Cohan et al v. Columbia Sussex Management, LLC

Filing 82

MEMORANDUM & ORDER granting 73 Motion to Certify FLSA Collective Action; For the foregoing reasons, Defendant's Objections (Docket Entry 42) are OVERRULED and Judge Tomlinson's Certification Order is AFFIRMED. In addition, Plaintiffs� 39; motion to equitably toll the statute of limitations while Plaintiffs' Objections were pending (Docket Entry 73) is GRANTED. The statute of limitation for both Plaintiffs' FLSA and NYLL claims is tolled from the date Defendant filed Objections to Judge Tomlinson's Certification Order until the date of this Memorandum & Order. So Ordered by Judge Joanna Seybert on 3/15/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X
JOHN MICHAEL COHAN, WACKSON
BARTHELEMY, individually and for and
on behalf of all similarly situated
persons, and MARIE C. VICTOR,
Plaintiffs,
-against-

MEMORANDUM & ORDER
12-CV-3203(JS)(AKT)

COLUMBIA SUSSEX MANAGEMENT, LLC,
along with any other related
corporate entities doing business
as Melville Marriott,
Defendants.
---------------------------------------X
APPEARANCES
For Plaintiffs:
James Emmet Murphy, Esq.
Lloyd Robert Ambinder, Esq.
Isabel Ann Gardocki, esq.
Alison Lee Genova, Esq.
Kara Sue Miller, Esq.
Suzanne B. Leeds, Esq.
Virginia & Ambinder LLP
40 Broad Street, 7th floor
New York, NY 10004
Michael Alexander Tompkins, Esq.
Daniel Harris Markowitz, Esq.
Jeffrey Kevin Brown, Esq.
Leeds Brown Law, P.C.
1 Old Country Road
Carles Place, NY 11514
For Defendants:

George Vinci, Esq.
David B. Picker, Esq.
Spector Gadon & Rosen
1635 Market Street, 7th Floor
Philadelphia, PA 19103

SEYBERT, District Judge:
Pending before the Court are Defendant’s Objections to

Magistrate

Judge

A.

Kathleen

Tomlinson’s

Plaintiffs’

motion

for

conditional

Order

certification

granting

(Objections,

Docket Entry 42) and Plaintiffs’ motion to equitably toll the
statute of limitations (Docket Entry 73).
follow,

Defendant’s

Objections

are

For the reasons that

OVERRULED

and

Plaintiffs’

motion is GRANTED.
BACKGROUND
Plaintiffs John Michael Cohan and Wackson Barthelemy1
(“Plaintiffs”) brought this case on behalf of themselves and
similarly situated persons seeking unpaid overtime and unlawfully
retained gratuities from Defendant Columbia Sussex Management,
LLC, d/b/a Melville Marriott, and other related corporate entities
(“Defendant”), pursuant to the Fair Labor Standards Act of 1938
(“FLSA”), as amended, 29 U.S.C. § 201 et seq. and the New York
Labor Law (“NYLL”).
Plaintiff

(See, Compl. ¶ 1.)
Cohan

worked

for

Defendant

as

a

waiter,

bartender, restaurant server, room-service delivery person, member
of

the

cleanup

and

setup

crews,

and

front

desk

help,

from

approximately May 2009 until August 2010. (Sept. 19, 2013 Order
(the “Certification Order”), Docket Entry 41, at 2.)

Plaintiff

Barthelemy worked for Defendant as a server from April 2007 through
July 2009.

(Cert. Order at 2.)

The Complaint asserts that

Marie C. Victor was added as a named Plaintiff in this action
on December 17, 2012. (See Docket Entry 25.)
1

2

Plaintiffs

and

other

similarly

situated

individuals

did

not

receive overtime compensation for hours worked in excess of forty
hours per week, and did not receive the majority share of a service
charge that Defendant imposed on patrons.
Judge

Tomlinson

granted

(Cert. Order at 2.)

