Ansoralli et al v. CVS Pharmacy, Inc.
ORDER granting 41 Motion to Certify (conditionally) FLSA Collective Action. For the reasons set forth herein, plaintiffs motion for conditional certification of a collective action is granted. Ordered by Magistrate Judge Ramon E. Reyes, Jr. on 2/13/2017. (Din, Myra)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MOMINNA ANSORALLI and ZAIRE
LAMAR-ARRUZ,1 on behalf of themselves and
all other similarly situated employees,
MEMORANDUM & ORDER
- against 16–CV–1506 (CBA) (RER)
CVS PHARMACY, INC.,
RAMON E. REYES, JR., U.S.M.J.:
Plaintiffs Mominna Ansoralli (“Ansoralli”) and Zaire Lamarr-Arruz (“Lamarr-Arruz”)
bring this action on behalf of themselves and other similarly situated current and former employees
of defendant CVS Pharmacy, Inc. (“CVS”), alleging violations of the Fair Labor Standards Act,
29 U.S.C. §§ 201–219 (“FLSA”) and New York Labor Law (“NYLL”). Plaintiffs have moved to
conditionally certify a collective action and to distribute notice to putative members of the
collective action pursuant to FLSA § 216(b). Defendant opposes the motion. The reader’s
familiarity with the claims, defenses, and arguments is presumed. For the following reasons, the
motion is granted, and the proposed notice to putative members of the collective action is approved
Section 216 of the FLSA allows an employee to assert claims on behalf of “other
employees similarly situated.” The Second Circuit has endorsed a two-step process to determine
whether to certify a collective action. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010).
When this action was filed, Lamarr-Arruz’s legal name was Sheree Steele. The caption will be changed
Generally, the Court examines “whether putative plaintiffs are similarly situated at an early ‘notice
stage’ and then again after discovery is largely complete.” McGlone v. Contract Callers, Inc., 867
F. Supp. 2d 438, 442 (S.D.N.Y. 2012) (citation omitted). Here, Plaintiffs move for conditional
certification and judicial notice at the early “notice stage.”
At this preliminary stage, the court makes “an initial determination to send notice to
potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiff with respect to
whether a FLSA violation has occurred.” Myers, 624 F.3d at 555 (citations omitted). Because the
evidence is generally limited at this stage in the litigation, plaintiffs 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. (citation and quotation marks omitted). The factual showing for
conditional certification is a “lenient one” but “even if modest, must still be based on some
substance.” McGlone, 867 F. Supp. 2d at 443 (citations omitted); see also Myers, 624 F.3d at 555
(“The ‘modest factual showing’ cannot be satisfied simply by ‘unsupported assertions,’ but it
should remain a low standard of proof because the purpose of this first stage is merely to determine
whether ‘similarly situated’ plaintiffs do in fact exist.”) (citations omitted). “The Court does not
resolve factual disputes or decide substantive issues at this stage, but rather examines the pleadings
and affidavits to determine whether the named plaintiff and putative class members are similarly
situated.” Ali v. New York City Health and Hosps. Corp., No. 11–CV–6393 (PAC), 2013 WL
1245543, at *1 (S.D.N.Y. Mar. 27, 2013) (citation omitted).
Plaintiffs have submitted declarations from themselves and five other former CVS
employees who worked as market investigators under the supervision of regional loss prevention
managers Anthony Salvatore and Abdul Saliu. These declarations aver that Salvatore and Saliu
required market investigators to work “off-the-clock,” performing various tasks, and that such
work resulted in unpaid overtime. (Dkt. Nos. 44-50.) The off-the-clock tasks included: responding
to work-related telephone calls, emails and text messages from Salvatore and Saliu, attending
meetings with other market investigators, completing paperwork and communicating with police
about shoplifting suspects “caught” while on-the-clock, and performing surveillance of shoplifting
suspects even after having “clocked-out” (Id.) These allegations are sufficient to meet plaintiffs’
modest burden on a motion for conditional certification.
CVS opposes conditional certification on two main bases. First, CVS contends that
Plaintiffs’ complaint and declarations fall short of establishing the existence of a formal, uniform
companywide policy to require employees to work “off-the-clock” and not pay overtime wages.
