Abdulzalieva v. Advanced Domino, Inc. et al
MEMORANDUM DECISION AND ORDER dated 4/27/2 that plaintiffs' motion for conditional approval to proceed with a collective action 27 is granted. Within 7 days of this order, defendants shall post the notice and consent forms in a conspicuous location at the supermarket. Within 21 days of this order, defendants shall disclose the contact information of the supermarket's non- managerial employees as set forth above. Those who wish to participate in this FLSA collective action must o pt in within 60 days of this order. Plaintiffs may mail and email the reminder notice to potential opt-in plaintiffs 30 days before that deadline. The notice, reminder notice, and the notice posted at the supermarket shall be translated into Russian. ( Ordered by Judge Brian M. Cogan on 4/27/2021 ) (Guzzi, Roseann)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
TATYANA ABDULZALIEVA and ALENA :
DAINEKA, on behalf of themselves and
: MEMORANDUM DECISION
: AND ORDER
others similarly situated,
: 21-cv-124 (BMC)
- against :
ADVANCED DOMINO, INC.; DOMINO
GROUP, LLC; PROGRESS VGA, LLC;
BORIS SALKINDER; GENADI VINITSKI; :
YAKOV BEKKERMAN; and
COGAN, District Judge.
Plaintiffs Tatyana Abdulzalieva and Alena Daineka have sued their former employer and
several of its alleged owners (collectively, “defendants”), contending that they failed to pay
overtime in violation of the Fair Labor Standards Act (“FLSA”) and New York Labor Law
(“NYLL”). Before me is plaintiffs’ motion for conditional approval to proceed with a collective
action and for court-facilitated notice under the FLSA. See 29 U.S.C. § 216(b). Because
plaintiffs have met their burden of showing that they are similarly situated to the non-managerial
employees in the proposed collective, the motion is granted.
Alena Daineka worked as a cashier at defendants’ supermarket for three years, from early
2017 to early 2020. According to her declaration, she worked 60 to 72 hours per week with no
overtime pay. She instead received a flat rate, which started at $13 per hour and eventually rose
to $15 per hour. Daineka further alleges that, each week, defendants provided a paystub and
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check showing fewer hours than she actually worked, paying the remainder of her wages in cash.
Defendants also deducted a half-hour’s wages for a lunch break, even though she did not actually
receive a break.
Tatyana Abdulzalieva worked at the supermarket at roughly the same time as Daineka,
from late 2016 to late 2020. Abdulzalieva spent part of this time as a cashier, working
approximately 50 hours per week. Like Daineka, she alleges that she received a flat rate, which
started at $9.00 per hour and eventually rose to $15.00 per hour. Defendants used the same
alleged payment method. Specifically, they provided a pay stub showing $450 for 30 hours of
work, and then they provided the remaining portion of her wages in cash. Defendants also
deducted a half-hour of wages each day for a non-existent lunch break.
Unlike Daineka, however, Abdulzalieva spent nearly three years – from February 2017 to
November 2019 – working as an “office assistant.” In this role, Abdulzalieva tracked the store’s
inventory and ensured it was properly placed on the shelves. She also recorded employees’
hours. Specifically, the store’s owner and general manager, defendant Boris Salkinder, created
work schedules and tasked Abdulzalieva with recording each employee’s hours in a notebook at
the end of each day. Abdulzalieva also observed another supervisor, defendant Genadi Vinitski,
recording those hours in an Excel spreadsheet. Then, at the end of each week, Abdulzalieva
handed each employee an envelope containing their check and cash payment. For this work,
Abdulzalieva received a flat rate of pay. It started at $3,000 per month, but it then became $350
per week with an additional $1,600 cash payment at the end of each month. Abdulzalieva
alleges that she did not receive overtime compensation.
Daineka and Abdulzalieva contend that they were not alone in receiving a flat rate of pay.
Both name several other employees who, in various conversations at the supermarket, reported
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that they never received overtime compensation. Abdulzalieva adds the names of several other
employees who she recorded receiving a flat rate, paid partly in check and partly in cash. Based
on these allegations, Daineka and Abdulzalieva now seek conditional approval to proceed with a
The Collective Action
The FLSA authorizes employees to bring a collective action to recover unpaid overtime
compensation on behalf of themselves and similarly situated employees. See 29 U.S.C.
§ 216(b). Because similarly situated employees can become plaintiffs only by filing written
consent with the court, see id., courts have discretion to facilitate notice to those employees, see
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). Courts often refer to this
process as “certification.” See, e.g., Weng v. Kung Fu Little Steamed Buns Ramen, Inc., No. 17cv-273, 2018 WL 1737726, at *2 (S.D.N.Y. March 26, 2018). I refer to it as approval to proceed
with a collective action, for this terminology avoids confusion with certification of class actions
under Federal Rule of Civil Procedure 23.
