Fernandez et al v. Sharp Management Corp.
OPINION & ORDER re: 19 MOTION to Certify Class Pursuant to Section 216(b) of the FLSA filed by Rigoberto Santana, William Fernandez, 30 LETTER MOTION for Local Rule 37.2 Conference addressed to Judge John G. Koeltl from Gregor y N. Filosa dated August 3, 2016. The plaintiffs' motion for conditional certification of a collective action and court-authorized notice pursuant to section 216(b) of the FLSA is GRANTED IN PART AND DENIED IN PART. The collective to be noticed includes all superintendents who have worked for Sharp Management in Manhattan at any time over the three years preceding the filing of this complaint. The parties are to meet and confer and jointly submit the text of the proposed notice within two weeks of the date of this Opinion & Order. If any disagreements remain, the parties should submit their alternative language to the Court by the same date. Sharp Management is ordered to produce the names, phone numbers, email addresses and last kno wn mailing addresses of all superintendents who have been in its employ at sites in Manhattan during the three year period preceding the filing of this complaint within 30 days of this Opinion & Order. The Clerk of Court is directed to terminate the motions at Dkt. No. 19 and 30. (As further set forth in this Order.) (Signed by Magistrate Judge Sarah Netburn on 10/13/2016) (kko)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
WILLIAM FERNANDEZ, et al.,
-againstSHARP MANAGEMENT CORP.,
SARAH NETBURN, United States Magistrate Judge:
Plaintiffs William Fernandez and Rigoberto Santana (collectively, “plaintiffs”), former
residential superintendent employees of Defendant Sharp Management Corporation (“Sharp
Management”), brought a complaint alleging that Sharp Management failed to compensate
plaintiffs and other similarly situated co-workers at an overtime rate for all hours worked in
excess of 40 hours per workweek, and failed to pay the applicable minimum wage for all hours
worked in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and New
York Labor Law § 650 et seq (“NYLL”). Plaintiffs also allege that Sharp Management violated
NYLL § 195(3) by willfully failing to furnish accurate wage statements.
Plaintiffs move for conditional certification of a collective action pursuant to § 216(b) of
the FLSA, 29 U.S.C. § 216 (b), for all persons who are or have been employed by Sharp
Management as Resident Managers, Superintendents, Assistance Maintenance Personnel,
Security Staff, Janitors, Porters, or “any other similar job title” at any location operated by Sharp
Management everywhere in the United States during the past three years. Plaintiffs also request
Court authorization to send their proposed Notice to all potential collective action members and
seek an order directing Sharp Management to produce names and contact information for the
same. Plaintiffs further request that the Notice be sent to potential collective action members
who worked for Sharp Management in New York during the past six years. Finally, Plaintiffs
request a pre-motion discovery conference to discuss Sharp Management’s failure to turn over
contact information for employees who they allege are similarly situated to them.
Sharp Management opposes the motion, contending that plaintiffs have failed to show
that they are similarly situated to other purported class members and object to the content of
plaintiffs’ proposed notice. In the alternative, Sharp Management requests that any collective
action certified be limited only to non-supervisory superintendents at its Manhattan properties.
Finally, Sharp Management contends that discovery of potentially similarly-situated employees’
contact information is overly broad before collective action certification.
The following facts are taken from plaintiffs’ complaint and affidavits submitted in
support of this motion. Both plaintiffs are former superintendent employees of Sharp
Management. Plaintiff Fernandez worked at Sharp Management’s 224 West 141st Street location
in Manhattan from approximately March 2011 through December 7, 2015. ECF No. 22-1
(Fernandez Aff.) ¶ 3. Plaintiff Santana worked at Sharp Management’s 55 West 129th location
from May 2014 through December 7, 2015. ECF No. 1 (Compl.) ¶ 39; ECF No. 22-2 (Santana
Aff.) ¶ 3. Both plaintiffs worked under the supervision of Sigfrido Martinez, an employee of
Sharp Management. Fernandez Aff. ¶ 5; Santana Aff. ¶ 5. Plaintiffs had common work
responsibilities, such as sweeping and mopping the buildings, removal of trash and recycling on
designated pickup days, taking care of minor building repairs, and addressing building work
orders assigned to them by their common supervisor. Fernandez Aff. ¶ 6; Santana Aff. ¶ 6.
