Guaman v. DL Restaurant Development L.L.C. et al
Filing
28
OPINION re: 19 MOTION to conditionally certify collective action, filed by German Guaman. Plaintiff's motion for conditional certification is granted, and the parties are directed to provide notice to all potential class members. (As further set forth in this Order.) (Signed by Judge Robert W. Sweet on 10/27/2015) (spo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------x
GERMAN GAUMAN, individually and on
behalf of all other individuals
similarly situated,
Plaintiff,
14 Civ. 2587
- against OPINION
DL RESTAURANT DEVELOPMENT LLC d/b/a
SCALINI FEDELI and MICHAEL CENTRULO,
jointly and severally,
Defendants.
----------------------------------------x
A P P E A RAN C E S:
Attorneys for Plaintiff
LAW OFFICE OF JUSTIN A. ZELLER, P.C.
277 Broadway, Suite 408
New York, NY 10007
By:
Brandon D. Sherr
John Gurrieri
Justin A. Zeller
Attorneys for Defendants
CANTOR EPSTEIN & MAZZOLA, LLP
4 9 West 37th Street, 7th Floor
New York, NY 10016
By:
Gary S. Ehrlich
1
(RWS)
Sweet, D.J.
Plaintiff German Gauman ("Gauman") has moved the Court to
conditionally certify his lawsuit against Defendants DL
Restaurant Development, LLC, doing business as Scalini Fedeli
("Scalini Fedeli") and Michael Centrulo ("Centrulo")
(collectively, the "Defendants") as a collective action under
the Fair Labor Standards Act.
For the reasons set forth below,
the motion is granted.
Prior Proceedings
The Plaintiff, a restaurant employee of Scalini Fedeli,
brought this action on April 11, 2014 alleging Defendants paid
him less than minimum wage and failed to pay overtime in
violation of the Fair Labor Standards Act
("FLSA") and New York
Labor Law ("NYLL"), and alleging the violations were the result
of common policies and practices constituting a collective
action on behalf of similarly situated plaintiffs.
3, 10-11.
Compl. 11 1-
Defendants Answered the Complaint on July 9, 2014.
Def.'s Answer.
Plaintiff filed his motion for conditional certification on
July 21, 2015.
Pl.'s Mot. to Conditionally Certify Collective
2
Action (hereinafter, "Pl.'s Mot.").
opposition on August 4, 2015.
Defendants filed their
Def.'s Opp.
The motion was heard
on submission and marked fully submitted on August 26, 2015.
Applicable Standard
Certification of an FLSA class action is a two-step
process.
"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.
At the second stage,
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
situated' to the named plaintiffs.
'similarly
The action may be 'de-
certified' if the record reveals that they are not, and the optin plaintiffs' claims may be dismissed without prejudice."
Myers v. Hertz Corp., 624 F.3d 537, '555 (2d Cir. 2010) (citations
omitted).
In order to merit conditional certification as a collective
action under the FLSA at the first step, plaintiffs need only
"make a modest factual showing that they and potential opt-in
plaintiffs together were victims of a common policy or plan that
3
violated the law."
factual showing
Id.
~cannot
(quotation omitted).
That modest
be satisfied simply by unsupported
assertions, but 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.
The Court
is not concerned with weighing the merits of the underlying
claims, but rather with determining whether there are others
similarly suited who could opt into the lawsuit and become
plaintiffs.
See Lloyd v. J.P. Morgan Chase & Co., No. 11 Civ.
9305, 2013 WL 4828588, at *3 (S.D.N.Y. Sept. 9, 2013).
Conditional Certification as a Collective Action is Granted
Plaintiff has submitted a single affidavit, his own, to
See Pl.'s
support his motion for conditional certification.
Aff.
The affidavit alleges the Plaintiff worked for Scalini
Fedeli as a dishwasher and prep cook for between 75 and 81 hours
per week over the course of three years, for which he was
compensated approximately $400 per week.
Id.
~~
2-6.
It
further alleges Defendants employed approximately seventeen
others, many of whom were paid in the same manner.
14. If the affidavit was limited to these facts,
Id. at 13-
Plaintiff may
not have provided a sufficient factual basis to meet the liberal
standard required for conditional certification.
4
However,
Plaintiff's affidavit goes further.
