Andon v. SDG Properties, Inc. et al

Filing 57

OPINION AND ORDER re: 46 MOTION to Certify Class Pursuant to 29 U.S.C. § 216(b). filed by Rosalino Andon. Plaintiff's Motion for Conditional Certification (Doc. No. 46) is GRANTED in part and DENIED in part. The Court con ditionally certifies a class of potential plaintiffs who were employed as superintendents by Defendants within three years of the filing of the Complaint in this matter. The Clerk is respectfully directed to terminate the motion pending at Doc. No. 46. SO ORDERED. (Signed by Magistrate Judge Katharine H. Parker on 8/20/18) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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08/20/2018

ROSALINO ANDON,
Plaintiff,

OPINION AND ORDER
17-CV-7876 (ALC) (KHP)

-againstSDG PROPERTIES, INC., et al.,
Defendants.
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KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE

Plaintiff Rosalino Andon, formerly a building superintendent for Defendants, brings this
action on behalf of himself and others similarly situated against his former employers and their
principals under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”) and the New
York Labor Law (“NYLL”). Plaintiff alleges, among other things, that Defendants failed to pay
him and other similarly situated employees overtime compensation as required by the FLSA by
instead treating him and others as independent contractors when performing certain
handyman work. Presently before the Court is Plaintiff’s Motion for Conditional Certification of
a Collective Action. The Court assumes knowledge of the facts and, as discussed at the Court
conference on August 13, 2018, Plaintiff’s motion is GRANTED in part and DENIED in part. The
following memorializes the Court’s reasoning discussed at the conference.
DISCUSSION
I.

Conditional Certification
Section 216(b) of the FLSA provides that parties suing under Sections 206 and 207 may

proceed “for and in behalf of himself or themselves and other employees similarly situated.”
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29 U.S.C. § 216(b). A proceeding brought under Section 216 is traditionally referred to as a
“collective action.” Jenkins v. TJX Cos. Inc., 853 F. Supp. 2d 317, 320 (E.D.N.Y. 2012). The
Second Circuit has endorsed a two-step process for certification of a collective action under
Section 216(b) of the FLSA. Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). “The first
step involves the court making an initial determination to send notice to potential opt-in
plaintiffs who may be ‘similarly situated’ to the named plaintiffs with respect to whether a FLSA
violation has occurred.” Id. at 555. If the case is at an early stage in discovery, plaintiffs can
meet this burden by making “a modest factual showing sufficient to demonstrate that they and
potential plaintiffs together were victims of a common policy or plan that violated the law.”
Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469, 475 (S.D.N.Y. 2010) (quoting Hoffmann v.
Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)). This showing can be made by “relying on
[plaintiff’s] own pleadings, affidavits, declarations, or the affidavits and declarations of other
potential class members.” Hallissey v. Am. Online, Inc., No. 99-cv-3785 (KTD), 2008 WL 465112,
at *1 (S.D.N.Y. Feb. 19, 2008). If the Court finds that the potential plaintiffs appear to be
similarly situated to the named plaintiffs, it will issue notice and permit the case to proceed
through discovery as a collective action. See Lynch v. United Servs. Auto. Ass’n, 491 F. Supp. 2d
357, 368 (S.D.N.Y. 2007). A grant of conditional certification is not a decision on the underlying
merits of a plaintiff’s claims. Damassia v. Duane Reade, Inc., No. 04-cv-8819 (GEL), 2006 WL
2853971, at *3 (S.D.N.Y. Oct. 5, 2006). Rather, authorization for the dissemination of notice in
an FLSA collective action is merely a case management tool to be used where collective
discovery is deemed most efficient and would reduce burdens on the courts and costs for the
parties. See Myers, 624 F.3d at 555 n.10. At a later stage in the case, the action may be “de2

certified” if the record reveals that the plaintiffs who have opted in are not actually “similarly
situated” to the named plaintiffs, and the opt-in plaintiffs’ claims may be dismissed without
prejudice. Id. at 555.
Plaintiff seeks certification of a collective action consisting of all superintendents and
handymen employed by Defendants. The Court grants conditional certification as to
superintendents only because Plaintiff himself was a superintendent and the other putative
members of the collective with whom Plaintiff spoke about Defendants’ pay practices also were
superintendents. Plaintiff has provided no information about a separate “handyman” position.
Rather, in his declarations, Plaintiff has stated that he met only with superintendents and, from
conversations with them, learned that they too had been asked to form an individual company
through which they would be paid for “handyman” work instead of that work being counted as
part of their superintendent job. Plaintiff states that he had these conversations (1) when
visiting approximately 10 buildings owned/operated by Defendants; (2) at a hardware store
where Defendants maintained a common account for superintendents to charge supplies for
their handyman jobs for Defendants; and (3) at an annual holiday party held for employees in
Defendants’ buildings. (Doc. No. 55, Supplemental Declaration of Plaintiff Rosalino Andon ¶¶
7-11.) Based on the foregoing, Plaintiff has made the modest factual showing that
superintendents in all of Defendants’ buildings are sufficiently similarly situated to be treated,
on a conditional basis, as a collective with respect to the alleged FLSA violation of treating their
handyman work as separate from their superintendent work for purposes of computing straight
time and overtime hours and overtime compensation. See Hallissey, 2008 WL 465112, at *2

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(the key question at the conditional certification stage is “whether plaintiffs are similarly
situated with respect to their allegations that the law has been violated”) (emphasis in original).
At a later stage in this litigation, after further discovery, the Court will determine
Plaintiff’s claims and Defendants’ defenses on the merits and whether the Plaintiff and any optin plaintiffs are sufficiently similarly situated to remain a collective.
II.

