Miranda v. General Auto Body Works Inc. et al

Filing 27

ORDER granting 8 Motion to Certify FLSA Collective Action. Parties are to submit a revised notice that complies with this Order by 10/31/2017. So ordered by Magistrate Judge Ramon E. Reyes, Jr. on 10/18/2017. (Strong, Ardis)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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RONALD MIRANDA, on behalf of himself and
other similarly situated current and former auto
body workers and mechanics,
Plaintiffs,

SUMMARY ORDER

against -

17-cv-04116 (AMD) (RER)

GENERAL AUTO BODY WORKS, INC.,
d/b/a GENERAL AUTO BODY WORKS and
JUNIOR AUTO COLLISION and JUNIOR
BACCHUS and MOHAMMED BACCHUS
individually,
Defendants.
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RAMON E. REYES, JR., U.S.M.J.:
Plaintiff Ronald Miranda (“Miranda”) brings this action on behalf of himself and other
similarly situated current and former auto body workers and mechanics of defendant General
Auto Body Works, Inc., and individual owners Junior Bacchus and Mohammed Bacchus
(collectively “Defendants”) alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§
201–219 (“FLSA”) and New York Labor Law (“NYLL”). Plaintiffs have moved pursuant to
FLSA § 216(b) to conditionally certify a collective action and to distribute notice to putative
members of the collective. Defendant opposes the motion. For the following reasons, the
motion is granted and the proposed notice to putative members of the collective action is
approved with modifications.
DISCUSSION
A. Conditional Certification
Section 216(b) of the FLSA allows an employee to assert claims on behalf of himself and
“other employees similarly situated.” The Second Circuit has endorsed a two-step process to
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determine whether to certify a collective action. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d
Cir. 2010). 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 assertions of the named plaintiff may be enough to meet this minimal burden. See Fa Ting
Wang v. Empire State Auto Corp., No. 14 Civ. 1491, 2015 WL 4603117, at *6 (E.D.N.Y. July
29, 2015) (granting conditional certification where the plaintiff's affidavit set forth a defendant's
plan or scheme to not pay overtime compensation and identified by name similarly situated
employees).
In support of this motion, Miranda has submitted a declaration in which he alleges that
during his five years of employment as an auto body worker and mechanic, the Defendants

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regularly failed to pay him for overtime hours. (Dkt. No. 11 (“Miranda Decl.”) at 2). In this
declaration, Miranda also claims that Defendants do not accurately track employees’ work hours,
and intentionally omitted overtime hours from his paystub. Id. at 2-3. Miranda also identifies two
other auto body workers and mechanics, Axel Galea and Carlos Castellano, who claim that
Defendants failed to pay them overtime compensation for hours worked over 40 hours. Id. at 3.
Defendants argue that Miranda’s declaration and complaint do not meet the minimal
evidentiary burden required for conditional certification. (Dkt. No. 16-1 (“Defs. Opp’n Memo”)
at 6.) I disagree. While it is true that mere allegations are not enough to justify conditional
certification, Myers, 624 F.3d at 555, there are numerous examples of courts in this Circuit
granting conditional certification based on the pleadings and a single affidavit by the plaintiff.
See, e.g., Zaldivar v. JMJ Caterers, Inc., 166 F. Supp. 3d 310, 314 (E.D.N.Y. 2016); Escano v. N
& A Produce & Grocery Corp., No. 14 Civ. 4239, 2015 WL 1069384, at *1 (S.D.N.Y. Mar. 11,
2015); Gonzalez v. Scalinatella, Inc., No. 13 Civ. 3629, 2013 WL 6171311 (S.D.N.Y. Nov. 25,
2013); Cheng Chung Liang v. J.C. Broadway Rest., Inc., No. 12 Civ. 1054, 2013 WL 2284882,
at *1 (S.D.N.Y. May 23, 2013). Here, Miranda’s claims based on personal observation and
conversations with a small collective of co-workers who share the same duties and
responsibilities, is enough to show a “factual nexus” supporting a “common discriminatory
scheme.” Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261, (S.D.N.Y. 1997). Furthermore, the
Defendants themselves have suggested evidence of inadequate overtime and notice policies by
requesting all members of the potential collective to sign release waivers of all NYLL claims in
exchange for a $400 “settlement.” (Dkt. No. 16 (“Employee Releases”)).
The plaintiff has sufficiently demonstrated the possibility of a similarly situated
collective of employees. Therefore, conditional certification is granted.

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B. Proposed Notice
Defendants request the following modifications to the notice proposed by the Plaintiffs:
(1) change the notice period from six to three years; (2) remove all reference to state law claims
under the NYLL; (3) clarify language regarding employee’s right to opt-in; and (4) reduce the
number of times the name of plaintiff’s counsel appears on the notice. (Defs. Opp’n Memo at 78). The Defendants also request notification by mail only, and not by posting the notice at the
work place. Id. at 8. Acknowledging that the district court has broad discretion to determine the
form and content of the notice, Valerio v. RNC Indus., LLC, 314 F.R.D. 61, 76 (E.D.N.Y. 2016)
(citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)), I will address each of the
Defendant’s requests in turn.
i.