Approval of a collective action consists of a two-step process. See Myers v. Hertz Corp.,
624 F.3d 537, 554–55 (2d Cir. 2010). At the first step, which I call conditional approval, the
court “mak[es] an initial determination to send notice to potential opt-in plaintiffs who may be
similarly situated to the named plaintiffs with respect to whether a FLSA violation has
occurred.” Id. at 555 (quotation omitted). At the second step, “the district court will, on a fuller
record, determine whether a so-called collective action may go forward by determining whether
the plaintiffs who have opted in are in fact similarly situated to the named plaintiffs.” Id.
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This case is at the first step. It requires plaintiffs to 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. (quotation omitted). “The focus of the inquiry is not on whether there has
been an actual violation of law but rather on whether the proposed plaintiffs are similarly
situated with respect to their allegations that the law has been violated.” Beaton v. Verizon New
York, Inc., No. 20-cv-672, 2020 WL 5819902, at *2 (E.D.N.Y. Sept. 30, 2020) (alteration
adopted) (quotation omitted). To show that they are similarly situated, plaintiffs must use
pleadings, affidavits, declarations, and other evidence to establish a “factual nexus” between
their situation and that of the potential opt-in plaintiffs. Fernandez v. On Time Ready Mix, Inc.,
No. 14-cv-4306, 2014 WL 5252170, at *1 (E.D.N.Y. Oct. 4, 2014) (quotation omitted). Courts
have repeatedly emphasized the “minimal” nature of this burden, as “the determination that the
parties are similarly situated is merely a preliminary one that may be modified or reversed at the
second certification stage.” Rosa v. Dhillon, No. 20-cv-3672, 2020 WL 7343071, at *4
(E.D.N.Y. Dec. 14, 2020) (quoting Anjum v. J.C. Penney Co., No. 13-cv-460, 2015 WL
3603973, at *5 (E.D.N.Y. June 5, 2015)).
Here, plaintiffs seek conditional approval of a collective consisting of all non-managerial
employees at the supermarket who did not receive overtime compensation. This collective
would include cashiers, cooks, deli workers, “truck unloaders,” “shelf stockers,” and the staff of
the meat department, fish department, and bakery department. For evidence, plaintiffs rely on
the complaint, their own declarations, and what they say are copies of handwritten employee
This evidence shows that plaintiffs have met their minimal burden. For starters, the
declarations show that plaintiffs were similarly situated to the other cashiers at the supermarket.
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“Several courts have accepted affidavits from two plaintiffs as sufficient to establish a ‘common
policy or practice of failing to pay overtime.’” Id. at *5 (quoting Elamrani v. Henry Limousine,
Ltd., No. 15-cv-2050, 2016 WL 5477590, at *3 (E.D.N.Y. Sept. 28, 2016) (collecting cases)).
This sort of evidence is sufficient when the plaintiffs’ position is a “commoditized” one, such
that an employer would have no reason to treat certain employees any differently than it treated
other employees in a given position. See id. at *6 (addressing gas station attendants); see also
Siewmungal v. Nelson Mgmt. Grp. Ltd., No. 11-cv-5018, 2012 WL 715973, at *3 (E.D.N.Y.
March 3, 2012) (applying this logic to security guards). That logic applies with equal force here.
Both plaintiffs declare that, when they worked as cashiers, defendants used the same payment
method – namely, paying a flat hourly rate, deducting a half-hour’s wages for an unused lunch
break, and then providing a paystub and check for less than 40 hours of work and paying the rest
of the hours in cash. Defendants have offered no reason why they would have paid the other
cashiers any differently.
Plaintiffs have also “go[ne] beyond their own circumstances,” naming other cashiers who
were subject to this policy. See Barrus v. Dick’s Sporting Goods, Inc., 465 F. Supp. 2d 224, 230
(W.D.N.Y. 2006). Abdulzalieva states that, through her work as an office assistant, she
overserved that another cashier, Ludmilla Podgornova, did not receive overtime compensation.
