Lopez v. Jva Indstries, Inc.
Filing
26
OPINION AND ORDER re: 16 MOTION to Certify Class Pursuant to the Fair Labor Standards Act filed by Jose A. Torres Lopez: For the reasons set forth herein, Plaintiff's motion for conditional certification of the FLSA class is GRA NTED. Plaintiff is hereby ORDERED to submit a revised version of the Proposed Notice, Consent to Join form, and Reminder Letter, reflecting the Court's modifications and any other appropriate modifications, for final review within seven days of the date of this Order. To the extent not previously done, Defendant is hereby ORDERED to provide Plaintiff with the names and last known addresses of all potential plaintiffs within 21 days of the date of this Order. Plaintiff is further ORDERED to mail the final Notice and Consent to Join no later than 30 days after the Court issues final authorization of the Proposed Notice. Plaintiff is further ORDERED to provide a list of all opt-in plaintiffs to Defendant within 14 days of the conclusion of the opt-in period. The Clerk of Court is directed to terminate Docket Entry 16. (Signed by Judge Katherine Polk Failla on 8/27/2015) (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------------------------X
:
JOSE A. TORRES LOPEZ, on behalf of
:
himself and all others similarly situated,
:
:
:
Plaintiff,
:
v.
:
:
:
JVA INDUSTRIES, INC.,
:
Defendant. :
:
----------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: August 27, 2015
______________
14 Civ. 9988 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiff Jose A. Torres Lopez and others1 bring this action against JVA
Industries Inc., 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 overtime compensation. Plaintiff seeks
an order conditionally certifying a collective action under the FLSA, authorizing
Plaintiff to send notice to prospective opt-in plaintiffs, and requiring Defendant
to undertake certain activities with respect to that notice. As set forth herein,
the motion for conditional certification is granted, and notice is ordered
pursuant to the conditions set forth in the remainder of this Opinion.
1
After the filing of the Complaint, several other individuals filed consents to join the suit
as Plaintiffs, including Julio Jacinto Pina, Carlos A. Aracena, Earl Cox, and Hector
Rodgers. (Dkt. #11-14). The instant motion recites that it is brought solely by Torres
Lopez, though two other Plaintiffs submitted declarations in support of the motion.
References in this Opinion to “Plaintiff” refer to movant Torres Lopez.
BACKGROUND2
A.
Factual Background
Defendant JVA is engaged in the construction business; in furtherance of
that business, Defendant employs carpenters to work at various job sites,
including sites in the State of New York. (Compl. ¶¶ 2, 4, 10, 22). Plaintiff was
employed as a carpenter with Defendant from 2007 until November 2013. (Id.
at ¶ 18; Torres Lopez Decl. ¶ 2). He alleges that he frequently worked for more
than 40 hours per week without being compensated at the required time-anda-half rate for the excess hours. (Compl. ¶¶ 22-26; Torres Lopez Decl. ¶¶ 3-5,
10).
Plaintiff avers that on some occasions, he was provided with a single pay
stub indicating that he was paid “straight time,” with no increase in pay rate
for overtime, while on other occasions, he was paid with a separate check for
overtime hours, again with no increase in rate. (Torres Lopez Decl. ¶¶ 4-5; see
also Pl. Br. Ex. B, F). In addition, Plaintiff alleges that he knows of several
similarly situated persons who are or were employed as carpenters at JVA and
who are or were subject to the same overtime practices; several of those
individuals have joined this litigation and submitted corroborating affidavits in
2
The facts in this Opinion are drawn from Plaintiff’s Complaint (“Compl.” (Dkt. #1)), as
well as from the declarations and exhibits thereto submitted in support of (“Redenburg
Decl.” (Dkt. #18)) and opposition to (“Koulikourdis Decl.” (Dkt. #22)) the instant motion.
Plaintiffs’ declarations, submitted as exhibits to Plaintiff’s opening brief, are referred to
as “[Name] Decl.” For convenience, the parties’ briefs are referred to as “Pl. Br.” (Dkt.
#17), “Def. Opp.” (Dkt. #21), and “Pl. Reply” (Dkt. #24).
