Escobar et al v. Motorino East Village Inc. et al

Filing 34

OPINION AND ORDER re: 12 MOTION to Certify Class & Court Authorized Notice filed by Jorge Anibal Garcia, Carlos Escobar, Braulio Hernandez Velasquez, Raphil Perez, Carlos Eduardo Romero Ospina, Hugo Gonzalez Ramirez, Carlos Cast illo, Vicente Dionicio, Helmi Sudrajat, Javier Paredes, Marcos Sanchez, Julio Aldo Nocela, Oliver Hernandez: For the reasons set forth herein, Plaintiffs' motion for conditional certification of the FLSA class is GRANTED. Defendants� 39; request for an opportunity to submit a counter-proposed notice and consent to sue form (Def. Opp. 14 n.11) for the Court's consideration is GRANTED as well. Defendants are directed to submit by August 24, 2015, their objections to Plainti ffs' proposed form and method of notice in a letter of no more than three pages and to attach to the letter their counterproposals. Plaintiffs may submit a responsive letter of no more than three pages no later than August 28, 2015. The partie s are further directed to appear before the Court for a status conference on September 9, 2015, at 3:30 p.m. in Courtroom 618 of the Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New York, 10007. The Clerk of Court is directed to terminate Docket Entry 12. (Signed by Judge Katherine Polk Failla on 8/10/2015) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
:
CARLOS ESCOBAR, et al.,
:
:
:
Plaintiffs,
:
:
v.
:
MOTORINO EAST VILLAGE INC. d/b/a
:
:
PIZZERIA MOTORINO, et al.,
:
Defendants. :
:
----------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: August 10, 2015
______________

14 Civ. 6760 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Plaintiffs Carlos Escobar, Carlos Eduardo Romero Ospina, Jorge Anibal
Garcia, Carlos Castillo, Javier Paredes, Raphil Perez, Marcos Sanchez, and
Vicente Dionicio (collectively, “Plaintiffs”) 1 bring this action against Motorino
East Village Inc., doing business as Pizzeria Motorino (“Motorino”), along with
its owner or manager Dimitri Vlahakis (collectively, “Defendants”), asserting
claims under the Fair Labor Standards Act of 1938, Pub. L. No. 75-718, 52
Stat. 1060 (the “FLSA”) (codified as amended at 29 U.S.C. §§ 201-219), and the
New York Labor Law, Consol. Laws 1909, ch. 31 (the “NYLL”), for alleged failure
to pay appropriate minimum wage and overtime compensation, failure to pay
spread of hours compensation, violation of the notice and wage statement
requirements of the NYLL, and failure to compensate employees for tools of the

1

Braulio Hernandez Velazquez and Oliver Hernandez were initially also Plaintiffs in this
action. (See Compl. (Dkt. #1)). Velazquez voluntarily dismissed his claims pursuant to
Fed. R. Civ. P. 41(a)(1) on March 6, 2015 (Dkt. #18), and Hernandez’s claims were
dismissed for failure to prosecute after he became nonresponsive to counsel (Dkt. #31).

trade. Plaintiffs seek an order conditionally certifying a collective action under
the FLSA and authorizing Plaintiffs to send notice to prospective collection
action members. For the reasons set forth in this Opinion, the motion for
conditional certification is granted, and the Court reserves judgment on the
proper form and contents of the requested notice.
BACKGROUND 2
A.

Factual Background
Defendants operate an Italian restaurant in Manhattan under the name

Pizzeria Motorino. (Compl. ¶ 2). Plaintiffs are former employees whose primary
formal responsibilities were as delivery workers, and who were paid at the tip
credit rate (id. at ¶ 9; Answer (Dkt. #7) ¶ 9), but who allege that they spent
more than 20 percent of their workday performing non-tipped, non-delivery
duties at Motorino. (Compl. ¶ 5; Dionicio Decl. ¶ 5; Garcia Decl. ¶ 5; Ospino
Decl. ¶ 5). Plaintiffs allege that they worked hours beyond their formal shift for
which they were not compensated, and some allege that they worked for more
than 40 hours per week without being compensated at the required time-anda-half rate for the excess hours. (Dionicio Decl. ¶¶ 6, 11; Garcia Decl. ¶¶ 6-7,
10; Ospino Decl. ¶ 13). Plaintiffs also state that they were required to purchase
and/or maintain their own bicycles and related delivery equipment, which

