Boutros et al v. JTC Painting and Decorating Corp. et al
Filing
31
OPINION & ORDER re: 18 FIRST MOTION to Certify Class for Collective Action Certification. filed by Samuel Zuniga, Kamal Boutros. Plaintiffs' motion for conditional collective action certification and court-approved notice is denied, wi thout prejudice. Plaintiffs' FLSA overtime claims are dismissed, without prejudice. Plaintiffs are granted leave to file a Second Amended Complaint, which must be filed no later than July 12, 2013. (Signed by Judge Paul A. Engelmayer on 6/19/2013) (djc)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KAMAL BOUTROS and SAMUEL ZUNIGA,
on behalf of themselves and others similarly situated,
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Plaintiffs,
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-v:
JTC PAINTING AND DECORATING CORP., and JOHN :
CARUSO,
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Defendants.
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:
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12 Civ. 7576 (PAE)
OPINION & ORDER
PAUL A. ENGELMAYER, District Judge:
Kamal Boutros and Samuel Zuniga bring this action on behalf of themselves and
similarly situated plaintiffs, alleging violations of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201 et seq., and New York Labor Law (“NYLL”) §§ 191 et seq., by defendants JTC
Painting and Decorating Corporation (“JTC”) and John Caruso, one of JTC’s officers. Plaintiffs
move for conditional collective action certification and court-approved notice. For the reasons
that follow, that motion is denied. Plaintiffs’ FLSA overtime claims are dismissed, without
prejudice, and plaintiffs are granted leave to file a Second Amended Complaint.
I.
Background1
A.
Factual Background
JTC is a painting contractor that provides commercial painting and decorating services in
the greater New York City area. FAC ¶ 13. JTC is a member of an industry group that is a party
to a collective bargaining agreement with the painter’s union. That agreement provides for a 35hour workweek, with any weekly hours worked above 35 hours being paid at a rate of time-anda-half. Id. ¶¶ 16, 18. Caruso is an owner and/or officer of JTC. Id. ¶ 12.
Kamal Boutros was employed by JTC as a painter from July 2006 to November 2011.
Boutros Decl. ¶ 1. During that time, his hourly rate of pay ranged from $33.50 to $35. Id. ¶ 3.
Samuel Zuniga has been employed by JTC as a painter since September 2008. Zuniga Decl. ¶ 1.
His hourly rate of pay has ranged from $34 to $36. Id. ¶ 3.
In their First Amended Complaint, plaintiffs allege that they “regularly worked in excess
of 35 hours a week, as well as regularly in excess of 40 hours per week.” FAC ¶ 19. However,
they allege, they were not paid overtime for hours worked in excess of 40 hours per week as
required by the FLSA, but rather were paid straight time wages. Id. Plaintiffs allege that
“[d]efendants would regularly pay plaintiffs a payroll check for the first 35 hours worked in a
week, and in cash or with a non-payroll check for hours in excess of 35 hours per week.” Id.
¶ 20.
1
The Court’s account of the facts is drawn from the First Amended Complaint (“FAC”) (Dkt.
15), the Declaration of Kamal Boutros (“Boutros Decl.”) (Dkt. 21), and the Declaration of
Samuel Zuniga (“Zuniga Decl.”) (Dkt. 22). See Hamadou v. Hess Corp., No. 12 Civ. 250
(CM)(JLC), 2013 WL 164009, at *11 (S.D.N.Y. Jan. 16, 2013) (“Courts do not resolve factual
disputes or make creditability determinations at the conditional certification stage. In fact, courts
in this Circuit regularly rely on hearsay evidence to determine the propriety of sending a
collective action notice. This is to be expected, since the initial class certification determination
must be made on preliminary documents such as pleadings and affidavits, which necessarily
contain unproven allegations.” (citations and alterations omitted)).
2
Plaintiffs repeat these allegations in their declarations submitted in support of this
motion. Both state that they “regularly worked more than 40 hours a week.” Boutros Decl. ¶ 6;
Zuniga Decl. ¶ 6. Both state that they were “rarely” paid the overtime rate for any hours over 40
worked, the only exceptions being when they worked on public works projects, such that
government inspectors were present, or when a shop steward from the union was present.