Plaintiffs’

motion

for

conditional certification and made certain rulings regarding the
scope of the Plaintiffs’ proposed class.

(See Cert. Order at 24.)

Among other determinations, Judge Tomlinson: (1) conditionally
certified a class consisting of Defendant’s “banquet servers,
waiters, bussers, bartenders, clean-up crew, housemen, bellmen,
runners, maintenance workers and/or hosts/hostesses” (Cert. Order
at 6-12); (2) found that workers from both Defendant’s Melville
and Islandia facilities should be included in the class (Cert.
Order at 13); (3) directed that the FLSA claims be conditionally
certified as to all employees or former employees who worked for
Defendant from June 27, 2009 through the present (Cert. Order at
18-19);

and

(4)

permitted

Plaintiffs’

counsel

to

“include

information about potential state law claims dating back to June
27, 2006 in the FLSA opt-in notice” (Cert. Order at 18-19).
Defendant

principally

objects

to

Judge

Tomlinson’s

Certification Order on the grounds that (1) too many types of
employees are included in Plaintiffs’ proposed class and (2) the
opt-in notice should not be sent to employees who were employed by
Defendant within six years of the filing of the Complaint. (Def.’s
3

Objections, at 7, 15.)

In addition, Plaintiffs seek to toll the

statute of limitations for their FLSA claims while Defendant’s
Objections to Judge Tomlinson’s Certification Order were pending.
(Docket Entry 73.)
DISCUSSION
I. Legal Standard
District courts review nondispositive orders issued by
a magistrate judge for clear error.

FED. R. CIV. P. 72(a).

“A

finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed.”

Travel Sentry, Inc. v. Tropp, 669 F. Supp. 2d 279,

283 (E.D.N.Y. 2009) (quoting Concrete Pipe & Prods. of Cal., Inc.
v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622,
113 S. Ct. 2264, 2279, 124 L. Ed. 2d 539 (1993)).

A “magistrate

judge’s findings should not be rejected merely because the court
would

have

decided

the

matter

differently.”

Bachayeva

v.

Americare Certified Special Serv., Inc., No. 12-CV-1466, 2013 WL
4495672, at *1 (E.D.N.Y. Aug. 20, 2013); Ross Univ. Sch. of Med.,
Ltd. v. Brooklyn-Queens Health Care, Inc., No. 09-CV-1410, 2013 WL
1334271, at *5 (E.D.N.Y. Aug. 8, 2013); Pall Corp. v. Entegris,
Inc., 655 F. Supp. 2d 169, 172 (E.D.N.Y. 2008).
II.

The Scope of Plaintiffs’ Class
Defendant first argues that only banquet servers should
4

be

allowed

to

participate

in

this

collective

action

because

Plaintiffs have not shown that other classes of employees were
subject to labor law violations.

(Objections at 7-14.)

The Court

disagrees.
At the conditional certification stage, “the threshold
question for the court is whether the plaintiffs have demonstrated
that the potential class members are ‘similarly situated’ to
them . . . with
policies.”
2015

WL

respect

to

their

job

duties

and/or

employer

Benitez v. Demco of Riverdale, LLC, No. 14-CV-7074,

3780019,

at

*3

(S.D.N.Y.

June

15,

2015).

In

her

Certification Order, Judge Tomlinson found that Plaintiffs met
their modest factual burden of showing that Defendant subjected
multiple classes of employees to labor law violations by submitting
several sworn affidavits from Defendant’s employees.
Order

at

affidavit

8-10.)

Although

discussing

how

Defendant

each

type

also
of

(See Cert.

submitted

service

a

sworn

employee

is

compensated, Judge Tomlinson found that the competing affidavits
merely created a factual dispute, which could not be resolved at
the conditional certification stage.
8-9.)
the

(See Certification Order at

Defendant relies upon a smattering of cases in support of

assertion

that

the

allegations

in

the

Complaint

do

not

establish that workers, other than banquet servers, should be
included in Plaintiff’s collective action.