Notice And Consent Form
The parties are directed to meet and confer regarding Plaintiff’s proposed class notice.

The parties shall submit a form of proposed notice and opt-in consent form for the Court’s
consideration by August 22, 2018. If the parties cannot agree on aspects of the proposed
notice, they shall set forth their respective positions in a letter and a proposed notice
containing clearly labeled and bracketed language preferred by each party for the Court’s
consideration.
III.

Temporal Scope For Class
The statute of limitations applicable to a claim for unpaid wages and/or overtime

compensation under the FLSA is two years from the date that the claim accrued or three years
for a cause of action arising out of a willful violation. 29 U.S.C. § 255(a); Herman v. RSR Sec.
Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999). At the conditional certification stage, allegations of
willful FLSA violations are sufficient to apply the three-year statute of limitations for purposes
of sending a notice to putative members of the collective. Francis v. A & E Stores, Inc., No. 06cv-1638 (CLB) (GAY), 2008 WL 2588851, at *3 (S.D.N.Y. June 26, 2008), adopted as modified,
2008 WL 4619858 (S.D.N.Y. Oct. 16, 2008). Here, Plaintiffs have alleged willful conduct by
Defendants. (Doc. No. 38, Amended Complaint ¶¶ 3, 72, 93.) Thus, the Court finds a three4

year limitations period appropriate for sending notice to the putative collective action
members. See Garcia v. Chipotle Mexican Grill, No. 16-cv-601 (ER), 2016 WL 6561302, at *9
(S.D.N.Y. Nov. 4, 2016) (finding a three-year notice period appropriate at this stage “[g]iven the
fact that willfulness is disputed”).
By August 24, 2018, Defendants’ counsel shall provide Plaintiff’s counsel with a list of all
superintendents employed by Defendants in the three-year period preceding the filing of the
Complaint. See id. (“Although notice is normally provided to those employed within three years
of the date of the notice, courts frequently permit notice to be keyed to the three-year period
prior to the filing of the complaint . . .”) (internal citation and quotation marks omitted).
Defense counsel shall provide names, last known mailing addresses, and email addresses for
the putative collective members. Notice shall not be posted at Defendants’ buildings. See, e.g.,
Michael v. Bloomberg L.P., No. 14-cv-2657 (TPG), 2015 WL 1810157, at *4 (S.D.N.Y. Apr. 17,
2015) (ordering production of email addresses and noting that “absent a showing that a
significant number of notices were returned as undeliverable, courts have refused to require
posting of a collective action notice in the workplace”).
IV.

Tolling Of Statute Of Limitations
Plaintiff seeks equitable tolling of the statute of limitations for members of the

collective who have not yet opted into the collective. Equitable tolling is appropriate “only in
rare and exceptional circumstances . . . where a plaintiff has been prevented in some
extraordinary way from exercising his rights.” Vasto v. Credico (USA) LLC, No. 15-cv-9298 (PAE),
2016 WL 2658172, at *16 (S.D.N.Y. May 5, 2016) (citations and internal quotation marks

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omitted). This Court does not find that this case presents any such rare and exceptional
circumstances. Accordingly, Plaintiff’s request for equitable tolling is denied.
However, this Court recognizes that equitable tolling issues may arise as to individual
opt-in plaintiffs, and that other courts in this district sometimes entertain challenges to the
timeliness of individual plaintiffs’ actions. See Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 668
(S.D.N.Y. 2013). Thus, should equitable tolling issues arise in this case after conditional
certification as to particular plaintiffs, the Court will timely address those issues as they arise.
V.

Discovery And Scheduling
The Court expects the 60-day opt-in period to end by October 31, 2018. Accordingly, a

case management conference will be held on November 2, 2018 at 10:00 a.m. in Courtroom
17D. Before then, discovery is not stayed. The parties are expected to complete document
discovery as to policies common to the putative collective and concerning Plaintiff Andon’s
claims by November 1, 2018. At the November 2, 2018 conference, the parties will be
expected to update the Court on the specific discovery completed and remaining, as well as any
reasonable extension of the discovery period based on the number of opt-in plaintiffs who have
joined the action. The parties also should be prepared to discuss dates for a settlement
conference.
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Conditional Certification (Doc. No.
46) is GRANTED in part and DENIED in part. The Court conditionally certifies a class of potential
plaintiffs who were employed as superintendents by Defendants within three years of the filing
of the Complaint in this matter.
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The Clerk is respectfully directed to terminate the motion pending at Doc. No. 46.
SO ORDERED.
Dated: August 20, 2018
New York, New York

______________________________
KATHARINE H. PARKER
United States Magistrate Judge

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