Boutros Decl. ¶ 7; Zuniga Decl. ¶ 7. Both state that JTC regularly paid them with a payroll
check for the first 35 hours worked, but paid in cash or with a non-payroll check for any hours
worked in excess of 35 hours per week. Boutros Decl. ¶ 8; Zuniga Decl. ¶ 8. Finally, both state
that their lawyers showed them payroll records provided by JTC, but that those records
“consistently and extensively understate how many hours I worked every week.” Boutros Decl.
¶ 10; Zuniga Decl. ¶ 10.
Plaintiffs allege that JTC employed more than 100 employees who worked as painters
during the relevant time period, and that JTC failed to pay each of these employees the proper
overtime rate. FAC ¶¶ 22–23. Plaintiffs allege that these employees are similarly situated, and
were subject to the same unlawful treatment as plaintiffs. Id. ¶ 24. Both plaintiffs state in their
declarations that they worked with “dozens of other painters” who did substantially the same
work and who had the same terms and conditions of employment. Boutros Decl. ¶ 4; Zuniga
Decl. ¶ 4. Both further state that “I discussed [the overtime compensation] issue with other
painters, who told me they had same problem. I saw them receiving envelopes that looked the
same as the ones I received containing the cash or non-payroll checks for my additional pay for
hours above 35.” Boutros Decl. ¶ 9; Zuniga Decl. ¶ 9.2
2
In addition to these overtime compensation claims, Zuniga brings separate allegations that he
was retaliated against for his participation in this lawsuit. He alleges that he was terminated
from his job after JTC learned of this suit; although he was brought back to work after his
3
B.
Procedural History
On October 10, 2012, plaintiffs filed a Complaint. Dkt. 1. After defendants filed an
Answer, Dkt. 4, the parties stipulated that plaintiffs be granted leave to amend the Complaint to
add Zuniga’s retaliation claims, Dkt. 12. On March 1, 2013, plaintiffs filed their First Amended
Complaint. Dkt. 15. On March 15, 2013, plaintiffs filed this motion for collective action
certification. Dkt. 18–22. On April 11, 2013, defendants filed an opposition. Dkt. 24–27. On
April 17, 2013, plaintiffs filed a reply. Dkt. 28. On May 15, 2013, the Court approved an
extension of the discovery period to June 15, 2013. Dkt. 30.
II.
Applicable Legal Standard
The FLSA provides that an action may be maintained against an employer “by any one or
more employees for and in behalf of himself or themselves and other employees similarly
situated.” 28 U.S.C. § 216(b). “Although they are not required to do so by FLSA, district courts
‘have discretion, in appropriate cases, to implement [§ 216(b)] . . . by facilitating notice to
potential plaintiffs’ of the pendency of the action and of their opportunity to opt-in as represented
plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffman-La Roche,
Inc. v. Sperling, 493 U.S. 165, 169 (1989)).3 “In determining whether to exercise this discretion
. . . the district courts of this Circuit appear to have coalesced around a two-step method,” which
the Second Circuit has endorsed as “sensible.” Id. at 555; see, e.g., Damassia v. Duane Reade,
attorney intervened, he has been given less work and less desirable assignments. He further
alleges that his mistreatment has deterred other painters from joining this suit. See FAC ¶¶ 64–
70; Zuniga Decl. ¶¶ 11–17; Boutros Decl. ¶ 11. These allegations, however, are not relevant to
this motion, as the retaliation claim is unique to Zuniga and plaintiffs do not seek conditional
certification on that claim. See Pl. Reply Br. 4 n.1.
3
Hoffman-La Roche involved the parallel provision of the Age Discrimination in Employment
Act, which incorporated the enforcement provisions of FLSA, including § 216(b). Therefore,
“Hoffman-La Roche’s interpretation of § 216(b) . . . binds us in FLSA cases as well.” Myers,
624 F.3d at 554 n.9.
4
Inc., No. 04 Civ. 8819 (GEL), 2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5, 2006) (Lynch, J.);
Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.).
“The first step involves the court making 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.” Myers, 624 F.3d at 555. “The court may send this
notice after plaintiffs 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. (quoting Hoffman,
982 F. Supp. at 261). Although “[t]he ‘modest factual showing’ cannot be satisfied simply by
‘unsupported assertions,’ . . . 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.” Id.
