Ali et al v. New York City Health and Hospitals Corporation et al

Filing 53

MEMORANDUM AND OPINION: For the foregoing reasons, Plaintiff's motion for conditional certification of a collective action and to send notice to putative members of the class is DENIED. The Clerk of Court is directed to terminate the motion at docket number 35. SO ORDERED. (Signed by Judge Paul A. Crotty on 3/27/2013) (rsh)

USDC SONY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRlCT OF NEW YORK
MOHAMED M . A ll , on behalf of himself and all
others similarly si tuated ,

Plainli ff,

DOCUMENT
ELECTRONICALLY FILED

DOC#:
DATE FILED: Macch 27, 20ll

1\ Civ . 6393 (PAC)

v.

NEW YORK CITY HEALTH AND
HOSPITALS CORPORATION, et aI. ,

MEMORANDUM & OPINION

Defendants.
HONOR AB LE PA UL A. CROTTY , U nited States District Judge :
Plainti[fMoham ed M. Ali ("Plaintiff') brings this putative collective action alleging

violations orthe Fair Labor Standards Act , 29 U.S.c. § 20] el ~ l On M ay 10, 2012, Plaintiff
moved to conditi ona lly certify a co llecti ve action and distribute no tice to putati ve members of

the class pursuant to 29 U.S.C . § 21 6(b). Defendants oppose this motion. For the following
reasons, the Court DENTES Plaintiffs molion.

BACKGROUND
Pl aintifTalieges that he was employed from January 2006 through October 2008 as a
Respirato ry Therapi st at Coler-Goldwater Specialty Hospital and N ursing Facility. part of the
New York City Health and Hospital s CO!]Joration ("H HC"). (Am. CampI. ~~ 85, 86, ECF No.

40.) In that rol e, Plainliffperfo nned and analyzed diagnostic tests, administered drugs pursuant
to the orders of doctors and senior medical staff, inspected and tested respiratory eq uipment , and
assi sted patients, including monitoring their physiological respon ses to therapy. (Id. '1 87.)

While employed by HHC, Plai nti IT asserts, without any speci ficity, that he was "typicall y"
sched uled to work eight-h our shift s [lye days a week and "[aJdditionall y, once or twice a month"
worked an ex tra s hift. (ld.

~

90.) Plaintiff also alleges that, due to work he perfonned during

r By an order dated March 25, 2013 , the Court dIsmi ssed }
)Iain tlff s claims pursuant to the New York
Labor Law. (S ee ECF No. 52. )

intemlpted meal breaks , for periods o[ time immediately before and aOer hi s scheduled shift s
ended, and during various training and staff meetings- for which he was not co mpensated- he
" regularly" worked over 40 hours a week; "often" working 43 hours and 45 minutes during
weeks with Irainjng and 44 hours and 45 minutes during weeks with stafT meetings.
92 .) Plaintiff claims that he was not compensated for

U)C

(Id . "~

91 ,

lime he worked in excess of 40 hours

during these weeks. 2 (ld . ' 193.)
DISCUSSION
I.

LEGAL STANDARDS
Under Section 21 6(b) of the FLS A, an employee may assert claim s on beha lf of other

"simil arly situated" employees. Salomon v. Adderlay Indust.. fne., 84 7 F. Supp. 2d 561 . 563
(S .D.N.Y. 201 2) (ciling Myers v. Hertz Corp., 624 F.3d 537, 542 (2d Cir. 201 0); see 29 U.S .C. §

21 6(b) . When rev iewing a reqt,eSI to certify a collecti ve action under the FLSA , the Court
engages in a two-step analysis. Salomon , 847 F. Supp. 2d at 563 (citing Myers, 624 F.3d at 554­
55). First, the Court must "detennine whether similarl y situated plaintiffs do in fact exist."
Myers. 624 FJd at 555 (emphasis omitted). Due to the limited evidence gen erally available at
thi s stage in a litigation , the pla intiff s burden is minimal. Sa lomon , 847 F. Supp . 2d at 563; ill
Mc Glone v. Contract Call ers. Inc., 867 F. Supp. 2d 438, 442 (S.D. N.Y. 201 2). The Court does
not resolve factual disp utes or decide substantive issues at this stage, but rather examines the
pleadings and affidavit s
similarl y situated.

