YANG v. VILLAGE SUPERMARKETS, INC. et al
Filing
28
OPINION. Signed by Judge William H. Walls on 3/20/2019. (ek)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
YING YANG, on behalf of himself and all other
persons similarly situated,
Plaintiff,
OPNION
V.
VILLAGE SUPER MARKET, INC., VILLAGE
SUPER MARKET Of NJ, LP, RONALD L.
GOLEY, HUA HUANG, JOAQUIM BATISTA
IMPROPERLY NAMED AS JACK BATISTA, et
al.,
1 8-cv- 10486 (WHW)(CLW)
Defendants.
Walls, Senior District Judge
Plaintiff Ying Yang moves to conditionally certify a class of hourly paid, non-managerial
individuals employed by Village Super Market, Inc. d/b/a ShopRite, Village Super Market of NJ,
L.P. d/b/a ShopRite, Ronald L. Goley, Hua Huang, Jack Batista, and certain fictitious individuals
and entities (collectively the “Defendants”), for failing to pay overtime pay as required under the
fair Labor Standards Act (“fLSA”), 29 U.S.C.
§
2 16(b), et seq. (2013). Plaintiff also moves for
equitable tolling of the FLSA statute of limitations. The motion has been decided from the written
submissions of the parties under Federal Rule of Civil Procedure 78. The motion is granted.
FACTUAL AND PROCEDURAL BACKGROUND
Unless otherwise stated, all facts are taken from Plaintiffs First Amended Complaint
(“FAC”) (ECF No. 4). Plaintiff Yang was hired as a chef for the Chinese food outlet of ShopRite
in Livingston, New Jersey on about September 20, 2016, and remained employed there until April
27, 2018. Id.
¶ 32.
Yang is an immigrant originally from China. Yang. Decl. (ECf No. 18-5)
He was advised he would receive a $40,000 salary as a chef for ShopRite. FAC
¶ 41.
¶ 3.
At his job,
Yang prepared Chinese food, but was also assigned miscellaneous food-related tasks (e.g., packing
NOT FOR PUBLICATION
sandwiches). Id.
¶J
32-37. Plaintiff worked five days a week, usually from 9:00 a.m. until 7:00
p.m. Id. He was eventually fired, allegedly by Defendant Batista, the manager of the store. Id.
¶
45. Plaintiff now claims he, and the class he seeks to represent, are entitled to recover unpaid
overtime wages of at least one-and-a-half times the regular pay at which they were employed for
every hour worked in excess of forty hours in a single workweek. See Motion for Conditional
Class Certification (ECF No. 18-11) at 3. Plaintiff filed a Collective Class Action Complaint in
this Court on June 12, 2018. See ECF No. 1. He then amended his complaint on June 26, 2018.
See ECF No. 4. Defendants answered the Complaint on July 31, 201$. See ECF No. 14. Yang now
moves for conditional certification of all hourly paid. non-managerial individuals employed by
Defendants for their failure to pay overtime pay as required under the Fair Labor Standards Act
(“fLSA”), 29 U.S.C.
§ 216(b), et seq.
(2013).
STANDARD OF REVIEW
Section 216(b) of the FLSA authorizes employees to bring an action on behalf of
themselves and others “similarly situated.” 29 U.S.C.
§
216(b). “No employee shall be a party
plaintiff to any such action unless he gives his consent in writing to become such a party and such
consent is filed in the court in which such action is brought.” Id.
The Third Circuit has embraced a two-step approach to determine whether a suit brought
under
§ 2 16(b) may move forward as a collective action. See Zavala v.
Wal Mart Stores, Inc., 691
F.3d 527, 536 (3d Cir. 2012) (adopting “two-tier approach” put forth in Symczyk v. Genesis
HealthCare Corp., 656 F.3d 189, 192-93 (3d Cir. 2011), rev’d on other grounds, 133 S. Ct. 1523
(2013)). “Conditional certification,” which is sought in the pending motion, is the initial stage of
that two-tiered analysis. See $ymczyk, 656 F.3d at 192.
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During this initial phase, “the court makes a preliminary determination
whether the
employees enumerated in the complaint can be provisionally categorized
as similarly situated to
the named plaintiff.” Id. “If the plaintiff carries her burden at this threshold
stage, the court will
‘conditionally certify’ the collective action for the purposes of notice and
pretrial discovery.” Id.