(Dkt. No. 51 at 7-10.) CVS argues that at most Plaintiffs have alleged merely “unlawful actions
by individual, anomalous managers”, which are not subject to collective action certification. (Id.
at 10.) Second, CVS argues that Plaintiffs are not similarly situated to the putative collective action
members because the factual allegations regarding the terms and conditions of employment in the
complaint and Plaintiffs’ declarations are “entirely different” than those of the five other former
CVS employees. (Id. at 10.) CVS’s arguments are misplaced.
As to CVS’s first argument, the FLSA does not require that a plaintiff identify a formal,
facially unlawful policy before obtaining conditional certification of a collective action. See
Bijoux v. Amerigroup N.Y. LLC, No. 14-cv-3891 (RJD) (VVP), 2015 WL 5444944, * 3 (E.D.N.Y.
Sept. 15, 2015). Rather, is it sufficient to show that a defendant’s managers implemented a facially
lawful policy in an unlawful manner, resulting in a pattern or practice of FLSA violations. Amador
v. Morgan Stanley & Co. LLC, No. 11 Civ. 4326, 2013 WL 494020, at *6 (S.D.N.Y. Feb. 7, 2013)
(quoting Winfield v. Citibank, N.A., 843 F.Supp.2d 397, 405 (S.D.N.Y. 2012) and citing Hernandez
v. Merrill Lynch & Co., No. 11 Civ. 8472, 2012 WL 1193836, at *45 (S.D.N.Y. Apr. 6, 2012)).
To hold otherwise would allow employers to avoid FLSA collective action certification simply by
promulgating compliant handbooks and policies, while letting their managers run roughshod over
the FLSA’s requirements. Therefore, CVS cannot defeat Plaintiffs’ motion on this basis.
With regard to CVS’s second argument, at this stage it is immaterial that there may be
factual differences between the complaint and the various declarations in support of the motion for
conditional certification.2 There is nothing in the FLSA that requires complete symmetry in
employment between the plaintiffs and the collective before the collective is conditionally
certified. Cf. Alvarez v. IBM Restaurants, Inc., 839 F.Supp.2d 580, 584 (E.D.N.Y. 2012) (FLSA
and its implementing regulations do not define “similarly situated”). All that is necessary is “‘some
identifiable factual nexus which binds the named plaintiffs and potential class members together
as victims’ of a particular practice.” Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y.
1997) (quoting Heagney v. Eurpoean Am. Bank, 122 F.R.D. 125, 127 (E.D.N.Y. 1988)). Suffice
it to say, Plaintiffs and the putative collective are sufficiently similar in that they were all required
to work off-the-clock and were not paid for that time.3 Indeed, courts routinely grant conditional
certification despite factual variances between the plaintiff and the putative collective. See e.g.,
Chen v. XpresSpa at Term. 4 JFL, LLC, No. 15-cv-1347 (CBA) (CLP), 2016 WL 5338536, *5
(E.D.N.Y. Sept. 23, 2016); Lynch v. United Services Auto. Ass’n, 491 F. Supp. 2d 357, 369
CVS’s contention that the factual allegations in the complaint regarding Plaintiffs’ declarations and would-be optins “are entirely different” is simply wrong. (Dkt. No. 51 at 10 (emphasis added)). There is much similarity in the
allegations, even if not complete symmetry. Again, complete symmetry is not required at this early stage.
For similar reasons, CVS’s arguments regarding timeliness, preclusive effect of arbitration agreements, and the de
minimis exception to the FLSA are irrelevant. These are issues to be raised in the decertification phase, after
discovery has been completed.
Content of the Notice
CVS objects to several aspects of the proposed collective action notice: (1) distribution by
first-class mail, email, text message and posting at stores; (2) the six-year limitation period running
from when the motion was filed; (3) failure to include a statement of (a) CVS’s defenses to the
action, (b) opt-ins’ discovery and trial obligations, and (c) opt-ins’ responsibility to pay costs and
fees if they do not prevail; (4) references to state and federal laws other than the FLSA; (5) filing
of opt-in forms with plaintiffs’ counsel rather than the Clerk of the Court; and (6) failure to include
contact information for defense counsel. (Dkt. No. 51 at 17-25.)
District courts have discretion to determine what constitutes adequate notice to a putative
collective under the FLSA. Laroque v. Domino’s Pizza, LLC, 557 F.Supp.2d 346, 356 (E.D.N.Y.