(quoting Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991)); accord
Damassia, 2006 WL 2853871, at *3 (“[A] plaintiff’s burden at this preliminary stage is
‘minimal.’” (collecting cases)); Hoffman, 982 F. Supp. at 261 (“The burden on plaintiffs is not a
stringent one.”). “A court need not evaluate the underlying merits of a plaintiff’s claims to
determine whether the plaintiff has made the minimal showing necessary for court-authorized
notice.” Damassia, 2006 WL 2853971, at *3; accord Gjurovich v. Emmanuel’s Marketplace,
Inc., 282 F. Supp. 2d 101, 105 (S.D.N.Y. 2003); Hoffman, 982 F. Supp. at 262.
“At the second stage, the district court will, on a fuller record, determine whether a socalled ‘collective action’ may go forward by determining whether the plaintiffs who have opted
in are in fact ‘similarly situated’ to the named plaintiffs. The action may be ‘de-certified’ if the
record reveals that they are not, and the opt-in plaintiffs’ claims may be dismissed without
prejudice.” Myers, 624 F.3d at 555.
5
III.
Discussion
Plaintiffs move for conditional certification of a collective action with regard to their
claims that JTC failed to pay overtime wages. The FLSA requires that an employee who works
more than 40 hours in a given workweek be compensated for the hours worked in excess of 40
“at a rate not less than one and one-half times the regular rate at which he is employed.” 29
U.S.C. § 207(a)(1). As the Second Circuit recently explained, “to state a plausible FLSA
overtime claim, a plaintiff must sufficiently allege 40 hours of work in a given workweek as well
as some uncompensated time in excess of the 40 hours.” Lundy v. Catholic Health Sys. of Long
Island Inc., 711 F.3d 106, 114 (2d Cir. 2013). In Lundy, the Second Circuit held that plaintiffs
failed to state a plausible overtime claim because they had not alleged a “single workweek in
which they worked at least 40 hours and also worked uncompensated time in excess of 40
hours.” Id. It was not enough, the court held, for one plaintiff to allege that she “typically”
worked 37.5 hours a week and “occasionally” worked an additional 12.5-hour shift, and for
another plaintiff to allege that she “typically” worked 30 hours per week and “approximately
twice a month” worked between 37.5 and 45 hours. Id. at 114–15.
Plaintiffs’ allegations in this case are akin to the vague, conclusory pleadings in Lundy.
Plaintiffs simply state that they “regularly” worked in excess of 40 hours per week but were paid
only straight time wages for that work. FAC ¶¶ 19–20. That is all the detail that is provided—
nowhere is there any reference to any particular week in which either plaintiff worked more than
40 hours. Plaintiffs’ pleadings, therefore, lack sufficient particularity to state a plausible FLSA
claim. Lundy, 711 F.3d at 114; see Cromwell v. N.Y.C. Health & Hosps. Corp., No. 12 Civ.
4251 (PAE), 2013 WL 2099252, at *3–4 (S.D.N.Y. May 15, 2013).
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Plaintiffs’ declarations in support of their motion for conditional certification provide no
further detail. Each declaration reasserts that the declarant “regularly” worked more than 40
hours a week but was “rarely” paid the time-and-a-half overtime rate. Boutros Decl. ¶¶ 6–7;
Zuniga Decl. ¶¶ 6–7. This lack of specificity persists even though plaintiffs assert that they have
reviewed JTC’s payroll records; rather than setting forth examples of inaccuracies in these
records, plaintiffs simply state that the records “consistently and extensively understate how
many hours” plaintiffs worked each week. Boutros Decl. ¶ 10; Zuniga Decl. ¶ 10. Lundy does
not require that plaintiffs reconstruct the exact hours they worked each week over the entire
course of their employment—that would be an insurmountable task for most plaintiffs. But it
does require that plaintiffs allege with greater specificity that they worked overtime hours for
which they were not properly compensated.
Although a district court need not evaluate the merits of a plaintiff’s claim in order to
determine whether similarly situated plaintiffs exist for purposes of conditional certification and
court-authorized notice, see, e.g., Damassia, 2006 WL 2853971, at *3; Gjurovich, 282 F. Supp.
2d at 105; Hoffman, 982 F. Supp. at 262, and “[t]he court is not to resolve factual disputes,
decide substantive issues going to the merits, or make credibility determinations” at this stage,
see, e.g., Hamadou, 2013 WL 164009, at *9 (citations omitted), plaintiffs’ pleadings must be
legally sufficient. See Gjurovich, 282 F. Supp. 2d at 105 (“Once the Plaintiff makes a colorable
claim for relief, the only inquiry necessary is whether the potential plaintiffs to be notified are
similarly situated to the named plaintiff.” (emphasis added)). The court’s discretionary power to
facilitate the sending of notice to potential class members is premised on its use as a tool for
efficient case management, Hoffman-LaRoche, 493 U.S. at 169, 174; Myers, 624 F.3d at 555
n.10, and it does not promote efficient case management to facilitate notice to potential class
7
members where the representative plaintiffs have failed to state plausible FLSA violations. Just
as the court would not certify a FLSA collective action based on claims sounding solely in state
law, it makes little sense to certify a collective action based on manifestly deficient pleadings.
