Ahmed v. T.J. Maxx Corp.

• Decision Date: 11 May 2015
• Docket Number: No. 10–CV–3609 ADSAYS.,10–CV–3609 ADSAYS.
• Parties: Mohammed M. AHMED, Essie Johnson, Carl Baruch, Robert Wagner, Jaclyn Evans, Brittany Woodard, Mabeline Moore, Darlene Cade, Nicholas Barrella, and Andrea Casale, Plaintiffs, v. T.J. MAXX CORP. and TJX Companies, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

103 F.Supp.3d 343

Mohammed M. AHMED, Essie Johnson, Carl Baruch, Robert Wagner, Jaclyn Evans, Brittany Woodard, Mabeline Moore, Darlene Cade, Nicholas Barrella, and Andrea Casale, Plaintiffs,

v.T.J. MAXX CORP. and TJX Companies, Inc., Defendants.

No. 10–CV–3609 ADSAYS.

United States District Court, E.D. New York.

Signed May 11, 2015.

Valli & Kane, LLP by Robert John Valli, Jr., Esq., Fran L. Rudich, Esq., James Aldo Vagnini, Esq., of Counsel, Garden City, NY, for Plaintiffs.

Littler Mendelson, P.C. by Gregory Clark Keating, Esq., John Thomas Bauer, Esq., Justin Robert Marino, Esq., Andrew Voss, Esq., Lisa Marie Griffith, Esq., Lisa Schreter, Esq., of Counsel, Melville, NY, for Defendants.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On August 5, 2010, the Plaintiff Mohammad M. Ahmed (the “Plaintiff” or “Ahmed”) commenced this action against the Defendants T.J. Maxx Corp. and TJX Companies, Inc. (collectively, “the Defendants”) alleging that the Defendants failed to pay him overtime wages and retaliated against him in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq.,(“FLSA”) and New York Labor Law (“NYLL”), while he was employed by the Defendants as an Assistant Store Manager (“ASM”).

On December 19, 2013, the Plaintiff moved for conditional certification of this lawsuit as a collective action pursuant to FLSA § 16(b), 29 U.S.C. § 216(b). As of the date of the Plaintiff's motion, nine individuals have opted in to the proposed collective action: Essie Johnson, Carl Baruch, Robert Wagner, Jaclyn Evans, Brittany Woodard, Mabeline Moore, Darlene Cade, Nicholas Barrella, and Andrea Casale (collectively, the “Opt-in Plaintiffs”).

On December 19, 2013, the Court referred the Plaintiff's motion to United States Magistrate Judge Arlene R. Lindsay for a decision. On September 24, 2014, Judge Lindsay denied his motion for conditional certification (the “September 24, 2014 Order”).

Presently before the Court is a motion by the Plaintiff pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ.P.”) 72(a)to set aside the September 24, 2014 Order. For the reasons set forth below, the Court denies the Plaintiff's motion and affirms the decision by Judge Lindsay.

I. BACKGROUND

A. The Parties

From October 17, 2008 to July 4, 2010, the Plaintiff was employed by the Defendants as an ASM at one of the Defendants' stores located in Oceanside, New York. (Compl. at ¶ 31, 40.) Allegedly, he worked sixty to seventy hours a week and was not paid overtime. (Id.) He asserts that he was required to perform non-managerial tasks, such as cleaning, loading a delivery truck, and running the register, and had no significant discretion or supervisory authority. (Id.at ¶ 31, 35.)

The Opt-in Plaintiffs are current and former ASMs who worked in the Defendants' stores located in New York, Connecticut, Mississippi, Tennessee, and Alabama. (September 24, 2014 Order, Dkt. No. 138, at 10.)

Defendant TJX Companies Inc. (“TJX”) is allegedly the parent company of the Defendant T.J. Maxx Corp. (“TJ Maxx”). (Compl. at ¶ 1.) TJX has its principal place of business located in Massachusetts; it is unclear where TJ Maxx's principal place of business is located. (Answer at ¶¶ 6, 7.) TJX and TJ Maxx operate approximately 4,000 department stores nationwide. (The June 8, 2013 Order, Dkt. No. 82, at 26.)

The Plaintiff seeks to certify a nationwide collective action pursuant to FLSA § 216(b)of ASMs employed by the Defendants in stores outside of California in the past three years who “have been misclassified” by the Defendants as “executives” exempt from receiving payment for overtime. (The Pl.'s Rule 72Mem. of Law at 1.).

B. Relevant Legal Standards

As the “executive” exemption to the FLSA overtime requirement and the requirements for conditional class certification pursuant to FLSA § 216(b)form the background of the September 24, 2014 Order, the Court will provide a brief of overview of each provision before discussing the procedural background of this case.

1. The Executive Exemption

The FLSA § 207(a)(1) and NYCRR 142–2.2 require qualifying employers to compensate employees for hours worked in excess of forty hours per work week at a rate not less than one-and-one-half times the regular rate of pay subject to certain exemptions. 29 U.S.C. §§ 206(a)(1), § 207(a)(1); N.Y. Comp.Codes R. & Regs. tit. 12, § 142–2.2. One category of employees exempt from the overtime requirement under FLSA § 213(a)(1) are employees who are employed in a “bona fide executive capacity.”

