Huertero-Morales v. Raguboy Corp. et al
MEMORANDUM AND ORDER denying 25 Motion to Certify Class. For the reasons set forth above, the plaintiff's motion for conditional certification of an FLSA collective action pursuant to 29 U.S.C. § 216(b) (Docket no. 25) is denied. SO ORDERED. (Signed by Magistrate Judge James C. Francis on 9/12/2017) Copies Transmitted this Date By Chambers. (anc)
Mr. Huertero-Morales worked as a busser at Supper from January
2017 to March 2017.
(Complaint, ¶ 24; Declaration of Francisco
Silverio Huertero-Morales dated June 15, 2017 (“Huertero-Morales
Decl.”), ¶ 1).
He was paid $7.50 per hour.
(Complaint, ¶ 26;
Huertero-Morales Decl., ¶ 8; Employee Earnings Record of Frank
Huertero (“Employee Earnings Record”), attached as Exh. B to
Memorandum of Law in Support of Plaintiff’s Motion for Conditional
Collective Certification (“Pl. Memo.”), at 2).
His pay records do
not account for tips he received above his base salary.
Earnings Record at 2).
He alleges that he received tips from a
“tip pool,” but that the tip pool was tainted because a manager
named David, who did not wait tables or otherwise assist customers,
participated in it.
(Complaint, ¶ 30; Huertero-Morales Decl., ¶¶
Mr. Huertero-Morales also alleges that although he worked
twenty-eight hours per week, he was only paid for twenty-four hours
of work, and the defendants did not allow him to clock in or clock
out to track his hours.
(Complaint, ¶ 25; Huertero-Morales Decl.,
His pay records, however, indicate that he was paid for at
least thirty hours of work in four of the six weeks that he worked
for the defendants.
(Employee Earnings Record at 2).
alleges that other employees at all three restaurants frequently
worked hours for which they were not paid.
Decl., ¶¶ 4-5).
Specifically, he alleges that “Ernesto,” his
former roommate who worked as a food runner, bartender, and cook
at all three restaurants, told him that he was not paid for all of
the hours that he worked.
(Huertero-Morales Decl., ¶ 6).
The plaintiff seeks conditional certification of an FLSA
collective action comprising all non-exempt employees, including
cooks, line-cooks, dishwashers, food preparers, porters, runners,
(Pl. Memo. at 1).
The defendants oppose the motion
on the ground that the plaintiffs have failed to demonstrate that
the prospective collective action members are similarly situated
to the plaintiff with respect to a common policy or practice that
violates the FLSA.
collective action, a process that consists of two stages. 1
The plaintiffs argue that the Court should follow Turner v.
Chiptole Mexican Grill, Inc., 123 F. Supp. 3d 1300 (D. Colo. 2015).
(Pl. Memo. at 12-18). The Turner court found that the two-step
process is inappropriate and that allowing simple permissive
joinder is the correct approach to Section 216(b) collectives.
Turner, 123 F. Supp. 3d at 1305-09.
But the plaintiffs also
explicitly recognize that this is contrary to long-established
practice in the Second Circuit.
(Pl. Memo. at 13); see, e.g.,
Gomez v. Terri Vegetarian LLC, No. 17 Civ. 213, 2017 WL 2628880,
at *1 n.1 (S.D.N.Y. June 16, 2017); Augustyniak v. Lowe’s Home
Woo Kim v. 511 E. 5th Street, LLC, 985 F. Supp. 2d 439, 445
At the first stage –- the current stage of this
litigation –- the “court makes ‘an initial determination to send
situated” to the named plaintiffs with respect to whether a FLSA
violation has occurred.’”
Garcia v. Chipotle Mexican Grill, Inc.,
No. 16 Civ. 601, 2016 WL 6561302, at *3 (S.D.N.Y. Nov. 4, 2016)
(quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)).
“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 ‘similarly situated’ to the named plaintiffs.”