At this initial stage, the Third Circuit applies a “modest factual showin
g” standard, under which
“a plaintiff must produce some evidence, ‘beyond pure speculation,’ of a factual
nexus between
the maimer in which the employer’s alleged policy affected her and the manne
r in which it affected
other employees.” Zavala, 691 F.3d at 536 n.4 (quoting Symczyk, 656 f.3d
at 193). This is a “very
low burden,” Portilla v. Bridgehampton Stone, Inc., No. CV 1 72549JMAA
Y$, 2019 WL 1128364,
at *9 (E.D.N.Y. Mar. 12, 2019), and “[t]his lenient standard is typically
easily met and usually
results in conditional certification,” Taylor v. Pilot Corp., No. I 4-CV-2294-S
HL-TMP, 2015 WL
12001270, at *2 (W.D. Tenn. June 16, 2015).
DISCUSSION
I.
Conditional Certification of Plaintiffs’ FLSA Claims is Appropriate
Plaintiff claims he has “submitted sufficient evidence to meet the minim
al standard
required for conditional certification.” Mot. Br. at 7. Defendants operate
a chain of 30 ShopRite
Supermarkets in the Northeast United States. Id. Plaintiff alleges that his depriv
al of overtime pay
was not isolated, but rather “a policy and practice[]” of Defendants. Id. In his
declaration, Plaintiff
lists three other Prospective Collective Action Members who “were similar
ly situated with respect
to their claims under Defendants’ unlawful policy and practices.” Id.; see
also Yang. Decl.
¶J
14-
23. One of these members, Chunling Li, also submitted a declaration stating
he “was not
compensated at one-and-one half of my calculated hourly wage for the hours
hours each week.” Li Decl. (ECF No. 18-6)
¶ 8.
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[] worked over forty
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Defendants contest Plaintiffs motion. They state that since July 2015 to the present,
Defendant Village has employed approximately 6,750 people, of whom 90% were covered by
collective bargaining agreements (“CBAs”). Defs. Resp. Br. (ECF No. 23) at 2-3. Defendants
claim that employees covered by a CBA “were and are all paid ‘time and a half for hours worked
in excess of forty (40) per week.” Id. They further argue that Plaintiff Yang has not put forth
enough concrete evidence for certification, relying instead on inadmissible hearsay statements
from other employees who themselves have not submitted declarations.
This Court finds that conditional certification is appropriate. Plaintiff has made a “modest
factual showing” and produced evidence “beyond pure speculation’ of a factual nexus between
the manner in which the employer’s alleged policy affected him and the manner in which it affected
other employees.” Zavala, 691 f.3d at 536 n. 4 (quoting Symczyk, 656 f.3d at 193). Plaintiff has
shown that he is similarly situated to the putative class through record evidence suggesting that
the Prospective Collective Action Members were subject to the same employment practices.
Courts have certified similar classes of supermarket employees where, as here, “Plaintiffs
declaration and testimony set forth the duties he performed[,] the hours he worked, and the amount
and manner in which he was paid” and plaintiff “observed other [ernployeesj working a similar
number of hours per week as he worked, and discussed with them Defendants’ failure to pay
overtime wages [while] nam[ing other employees] who were also not paid overtime.” Escano v. N
& A Produce & Grocery Corp., No. 14-CV-4239 PAC, 2015 WL 1069384, at *2 (S.D.N.Y. Mar.
11, 2015). While Yang’s declaration containing comments from other putative collective members
may contain hearsay, courts at this stage routinely permit plaintiff to submit “evidence
through... declarations, including any hearsay statements contained therein.” Julian v. MetLfe,
Inc., 29$ F. Supp. 3d 699, 702 (S.D.N.Y. 201$) (emphasis added). That is because “[in] this early
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phase, courts employ a relatively lenient evidentiary standard in determining whether a collective
action is appropriate.” Aquilino v. Home Depot, Inc., No. CIV A 04-CV-4100 PGS, 2006 WL
2583563, at 1 (D.N.J. Sept. 7, 2006).
Regarding the CBAs, whether covered employees were actually paid in accordance to them
is a fact that discovery may shed light on. The duty to pay one-and-a-half times an hourly rate for
overtime work doesn’t derive from a CBA. but from the FLSA. Even where putative class
members “differ in job responsibilities, hours worked, and other details of employment, these
differences do not undermine Plaintiff& showing that they share a common claim that Defendants
violated the fLSA.” Frederick v. Dreiser Loop Supermarket Corp., No. O6CIV.15341(AKH),
200$ WL 4724721, at *1 (S.D.N.Y. Oct. 24, 200$). Since Plaintiff has met his “very low burden,”
Fortilla, 2019 WL 1128364 at *9, and the Court will conditionally certify a class of all nonmanagerial employees.
