Gonzalez v. Scalinatella, Inc. et al
MEMORANDUM AND ORDER: Plaintiff's motion for conditional certification (Dkt. 17) is granted. Within 14 days of the issuance of this Memorandum and Order, Plaintiff shall submit a revised version of the proposed notice and opt-in form, reflecting the above-ordered modifications, for final court review. Within 14 days of the issuance of this Memorandum and Order, Scalinatella shall produce to plaintiff a list of the names and last known addresses of all tipped employees who were employed by Scalinatella at any time in the six years preceding the filing of the Complaint. SO ORDERED. (Signed by Judge P. Kevin Castel on 11/22/2013) (ama)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
on behalf of himself, FLSA Collective Plaintiffs
and the Class
DOC#: - - - - , - , - - , , DATE FILED: / / -ois-(3?
13 Civ. 3629 (PKC)
-againstSCALINATELLA, INC. d/b/a! SCALINATELLA
RISTORANTE, ALFIO RUOCCO, and LUIGI RUSSO
CASTEL, District Judge:
PlaintiffEzequiel Gonzalez has moved for conditional celiification of this action
as a representative collective action pursuant to the Fair Labor Standards Act, 29 U.S. C. § 201 et
seq. ("FLSA"), on behalf of all tipped employees, including delivery people, waiters, runners,
busboys, and batienders employed by defendants within the last six years, and other ancillary
relief relating to the manner and content of notice. In opposition to the motion, defendants
(collectively, "Scalinatella") argue that Gonzalez has not demonstrated that there are similarly
situated employees and object to Gonzalez's proposed opt-in notice and consent form. For the
reasons set forth below, plaintiffs motion is granted, subject to the modifications to its proposed
form of notice and production of contact information imposed by the Court.
Conditional Collective Action Certification
The FLSA provides that an action for unlawful employment practices may be
brought against an employer "by anyone or more employees for and in behalf of himself or
themselves and other employees similarly situated." 29 U.S.C. § 216(b). District courts have
discretion to implement section 216(b) "'by facilitating notice to potential plaintiffs' ofthe
pendency of the action and oftheir opportunity to opt-in as represented plaintiffs." Myers v.
Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffinann-La Roche Inc. v. Sperling,
493 U.S. 165, 169 (1989)). "In a collective action under FLSA ~ unlike in a class action under
Federal Rule of Civil Procedure 23
only plaintiffs who affil1natively opt in can benefit from the
judgment orbe bound by it." Damassia v. Duane Reade, Inc., 04 Civ. 8819 (GEL), 2006 WL
2853971, *2 (S.D.N.Y. Oct 5, 2006) (Lynch, J.). Although orders facilitating notice are often
refetTed to as orders "certifying" a collective action, the FLSA does not contain a certification
provision. Id. "Celiification" is simply "the district court's exercise of the discretionary power .
. . to facilitate the sending of notice to potential class members." Myers, 624 F.3d at 555 n.lO.
In determining whether to exercise its discretion to send notice to potential class
members, comis in this Circuit conduct a two-phase inquiry. Id. at 554-55 (reviewing the twophase inquiry and deeming it "sensible" for evaluating celiification under section 216(b)); see
also Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357,367-68 (S.D.N.Y. 2007). At the
first phase, the court makes a preliminary determination as to whether potential opt-in plaintiffs
are "similarly situated" to the named plaintiffs. See Myers, 624 F.3d at 555; Damassia, 2006
WL 2853971 at *3. Plaintiffs' burden at this initial stage is "minimal," Damassia, 2006 WL
2853971 at *3, requiring only a "'modest factual showing' that they and potential opt-in
plaintiffs 'together were victims of a common policy or plan that violated the law. ", Myers, 624
F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249,261 (S.D.N.Y. 1997)
(Sotomayor, J.)). No showing of numerosity, typicality, commonality and representativeness is
required. See Lynch, 491 F. Supp. 2d at 369; Iglesias-Mendoza v. La Belle Falm, Inc., 239
F.R.D. 363, 368 (S.D.N.Y. 2007) ("The 'similarly situated' standard ... is thus considerably
more liberal than class certification under Rule 23.") (quotation marks omitted). "In this first
stage, 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." Mendoza v.
