Lynch et al v. City Of New York

Filing 87

OPINION & ORDER re: 76 MOTION for Partial Summary Judgment and for Decertification. filed by City Of New York. For the reasons discussed above, defendants motion to decertify the conditional class is GRANTED. Based upon the decer tification, the parties should reevaluate the evidence they need to support the positions of any particular plaintiffs. Accordingly, the parties shall advise the Court not later than Thursday, November 9, 2017, whether they stand on their partial motions for summary judgment as written, or whether they would like to change or modify them to take into account any additional evidence they would like to submit. SO ORDERED. (Signed by Judge Katherine B. Forrest on 10/27/2017) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------------------ X
:
NORMA LYNCH, LINDA BRISBANE, CYMAH :
LOVELL, KENNETH MILLER, NATISHA
:
SMITH, and CHIVON DANIELS,
:
:
Plaintiffs,
:
:
-v:
:
THE CITY OF NEW YORK,
:
:
Defendant.
X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: October 27, 2017

16-cv-5677 (KBF)
OPINION & ORDER

-----------------------------------------------------------------KATHERINE B. FORREST, District Judge:
Plaintiffs, on behalf of themselves and others similarly situated, commenced
this action on July 15, 2016, against the City of New York for alleged violations of
the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (ECF No. 1.)
Plaintiffs subsequently filed an amended complaint on October 4, 2016. (Am.
Compl., ECF No. 21.) Plaintiffs allege that New York City’s Department of
Homeless Services (“DHS”) engaged in a number of illegal employment practices,
including, inter alia, failing to compensate plaintiffs at a rate of one and one-half
times plaintiffs’ regular rate of pay for all hours plaintiffs worked in excess of forty
hours in a given workweek. (Id.)
On December 5, 2016, the Court conditionally certified a class under 29
U.S.C. § 216(b) of “all present and former employees who work or who have worked
as Principal Administrative Assistant I and Principal Administrative Assistant II

occupations for the City of New York at the Department of Homeless Services
facility located at 33 Beaver Street, New York, NY 10004, for any time since July
15, 2013.” (ECF No. 34, at 10.)
Both parties filed motions for partial summary judgment; the defendant also
moved to decertify the class. 1 (ECF Nos. 72, 76.)
For the reasons set forth below, defendant’s motion for class decertification is
GRANTED. Further, because decertification impacts the evidence the parties may
want to cite in connection with summary judgment, those motions are DENIED
with leave to refile.
I.

BACKGROUND
Plaintiffs are thirty current or former Principal Administrative Associates,

Level 1 (“PAA 1”) or Level 2 (“PAA 2”), who worked for DHS at some point since
July 15, 2013. Plaintiffs filed an amended complaint on October 4, 2016, alleging
that defendant City of New York engaged in a number of illegal employment
practices under the Fair Labor Standards Act (“FLSA”), including: (1) failing to
compensate plaintiffs at a rate of one and one-half times plaintiffs’ regular rate of
pay for all hours plaintiffs worked in excess of forty hours in a given workweek (the
“Off-the-Clock Claim”); (2) failing to include certain premium payments such as
night shift differential pay and meal allowance payments in the calculation of

Courts often refer to this step in FLSA litigation as “decertification.” This term is not precise as the
first stage of the process is not a true “certification,” but rather a “conditional certification” that only
allows for the sending of notice to potential class members. See Hernandez v. Merrill Lynch & Co.,
Inc., No. 11-cv-8472, 2012 WL 1193836, at *3 n.4 (S.D.N.Y. Apr. 6, 2012); see also Pefanis v.
Westway Diner, Inc., No. 8-cv-002, 2010 WL 3564426, at *4 n.5 (S.D.N.Y. Sept. 7, 2010).
1

2

plaintiffs’ overtime pay (the “Regular Rate Claim”); (3) violating the prompt
payment requirement applicable to overtime pay (the “Timeliness Claim”); and (4)
failing to pay plaintiffs’ compensatory time at a rate of one and one-half times
plaintiffs’ regular rate of pay (the “Straight Time Claim”). (Am. Compl. ¶¶ 29–52.)
Defendant answered the amended complaint on October 20, 2016. (ECF No. 22.)
A.