II.
Equitable Tolling of the FLSA Statute of Limitations is Appropriate
The FLSA provides that actions to recover “unpaid minimum wages, unpaid overtime
compensation, or liquidated damages” must be commenced within two years of the alleged
violation or within three years after the cause of action accrued for willful violations. 29 U.S.C.
§ 255(a). To qualify for relief under the FLSA, a party must “commence his cause of action before
the statute of limitations applying to his individual claims has lapsed.” Symczyk, 656 F.3d at 200
(3d Cir. 2011) (internal citation omitted). To determine when an FLSA collective action is
commenced, the statute differentiates between named plaintiffs and opt-in plaintiffs. See 29 U.S.C.
§
256; Symczyk, 656 F.3d at 200. for named plaintiffs, the action is commenced on the date they
file the Complaint. See 29 U.S.C.
§
256. For opt-in plaintiffs, however, the action is not
commenced until the date on which they file their written consent. Id.
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The Third Circuit has identified “three principal situations in which equitable tolling is
appropriate.” Podobnik v. US, Postal Serv., 409 f.3d 584, 591 (3d Cir. 2005). Those situations
are: (1) “where the defendant has actively misled the plaintiff respecting the plaintiffs cause of
action, and that deception causes non-compliance with an applicable limitations provision”;
(2) “where the plaintiff in some extraordinary way has been prevented from asserting his rights”;
or (3) “where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Id.
Plaintiff argues that equitable tolling is appropriate in this case and requests three years to
commence an action. Plaintiff contends that equitable tolling is warranted because Defendant
failed to inform its employees (the potential class members) of their FLSA rights as required by
the FLSA regulations. Yang. Decl. ¶j 12-13. This Court agrees.
The federal Regulations implementing the FLSA read: “Every employer employing any
employees subject to the Act’s minimum wage provisions shall post and keep posted a notice
explaining the Act, as prescribed by the Wage and Hour Division, in conspicuous places in every
establishment where such employees are employed so as to permit them to observe readily a copy.”
29 C.F.R.
§ 516.4. The Third Circuit has held that an employer’s failure to comply with a similar
notice requirement under the Age Discrimination in Employment Act tolled the running of the
180-day administrative filing period “at least until such time as the aggrieved person seeks out an
attorney or acquires actual knowledge of his rights.” Bonham v. Dresser Industries, Inc., 569 F.2d
187, 193 (3d Cir. 1978). This Court has recognized in tolling similar FISA actions that “an
employer’s failure to post a statutorily required notice of this type tolls the running of any period
of limitations.” Kim v. Dongbii Tour & Travel, Inc., No. 2:12-CV-1 136 WI-lW, 2013 WL 5674395,
at *4 (D.N.J. Oct. 16, 2013).
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The FLSA statute of limitations will be equitably tolled for all potential class members
from June 12, 201$ (the date Plaintiffs filed this putative collective action) through a deadline to
be established by this Court for the putative class members to file their respective consents to join
this collective action. Likewise, the Court finds a three-year opt-in from the date of the Complaint
to be appropriate. See Ornelas v. Hooper Holmes, Inc., No. 1 2-CV-3 106 JAP, 2014 WL 7051868,
at *$..9 (D.N.J. Dec. 12, 2014).
III.
Court-authorized Notice is Permitted
Plaintiff requests the Court permit the parties to provide fair and practicable notice to all
potential members of the class. District Courts have the “discretionary power.. to facilitate the
.
sending of notice to potential class members,” Symczyk, 656 F.3d at 194 (3d Cir.2011) (citation
omitted). The notice proposed by Plaintiff—a combination of mailings and postings at applicable
workplaces—is a reasonable and cost-efficient method of ensuring class members receive notice.
See Trinidadv. PretA Manger (USA,) Ltd., 962 F. Supp. 2d 545, 565 (S.D.N.Y. 2013) (“first-class
mail and in-store posting [are] sufficient to provide notice to potential opt-in class members”).
Likewise, Plaintiffs Proposed Notice of Pendency (ECF No. 18-7 at Ex. 3), which Defendants did
not object to, is approved.
CONCLUSION
Plaintiffs’ motion for conditional certification is granted in accordance with the attached
order.
-
/
DATED
L
William H. Walls
Senior United States District Court Judge
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