Daineka then states that she spoke with Podgornova, who stated that Daineka “should not expect
overtime pay for [her] long hours, as no cashiers received proper overtime and no cashiers
received an uninterrupted lunch period.” Daineka adds that she “stayed in touch with
Podgornova” after leaving the supermarket, and in March 2021, Podgornova explained that the
“failure to pay overtime is why she left, because at that time she had recently started a family and
the low pay she received was not enough for her family.” This evidence is enough to establish a
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factual nexus between plaintiffs and the other cashiers. See, e.g., Beaton, 2020 WL 5819902,
at *4 (holding that a “technician escort” had shown a factual nexus between himself and the
other escorts where his declaration identified the names and positions of three other workers
“who all complained, in some form or another, that defendant failed to pay them for the full
hours they worked”).
Plaintiffs have also established a factual nexus between themselves and the remaining
non-managerial employees. In her declaration, Daineka reports that, in September or October
2019, she spoke with several employees during a cigarette break. An employee in the fish
department, Larisa Sadlovskaya, was “particularly vocal about her dissatisfaction” with her
work. Sadlovskaya recounted how she “commonly worked many more than forty hours each
week, but received the same pay at a straight hourly rate for all hours that she worked.”
Abdulzalieva declares that she, too, spoke with Sadlovskaya. It was in November 2020, after
Sadlovskaya was terminated. She was “very unhappy,” complaining that Salkinder had treated
her “disrespectfully,” that she had never received overtime, and that defendants “never gave her
lunch breaks even though they deducted such time from her time records.”
Plaintiffs detail several similar conversations. Daineka recalls discussing complaints
about overtime with Angela Gulina, an employee in the bakery department. Abdulzalieva then
recounts conversations with Amalye Sakanyan, Leyla Mamedova, and Naima Ismailova, who all
worked in the bakery department. For each conversation, plaintiffs provide the context, the
content, and the approximate date. These details show that the allegations are not, as defendants
contend, “generalized,” “speculative,” or “conclusory.” Indeed, plaintiffs offer substantially
more detail than the plaintiffs in the cases on which defendants rely. See Sanchez v. JMP
Ventures, LLC, No. 13-cv-7264, 2014 WL 465542, at *2 (S.D.N.Y. Jan. 27, 2014) (denying
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conditional approval where the plaintiff relied on “observations” and “conversations” with other
employees but did not provide any details); see also Chen v. Asian Terrace Rest., Inc., No. 19cv-7313, 2020 WL 4041133, at *3 (E.D.N.Y. July 17, 2020) (conditionally approving a
collective consisting of a restaurant’s non-managerial employees where the plaintiff’s affidavit
identified several other employees who worked more than 40 hours per week at a flat weekly
Plaintiffs also add more compelling evidence: Abdulzalieva’s description of her work as
the office assistant. Through that position, Abdulzalieva allegedly gained access to the list of
employees, the hours they worked, and the compensation they received. She also claims to have
handed out the envelopes with the paystubs, checks, and cash payments. And she names the
specific cashiers, cooks, deli workers, “food preparers,” “unloaders and unpackers,” “counter
workers,” and staff of the fish, meat, and bakery departments who she observed receiving those
payments. These allegations give substance to Abdulzalieva’s claim that she knows and has
observed that the non-managerial employees never received overtime compensation. That, too,
distinguishes this case from the ones that defendants cite. See Zheng v. Good Fortune
Supermarket Grp. (USA), Inc., No. 13-cv-60, 2013 WL 5132023, at *5 (E.D.N.Y. Sept. 12,
2013) (denying conditional approval where the plaintiff stated that she “observed that the time
worked by employees was not accurately reflected by the defendants’ time keeping system” but
“neither identifie[d] these employees nor explain[ed] the basis for her observations”).
Still, defendants insist that Abdulzalieva’s work as an office assistant ensures that she is
not similarly situated to other employees. In defendants’ view, an office assistant falls within the
FLSA exemption for “any employee employed in a bona fide executive, administrative, or
professional capacity.” 29 U.S.C. § 213(a)(1). But even if this work were exempt, Abdulzalieva
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would still be similarly situated through her work as a cashier. And more to the point, other
courts in this Circuit have “recognized that the possible existence of exemptions is a merits issue
that is not relevant at the conditional certification stage.” Jackson v. Bloomberg, LP, 298 F.R.D.
152, 161 (S.D.N.Y. 2014) (citing Trawinski v. KPMG LLP, No. 11-cv-2978, 2012 WL 6758059,
at *4 (S.D.N.Y. Dec. 21, 2012)). Thus, a defendant cannot defeat a motion for conditional
approval “simply by putting forth some evidence that the lead plaintiff falls under one of the
potential exemptions.” Panora v. Deenora Corp, No. 19-cv-7267, 2020 WL 7246439, at *3
(E.D.N.Y. Dec. 9, 2020). 1
At this preliminary stage, plaintiffs’ evidence is enough to show that they and the other
non-managerial employees at the supermarket were victims of a common policy or plan that
violated the law. I therefore grant conditional approval to proceed with a collective action.