Conditional Certification

On October 24, 2016, the plaintiffs moved for conditional certification of a
class under 29 U.S.C. § 216(b), comprised of all present and former employees who
work or who have worked as Principal Administrative Assistant I and Principal
Administrative Assistant II occupations for the City of New York at any of its
Department of Homeless Services facilities for any time period since July 15, 2013.
(ECF No. 23.) On December 5, 2016, the Court conditionally certified a modified
version of the class, comprised of only those employees who work or worked during
the relevant period at “DHS’s 33 Beaver Street location.” (ECF No. 34, at 2.)
Following the conditional certification, 30 plaintiffs opted into the class. Of
those 30, the only claim all plaintiffs share is the “Off-the-Clock” claim. Nineteen
claim they were negatively impacted under Count II, eight under Count III, and five
under Count IV. In support of their Motion to Dismiss, defendant submitted the
depositions of all 30 plaintiffs. (ECF No. 79.)
B.

CityTime

The City uses a program called “CityTime,” a web-based program through
which City employees manage their time at work, electronically submit time sheets,
3

and make requests for overtime compensation. (ECF No. 81, Statement of
Additional Undisputed Material Facts (“AUMF”), ¶¶ 37–38.) When plaintiffs work
hours beyond their regularly-scheduled shifts, they are responsible for submitting
requests for compensation through CityTime. (Id. ¶ 46.) CityTime instructs the
employees to certify and review their hours weekly, including whether they worked
any time outside of their regularly scheduled hours. (Id. ¶ 58.) When employees
work beyond their regularly scheduled hours without requesting overtime
compensation, CityTime records their hours as “noncompensable.” (Id. ¶ 75.)
Plaintiffs regularly request and receive overtime compensation for work
performed outside of their regular shifts. (Id. ¶ 79.) Since July 15, 2013, 98.5% of
plaintiffs’ overtime requests have been approved and they have been paid
approximately $366,015 in overtime payments. (Id. ¶¶ 84, 88.)
II.

LEGAL PRINCIPLES
Section 216(b) of the FLSA authorizes employees to maintain collective

actions where they are “similarly situated” with respect to the alleged violations of
the FLSA. 29 U.S.C. § 216(b); Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir.
2010). Similarly situated employees must “opt in” to an action by filing a “consent
in writing to become . . . a party.” 29 U.S.C. § 216(b).
Certification of a “collective action” is a two-step process in the Second
Circuit. See Myers, 624 F.3d at 554–55. At the first step (conditional certification),
the Court simply authorizes notice to be sent to potential similarly situated
plaintiffs. Id. at 555. Plaintiffs bear the light burden of making a “modest factual
4

showing” that the named initial plaintiffs and the potential opt-in plaintiffs
“together were victims of a common policy or plan that violated the law.” Id.
(quoting Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). The
burden may be satisfied through the pleadings and affidavits alone. IglesiasMendoza v. La Belle Farm. Inc., 239 F.R.D. 363, 367 (S.D.N.Y. 2007).
At the second step, defendant has the opportunity to move for decertification
if, after additional discovery, the record shows that the opt-in plaintiffs are not, in
fact, similarly situated to the named plaintiffs. See Myers, 624 F.3d at 555.
The Court must apply a more “stringent standard” of proof in this second
stage for determining whether plaintiffs are similarly situated for the purposes of
the FLSA. See Damassia v. Duane Reade, Inc., No. 04-cv-8819, 2006 WL 2853971,
at *3 (S.D.N.Y. Oct. 5, 2006). The Second Circuit has yet to prescribe a particular
method for determining whether members of a class are similarly situated;
however, district courts typically look to the: “1) disparate factual and employment
settings of the individual plaintiffs; 2) defenses available to defendants which
appear to be individual to each plaintiff; and 3) fairness and procedural
considerations counseling for or against [collective action treatment].” Zivali v. AT
& T Mobility, LLC, 784 F. Supp. 2d 456, 460 (S.D.N.Y. 2011) (internal quotation
marks omitted).
The burden is on the plaintiffs to prove that all class members are similarly
situated. See Ayers v. SGS Control Servs., Inc., No. 03-cv-9078, 2007 WL 646326,
at *4 (S.D.N.Y. Feb. 26, 2007). “All that is required is a persuasive showing that
5