Plaintiffs’ motion for conditional certification and court-approved notice is therefore denied.
Because the First Amended Complaint lacks the specificity required by Lundy, the Court
dismisses plaintiffs’ overtime claims.4 That dismissal is without prejudice, however, both
because the dismissal is sua sponte (defendants have not filed a motion to dismiss), and because
the First Amended Complaint was filed on March 1, 2013—the same day Lundy was decided.
Plaintiffs are granted leave to file a Second Amended Complaint, so that they may attempt to
replead their overtime claims with the specificity required by Lundy.
The Court is also open to allowing plaintiffs to renew their motion for conditional
certification and court-approved notice once they have sufficiently pled a FLSA violation.5
However, due to numerous extensions of the briefing schedule for this motion, see Dkt. 12, 16,
23, this decision coincides with the close of discovery on June 15, 2013. Additionally, plaintiffs’
4
The Court does not, however, dismiss Zuniga’s separate FLSA retaliation claim. That claim
survives whether or not plaintiffs choose to replead their overtime claims.
5
Although the Court does not resolve whether, if not for the deficiency of their pleadings,
plaintiffs would have made the “modest factual showing” required for court-approved notice, the
Court notes that such a showing cannot be established simply by “unsupported assertions.”
Myers, 624 F.3d at 555. Plaintiffs’ submissions on this point consist primarily of their matching
statements in their declarations that “I discussed [the overtime issue] with other painters, who
told me they had the same problem. I saw them receiving envelopes that looked the same as the
ones I received containing the cash or non-payroll checks for my additional pay for hours above
35.” Boutros Decl. ¶ 9; Zuniga Decl. ¶ 9. See also Boutros Decl. ¶ 4 (“During my time working
at JTC, I encountered dozens of other painters, with whom I worked, who did substantially the
same work as me, and who had the same basis terms and conditions of work as me, as far as I
know.”); Zuniga Decl. ¶ 4 (same); Compl. ¶¶ 22–24 (alleging that JTC employed over 100
similarly situated employees who were subject to similar unlawful treatment). To the extent the
evidence adduced in discovery permits plaintiffs to augment these submissions with additional
evidence that potential opt-in plaintiffs were victims of a common policy or plan that violated the
FLSA, they are encouraged to do so.
8
motion for Rule 23 class certification is due July 12,2013. Dkt. 30. Therefore, to ensure that the
parties do not engage in separate briefing on overlapping issues, the Court will suspend the
deadline for plaintiffs' Rule 23 motion. Plaintiffs shall file their Second Amended Complaint no
later than July 12,2013. No later than July 26, 2013, the parties are directed to meet in person
for at least one hour to discuss settlement of this case. If a settlement is not reached, the parties
are directed to submit a letter to the Court, no later than August 2,2013, setting forth their views
on an appropriate schedule going forward, including briefing schedules for any FLSA and/or
Rule 23 certification motion plaintiffs intend to make. 6
CONCLUSION
Plaintiffs' motion for conditional collective action certification and court-approved notice
is denied, without prejudice. Plaintiffs' FLSA overtime claims are dismissed, without prejudice.
Plaintiffs are granted leave to file a Second Amended Complaint, which must be filed no later
than July 12,2013.
SO ORDERED.
Po.:! !.E~g~
United States District Judge
Dated: June 19,2013
New York, New York
Plaintiffs also request that the Court equitably toll the statute of limitations for potential opt-in
class members to the date of the filing of the original Complaint. See 29 U.S.c. § 256(b)
(generally, in a FLSA collective action, an individual claimant's case is considered commenced
on the date his written consent is filed). That request is properly entertained at a later date. See,
e.g., Winfieldv. eitibank, NA., 843 F. Supp. 2d 397, 410 (S.D.N.Y. 2012); Whitehorn v.
Wolfgang's Steakhouse, Inc., 767 F. Supp. 2d 445,451 (S.D.N.Y. 2011).
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