Ashiya Sushi 5, Inc., 12 Civ. 8629 (KPF), 2013 WL 5211839, at *3 (S.D.N.Y. Sept. 16,2013)
(intemal quotation marks and citation omitted). "The COUlt's first task is only to conclude
whether there may be other similarly situated workers." Shi Yong Li v. 6688 Corp., 2013 WL
5420319, at *2 (S.D.N.Y. Sept. 27, 2013) (emphasis in original).
If the plaintiffs meet their burden, the court conditionally certifies the collective
action and authorizes the plaintiffs to send notice to potential collective action members. See
Iglesias-Mendoza, 239 F.R.D. at 368. COUlt-authorized notice is prefel1'ed because such notice
"serves the legitimate goal of avoiding a multiplicity of duplicative suits and setting cutoff dates
to expedite disposition of the action." Hoffillan-La Roche Inc. v. Sperling, 493 U.S. 165, 172
After discovery, typically on the defendant's motion for deceltification, courts
engage in the second phase of analysis. See Iglesias-Mendoza, 239 F.R.D. at 367. During the
second stage, the cOUlt determines on a full record, and under a more stringent standard, whether
the additional plaintiffs are, in fact, similarly situated. See Damassia, 2006 WL 2853971 at *3.
If the COUlt concludes that all plaintiffs are similarly situated, the collective action proceeds to
trial; otherwise, the collective action is deceliified and the claims of the opt-in plaintiffs are
dismissed without prejudice. See Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y.
Gonzalez has made the "modest factual showing" that he and potential opt-in
plaintiffs were victims of a common policy or plan. Gonzalez submitted a declaration, in which
he attests, inter alia, that he personally observed that it was Scalinatella's policy to pay all tipped
employees below the statutory minimum wage for tipped employees; that he and other tipped
employees were not paid overtime wages at a rate of one-and-one-halfthe hourly rate when they
worked more than 40 hours per week; that Scalinatella implemented a tip pooling policy which
distributed tips to non-tipped employees; that Scalinatella required all tipped employees to spend
more than twenty percent of their daily time performing non-tipped duties; that he did not
receive any spread of hours premium; that he and other tipped employees were not provided with
proper paystubs; and that all tipped employees were subject to time shaving. (Gonzalez Dec!. 'If'lf
2-11.) Courts in this district have approved conditional collective action celiification based on
the facts alleged in the complaint and one accompanying affidavit.
Khamsiri v. George
& Frank's Japanese Noodle Rest. Inc., 12 Civ. 265 (PAE), 2012 WL 1981507, at *1 (S.D.N.Y.
June 1,2012); Hernandez v. Bare Burger Dio Inc., 12 Civ. 7794 (RWS), 2013 WL 3199292, at
*3 (S.D.N.Y. June 25, 2013).
Scalinatella contends that Gonzalez has not demonstrated that he was subject to
the same policy or plan as other tipped employees. The cases Scalinatella relies upon in support
ofthis proposition are distinguishable from the present case. Unlike in Guan Ming Lin v.
Benihana Nat'l Corp, 755 F. Supp. 2d 504, 510 (S.D.N.Y. 2010) (adopting the report and
recommendation of Hon. James C. Francis IV, U.S.MJ.), in which the plaintiffs declaration did
not clearly allege that he was paid less than the minimum wage and did not provide information
about other employees, including whether or not they were tipped employees, Gonzalez's
declaration states that, inter alia, he was paid below the minimum wage, and that he observed
that it was Scalinatella's policy to pay tipped employees below the minimum wage for tipped
employees. (Gonzalez Dec!. '12.) Gonzalez has made the "modest" showing necessary at this
Scalinatella also argues that Gonzalez has failed to make the modest factual
showing that he and other tipped employees were subject to a common policy or plan because his
declaration is conclusory and false. To the extent that Scalinatella purports to contradict factual
statements sworn by Gonzalez in his affidavit, the COUli defers to the plaintiffs version of events
at this early stage of the proceeding. "At this procedural stage, the court does not resolve factual
disputes, decide substantive issues going to the ultimate merits, or make credibility
determinations." Shi Yong Li, 2013 WL 5420319, at *1 (internal quotation marks and citation
omitted); see also Sanchez v. Gansevoort Mgmt. Grp" Inc., 12 Civ. 75 (KEF), 2013 WL 208909,
at *1 n.l (S.D.N.Y. Jan. 10,2013); Salomon v. Adderly Indus" Inc., 847 F. Supp. 2d 561, 565
(S.D.N.Y. 2012) ("Courts in this Circuit regularly rely on hearsay evidence to determine the
propriety of sending a collective action notice.") (quotation marks and alterations omitted). "The
Court offers no conclusion with respect to the merits, but 'need not evaluate the merits of [a
plaintiffs] claims in order to determine that a definable group of 'similarly situated' plaintiffs'
exists." Mendoza, 2013 WL 5211839, at * 4 (quoting Hoffman, 982 F. Supp. at 262.