The applicable Department of Labor (“DOL”) regulations classify employees as “executives” if (1) they are “[c]ompensated on a salary basis”; (2) their “primary duty is management of the enterprise ... or of a customarily recognized department or subdivision thereof”; (3) they “customarily and regularly direct[ ] the work of two or more other employees”; and (4) they “ha [ve] the authority to hire or fire other employees or” if their “suggestions and recommendations” on personnel decisions “are given particular weight.” 29 C.F.R. § 541.100(a)(1)–(4).

2. Section 216(b) of the FLSA

Pursuant to FLSA § 216(b), an employee can initiate an action in federal or state court against his or her employer “in behalf of himself ... and other employees similarly situated.” 29 U.S.C. § 216. In contrast to traditional “class actions” maintainable pursuant to Fed.R.Civ. 23, plaintiffs in an FLSA collective action “must affirmatively ‘opt in’ to be part of the class and to be bound by any judgment.” Myers v. Hertz Corp.,624 F.3d 537, 542 (2d Cir.2010). In addition, “FLSA collective actions, unlike class actions brought under Rule 23, need not satisfy the standards of numerosity, typicality, commonality, or representativeness.” Mendoza v. Ashiya Sushi 5, Inc.,No. 12 CIV. 8629(KPF), 2013 WL 5211839, at *2 (S.D.N.Y. Sept. 16, 2013)(quoting Young v. Cooper Cameron Corp.,229 F.R.D. 50, 54 (S.D.N.Y.2005)); see alsoFed.R.Civ.P. 23(a). Therefore, the requirements for certifying a collective action pursuant to FLSA § 216(b)are less onerous than the requirements pursuant to Fed.R.Civ.P. 23for certifying a class action. See Costello v. Kohl's Illinois, Inc.,No. 1:13–CV–1359 (GHW), 2014 WL 4377931, at *2 (S.D.N.Y. Sept. 4, 2014)(“Unlike class actions, FLSA collective actions need not satisfy the requirements of Fed.R.Civ.P. 23, and only plaintiffs who ‘opt in’ by filing consents to join the action are bound by the judgment.”) (citing Mendoza,2013 WL 5211839, at *2).

In that regard, although “they are not required to do so by [the] FLSA, district courts ‘have discretion, in appropriate cases, to implement [§ 216(b)] ... by facilitating notice to potential plaintiffs' of the pendency of the action and of their opportunity to opt-in as represented plaintiffs.” Myers,624 F.3d 537, 554(quoting Hoffmann–La Roche Inc. v. Sperling,493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989)). In exercising this discretion, the Second Circuit in Myers v. Hertz Corp.,624 F.3d 537, 554 (2d Cir.2010)endorsed a two-step approach.

Under the first step, also known as “conditional certification,” the court makes “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. In order to show that potential opt-in plaintiffs are “similarly situated” to the named plaintiffs, the named plaintiffs must make “a ‘modest factual showing’ that they and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the law.’ ” Id.(quoting Hoffmann v. Sbarro, Inc.,982 F.Supp. 249, 261 (S.D.N.Y.1997)).

Plaintiffs may satisfy this burden by relying on “their own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members.” Jeong Woo Kim v. 511 E. 5th St., LLC,985 F.Supp.2d 439, 445 (S.D.N.Y.2013)(quoting Hallissey v. Am. Online, Inc.,No. 99 Civ. 3785(KTD), 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008)). However, the “modest factual showing” “cannot be satisfied simply by ‘unsupported assertions [.]’ ” Myers,624 F.3d at 555(quoting Dybach v. State of Fla. Dep't of Corrections,942 F.2d 1562, 1567 (11th Cir.1991)). Although the Second Circuit has not directly addressed the issue, district courts have found that at the first stage, a court “does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Amador v. Morgan Stanley & Co. LLC,No. 11 CIV. 4326(RJS), 2013 WL 494020, at *3 (S.D.N.Y. Feb. 7, 2013); see also Lynch v. United Servs. Auto. Ass'n,491 F.Supp.2d 357, 368 (S.D.N.Y.2007)( “At this procedural stage, the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.”).

In an FLSA exemption case, such as this, the Second Circuit stated in Myersthat “plaintiffs accomplish this [modest factual showing] by making some showing that ‘there are other employees ... who are similarly situated with respect to their job requirements and with regard to their pay provisions,’ on which the criteria for many FLSA exemptions are based, who are classified as exempt pursuant to a common policy or scheme.” Id.(quoting Morgan v. Family Dollar Stores, Inc.,551 F.3d 1233, 1258–62 (11th Cir.2008)).

At the second step, which typically occurs after the completion of discovery, the court determines on “ ‘a fuller record’ whether to de-certify the action by examining “whether the plaintiffs who have opted in are in fact ‘similarly situated’ to the named plaintiffs[.]” ” Jason v. Falcon Data Com, Inc.,No. 09–CV–03990 (JG), 2011 WL 2837488, at *4 (E.D.N.Y. July 18, 2011)(quoting Myers,624 F.3d at 555). If the record at this stage reveals that the opt-in plaintiffs are not “similarly situated to the named plaintiffs, the action may be “de-certified” and the ‘opt-in plaintiffs' claims may be dismissed without prejudice.” Myers,624 F.3d at...