Both plaintiffs resided in an apartment in the respective buildings in which they worked,
and were paid on a salary basis. Fernandez was paid $350 a week in exchange for his work,
regardless of the number of hours he had in fact worked. Fernandez Aff. ¶ 9. He estimated that
he worked an average of 91 hours per week. Id. ¶ 7–8. Santana was paid $500 week in exchange
for his work, regardless of the number of hours he had in fact worked. Santana Aff. ¶ 9. He
estimated that he worked an average of 86 hours per week. Id. ¶ 7–8. Both plaintiffs state that
they are aware of other current and former superintendent employees who were also paid on a
flat salary basis regardless of the number of hours worked. Fernandez Aff. ¶ 11; Santana Aff. ¶
As evidence of a uniform policy in regards to their employees’ compensation, plaintiffs
note several messages on Sharp Management’s website. One page of the website promotes the
Company’s “Hands on Management” style: “Property managers visit each building daily in
addition to being on 24 hour call in case of emergency. Repair and other expenses are made to
yield maximum value at minimum cost.” ECF No. 22 (Filosa Decl.) ¶ 8, ECF No. 22-5 (Website
Ex. E). Another page states that all building employees are under the direct supervision of the
Property Manager, and “personnel salaries are carefully controlled, in line with budgetary
requirements.” Filosa Decl. ¶ 9, ECF No. 22-6 (Website Ex. F).
Conditional Collective Action Certification
Standard for Conditional Collective Action Certification
Under the FLSA, a plaintiff may seek certification to proceed as a collective action, thus
allowing other “similarly situated” employees the opportunity to join the litigation. 29 U.S.C.
§ 216(b); see also Cohen v. Gerson Lehrman Grp., Inc., 686 F. Supp. 2d 317, 326 (S.D.N.Y.
2010). While FLSA § 216(b) does not reference certification explicitly, district courts have long
utilized their discretionary power to provide notice to potential collective members.
“Certification,” in fact, is somewhat of a term of art: rather than creating a class of plaintiffs for a
FLSA collective action, it serves as a “case management tool” to facilitate notice to potential
class members. Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010) (citing Hoffman-La
Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)).
While the FLSA does not define “similarly situated,” it is widely recognized that the
standard for conditional collective action certification is not a stringent one. Spicer v. Pier Sixty
LLC, 269 F.R.D. 321, 336 (S.D.N.Y. 2010); Iglesias-Mendoza v. La Belle Farm. Inc., 239
F.R.D. 363, 368 (S.D.N.Y. 2007); Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y.
1997). In this Circuit, there is generally a two-stage certification process for FLSA collective
actions. Myers, 624 F.3d at 554–55 (2d Cir. 2010). The first stage—the conditional certification
at issue here—requires only a “modest factual showing” based on the “pleadings and affidavits”
that the putative class members were “victims of a common policy or plan that violated the law.”
Cardenas v. AAA Carting, 12-CV-7178 (VB), 2013 WL 4038593, at *1 (S.D.N.Y. Aug. 9, 2013)
(quoting Sbarro, 982 F. Supp. at 261). “In ascertaining whether potential opt-in plaintiffs are
similarly situated, courts should not weigh the merits of the underlying claims.” Hamadou v.
Hess Corp., 915 F. Supp. 2d 651, 662 (S.D.N.Y. 2013). In the second stage of the framework,
where the court has a “fuller record” to work with, a defendant can move to decertify if
discovery reveals that the claimants are not similarly situated. Myers, 624 F.3d at 555.