However, Defendant’s

cases are all procedurally distinguishable because they addressed
5

motions to dismiss the Complaint, not motions for conditional
certification.

See, e.g., Dejesus v. HF Mgmt. Servs., LLC, 726

F.3d 85, 87 (2d Cir. 2013).

In fact, Defendant does not even take

aim at the primary thrust of Judge Tomlinson’s decision--that
Plaintiffs’

sworn

affidavits

members are similarly situated.

establish

their

potential

class

Therefore, Defendant’s objection

regarding the scope of the class is OVERRULED.
III. Notice to Members
Defendant next argues that Judge Tomlinson erred by
deciding that the opt-in notice should sent to personnel who were
employed by Defendant at any time within six years of the filing
of the Complaint.

(Objections at 15.)

Judge Tomlinson chose a

six-year period, not the FLSA’s three-year limitations period,
because Plaintiffs’ state law claims are subject to a six-year
statute of limitations. (Certification Order at 16.) In addition,
Judge Tomlinson noted that prospective FLSA Plaintiffs could have
equitable tolling defenses.

(Certification Order at 15.)

Courts

have come to different conclusions when addressing the correct
opt-in notice period when Plaintiffs assert both FLSA and NYLL
claims in the same action.

Compare Winfield v. Citibank, N.A.,

843 F. Supp. 2d 397, 410 (S.D.N.Y. 2012) (extending the notice
period for six years) with Hamadou v. Hess Corp., 915 F. Supp. 2d
651, 668 (S.D.N.Y. 2013) (finding a three-year notice period
appropriate;

“[i]t

would

be

confusing
6

to

employees

who

are

ineligible for the FLSA opt-in class to receive the opt-in notice,
which does not relate to any state law claims”).

Critically,

however, decisions regarding the scope of the proposed notice are
discretionary.

Guzman v. VLM, Inc., No. 07-CV-1126, 2007 WL

2994278, at *2 (E.D.N.Y. Oct. 11, 2007), order clarified, No. 07CV-1126, 2008 WL 597186 (E.D.N.Y. Mar. 2, 2008).

Because Judge

Tomlinson’s decision concerning the scope of the notice period was
well reasoned and supported by precedent, the Court will not alter
it.2
IV.

Equitable Tolling is Appropriate
Courts have discretion to equitably toll the limitations

period

in

appropriate

circumstances.”

cases

in

order

“to

avoid

inequitable

Yahraes v. Rest. Assocs. Events Corp., No. 10-

CV-935, 2011 WL 844963, at *1 (E.D.N.Y. Mar. 8, 2011) (internal
quotation marks and citation omitted); McGlone v. Cont. Callers,
Inc., 867 F. Supp. 2d 438, 445 (S.D.N.Y. 2012).

In the interest

of justice, the Court finds that the statute of limitations for
Plaintiffs’ FLSA and NYLL claims must be tolled from the date
Defendant’s filed Objections to Judge Tomlinson’s Certification
Order until the date of this Memorandum and Order.

Defendant’s final objection addresses the trivial issue of
whether potential plaintiffs should be notified about the
possibility that they will need to pay costs if this case is not
successful. (Objections at 22.) Judge Tomlinson’s decision on
this point was well-reasoned, therefore, the point need not be
addressed further. (See Cert. Order at 22.)
2

7

CONCLUSION
For
(Docket

Entry

the

foregoing

42)

are

reasons,

OVERRULED

Certification Order is AFFIRMED.

Defendant’s
and

Judge

Objections
Tomlinson’s

In addition, Plaintiffs’ motion

to equitably toll the statute of limitations while Plaintiffs’
Objections were pending (Docket Entry 73) is GRANTED.

The statute

of limitation for both Plaintiffs’ FLSA and NYLL claims is tolled
from the date Defendant filed Objections to Judge Tomlinson’s
Certification Order until the date of this Memorandum & Order.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

March
15 , 2016
Central Islip, New York

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