2
connection with this motion. (Torres Lopez Decl. ¶ 7; see Cox Decl. ¶¶ 3-6;
Pena Decl. ¶¶ 3-5).
B.
Procedural Background
Plaintiff commenced this action alleging violations of federal and state
labor law on December 18, 2014. (Dkt. #1). He brought claims for 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. (Compl. ¶¶ 27-37, 49-68).
On May 19, 2015, Plaintiff filed a motion for the Court to conditionally
certify a collective action under the FLSA and allow notice to current and
former carpenters employed by JVA. (Dkt. #16-18). He argued that the wellpleaded allegations in the Complaint, along with the declarations submitted by
himself and Plaintiffs Pina and Fox, demonstrated that “Defendant JVA
subjected Plaintiff and his co-workers to the same compensation policies that
violate the FLSA.” (Pl. Br. 8). Relatedly, Plaintiff sought approval of his
proposed notice, appointment of a third-party administrator, a requirement
that Defendant post the notice in a conspicuous location at each of its job sites
in New York, authorization of a reminder letter halfway through the opt-in
period, and a three-year notice period. (Pl. Br. 10-12). Finally, Plaintiff
requested that the FLSA limitations period be tolled until notice was sent out.
(Id. at 12-13).
Defendant opposed the motion with submissions filed on June 18 and
22, 2015, and included within its opposition papers declarations from Joseph
3
Alfano, the president and owner of JVA, as well as Efrain Vazquez, a foreman
at the company. (Dkt. #20-22). On the issue of certification, Defendant
maintained that (i) its employees could not be entitled to overtime pay because,
among other things, the job sites were not open past 5:00 p.m. or on Saturdays
(Def. Opp. 2-3); (ii) any earnings statements with hours in excess of 45 hours
reflected “previous hours [that] were carried over into the next week, but ...
should not be counted as ‘overtime’ hours by definition” (id. at 3); and
(iii) Plaintiffs were not “similarly situated” in their job duties, because each
project required different skills and different levels of supervision by each
carpenter (id. at 6). On the issue of notice, Defendant objected to a three-year
notice period, to the posting requirement, and to the reminder letter. (Id. at 78).
Briefing was complete with the filing of Plaintiff’s reply brief on June 26,
2015. (Dkt. #24). The Court will now consider Plaintiff’s motion.
DISCUSSION
A.
The Court Will Preliminarily Certify a Collective Action
Under the FLSA
1.
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. Supp. 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.
4
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.
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),
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2013 WL 3199292, at *3-4 (S.D.N.Y. June 25, 2013) (granting conditional
certification and collecting cases).
Although the “modest factual showing” required at the first stage “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.” Myers, 624 F.3d at 555
(emphasis in original) (citations omitted). The Second Circuit has further
confirmed that this low standard is appropriate because conditional
certification is merely “a useful ‘case management’ tool” that “facilitate[s] the
sending of notice to potential class members.” Id. at 555 n.10 (quoting
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 174 (1989)). This is to be
distinguished from the second stage, when the Court has a more developed
record; at that time, the named plaintiffs must prove that “the plaintiffs who
have opted in are in fact ‘similarly situated’ to the named plaintiffs.” Id. at 555
(emphasis added).
2.
Analysis
Plaintiff has easily cleared the low hurdle to conditional certification. He
offers, in addition to detailed allegations in and exhibits to the Complaint
regarding overtime policies to which he and other carpenters were subjected,
three factual declarations (including his own) making similar allegations of
failure to pay overtime at the appropriate rate. Defendant opposes conditional
certification largely by attacking the credibility of the declarants and the
granularity of their declarations (see Def. Opp. 6), or by offering contradictory
6
factual assertions, including those in the declarations of JVA’s owner and
foreman (see Alfano and Vasquez Decls.). Notably, however, Defendant’s
arguments and evidence concerning the practical inability of JVA carpenters to
work overtime goes to the merits, rather than to 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).