This burden is necessarily “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. Nevertheless,
the burden is not non-existent and “cannot be satisfied simply by unsupported assertions or with
conclusory allegations.” Sanchez v. JMP Ventures, L.L.C., No. 13-CV-7264 (KBF), 2014 WL
465542, at *1 (S.D.N.Y. Jan. 27, 2014) (internal quotations omitted). Accordingly, while courts
in this Circuit have routinely granted conditional collective certification on thin records,
including those “based solely on the personal observations of one plaintiff's affidavit,” see, e.g.,
Hernandez v. Bare Burger Dio Inc., No. 12-CV-7794 (RWS), 2013 WL 3199292, at *3
(S.D.N.Y. June 25, 2013) (collecting cases), they have also required some “concrete facts
evidencing a common scheme or plan of wage and hour violations for employees engaged in
different job functions.” Mata v. Foodbridge LLC, No. 14-CV-8754 (ER), 2015 WL 3457293, at
*3 (S.D.N.Y. June 1, 2015). Therefore, courts have withheld conditional collective certification
when submissions did not have any allegations regarding the specific hours worked or amounts
paid to other employees. See, e.g., She Jian Guo v. Tommy’s Sushi Inc., No. 14-CV-3946
(PAE), 2014 WL 5314822, at *3 (S.D.N.Y. Oct. 16, 2014).
Plaintiffs’ Factual Showing in Support of Conditional Certification
Plaintiffs’ Proposed Collective Action for All Salaried Job Categories
In this case, plaintiffs have failed to meet their modest burden for conditional collective
action certification with regards to the broader class of job categories sought, including Resident
Managers, Assistant Maintenance Personnel, Security Staff, Janitors, Porters, and “any other
similar job titles” paid on a salary basis. As set forth above, plaintiffs, both of whom are
superintendents, have submitted two virtually identical affidavits, differing only in the number of
hours worked, weekly remuneration, and job site addresses. Fernandez Aff.; Santana Aff.. The
only evidence from these affidavits that a companywide “common policy or plan” applicable to
all job categories exists is plaintiffs’ statements that “[i]n addition to myself and [the other
plaintiff], I know that there are other current and former employees of Sharp Management that
worked as Superintendents and other similar jobs that were paid the same as me – that is, they
were also paid a flat weekly salary regardless of the amount of hours that they actually worked.”
Fernandez Aff. ¶ 11; Santana Aff. ¶ 11. Notably, plaintiffs fail to state the names, salary rates,
working hours, job sites, or titles of any current or former non-superintendent employees of
Sharp Management, or articulate any basis for their knowledge that such employees are salaried
and do not receive overtime pay.
This evidence is not sufficient to meet the plaintiffs’ burden of proof to conditionally
certify a collective action including non-superintendent employees with job titles different from
those of plaintiffs. Though plaintiffs presumably relied on observations and conversations with
coworkers to discover the existence of an alleged company-wide salary policy, they “[do] not . . .
provide any detail as to a single . . . observation or conversation” which would substantiate their
knowledge. Sanchez, 2014 WL 465542, at *2 (emphasis in original). Information about “where
or when these observations or conversations occurred . . . is critical in order for the Court to
determine the appropriate scope of the proposed class and notice process.” Id.; see also
Ikikhueme v. CulinArt, Inc., No. 13-CV-293 (JMF), 2013 WL 2395020, at *2–3 (S.D.N.Y. June
3, 2013) (denying conditional certification motion premised only on a plaintiff’s personal
declaration containing “unsupported assertions” regarding other employees). Simply put, the
Plaintiffs’ evidence provides the Court with no objective criteria for determining whether Sharp
Management has a “common plan or policy” with regard to any job title except their own, much
less all the job titles plaintiffs are seeking to include in their collective action.
The Court stresses that it is not the number of affidavits which is at issue; a single
affidavit providing some basis for an inference that a company-wide policy exists could be
sufficient to grant conditional certification. See, e.g., Garcia v. Spectrum of Creations Inc., 102
F. Supp. 3d 541, 548 (S.D.N.Y. 2015) (granting certification on the basis of two declarations
listing the names and job titles of 15 co-workers with whom the plaintiffs spoke); Ramos v. Platt,
No. 13-CV-8957 (GHW), 2014 WL 3639194, at *2 (S.D.N.Y. July 23, 2014) (granting
certification on the basis of one declaration referencing conversations with seven co-workers,
several of whom were identified by name); Romero v. La Revise Assocs., L.L.C., 968 F. Supp.