Model Services LLC, No. 14 Civ. 7841, 2016 WL 406385, at *1
(S.D.N.Y. Feb. 2, 2016) (quoting Myers, 624 F.3d at 555)).
plaintiffs; (2) defenses available to defendants which appear to
be individual to each plaintiff; and (3) fairness and procedural
Id. (alteration in original) (quoting Zivali v. AT&T
Mobility, LLC, 784 F. Supp. 2d 456, 460 (S.D.N.Y. 2011)).
The standard at the first stage is not stringent.
Center, LLC, No. 14 CV 488, 2016 WL 462346, at *2 (W.D.N.Y. Feb.
8, 2016). Accordingly, I decline to apply Turner.
is required is 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.’”
Sharp Management Corp., No. 16 Civ. 551, 2016 WL 5940918, at *2
(S.D.N.Y. Oct. 13, 2016) (quoting Cardenas v. AAA Carting, No. 12
Civ. 7178, 2013 WL 4038593, at *1 (S.D.N.Y. Aug. 9, 2013)); accord
Bittencourt v. Ferrara Bakery & Cafe Inc., 310 F.R.D. 106, 111
While the burden is low, “certification is not
Raniere v. Citigroup Inc., 827 F. Supp. 2d 294, 320
(S.D.N.Y. 2011), rev’d on other grounds, 553 F. App’x 11 (2d Cir.
“Conclusory allegations are not sufficient to support a
Benavides v. Serenity Spa NY Inc., 166 F. Supp. 3d 474, 481
To meet this burden, the plaintiff’s own declaration or the
declarations of other potential class members are sufficient.
Trinidad v. Pret a Manger (USA) Ltd., 962 F. Supp. 2d 545, 557-58
conditional certification where only one plaintiff submitted a
See Khamsiri v. George & Frank’s Japanese Noodle
Restaurant Inc., No. 12 Civ. 265, 2012 WL 1981507, at *1 (S.D.N.Y.
June 1, 2012); Bowens v. Atlantic Maintenance Corp., 546 F. Supp.
2d 55, 82-84 (E.D.N.Y. 2008).
A court “need not evaluate the
underlying merits of a plaintiff’s claims to determine whether the
Damassia v. Duane Reade, Inc., No. 04 Civ.
8819, 2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5, 2006), nor “resolve
factual disputes, decide substantive issues going to the ultimate
Electronic Data Systems Corp., 754 F. Supp. 2d 638, 644 (S.D.N.Y.
2010) (quoting Lynch v. United Services Automobile Association,
491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)).
The plaintiff’s FLSA claims are based on (1) failure to pay
the statutory minimum wage; (2) illegal retention of tips in the
tip pool; and (3) failure to pay wages for all hours worked due to
(Pl. Memo. at 1).
The plaintiff makes no factual
showing that he and other employees were similarly situated with
respect to unpaid minimum wages or illegally retained tips.
FLSA minimum wage was $7.25 per hour throughout the plaintiff’s
29 U.S.C. § 206(a)(1).
However, he alleges that he
was paid $7.50 per hour, and does not allege that any other
employees were paid below $7.25 per hour.
(Complaint, ¶ 26;
Huertero-Morales Decl., ¶ 8; Employee Earnings Record).
plaintiff has not alleged that he or other employees were paid
below the federal minimum wage.
Conditional certification of his
unpaid minimum wage claim is denied.
The plaintiff’s claim for illegally retained tips in the tip
pool fails for the same reason.
“[A]n employer’s failure to abide
by the requirements the FLSA sets for tip-pooling violates the
FLSA only if, without the tip credit, the employee’s compensation
would fall short of the minimum wage.”
Trinidad, 962 F. Supp. 2d
at 560; see also Azeez v. Ramaiah, No. 14 Civ. 5623, 2015 WL
1637871, at *7 (S.D.N.Y. April 9, 2015).
Because the plaintiff
presents no facts that he or any other employees were paid below
the federal minimum wage, conditional certification of his claim
for illegally retained tips in the tip pool is also denied.
Finally, the plaintiff’s factual showing is insufficient to
warrant conditional certification of a collective action based on
As an initial matter, the plaintiff’s own time
shaving allegation is internally inconsistent.