It names 7 individuals that
Plaintiff specifically alleges were paid similarly, and provides
hour and salary information for 4 of them.
1
Id.
~~
10-12.
Plaintiff's knowledge of schedules was based on his observations
from working in the same environment, and his knowledge of wages
based on conversations where each of the four individuals shared
their compensation arrangements with him.
Id.
~~
10-11, 12.
The case law denying certification holds that total lack of
factual allegations supporting a conclusion that other employees
are similarly situated is the basis upon which to deny a motion
for conditional certification.
See e.g., Mata v. Foodbridge
LLC, No. 14 CIV. 8754 ER, 2015 WL 3457293, at *3 (S.D.N.Y. June
1, 2015)
(denying conditional certification where Plaintiff's
affidavit "include[d] no concrete facts evidencing a common
scheme or plan of wage and hour violations for employees engaged
in different job functions"); see also Guan Ming Lin v. Benihana
Nat'L Corp., 755 F. Supp. 2d 504, 510 (S.D.N.Y. 2010)
(denying
conditional certification due to lack of factual allegations
Plaintiff's affidavit alleges that Efrain, a cook, worked 47
hours for a salary of $500 each week.
Pl.'s Aff. ~ 10. Levis,
also a cook, allegedly worked 72 hours for a salary of $400 each
week. Id.
Canela, a dishwasher, allegedly worked 60 hours for
approximately $400 each week. Id. ~ 11.
Poncho, a busboy,
allegedly worked between 24 and 30 hours a week, but collected
only tips and was not paid any wage at all.
Id. ~ 12.
1
5
showing other employees similarly situated); see also Qing Gu v.
T.C. Chikurin, Inc., No. CV 2013-2322 SJ MDG, 2014 WL 1515877,
at *3-4 (E.D.N.Y. Apr. 17, 2014)
(denying conditional
certification where "Plaintiffs make only general allegations
that other employees of defendants were denied minimum wage and
overtime compensation.").
These cases also expound on the
missing facts in each case.
Defendants argue Gauman's affidavit
is analogous to the supporting documentation in these denial
cases, and that failure to allege each fact listed by the Court
in those cases demands conditional certification be denied.
Def.'s Opp. at 5-6.
The cases do not stand for such a
proposition, and are distinct from this one, which offers
factual details as to at least four employees in addition to
Plaintiff.
Plaintiff provides specific schedules and individualized
salaries for four individuals spanning Defendant's restaurant
operation.
Pl.'s Aff.
~~
10-11, 12.
These facts are based on
Plaintiff's observations, having worked at the restaurant
exceptionally long hours in general, and with several of the
named employees in particular.
See Pl . ' s Af f .
~
5 , 1 0-12
(e . g . ,
"I know Canela's schedule because we worked in the kitchen
together and shared similar schedules, and I witnessed when she
worked.").
These facts are entirely sufficient to support a
6
. '
conclusion that four individuals in addition to Plaintiff, and
thus at least than 29% of Defendants' limited number of
employees, may be similarly situated to Plaintiff in that they
are subject to a common policy or plan of payment that violates
the FLSA and NYLL.
That these individuals perform different
tasks across the restaurant's regular operations supports a
conclusion that all Scalini Fedeli employees may be similarly
situated.
This is all that is required to meet the "modest"
burden for conditional class certification.
Myers, 624 F.3d at
555.
That Plaintiff's affidavit is the lone supporting evidence
is of no moment.
Mata, 2015 WL 3457293, at *3 ("Defendants are
wrong to suggest that Plaintiff was required to buttress his
motion with affidavits besides his own or with other documentary
evidence.")
Furthermore, where, as here,
(citations omitted).
facts are alleged supporting Plaintiff's argument that other
employees are similarly situated, reliance on Plaintiff's own
observations or conversations is not fatal to conditional class
certification.
See id. at *4 (denying class certification where
Plaintiff "does not provide any detail as to a single
observation or conversation informing his decision to bring a
collective action" (emphasis in original)
7
(citations omitted))
Conclusion
For the foregoing reasons, Plaintiff's motion for
conditional certification is granted, and the parties are
directed to provide notice to all potential class members.
It is so ordered.
.p ,
New York, NY
October
ROBERT W. SWEET
U.S.D.J.
2015
8
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