2

The facts in this Opinion are drawn from Plaintiffs’ Complaint (“Compl.”), as well as
from the declarations and exhibits thereto submitted in support of (“Faillace Decl.” (Dkt.
#14)) and opposition to (“Gallaway Decl.” (Dkt. #27)) the instant motion. Plaintiffs’
declarations, submitted as exhibits to the Faillace Declaration, are referred to as
“[Name] Decl.” For convenience, the parties’ briefs are referred to as “Pl. Br.” (Dkt. #13),
“Def. Opp.” (Dkt. #28), and “Pl. Reply” (Dkt. #30).

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constituted the tools of their trade. (Compl. ¶ 12; Dionicio Decl. ¶ 13; Garcia
Decl. ¶ 12; Ospino Decl. ¶ 16). Finally, Plaintiffs state that Defendants
improperly deducted a percentage of tips made by credit card on online orders.
(Dionicio Decl. ¶ 12; Garcia Decl. ¶ 11; Ospino Decl. ¶ 15). In addition, each
Plaintiff alleges that he knows of several similarly situated persons employed as
delivery workers who were subject to the same practices. (Dionicio Decl. ¶ 20;
Garcia Decl. ¶ 19; Ospino Decl. ¶ 23).
B.

Procedural Background
Plaintiffs commenced this action alleging violations of federal and state

labor law on August 20, 2014. (Dkt. #1). Plaintiffs bring claims for willful
failure to pay them at the correct applicable minimum hourly rate under the
FLSA, 29 U.S.C. §§ 203(m) (tip credit), 206(a) (minimum wage), and the NYLL,
N.Y. Lab. Law § 652; willful violations of the overtime wage provisions of the
FLSA, 29 U.S.C. § 207(a)(1), and the NYLL’s associated regulations, N.Y. COMP.
CODES R. & REGS. tit. 12, § 142-2.2; willful failure to pay Plaintiffs an additional
hour’s pay for each day in which they worked more than ten hours, in violation
of New York’s spread-of-hours regulations, N.Y. COMP. CODES R. & REGS. tit. 12,
§ 142-2.4(a); and willful failure to provide Plaintiffs with the wage statements
required by the NYLL, N.Y. Lab. Law § 195(3). (Compl. ¶¶ 287-311, 315-17). 3
On January 12, 2015, Plaintiffs filed a motion for the Court to
conditionally certify the FLSA collective action and allow notice to current and

3

Plaintiffs also originally brought claims for failure to provide adequate notice under N.Y.
Lab. Law § 195(1) (Compl. ¶¶ 312-14), but voluntarily dismissed such claims (Dkt. #19).

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former employees of Motorino. (Dkt. #12-14). Defendants opposed the motion
on April 6, 2015 (Dkt. #27-28), and the briefing was complete with the filing of
Plaintiffs’ reply brief on April 20, 2015 (Dkt. #30).
DISCUSSION
A.

Applicable Law
Section 216(b) of the FLSA authorizes collective actions to recover