Disclosure of Contact Information and the Initial Notice
Plaintiffs have also moved for court-facilitated notice under the FLSA. See HoffmannLa Roche, 493 U.S. at 169. Plaintiffs first seek to require defendants to disclose “the names, last
known mailing addresses, all known home and mobile telephone numbers, all known email
addresses, dates of employment, and positions” for all non-managerial employees who worked at
the supermarket within three years of the filing of the complaint. I will limit it to employees who
worked at the supermarket within three years of this order, because “the statute of limitations
applicable to a plaintiff’s claim continues to run until he or she has filed a written consent with
Defendants have not argued that any other non-managerial employees would fall within an exemption. And while
defendants have also offered their own evidence, “competing declarations do not undermine a plaintiff’s showing in
the first stage of the conditional process” because “the court does not resolve factual disputes, decide substantive
issues going to the ultimate merits, or make credibility determinations.” Beaton, No. 20-cv-672, 2020 WL 5819902,
at *5 (alteration adopted) (quotation omitted).
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the court to join the lawsuit,” Rotari v. Mitoushi Sushi, Inc., 448 F. Supp. 3d 246, 254 (E.D.N.Y.
2020) (quotation omitted), and plaintiffs have not asked for any equitable tolling. Additionally,
defendants need not provide the employees’ phone numbers. See, e.g., Gordon v. Kaleida
Health, No. 08-cv-378S, 2009 WL 3334784, at *9 (W.D.N.Y. Oct. 14, 2009). Because
defendants have not lodged any other objections to this request, I will not otherwise adjust its
Defendants shall disclose this information in a computer-readable format within 21 days
of this order. Plaintiffs may then disseminate the notice to the employees identified above.
Because defendants have not objected to the content of the notice, I will adopt plaintiffs’
proposed notice as long as plaintiffs adjust the date on the notice to reflect that it applies only to
non-managerial employees who worked at the supermarket within three years of this order.
Plaintiffs also seek to send a reminder notice and consent forms either halfway through
the opt-in period or 30 days after the original mailing of the notice. “[T]he weight of caselaw in
the Second Circuit has in recent years moved towards approval of reminder notices in light of the
remedial purpose of the FLSA.” Meo v. Lane Bryant, Inc., No. 18-cv-6360, 2019 WL 5157024,
at *13 (E.D.N.Y. Sept. 30, 2019) (collecting cases). Plaintiffs may mail and email the reminder
notice and consent forms to potential opt-in plaintiffs 30 days before the opt-in deadline, which
shall be halfway through the opt-in period. Because defendants have not objected to any content
in the reminder notice, I will adopt the proposed reminder notice. See, e.g., Panora, 2020 WL
7246439, at *6.
Posting of the Notice
Plaintiffs also seek a court order that defendants post the notice at the supermarket. In
this Circuit, courts “routinely approve requests to post notice on employee bulletin boards and in
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other common areas, even where potential members will also be notified by mail, because it
maximizes potential plaintiffs’ opportunities to be informed of the pendency of the litigation and
consider whether to opt in.” Beaton, 2020 WL 5819902, at *6 (quotation omitted). I therefore
order defendants to post the notice and consent forms at a conspicuous location in the
supermarket within seven days of this order. Defendants need not provide an affidavit providing
proof of compliance, as plaintiffs have requested, since there is no reason to believe that
defendants wish to face the consequences of non-compliance with a court order.
Translations of the Notice
Plaintiffs’ final request is to have the notice translated into Russian. Defendants do not
oppose this request, and courts generally “permit notice to be translated into the mother tongue
of non-English speaking groups of potential plaintiffs.” Valerio v. RNC Indus., LLC, 314 F.R.D.
61, 76 (E.D.N.Y. 2016). The request is granted.
Plaintiffs’ motion for conditional approval to proceed with a collective action  is
granted. Within 7 days of this order, defendants shall post the notice and consent forms in a
conspicuous location at the supermarket. Within 21 days of this order, defendants shall disclose
the contact information of the supermarket’s non-managerial employees as set forth above.
Those who wish to participate in this FLSA collective action must opt in within 60 days of this
order. Plaintiffs may mail and email the reminder notice to potential opt-in plaintiffs 30 days
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before that deadline. The notice, reminder notice, and the notice posted at the supermarket shall
be translated into Russian.
Digitally signed by Brian M.
Dated: Brooklyn, New York
April 26, 2021
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