limitat
ions, a notice
that FLSA prohibits retaliation against employees who join the action, and a consen
t form for
employees who wish to opt into the collective action. Pearsall-Dineen v. Freedo
m Mortgage
Corp., 27 F. Supp. 3d 567, 573. Further concerning distribution of the notice, a
ninety-day notice
period for potential class members was proposed, which is a notice period this
Court deems
appropriate and reasonable. Thus, the Court agrees with Plaintiffs with one
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caveat. That is,

Keeping in mind that district courts may “regulate their practice [of facilitating
notice] in any
manner not inconsistent with federal or local rules.” Id. (internal quotation mark
omitted) (quoting
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although the proposed notice does indicate opt-in plaintiffs’ right to bring their own
case, it does
not explain that this can be done with their own counsel. With this in mind, the
Court finds this
addition (as well as the addition of Defendants’ counsel’s contact information)
shall be made
before the notice is distributed.
Finally, Defendant shall produce the relevant names, addresses, phone numbers and
email
addresses of potential class members, as such material may properly be discovered
to facilitate
notice of a FLSA collective action. See Hoffmann—La Roche, 493 U.S. at 170, 110 S.Ct.
482. The
Court notes that such was not objected to by Defendants.
IV. CONCLUSION

For the reasons set forth above, Plaintiffs’ Motion for Conditional Certification, (ECF No.
29), is GRANTED.

An appropriate Order accompanies this Opinion.

/
DATED:

/

....

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I

JS L. Linares
/United States District Judge

Fed.R.Civ.P. 83); see also Garcia v. Freedom Mortg. Corp., No. 09—cv--2668 (JEI),
2009 WL
3754070, at *6 (D.N.J. Nov. 2, 2009).
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