damages for unpaid wages where all employees are “similarly situated.” 29
U.S.C. § 216(b). “When deciding whether to certify a class under 29 U.S.C.
§ 216(b), district courts in the Second Circuit apply a two-step process.” Ruiz
v. Citibank, N.A., — F.3d —, Nos. 10 Civ. 5950 (KPF), 10 Civ. 7304 (KPF), 2015
WL 1254820, at *14 (S.D.N.Y. Mar. 19, 2015) (quoting Morano v.
Intercontinental Capital Grp., Inc., No. 10 Civ. 2192 (KBF), 2012 WL 2952893,
at *4 (S.D.N.Y. July 17, 2012)), reconsideration denied, 2015 WL 4629444
(S.D.N.Y. Aug. 4, 2015). The first step of that process is generally termed
conditional certification, which this and other courts have noted is something
of a misnomer. See id. at *14 & n.17. This first step requires plaintiffs to
make “only a ‘modest factual showing’ that the plaintiff and potential opt-in
plaintiffs ‘together were the victims of a common policy or plan that violated the
law.’” Morano, 2012 WL 2952893, at *4 (quoting Myers v. Hertz Corp., 624 F.3d
537, 555 (2d Cir. 2010)). Upon such a showing, plaintiffs may send notice to
other potential 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.
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Courts in this District have noted that at this first stage, “the court does
not resolve factual disputes, decide substantive issues going to the ultimate
merits, or make credibility determinations.” Winfield v. Citibank, N.A., 843 F.
Supp. 2d 397, 402 (S.D.N.Y. 2012) (quoting Cunningham v. Elec. Data Sys.
Corp., 754 F. Supp. 2d 638, 644 (S.D.N.Y. 2010)). Accordingly, an FLSA
collective action may be conditionally certified upon even a single plaintiff’s
affidavit. See, e.g., Bhumithanarn v. 22 Noodle Market Corp., No. 14 Civ. 2625
(RJS), 2015 WL 4240985, at *4 (S.D.N.Y. July 13, 2015); Gonzalez v.
Scalinatella, Inc., No. 13 Civ. 3629 (PKC), 2013 WL 6171311, at *3 (S.D.N.Y.
Nov. 25, 2013); Hernandez v. Bare Burger Dio Inc., No. 12 Civ. 7794 (RWS),
2013 WL 3199292, at *3-4 (S.D.N.Y. June 25, 2013) (granting conditional
certification and collecting cases).
B.

Analysis
Plaintiffs have easily cleared the low hurdle to conditional certification.

Plaintiffs offer, in addition to detailed allegations regarding additional named
Plaintiffs in the Complaint, three factual declarations making similar
allegations of off-the-clock work, failure to pay overtime at the appropriate rate,
improper retention of the tip credit, failure to pay for tools of the trade, and
unwarranted deductions from tips paid by credit card. Defendants oppose
conditional certification largely by attacking the credibility of the declarants 4 or
4

Defendants have attacked the declarations for being nearly carbon copies of each other,
for being written in English despite the declarants requiring Spanish-language
interpreters at their depositions, and for purportedly being inconsistent with the
declarants’ deposition testimony. (Def. Opp. 5-6). Not only are credibility
determinations inappropriate at this stage of the litigation, see Winfield, 843 F. Supp.
2d at 402, but the Second Circuit has cautioned that “havoc would be wreaked if we

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by offering contradictory factual assertions, including by the declaration of
Motorino’s general manager (see Gallaway Decl. Ex. A (Declercq Decl.)).
Defendants have offered objective evidence as well, such as payroll records, but
such evidence still goes to the merits rather than the propriety of conditional
certification and notice:
Although Defendants have submitted to the Court
voluminous documentation in the form of Defendants’
affidavits and payroll logs in opposition to Plaintiffs’
motion, attempting to demonstrate that no violation
occurred and no class should be conditionally certified,
these materials clearly go to the merits of the case and
Defendants’ reliance upon them is misplaced at this
stage of the proceedings.
Bhumithanarn, 2015 WL 4240985, at *4 (internal citations omitted). Plaintiffs
have submitted sufficient evidence in their Complaint and the declarations
submitted in support of the instant motion to justify sending notice to potential
collective action members.
CONCLUSION
For the reasons set forth herein, Plaintiffs’ motion for conditional
certification of the FLSA class is GRANTED. Defendants’ request for an
opportunity to submit a counter-proposed notice and consent to sue form (Def.
Opp. 14 n.11) for the Court’s consideration is GRANTED as well. Defendants
are directed to submit by August 24, 2015, their objections to Plaintiffs’
proposed form and method of notice in a letter of no more than three pages and

elected to disregard the positions taken by parties in their affidavits simply because
they were drafted by their lawyers, and rely instead on the alleged ‘legal’ positions taken
by parties in response to poorly phrased questions during depositions.” Caputo v.
Pfizer, Inc., 267 F.3d 181, 194 n.6 (2d Cir. 2001).

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to attach to the letter their counterproposals. Plaintiffs may submit a
responsive letter of no more than three pages no later than August 28, 2015.
The parties are further directed to appear before the Court for a status
conference on September 9, 2015, at 3:30 p.m. in Courtroom 618 of the
Thurgood Marshall United States Courthouse, 40 Foley Square, New York, New
York, 10007.
The Clerk of Court is directed to terminate Docket Entry 12.
SO ORDERED.
Dated:

August 10, 2015
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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