Gonzalez has alleged that other tipped employees perfOlmed "the same or similar
work" as he did. (Gonzalez Decl.
5.) He has sufficiently alleged policies that affected all
tipped employees at Scalinatella. See Hernandez, 2013 WL 3199292 at *4; Khamsiri, 2012 WL
1981507, at *1. Gonzalez has sufficiently alleged that CUlTent and former tipped employees are
"similarly situated." Accordingly, the COUli conditionally certifies a collective action of cutTent
and former tipped employees.
II. Court Authorization of Notice
The Supreme Court has held that the ability of employees to receive the benefits
of collective action "depend on employees receiving accurate and timely notice conce11ling the
pendency of the collective action, so that they can make informed decisions about whether to
participate." Hoffinan-La Roche, 493 U.S at 170. "Both the parties and the court benefit fi'om
settling disputes about the content ofthe notice before it is distributed. This procedure may
avoid the need to cancel consents obtained in an improper manner." Id. at 172.
"Neither the statute, nor other courts, have specifically outlined what fotm courtauthorized notice should take nor what provisions the notice should contain. The Supreme Court
has abstained from reviewing the contents of a proposed noticed under § 216(b), noting that such
'details' should be left to the broad discretion of the trial comi." Fasanelli v. Heartland Brewery,
Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007) (quoting Hoffman-La Roche, 493 U.S. at 170).
a. Mailing of Notice
Gonzalez proposes that notice should be sent to all tipped workers employed by
Scalinatella within six years ofthe date of the filing ofthe complaint in this case. Scalinatella
argues that the six-year proposed notice period exceeds the statute oflimitations under the
FLSA, which is two years, except in the case of willful violations, for which the statute of
limitations is three years. 29 U.S.C. § 255(b). The complaint alleges violations of both the
FLSA and New York Labor Law. The statute of limitations under the New York Labor Law is
six years from the date the complaint is filed. N.Y. Lab. Law § 198(3). "Where as here,
Plaintiffs' Complaint also includes NYLL claims, courts in this District routinely deny requests
to limit the Notice time period to three years, as even where claims are untimely under FLSA,
they may shed light on the appropriateness of celiifying a class action under the NYLL."
Guaman v. 5 "M" Corp., 13 Civ. 3820 (LGS), 2013 WL 5745905, at *5 (S.D.N.Y. Oct. 23,
2013) (quotation marks and alterations omitted). Accordingly, the notice should be sent to all
tipped employees who were employed by Scalinatella at any time in the six years preceding the
filing of the complaint.
b. Form of Notice
i. Defense Counsel's Contact Infotmation
Scalinatella requests that the name, address, and telephone number of its counsel
be included on the notice. Gonzalez opposes this request. "FLSA notices routinely include this
infotmation." Mendoza, 2013 WL 5211839, at *7; see also Whitehorn v. Wolfgang's
Steakhonse. Inc., 767 F. Supp. 2d 445,451 (S.D.N.Y. 2011). Accordingly, the Court directs
Gonzalez to include defense counsel's contact information on the notice.
ii. Defendants' Obj ections to Claims
The parties agree that the notice shall include the following language:
Defendants assert that they paid all employees properly.