~

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detennine whether the named plaintiff and putative class members are

McGlone, 867 F. Supp. 2d at 442. Despite this low threshold, how ever, a

Although not relevant 10 the instant motion. the Court notes thai these non·specific. boilerplate
accusatIons are the hallmark of complai nts drafted by the same la w firm that is responsible for
numerous similar putative class actions against heahhcare entities across the region , and have
frequenlly been found insufficient to state a claim to rdie f under the FLSA as a matter of law. ~
~, Lundy v. Catholic Healthcar..: Sys. o rLong Island , lnc., No. 12·1453, 20 13 WL 765 11 7, at "'*1 , 4­
6 (2d Cir. Mar. 1,2013); Nakahatu v. Ne\v York·Presbyleri an Healthcare Sys., Inc ., Nos. 11 e iv. 6658,

11 Civ. 6657, I I Civ. 6366 (PAC), 2012 WL 38865 55 (S. D.N.Y . Sept. 6, 20 12).

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plaintiff must still make the " modest factual showing" that he an d potential opt-in plainti ffs were
victim s of a common policy or plan that violated the law . Myers, 624 FJd at 555; see McG lone,
867 F. Supp. 2d at 443 .
To make the factual showing required at this first stage, a Plaintiffca nn ot rely on
unsupported assertions. Salomon, 847 F. S upp. 2d at 563. "[T]he factual showing, even if
modest, must still be based on some substance." Guillen v. Marshall s of MA, lnc., 750 F. Supp.
2d 469, 480 (S .D.N.Y. 2010); see McGlone, 867 F. Supp. 2d at 443 ("Plaintirrmust alleas!
provi de evidence that the proposed class members are similarly situated[ .l"). In making ils
detem,ination allhis first state, the Coun may consider a plaintiffs affidavit and hearsay
statements. Sa lomon, 847 F. Supp. 2d at 563.
If a plaintiff has satisfied this fi rst step. the Courl detennines whether the co llective
action may proceed by review ing whether the pl ainti ffs who have opted in are jo fact similarly
situated to the nam ed plainti ff.

II.

.!sL at 564 (Citing Myers , 624 F.3d at 555).

PLAINTIFF HAS FAILED TO SHOW HE IS SIMILARLY SITUATED TO
POTENTIAL OPT-IN PLAINTIFFS
Whil e Plaintiffs bu rden at th e first stage is low, "it is nOI non-ex istent-----certification is

not aut omatic." Romero v. H.B. Automotive Grp., [nc ., No. II eiv. 386 (eM), 2012 WL
15 1481 0, at *10 (S .D. N.Y. May 1, 20 12) (quotations OLl1itled). ''It is ax iomatic that , even at this
preliminary stage, the Co urt must find some identifiabl e factual nexus wh ich bind s the named
plainti rrs and potential cl ass mem bers together as victims of a panicular practice." Jenkins v.
TJX Compani es, Inc., 853 F. Supp. 2d 3 17, 322 (E .D .N.Y . 2012) (quotatio n omitted).
Th e almost com plete absence of any evidence that Plai ntiff and other employees are
similarly situated is fatal

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Pl aintiff s request to have this action certified as a collecti ve action.