2d 639, 645–46 (S.D.N.Y. 2013) (granting certification on the basis of one plaintiff’s
declaration, based on personal observation of defendants’ policy of engaging in various
violations of the FLSA with respect to all other tipped employees). The plaintiffs’ affidavits do
not have the specificity and detail that our caselaw requires to extend conditional certification
beyond their own job title.
Plaintiffs also contend that the claim on Sharp Management’s website that “personnel
salaries are carefully controlled, in line with budgetary requirements” demonstrates that the
company implements a common policy towards remuneration, and that this policy is the noovertime, flat salary rate that allegedly violates the FLSA and NYLL. But this statement comes
not from a human resources or employment manual, but a marketing-oriented website, and it is
sufficiently general that it could refer to any number of personnel practices. As Sharp
Management argues, the website cited by plaintiffs does not indicate whether all employees are
classified as exempt or non-exempt from FLSA, that work hours and overtime are tightly
controlled, or even that all employees are paid on a salary as opposed to an hourly basis.
Therefore, plaintiffs cannot find support for their allegation that Sharp Management applies a
common policy to all of its employees based on the non-specific claims on the website.
Just as plaintiffs have failed to provide sufficient evidence to justify the inclusion of all
the job categories they seek to provide notice to, they have not offered a sufficient basis for the
territorial scope of the collective that they request be conditionally certified. For an action as
geographically expansive as the one which plaintiffs propose, potentially covering over one
hundred properties in four states, particularized evidence that the practice in question occurred
systematically across Sharp Management’s properties would plainly be necessary. See, e.g.,
Anjum v. J.C. Penney Co., No. 13-CV-460 (RJD)(RER), 2015 WL 3603973 (E.D.N.Y. June 5,
2015) (finding that affidavits from sales associates from two stores could not justify a
certification of a statewide collective action); Ikikhueme, 2013 WL 2395020, at *1–2 (denying
conditional certification because plaintiff’s claims, arising from a single location, could not
establish a factual nexus with approximately 200 different locations across the country); Guillen
v. Marshalls of MA, Inc., No. 09-CV-9575 (LAP)(GWG), 2012 WL 2588771, at *1–2 (S.D.N.Y.
July 2, 2012) (denying conditional certification because a “handful” of affidavits recounting
“individual incidents” could not form a factual nexus between plaintiff’s claims and the claims of
thousands of other employees nationwide); cf. Morris v. Lettire Construction Corp., 896 F. Supp.
2d 265, 271 (S.D.N.Y. 2012) (granting certification of a collective action covering all job sites
when plaintiffs had worked at various sites under same policy and presented statements from the
company’s CEO suggesting a uniform policy).
Collective Action for Manhattan Superintendents Only
Even though plaintiffs have not met their burden with regards to Resident Managers,
Assistance Maintenance Personnel, Security Staff, Janitors, Porters, or “any other similar job
title,” they have made the requisite “modest showing” with regards to their own job title of
superintendent. At the conditional certification stage, the Court should draw all inferences in
favor of the plaintiffs. Mendoza v. Ashiya Sushi 5, Inc., No. 12-CV-8629 (KPF), 2013 WL
5211839, at *4 (S.D.N.Y. Sept. 16, 2013) (citations omitted). Even though the plaintiffs work on
different job sites in Manhattan and were compensated at a different rate, they have both alleged
that they were paid on a flat salaried basis without regards to the number of hours worked in
violation of the FLSA. Fernandez Aff. ¶ 7–9; Santana Aff. ¶ 7–9. They further assert that they
are aware of other current and former superintendent employees of Sharp Management who were
compensated in the same fashion. Fernandez Aff. ¶ 11; Santana Aff. ¶ 11. Courts do “not resolve
factual disputes, decide ultimate issues on the merits, or make credibility determinations” at the
first stage. Korenblum v. Citigroup, Inc., No. 15-CV-3383 (JMF), 2016 WL 3945692, at *2
(S.D.N.Y. July 19, 2016). Taking all of the plaintiffs’ evidence to be true, they have presented
sufficient, though far from overwhelming, evidence to support an inference that other
superintendents in the employ of Sharp Management are subject to a “common plan or policy”
and are thus “similarly situated.”