Defendant’s focus on the similarity vel non of each of the Plaintiffs (and,
by extension, each of the prospective plaintiffs) is likewise premature. Even
crediting JVA’s argument, the mere fact that some differences exist cannot
defeat conditional certification; were it otherwise, conditional certification
would be limited to situations where employees “were clones of one another
working in completely identical stores, in identical neighborhoods, with
identical clientele.” Damassia v. Duane Reade, Inc., No. 04 Civ. 8819 (GEL),
2006 WL 2853971, at *6 (S.D.N.Y. Oct. 5, 2006). Arguments that
individualized issues predominate are reserved for the second stage of the
inquiry, where JVA can move for decertification if discovery reveals that the
claimants are not similarly situated. Iglesias-Mendoza v. La Belle Farm, Inc.,
239 F.R.D. 363, 369 (S.D.N.Y. 2007) (“If the fruits of full discovery reveal that
plaintiffs are not, in fact, ‘similarly situated’ to defendants’ other employees, or
7
that only employees who worked at the same facility or engaged in a particular
job are ‘similarly situated,’ [the court] may later decertify the class or divide it
into subclasses, if appropriate.”); see generally Ruiz, 2015 WL 1254820, at *1517 (decertifying collective action under the FLSA). Plaintiff’s motion is therefore
granted.3
B.
The Court Will Order Notice
1.
Applicable Law
The Court having determined that notice is warranted, the next
questions concern the form that notice is to take. The FLSA does not specify
the content of the notice of pending litigation to be provided to potential opt-in
plaintiffs, but rather vests the district court with broad discretion with respect
to such notice. See Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 59 (S.D.N.Y.
2009); Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F. Supp. 2d 101, 104
(S.D.N.Y. 2003). Indeed, court-authorized notice is preferred because “[b]oth
the parties and the court benefit from settling disputes about the content of the
notice before it is distributed,” and because such notice “serves the legitimate
goal of avoiding a multiplicity of duplicative suits and setting cutoff dates to
expedite disposition of the action.” Hoffmann-La Roche, 493 U.S. at 172.
“Courts consider the overarching policies of the collective suit provisions
and whether the proposed notice provides ‘accurate and timely notice
3
Later in his motion, Plaintiff sought certification of a “New York State Collective.” (Pl.
Br. 9-10). The Court understands from Plaintiff’s reply brief (see Pl. Reply 3-4), that
this argument pertains to the geographic scope of the collective action under the FLSA,
and is not an effort to certify Plaintiff’s NYLL claims without invoking the procedures of
Fed. R. Civ. P. 23.
8
concerning the pendency of the collective action, so that [an individual
receiving the notice] can make an informed decision about whether to
participate.’” Delaney, 261 F.R.D. at 55 (quoting Fasanelli v. Heartland
Brewery, Inc., 516 F. Supp. 2d 317, 323 (S.D.N.Y. 2007)) (alteration in original).
As with the conditional certification inquiry, a court evaluating the degree to
which court-authorized notice is appropriate “does not resolve factual disputes,
decide ultimate issues on the merits, or make credibility determinations.”
Davis v. Abercrombie & Fitch Co., No. 08 Civ. 1859 (PKC), 2008 WL 4702840, at
*9 (S.D.N.Y. Oct. 23, 2008) (citing Lynch v. United Servs. Auto Ass’n, 491 F.
Supp. 2d 357, 368-69 (S.D.N.Y. 2007)).
2.
Analysis
a.