Content of Notice

The Defendants argue that the period of notice should reflect the 3-year statute of
limitations of the FLSA §255(a), (Defs. Opp’n Memo at 7), rather than the 6-year statute of
limitations reflected in NYLL §195. The courts of this Circuit may grant either a 3-year or a 6year notice period in FLSA/NYLL collective actions depending on the facts of each case. See
Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545, 563 (S.D.N.Y. 2013) (collecting
cases). Courts granting the 6-year notice period cite the “economy of providing notice to
plaintiffs with FLSA claims who may also have NYLL claims subject to a six-year statute of
limitations.” Id. Generally, courts are more apt to grant a 6-year notice period when, as in this
case, the potential class size is small and “the notice itself mitigates possible confusion.” Rojas v.
Kalesmeno Corp., No. 17 Civ. 0164, 2017 WL 3085340, at *6 (S.D.N.Y. July 19, 2017); see also
Klimchak v. Cardrona, Inc., No. 09 Civ. 04311, 2011 WL 1120463, at *7 (E.D.N.Y. Mar. 24,
2011) (“[S]ince the number of potential plaintiffs is not large, it is appropriate to permit plaintiffs

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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 timebarred.”).
However, Defendants argue that there are no potential plaintiffs entitled to the 6-year
NYLL statute of limitations because all of the putative class members (eight employees total)
have signed releases that waive their right to sue Defendants on the NYLL claims. (Defs. Opp’n
Memo at 7); (see also Employee Releases). Defendants cite several cases to support the validity
of such releases under New York law. See Nikci v. Quality Bldg. Servs., 995 F. Supp. 2d 240
(S.D.N.Y. 2014) (upholding a settlement agreement negotiated by a union representative);
DiFilippo v. Barclays Capital, Inc., 552 F. Supp. 2d 417 (S.D.N.Y. 2008) (enforcing an
agreement that released employer from overtime claims arising under NYLL). However, neither
case addresses the validity of waivers of the notice requirement of the New York Wage and
Theft Prevention Act, which is at issue here and which the New York Department of Labor has
stated cannot be waived. NY DEPT. OF LABOR, WAGE AND THEFT PREVENTION ACT FREQUENTLY
ASKED QUESTIONS (2011), https://labor.ny.gov/workerprotection/laborstandards/PDefs/wagetheft-prevention-act-faq.pdf.
Additionally, under New York law, a release of this nature is only binding if it was
entered into knowingly and voluntarily, and was not the product of fraud, duress, or undue
influence. DiFilippo, 552 F. Supp. 2d at 426 (quotations omitted). Here, Miranda alleges that at
least some of the potential plaintiffs did not know they were signing a settlement agreement
when they signed the Defendants’ release. (Dkt. No. 23 (“2nd Miranda Decl.”)). Because there
are unsettled issues of fact and law regarding the validity of the potential plaintiffs’ NYLL
claims, it would be premature for the Court to ignore these claims at this stage of the litigation.

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Therefore, notice should include all auto body workers and mechanics employed by General
Auto Body Works, Inc. since July 11, 2011 and should include reference to both FLSA and
NYLL claims.
The Defendants also requested modifications of the opt-in language and the removal of
the contact information for plaintiff’s counsel currently at the bottom of each page. (See Dkt.
No. 10 (“Pls. Notice”); Defs. Opp’n Memo at 7). While I disagree with Defendants’ contention
that the presence of Plaintiff’s counsel’s name at the bottom of each page “leads a reader to
insinuate that Defendant has committed various wrongdoings,” (Defs. Opp’n Memo at 8), the
presence is nevertheless excessive and unnecessary. It will be removed.
ii. Form of Notice
The Plaintiff requests that, in addition to mailing the notice, Defendants also post the
notice in their shops, Junior Auto Collision and General Auto Body Works. Courts often approve
requests to post notices on employee bulletin boards or common areas even when potential
members will also be notified by mail. Fa Ting Wang, 2015 WL 4603117, at *7; see also
Enriquez v. Cherry Hill Market Corp., No. 10 Civ. 5616, 2012 WL 440691, at *5 (E.D.N.Y. Feb.
10, 2012) (“Posting the notice is a reasonable means of assuaging the vagaries of notice by mail,
and would not unduly burden the defendants.”). Here, defendants have not alleged that they
would incur an undue burden from posting the notice in their shop. Therefore, the notice should
be both mailed and posted.
C. Scope of Discovery
In order to provide effective notice to the putative class, Miranda requests the Defendants
turn over the names, last known addresses, telephone numbers, dates of employment and social
security numbers of all potential class members. (Dkt. No. 9 (“Pls. Memo”) at 9). Defendants

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object to providing the social security numbers. (Defs. Opp’n Memo at 8). Courts in collective
actions will generally order the discovery of names, addresses, telephone numbers, email
addresses, and dates of employment of potential collective members. Sharma v. Burberry Ltd.,
52 F. Supp. 3d 443, 465 (E.D.N.Y. 2014). However, courts are reluctant to authorize disclosure
of private information, such as dates of birth and social security numbers, unless the plaintiff
shows that such information is necessary to notify potential opt-ins. Zaldivar, 166 F. Supp. 3d at
326. Here, Miranda has not provided the Court with any evidence that social security numbers
are necessary for notification of this collective. Thus, Defendants are only required to turn over
the names, last known addresses, telephone numbers, and dates of employment of members of
the putative collective.
CONCLUSION
For the reasons set forth above, plaintiffs’ motion for conditional certification of a
collective action is granted. The parties are to submit a revised notice that complies with this Order
and to file the same on ECF by October 31, 2017.

SO ORDERED.
Dated: October 18, 2017
Brooklyn, New York

Ramon E. Reyes,Jr.
Ramon E. Reyes, Jr.
United States Magistrate Judge

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