While he asserts
that he routinely worked twenty-eight hours per week but was only
paid for twenty-four hours of work (Complaint, ¶ 25; HuerteroMorales Decl., ¶ 4), his pay records indicate that he was paid for
at least thirty hours of work in four of the six weeks that he
worked for the defendants (Employee Earnings Record).
Even without this defect, the plaintiff makes nothing more
than general and conclusory assertions that other employees were
similarly situated with respect to a common policy or practice of
In his declaration, he states that “other employees
. . . frequently worked in excess of hours that they were paid
for” and that “other bussers and servers were required to come
in early” but “were never compensated for those hours.” (HuerteroMorales Decl., ¶¶ 4-5). These assertions are entirely unsupported.
employees, whom he identifies by first name, about the defendants’
pay policies, he does not state that any of those employees other
(Huertero-Morales Decl., ¶¶ 3, 6).
Moreover, the plaintiff fails
to state when or at what restaurant the time shaving alleged by
Ernesto occurred, let alone when or where his conversation with
Ernesto occurred; he simply states that Ernesto told him that he
was “not getting paid for all the hours he actually work[ed].” 2
The defendants submit a considerable number of affidavits
from customers and other employees of the defendants’ restaurants
refuting the allegations made in the plaintiff’s declaration,
including an affidavit from Ernesto stating that he never spoke to
the plaintiff about the defendants’ pay policies and that he was
in fact paid for all of the hours that he worked. (Declaration of
Hilario Zamora dated July 19, 2017, ¶¶ 1, 6-7).
counters that considering these affidavits is inappropriate on a
motion for conditional certification. (Reply Memorandum of Law in
Certification at 1-7). Although courts in this Circuit generally
hold that considering affidavits submitted by a defendant opposing
conditional certification wades inappropriately into the merits of
a plaintiff’s claims, see Jeong Woo Kim, 985 F. Supp. 2d at 446
(collecting cases), at least one court has discounted a hearsay
statement presented by a plaintiff where the defendant submitted
an affidavit from the declarant disputing that he made the
statement, see Laroque v. Domino’s Pizza, LLC, 557 F. Supp. 2d
346, 355-56 (E.D.N.Y. 2008). Other courts, however, have taken
the contrary position. See, e.g., Hamadou v. Hess Corp., 915 F.
Supp. 2d 651, 665 (S.D.N.Y. 2013) (declining to consider hearsay
declarant’s denial that he made statement regarding a common
illegal policy at the defendants’ businesses); Capsolas v. Pasta
Resources, Inc., No. 10 Civ. 5595, 2011 WL 1770827, at *3 (S.D.N.Y.
(Huertero-Morales Decl., ¶ 6).
Yet “information regarding ‘where or when [a plaintiff’s]
observations or conversations occurred . . . is critical in order
for the Court to determine the appropriate scope of the proposed
class and notice process.’”
Mata v. Footbridge LLC, No. 14 Civ.
8754, 2015 WL 3457293, at *4 (S.D.N.Y. June 1, 2015) (second
alteration in original) (quoting Sanchez v. JMP Ventures, L.L.C.,
No. 13 Civ. 7264, 2014 WL 465542, at *2 (S.D.N.Y. Jan. 27, 2014)).
The plaintiff has failed to provide such information here, stating
that other employees suffered from time shaving in only the most
general terms and with scant factual support.
While a single
certification, conditional certification is not appropriate where
a plaintiff “provides no details about [his] conversations [with
employees corroborating [his] claims.”
Eng-Hatcher v. Sprint
Nextel Corp., No. 07 Civ. 7350, 2009 WL 7311383, at *3 (S.D.N.Y.
Nov. 13, 2009); see also Sanchez, 2014 WL 465542, at *2 (denying
conditional certification where employee provided first names of
five employees he spoke to about the defendant’s pay policies but
failed to provide “any detail as to a single  observation or
May 9, 2011) (same).
This issue need not be resolved, as the
plaintiff has failed to make the modest factual showing required
for conditional certification in the first instance.
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