The Court Adopts Plaintiff’s Notice Forms, With Edits
While Defendant disputes certain aspects of Plaintiff’s plan of providing
notice to prospective opt-in plaintiffs, it does not dispute the contents of the
proposed notices. (See Pl. Br. Ex. I). The Court has reviewed the Notice and
Consent to Join form and agrees that, with certain edits, they adequately
advise prospective opt-ins of their rights and responsibilities. It will therefore
distribute the edited Notice and Consent to Join form to the parties under
separate cover, and authorize the mailing of the Notice and Consent to Join
form as set forth below. Opt-in plaintiffs must return a completed Consent to
Join form within 90 days of the mailing of the Notice.4
4
Plaintiff also requests that the Court appoint a “third party administrator” to mail
notices to prospective opt-in plaintiffs. (Pl. Br. 10). Because Plaintiff has not explained
why such an administrator is necessary — and because his proposed notices in fact
9
In addition, Plaintiff seeks authorization to send a reminder letter (the
“Reminder Letter”) to prospective collective action members at the halfway
point of the opt-in period. (See Pl. Br. 11 & Ex. I). Defendant opposes the idea
of the Reminder Letter, but not its contents. (Def. Opp. 8). The Court will
permit such a letter, in accordance with the reasoning of other courts in this
District. See, e.g., Chhab v. Darden Restaurants, Inc., No. 11 Civ. 8345 (NRB),
2013 WL 5308004, at *16 (S.D.N.Y. Sept. 20, 2013) (“Given that notice under
the FLSA is intended to inform as many potential plaintiffs as possible of the
collective action and their right to opt-in, we find that a reminder notice is
appropriate.” (collecting cases)); see also Michael v. Bloomberg L.P., No. 14 Civ.
2657 (TPG), 2015 WL 1810157, at *4 (S.D.N.Y. Apr. 17, 2015) (same); Morris v.
Lettire Const. Corp., 896 F. Supp. 2d 265, 275 (S.D.N.Y. 2012) (same) (citing
Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010)); cf.
Guzelgurgenli v. Prime Time Specials Inc., 883 F. Supp. 2d 340, 357-58
(E.D.N.Y. 2012) (reviewing split among courts regarding reminder notices, and
denying request for reminder notice without prejudice to its renewal if plaintiffs
explained why such notice was necessary under the circumstances). Here as
well, the Court will distribute an edited version of the Reminder Letter to the
parties under separate cover, and authorize its issuance 45 days after the
mailing of the Notice.
direct prospective opt-ins to contact Plaintiff’s counsel for information and mail to him
directly their Consents to Join — the application is denied.
10
It is the Court’s expectation, particularly given the text of Plaintiffs’
supporting declarations, that the contents of the Notice, the Consent to Join
form, and the Reminder Letter will be in both English and Spanish. If an
individual mailing of a Notice and Consent to Join form to any potential
plaintiff is returned as undeliverable, Plaintiff is authorized to mail these
materials again to any other address (including electronic mail addresses) that
he may determine is appropriate.
b.
A Three-Year Notice Period Will Be Permitted
Plaintiff seeks a three-year notice period, while Defendant seeks only a
two-year period; the difference stems from the parties’ difference of opinion
concerning JVA’s willfulness. (Compare Pl. Br. 11-12, with Def. Opp. 7). “The
FLSA generally provides for a two-year statute of limitations on actions to
enforce its provisions, but allows a three-year limitations period for ‘a cause of
action arising out of a willful violation.’” Herman v. RSR Sec. Servs. Ltd., 172
F.3d 132, 141 (2d Cir. 1999) (citing 29 U.S.C. § 255(a) (1994)), holding modified
by Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61 (2d Cir. 2003). Courts in this
Circuit have repeatedly approved three-year notice periods — and, indeed, even
six-year notice periods in certain cases with tandem claims under the NYLL.
See Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545, 563-64
(S.D.N.Y. 2013) (collecting cases). Because the parties dispute the applicability
of the willfulness standard, the Court will apply the three-year standard. See,
e.g., Iglesias-Mendoza, 239 F.R.D. at 369 (“Where wilfulness is disputed, the
court applies the three-year statute of limitations for purposes of certifying a
11
representative action.”); Fasanelli, 516 F. Supp. 2d at 323 (conditionally
certifying class based on three-year period in order to “avoid any merit-based
determinations at this time,” but cautioning as to the possibility of
“decertification at a later time”).
c.
Defendant Will Not Be Required to Post the Notice at All
Job Sites
Plaintiff requests that Defendant be ordered “to post the Notice in a
conspicuous location at each of its New York job sites.” (Pl. Br. 11). It is true,
as Plaintiff notes (id.), that courts frequently approve postings on employee
bulletin boards and in common employee spaces. See, e.g., Trinidad, 962 F.