Sharp Management has requested that, in the event that a collective action be
conditionally certified, that the scope of certification be limited to “non-supervisory”
superintendents, arguing that the fact that certain superintendents take on additional supervisory
tasks indicates that they are not “similarly situated” to plaintiffs. But the key question is not
whether potential collective members’ job duties were identical to that of plaintiffs. Rather, it is
whether “they were subjected to the same alleged unlawful policy that violated the FLSA.”
Schwerdtfeger v. Demarchelier Mgmt., Inc., No. 10-CV-7557 (JGK), 2011 WL 2207517, at *4
(S.D.N.Y. June 6, 2011). In the event that supervisory superintendents are eligible for an
exemption from FLSA because they are deemed to be “executive employees” under 29 U.S.C. §
213(a)(1) or any other applicable exemption, they would cease to be “similarly situated” to
plaintiffs. Making such a determination, however, would require a detailed examination of the
merits of the case. The first stage of conditional certification is not the appropriate time to
“resolve factual disputes, decide substantive issues going to the merits, or make credibility
determinations.” Pippins v. KPMG LLP, No. 11-CV-0377 (CM)(JLC), 2012 WL 19379, at *12
(S.D.N.Y. Jan. 3, 2012) (quoting Lynch v. United Services Auto Ass’n, 491 F. Supp. 2d 357, 368
(S.D.N.Y. 2007)). “If the process of discovery reveals that the named plaintiffs are not “similarly
situated” [to opt-in plaintiffs], the court may then decertify the class as needed . . . .” Benitez v.
Demco of Riverdale, LLC, No. 14-CV-7074 (CM), 2015 WL 3780019, at *6 (S.D.N.Y. June 15,
2015). Accordingly, at this preliminary stage, it is appropriate to include all superintendents in
the conditional certification, regardless of whether Sharp Management classifies them as
supervisory or non-supervisory.
As regards the geographic scope of the certification, Sharp Management requests that any
conditional collective action certification be limited to its properties in Manhattan. Plaintiffs
have provided affidavits from only two superintendents, both of whom are employed within the
borough of Manhattan. There is no evidence in the record that plaintiffs had any interaction with
or personal knowledge of the salary structure of any employees outside Manhattan or that Sharp
Management applied uniform salary practices across its entire operations. Therefore, I find that
any factual predicate for expanding the collective action beyond Sharp Management’s property
in Manhattan is lacking, and the reach of the proposed notice should be narrowed accordingly.
For the foregoing reasons, plaintiffs’ motion to conditionally certify and issue courtfacilitated notice is GRANTED as to superintendents who work or have worked at Sharp
Management’s properties in Manhattan from a period starting three years before the filing of the
Complaint to the present and DENIED as to all Resident Managers, Assistance Maintenance
Personnel, Security Staff, Janitors, Porters, and employees with “any other similar job title” paid
on a fixed salary, as well as superintendents who have not worked in Manhattan in the applicable
Form and Content of the Proposed Notice
Plaintiffs have proposed a notice based on the model employment discrimination notice
provided by the Federal Judicial Center. Ex. C. Sharp Management requested that the proposed
notice include a statement to potential opt-in plaintiffs informing them that they would waive
their right to liquidated damage under the NYLL by joining the collective action. Such a notice
was mandated in a decision conditionally certifying a FLSA collective action, as New York state
law prohibits any “action to recover a penalty” in a class action unless the statute creating such
penalty explicitly authorized it. Cohen v. Gerson Lehrman Grp., Inc., 686 F. Supp. 2d 317, 332
(S.D.N.Y. 2010) (analyzing N.Y. CPLR § 901(b)). But after this decision was issued, the
Supreme Court ruled that N.Y. CPLR § 901(b) is preempted by Federal Rule of Civil Procedure
23 in all federal proceedings. Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559
U.S. 393 (2010). Therefore, plaintiffs have not disclaimed and need not disclaim their right to
pursue liquidated damages under the NYLL by seeking to proceed on such claims on a class
basis in federal court, and the statement that Sharp Management urges the Court to mandate is
Under the FLSA, the statute of limitations is three years for willful violations and two
years for non-willful violations. 29 U.S.C. § 255(a). When willfulness is disputed, courts
typically apply the three-year limitations period in defining the scope of a collective action. See,
e.g., Hamadou, 915 F. Supp. 2d at 668. The plaintiffs have pled willfulness in this case. Compl. ¶
50, 55. The Court notes that while the proposed notice itself covers all individuals employed by
Sharp Management during the previous three year period, Ex. C, plaintiffs request a six year
notice period for all individuals employed in New York, because NYLL claims are subject to a
longer statute of limitations period.