Plaintiff relies on documentation relating to the workplace responsibili ties and educational
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requirements of respiratory therapists, aod HHC' s class i ficat ion of this pos ition for FLSA
purposes. (S ee ECF Nos. 37-2- 32-5 .) How ever, "[aJs numero us courts in this Circui l have held,

the mere class ification of a group of employees- even a la rge o r natio nwide group- as exempt
under the FLSA is nol by it self sufficient to constitute the necessary evid ence o f a common
poli cy, plan , or practice that renders all putat lve class members as ' s imilarl y situated' for §
2 16(b) purposes." Jenkins, 85 3 F. Supp. 2d at 323 (collect ing cases). Nor is it "sufficient for
[Pl ainti ff] 10 show that he and the proposed class operated under the same job description."
Khan v. Airport Mgm t. Servs., LLC, No . 10 ei v. 773 5 (NRB), 2011 WL 559737 1, at 11<4
(S .D .N.V. Nov . 16, 2011)(quoting Guillen , 750 F. Supp. 2d at 476). Rather, PlaintiITmust
demonstrate thai he and the otJ,er employees are similarly situated wilh respect 10 their claim­
here, lhat they worked more than 40 hours a week as part o f a co mmo n policy o r pl an that
vio lated the la w. See ;d .~ see also Guille n v. Marshalls orMA. Inc., No . 09 e iv . 95 75 (LAP),
2012 WL 25887 1, at 'I (Ju ly 2, 201 2)(co llecling cases).

On Ihi s fronl, Plainliffhas fail ed. While the Court ma y consider hearsay ev idence in the
first-step of the condition al certificati on anal ysis, here th e onlv relevant evide nce Plaint ifT
submits that there are similarly si tuated class members who worked over 40 hOllrs a week and
were not paid ov ertime wages pursuant to a common policy or plan is uncorroborated , anecdotal
hearsay about th e hours Plaintiff beli eves others worked . (Ali. A ff. 'i~ J2- 13, ECF No. 37-6.)
The sal e basi s for lhis beli ef is that Pl aintiff "had conversation s with other respiratory thera pists
abo ut the fact that w e worked in excess of fort y hours a week ." (ld.'112 .) Plaintiff does not
provide an y infonnat ion abo ut where these respiratory therapists wo rked or, mo re importantl y,
why they worked more than 40 hours (i.e. , because o f a co mmon plan or po licy o f Defendants).
Indeed, he has not even an swered the latter qu esti on witb regard to him self.

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Plaintiffs showing is insuffi ci ent to support a finding that similarly silUated plaintiffs
were subjected to a common scheme. See Romero, 2012 WL 15148 J 0, at .. 10; Barfield v. N.Y.
C ity Hea lth & Hasps. Corp. , No. 05 C iv. 6319 (JSR), 2005 WL 3098730, at *1 (S .D.N.Y. Nov.
18, 2005) (denying conditional certi fic ation where th e plaintiff att eged, based only on " lim iled
anecdotal hearsay," that o the r nurses were nol paid overtime) ; Levinson v. Primedia In c., No. 02
Civ. 2222 (C8M), 2003 WL 22533428. at *2 (S.D.N.Y . Nov . 6, 2003) (denying conditional
certification where the plaintiffs alleged that they were not paid minimum. wage or ovenime, but
provided no factual evidence oth er than the conjecture contained in the plaintiffs ' affidavits that
o the r employees were subj ect to the same pay pOlicies) .
Plaintiff here has failed to make even the modest showing that s imilarly situated plaintiffs
do in fact exist. Accordingly, Plaintiff' s motion for conditional certification is den ied, and the

case will proceed as a claim on behalf of Mr. Ali o nly.J
CONCLUSION
For

the foregoing reasons, Plainti rr s molion for conditi o nal certi [ication o f a collective

action and to send notice to putative members of the class is DEN IED. The C lerk of Court is
directed to terminate the motion at dockel number 35.
Dated: New York, New York
March 27, 2013
SO ORDERED

PAU L A. CROTTY
United States Distric t Judge

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Because the Court find s that conditionn l cert ification as a coll ective action is unwarranted , it need not
address Plaintirf s requests regardm g the tIming and fonn of its notice to potential opt-in plainllffs.

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