the original and opt-in plaintiffs were common victims of a FLSA violation pursuant
to a systematically-applied company policy or practice such that there exist common
questions of law and fact that justify representational litigation.” Pefanis, 2010 WL
3564426, at *4. “Plaintiffs need not present evidence for ‘each and every” opt-in
Plaintiff so long as they can show that Defendants engaged in a policy, plan, or
scheme of FLSA violations.” Gayle v. Harry’s Nurses Registry, Inc., No. 07-cv-4672,
2012 WL 686860, at *5 (E.D.N.Y. Mar. 2, 2012).
If the records show all putative class members are “similarly situated,” the
“conditional” aspect is removed, the collective action is finally certified, and the
matter proceeds to trial. See Canales v. 115 Broadway Corp., No. 09-cv-4674, 2009
WL 3029333, at *2 (S.D.N.Y. Sept. 22, 2009). If the court finds all class members
are not similarly situated, “the class is decertified, the claims of the opt-in plaintiffs
are dismissed without prejudice, and the class representative may proceed on his or
her own claims.” Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006).
Differing factual circumstances, particularly with regard to differences in
supervisory authority, can provide justification for decertification. See Thind v.
Healthfirst Mgmt. Servs., LLC, No. 14-cv-9539, 2016 WL 7187627, at *3 (S.D.N.Y.
Dec. 9, 2016) (decertifying a class of plaintiffs where some were expressly
authorized to work off the clock while others were never directed to do so); see also
Zivali, 784 F. Supp. 2d at 467–468 (decertifying in part because the “knowledge of
each individual manager varies widely,” thus making the defenses highly
individualized); Morano v. Intercontinental Capital Grp., Inc., No. 10-cv-2192, 2012
6

WL 2952893, at *7 (S.D.N.Y. July 17, 2012) (decertifying in part based on
“differences in . . . supervising directives”); King v. CVS/Caremark Corp., No. 0721824-Civ, 2008 WL 5973490, at *2–5 (S.D. Fla. Sept. 11, 2008) (granting motion for
decertification in part because plaintiff’s claims were “critically determined by the
identity of the store manager and/or supervisor”); King v. West Corp., No.
08:04CV318, 2006 WL 118577, at *15 (D. Neb. Jan. 13, 2006) (decertifying a class
where differences in terms of managers and factual situations would result in
“essentially individual trials”).
III.

DISCUSSION
Core issues in this action include whether the City had actual or constructive

knowledge that plaintiffs were working outside of their regular hours without
compensation, see Kuebel v. Black & Decker, Inc., 643 F.3d 352, 361 (2d Cir. 2011)
(“To establish liability under the FLSA on a claim for unpaid overtime, a plaintiff
must prove that he performed work for which he was not properly compensated, and
that the employer had actual or constructive knowledge of that work.”); see also
Holzapfel v. Town of Newburgh, 145 F.3d 516, 524 (2d Cir. 1998) (“[O]nce an
employer knows or has reason to know that an employee is working overtime, it
cannot deny compensation even where the employee fails to claim overtime hours.”),
and whether the practices of the City supervisors were generally uniform, see
Thind, 2016 WL 7187627; Zivali, 784 F. Supp. 2d at 467–68. For the reasons
discussed below, and primarily because the answer to these questions depends upon
the facts related to several supervisors involved, the Court finds that collective
7

treatment of all opt-in plaintiffs as a single group is inappropriate. However, as
discussed below, smaller “sub-groups” may well be appropriate. 2
Defendant makes three arguments that the § 216(b) class should be
decertified: 1) that the plaintiffs are not similarly situated with respect to their job
duties; 2) that the plaintiffs are not similarly situated with respect to the impact of
the City’s overtime policies; and 3) that the differences between plaintiffs lend
themselves to individual defenses by the City. In contrast, plaintiffs argue that the
circumstances in which the jobs are performed are similar enough, that individual
defenses do not predominate, and that fairness considerations tilt the balance
towards certification. Plaintiffs fail to address, however, defendant’s argument as
to the factual differences between employees and their supervisors with respect to
the overtime policies. The Court agrees with the defendant that various differences
make decertification appropriate.
A.

Disparate Factual and Employment Settings

Plaintiffs’ burden, at this stage, is to make a “persuasive showing that the
original and opt-in plaintiffs were common victims of a FLSA violation pursuant to
a systematically-applied company policy or practice such that there exist common
questions of law and fact that justify representational litigation” Pefanis, 2010 WL
3564426 at *4. In order to be amenable to class certification, plaintiffs must allege

A determination that decertification is appropriate has implications for the use of common proof for
summary judgment. Thus, while defendants request a particular order of decision (with a ruling on
summary judgment followed by a ruling on the certification motion), the Court concludes that if
there is sufficient “uncommon” proof to merit decertification, then the Court cannot ignore that fact
in ruling on summary judgment.