Defendants assert that a collective action is proper in this lawsuit
and anticipate moving to deceliify the collective action at the close
of discovery, as they have the right to do. Defendants assert that
plaintiffs have not demonstrated the necessary elements required to
establish a collective action.
iii. Reference to Employees Rights under NYLL
The pmiies agree that the notice shall not include language regarding Gonzalez's
state law claims. Therefore, the notice shall omit such language.
iv. Reference to anti-retaliation provision ofFLSA
The notice shall include reference to the anti-retaliation provision of the FLSA.
See, ~, Lynch, 491 F. Supp. 2d at 373; Anglada v. Linens 'N Things, Inc., 06 Civ. 12901 (CM)
(LMS), 2007 WL 1552511, at *11 (S.D.N.Y. May 29,2007).
v. Time Limit to Opt-In
Gonzalez requests a 60-day period of time to opt in. Scalinatella requests that the
time to opt-in be limited to 45 days. "[A] 60 day period ... is ... consistent with FLSA
practice." Whitehorn, 767 F. Supp. 2d at 451-52. Because of the possibility of delay due to the
close proximity to year end and the accompanying holidays, the Court grants Gonzalez's request
for a 60-day opt-in period.
vi. Retum of Notice
Scalinatella requests that consent-to-sue forms be returnable to the Court, rather
than to Gonzalez. Gonzalez opposes this request. Courts in this district have differed on
whether consent-to-sue forms should be retumed to the Court, rather than plaintiffs counsel.
Compare Hallissey v. Am. Online, Inc., 99 Civ. 3785 (KTD), 2008 WL 465112, at *4 (S.D.N.Y.
Feb. 19,2008) (requiring consent forms to be mailed to the court "to prevent discouraging the
[opt-in plaintiffs] from seeking outside counsel") with Delaney v. Geisha NYC, LLC, 261 F.R.D.
55,59-60 (S.D.N.Y. Sept. 22, 2009) (permitting notice to be sent to plaintiffs counsel).
Gonzalez has agreed to include a statement that informs putative class members oftheir right to
retain alternative counsel. With such a statement provided in the notice, the consent-to-sue
forms may be retumed to plaintiffs counsel.
vii. Spanish Translation of Notice
The Court agrees that a Spanish translation of the notice is proper. See Guaman,
2013 WL 5745905, at *5; Khamsiri, 2012 WL 1981507 at *2.
c. Posting of Notice
Gonzalez requests that the Notice and Consent to Sue letter be sent to potential
opt-in plaintiffs via First Class Mail and that they be posted at Scalinatella's business locations.
Courts in this district have differed on whether to pelmit posting of notice. Compare Capsolas v.
Pasta Res., Inc., 10 Civ. 5595 (RJH), 2011 WL 1770827, at *5 (not requiring a posting of notice
in defendants' restaurants) with Mendoza, 2013 WL 5211839, at *9 ("Courts routinely approve
the posting of notice on employee bulletin boards and in common employee spaces.") First
Class Mail is sufficient to provide potential class members with notice in this case. In view of
the mailing, the notice need not be posted in Scalinatella's business locations. See Aponte v.
Comprehensive Health Mgmt., Inc., 10 Civ. 4825 (PKC), 2011 WL 2207586, at *7 (S.D.N.Y.
June 2, 2011).
d. Production of Employee Data
Scalinatella is ordered to produce the names and last known addresses of all
tipped employees who were employed by Scalinatella at any time in the six years preceding the
filing of the Complaint. At this juncture, Scalinatella need not disclose telephone numbers,
email addresses, titles, compensation rates, or period of employment. The Court will revisit the
issue of email addresses and/or telephone numbers as to mailings retu111ed by the United States
Postal Service as undeliverable.
Plaintiff s motion for conditional certification (Dkt. 17) is granted. Within 14
days of the issuance of this Memorandum and Order, Plaintiff shall submit a revised version of
the proposed notice and opt-in form, reflecting the above-ordered modifications, for final court
review. Within 14 days of the issuance of this Memorandum and Order, Scalinatella shall
produce to plaintiff a list of the names and last known addresses of all tipped employees who
were employed by Scalinatella at any time in the six years preceding the filing ofthe Complaint.
P. Kevin Castel
United States District Judge
Dated: New York, New York
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