As the Court is conditionally certifying a reduced collective consisting only of building
superintendents, there is some question whether some or all opt-in plaintiffs fall within the
definition of “janitor” under the Minimum Wage Order for the Building Service Industry. N.Y.
Comp. Codes R. & Regs. tit. 12, § 141-3.4; see Koljenovic v. Marx, 999 F. Supp. 2d 396
(E.D.N.Y. 2014) (finding that building superintendents were “janitors” under the definitions of
the Minimum Wage Order). In the event that opt-in plaintiffs are found to be janitors, they would
not be entitled to overtime rates, N.Y. Comp. Codes R. & Regs. tit. 12, § 141-1.4, and would be
entitled to a per-unit minimum rate instead of an hourly minimum wage. N.Y. Comp. Codes R.
& Regs. tit. 12, § 141-1.3. As such, though in certain cases some courts in this District have
decided that a six-year notice period is warranted for conditionally certified collective actions
involving NYLL claims, see, e.g.,Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 410
(S.D.N.Y. 2012), given the potential difficulties with plaintiffs’ NYLL claims, a three-year
notice period is appropriate. “To the extent the Plaintiffs seek to provide notice to potential
plaintiffs that fall outside of the putative FLSA class, but may have claims under the N.Y. Labor
Law, they must follow the discovery and notice procedures applicable to class actions under the
Federal Rules of Civil Procedure.” Alvarez v. IBM Restaurants Inc., 839 F. Supp. 2d 580, 587
Notice would normally be provided to those employed within three years of the date of
the notice. See 29 U.S.C. § 255(a); Winfield, 843 F.Supp.2d at 410. “However, because equitable
tolling issues often arise for prospective plaintiffs, courts frequently permit notice to be keyed to
the three-year period prior to the filing of the complaint, ‘with the understanding that challenges
to the timeliness of individual plaintiffs’ actions will be entertained at a later date.’” Id. (quoting
Whitehorn v. Wolfgang’s Steakhouse, Inc., 767 F. Supp. 2d 445, 451 (S.D.N.Y.2011)).
Therefore, in this case, the three-year period for notice will be calculated from the date of filing
of the complaint.
As no other issues regarding the proposed notice have been raised, the parties are ordered
to confer and make a good-faith effort to agree to the text of the proposed notice within two
weeks of the date of this Opinion & Order.
Production of Information
Within 30 days, Sharp Management shall produce the names, phone numbers, email
addresses and last known mailing addresses of all superintendents who have been in its employ
at sites in Manhattan during the three-year period preceding the date of the filing of this
The plaintiffs’ motion for conditional certification of a collective action and courtauthorized notice pursuant to section 216(b) of the FLSA is GRANTED IN PART AND
DENIED IN PART. The collective to be noticed includes all superintendents who have worked
for Sharp Management in Manhattan at any time over the three years preceding the filing of this
The parties are to meet and confer and jointly submit the text of the proposed notice
within two weeks of the date of this Opinion & Order. If any disagreements remain, the parties
should submit their alternative language to the Court by the same date.
Sharp Management is ordered to produce the names, phone numbers, email addresses and
last known mailing addresses of all superintendents who have been in its employ at sites in
Manhattan during the three year period preceding the filing of this complaint within 30 days of
this Opinion & Order.
The Clerk of Court is directed to terminate the motions at Dkt. No. 19 and 30.
New York, New York
October 13, 2016
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