2

8

that “the practices and culture of which they complain are sufficiently uniform and
pervasive as to warrant class treatment.” Zivali, 784 F. Supp. 2d at 463 (internal
quotations marks omitted). While in Zivali the group seeking class treatment was
considerably more sprawling—4,100 opt-in plaintiffs at over 2000 locations—the
Court finds that the same principles apply here.
The defendants have proffered evidence in support of a number of differences
between the opt-in plaintiffs: varying levels of responsibility, times that employees
were on and off-site, and, critically, different supervisors. Plaintiffs have not
persuasively countered this evidence. To demonstrate why collective treatment
under the FLSA is not appropriate here, the Court need only focus on one issue: the
role of the supervisor, which plainly differs by group of employees. The Court
illustrates with a few examples below.
Plaintiff Barksdale, whose job it was to approve employee requests for
overtime, was told that even where overtime had not been previously approved, it
could still be approved through the CityTime system. (Ex. L, Barksdale Tr., at 31–
32.) Moreover, she could not recall any instances in which she had not approved
overtime requests, even where they had not been previously approved. (Id.) These
facts suggest a real defense as to defendant’s knowledge of any uncompensated
time.
Plaintiff Gonzales-Vera testified that she frequently made requests for
overtime from her supervisor, including when she worked through lunch, which
were never denied. (Ex. W, Gonzales-Vera Tr., 58–60.) This also—for different
9

reasons—suggests a lack of employer knowledge of uncompensated work. Plaintiff
Carroll had never submitted an overtime request for work done in portions of her
meal periods because she hadn’t thought to do so. (Ex. N, Carroll Tr., 46–47.) As to
Carroll, it is unclear whether any policy or practice prevented or impeded payment,
or whether her supervisor was aware of her work. Plaintiff Brisbane understood
that if she entered in her overtime hours at the end of each week, she would be
compensated, seeking approval from her supervisors through CityTime. (Ex. M,
Brisbane Tr., 42–44.) Plaintiff Chase’s experience of whether or not overtime was
approved varied depending upon which supervisor she had; furthermore, she
typically did not request overtime when she worked through her meals. (Ex. O,
Chase Tr., 34–36; 45–48.)
Plaintiffs’ depositions further indicate critical differences in what supervisors
told their employees about overtime—ranging from those who said directly that
plaintiffs would not be paid for overtime due to “budgetary” concerns (Ex. CC,
Lynch Tr., 38–40), those who said “no overtime” unless the employees were working
on “special projects,” (Ex. HH, Nyack Tr., 43–44), to those whose supervisors
regularly approved requests for overtime even after the overtime was worked. (Ex.
S, Davis-Williams Tr., 37, 72–73.)
In light of these variations, and plaintiffs’ failure to respond to them, the
Court finds that decertification is appropriate.

10

B.

Individual Defenses

As mentioned above, the City’s defenses will likely be highly individualized.
The City’s knowledge of the alleged uncompensated time could vary from plaintiff to
plaintiff, supervisor to supervisor, and unit to unit. Furthermore, defendant claims
that plaintiffs’ actions—either in failing to request compensation through CityTime
or in failing to timely do so—account for the uncompensated time and/or untimely
payments. This, too, will require evidence that is not common to the proposed
collective.
C.

Fairness and Procedural Considerations

The plaintiffs assert that fairness and procedural considerations dictate that
class treatment is appropriate here, arguing that individual actions will be
burdensome to the plaintiffs, City, and the Court—what they deem a “ridiculous
result.”
However, given the factual distinctions between plaintiffs (or at least groups
of plaintiffs), the procedural benefits are few—indeed, each plaintiff would need to
present evidence about their failure to receive overtime compensation, subject to
cross-examination and individual challenges by the defendant. While here, the
scope is less expansive than in Zivali, the underlying issue is the same; thus, the
Court finds that similarly, the individual factual issues would “eliminate any
judicial efficiency that might be gained through a collective action approach.”
Zivali, 784 F. Supp. 2d at 459 (internal quotation marks omitted).

11

As noted above, while the Court finds that the certification of the entire
§ 216(b) class is not appropriate, there may nevertheless be groups, or “sub-classes”
of plaintiffs, perhaps organized by unit or supervisor, for whom collective resolution
of their claims would be efficient. The parties are invited to confer as to whether
such groups may exist and, if so, to proceed in that manner.
In sum, the Court finds that, upon more “stringent” examination, the
plaintiffs have not met their burden to show that the class members are similarly
situated for the purposes of § 216(b) certification. The class is therefore decertified.
IV.

CONCLUSION
For the reasons discussed above, defendant’s motion to decertify the

conditional class is GRANTED.
Based upon the decertification, the parties should reevaluate the evidence
they need to support the positions of any particular plaintiffs. Accordingly, the
parties shall advise the Court not later than Thursday, November 9, 2017,
whether they stand on their partial motions for summary judgment as written, or

12

whether they would like to change or modify them to take into account any
additional evidence they would like to submit.

SO ORDERED.
Dated:

New York, New York
October 27, 2017
______________________________________
KATHERINE B. FORREST
United States District Judge

13