2008). “Courts consider the overarching policies of the collective suit provisions and whether the
proposed notice provides accurate and timely notice concerning the pendency of the collective
action, so that [an individual receiving the notice] can make an informed decision about whether
to participate.” Delaney v. Geisha NYC, LLC, 261 F.R.D. 55 (S.D.N.Y. 2009).
Notice by first-class mail and email is appropriate here. Given the relatively limited nature
of the putative collective – market investigators under the supervision of Salvatore and Saliu, rather
than all market investigators in CVS’s employ – posting at all CVS stores in New York City is
inappropriate. Accordingly, Plaintiffs and CVS shall meet and confer on the wording of the email
and raise any disputes with the Court within seven business days.
The notice period shall be six years from the date the motion for conditional certification
was served on CVS, which was August 30, 2016. (Dkt. No. 31). See also Winfield v. Citibank,
N.A., 843 F.Supp.2d 397, 410–11 (S.D.N.Y. 2012) (finding it permissible to extend notice period
to six years for class members employed in New York that may have NYLL claims);
Schwerdtfeger v. Demarchelier Mgmt., Inc., No. 10 Civ. 7557, 2011 WL 2207517, at *3 (S.D.N.Y.
June 6, 2011) (noting that there may be a number of employees with both timely FLSA and state
law claims, and the total number of potential plaintiffs does not appear to be so large that requiring
the defendants to provide information for employees dating back six years would be unduly
burdensome; also noting that “responses by any former employees who have potential claims
under New York law, but not under the FLSA, may be relevant to a subsequent determination as
to whether a class should be certified under New York law”) (internal citations and quotations
omitted); Klimchak v. Cardrona, Inc., 09-cv-4311, 2011 WL 1120463, at *7 (E.D.N.Y. Mar. 24,
2011) (“...it is appropriate to permit plaintiffs to provide notice to potential opt-in plaintiffs who
may have viable state law claims within the six (6) year statute of limitations period, even if those
plaintiffs’ FLSA claims might be time-barred.”); Pineda v. Jim–Mar Consultants, Inc., 741 F.
Supp. 2d 403, 404 (E.D.N.Y. 2010) (finding it appropriate and in the interest of judicial economy
to allow a six-year period to apply where claims under the FLSA and New York Labor Law were
alleged, even if some recipients of the notice would have claims that are time-barred under the
FLSA) (internal quotations and citations omitted); Kumar Realite v. Ark Restaurants Corp., 7
F.Supp.2d 303, 308 (S.D.N.Y. 1998) (Sotomayor, J.) (authorizing the plaintiffs in collective action
to provide notice to employees who worked at defendants’ New York restaurants within the last
six years of the pendency of the lawsuit as “[i]t will then be up to those individuals to decide
whether they wish to opt-in to this action”). In this regard, it is also appropriate for the notice to
include the phrase “which is one of the laws under which this action was commenced.” (Dkt. No.
51 at 21.) See also Guzman v. VLM, Inc., No. 07-cv-1126 (JG)(RER), 2007 WL 2994278, *7
(E.D.N.Y. Oct. 11, 2007).
There shall be no reference in the notice to opt-ins’ discovery and trial obligations or their
responsibility to pay costs or fees if they do not prevail. Id. at *7-8. The notice shall, however,
include a general denial of liability in the introductory section as per Anjum v. J.C. Penney Co.,
No. 13-cv-460 (RJD)(RER), 2015 WL 36030973, at *15 (E.D.N.Y. June 5, 2015), and list
defendant’s counsel as well. Guzman, 2007 WL 2994278, at *8.
Finally, opt-in forms shall be filed with the Clerk of the Court, not plaintiffs’ counsel.
Lujan v. Cabana Mgmt., Inc., 10–cv–755 (ILG), 2011 WL 317984, at *13 (E.D.N.Y. Feb. 1, 2011);
Bowens v. Atlantic Maint. Corp., 546 F.Supp.2d 55, 84-85 (E.D.N.Y. 2008); Guzman, 2007 WL
2994278, at *9. Such a measure will safeguard against the possibility that opt-in plaintiffs would
be discouraged from seeking outside counsel.
For the reasons set forth above, plaintiffs’ motion for conditional certification of a
collective action is granted.
Ramon E. Reyes,Jr.
Ramon E. Reyes, Jr.
United States Magistrate Judge
Dated: February 13, 2017
Brooklyn, New York
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