Supp. 2d at 564. However, Defendant has raised legitimate concerns about the
practicability of such a practice here, including the facts that “Defendant’s
company does not directly control the various job sites that carpenters are
assigned to in the City of New York,” and that “it would be significantly
burdensome for Defendant[] to physically post a court approved notice in all of
these locations,” because, among other things, “[p]rior permission from the
owners of each complex would be needed.” (Def. Opp. 8).
The Court agrees with Plaintiff that the possibility of JVA’s owner
“miss[ing] time . . . managing his company” is not an argument against posting.
(Pl. Reply 5). However, Plaintiff has not seriously addressed in his reply the
crux of Defendant’s argument, which concerns the significant burdens of
seeking permission from owners who are in no way involved in this lawsuit.
Plaintiff also has presented no evidence (e.g., payments of wages in cash) to
suggest that Defendant would have inadequate contact information for
12
prospective opt-in plaintiffs. In any event, to ensure maximum dissemination
of information concerning this litigation, the Court has authorized issuance of
the reminder letter and alternative means of service if mailing of the Notice
proves unsuccessful. Plaintiff’s request for job-site postings is thus denied.5
3.
The FLSA Statute of Limitations Will Not Be Tolled at
This Time
Finally, Plaintiff requests that the Court toll the limitations period for the
FLSA claim to account for the time required to decide the instant motion. (Pl.
Br. 12 (requesting that “the FLSA statute of limitations be tolled until such
time that they are able to send notice to potential opt-in plaintiffs”)). This is
because, unlike in Rule 23 class actions, the limitations period in a FLSA
collective action continues to run for each plaintiff until he or she files written
consent with the court to join the lawsuit. See 29 U.S.C. § 256(b). Defendant
did not object to the request.
In a prior decision, this Court looked at cases considering whether the
period of pendency of a motion for collective action certification can serve as an
“extraordinary circumstance” justifying application of the equitable tolling
doctrine. See Mendoza v. Ashiya Sushi 5, Inc., No. 12 Civ. 8629 (KPF), 2013
WL 5211839, at *10 (S.D.N.Y. Sept. 16, 2013). Ultimately, the Court deferred
5
Secondarily, Plaintiff has not demonstrated, on the unusual facts of this case, that
posting at Defendants’ job sites that were in play as far back as December 2011 would
be likely to reach any significant number of potential plaintiffs who would not otherwise
receive notice. In other words, many of the job assignments underlying the instant
litigation have concluded, and with them, the need for the carpenters to remain at a
particular site. Plaintiff has not explained how posting notices at places where
prospective opt-in plaintiffs formerly worked will provide them notice of this litigation.
13
consideration of the issue until after the opt-in period, as “‘it [was] not yet clear
whether or not any potential plaintiffs will be barred from this action due to a
delay in notice.’” Id. (quoting Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F.
Supp. 2d 445, 450 (S.D.N.Y. 2011)). So too here, the Court will permit notice
to be distributed to all potential plaintiffs employed within three years of the
date of the filing of the Complaint, and defer consideration of the statute of
limitations until after the opt-in period. At that time, any individual would-be
plaintiffs whose claims have expired may seek equitable tolling as it may apply
to them.
CONCLUSION
For the reasons set forth herein, Plaintiff’s motion for conditional
certification of the FLSA class is GRANTED.
Plaintiff is hereby ORDERED to submit a revised version of the Proposed
Notice, Consent to Join form, and Reminder Letter, reflecting the Court’s
modifications and any other appropriate modifications, for final review within
seven days of the date of this Order.
To the extent not previously done, Defendant is hereby ORDERED to
provide Plaintiff with the names and last known addresses of all potential
plaintiffs within 21 days of the date of this Order.
Plaintiff is further ORDERED to mail the final Notice and Consent to Join
no later than 30 days after the Court issues final authorization of the Proposed
Notice.
14
Plaintiff is further ORDERED to provide a list of all opt-in plaintiffs to
Defendant within 14 days of the conclusion of the opt-in period.
The Clerk of Court is directed to terminate Docket Entry 16.
SO ORDERED.
Dated:
August 27, 2015
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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