Castillo v. Perfume Worldwide Inc.
| Decision Date | 30 March 2018 |
| Docket Number | CV 17-2972 (JS) (AKT) |
| Parties | NELSON CASTILLO, MARTA VALLADARES, ARACELY VALLADARES, CARLOS REYES, and YOSELY ESPINAL HENRIQUEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. PERFUME WORLDWIDE INC. and PIYUSH GOLIA, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
I. PRELIMINARY STATEMENT
Nelson Castillo, Marta Valladares, Aracely Valladares, Carlos Reyes and Yosely Espinal Henriquez (collectively, "Plaintiffs") filed this collective action and putative class action on behalf of themselves and all others similarly situated against Perfume Worldwide Inc. and Piyush Gola (collectively, "Defendants") for violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., the New York Labor Law ("NYLL"), Article 6 § 191(1) and Article 19 §§ 650 et seq., and the New York Codes, Rules, and Regulations ("NYCRR") § 142-2.2, 2.4. See generally Complaint ("Compl.") [DE 1]. Plaintiffs seek to recover unpaid overtime compensation and regular wages as well as other relief. Plaintiffs now move for Conditional Certification and Court-Authorized Notice pursuant to § 216(b) of the FLSA. For the reasons which follow, Plaintiffs' motion is GRANTED, in part, and DENIED, in part.
II. BACKGROUND
The following facts asserted by Plaintiffs are taken from the Complaint filed on May 16, 2017 [DE 1]. Defendant Perfume Worldwide Inc. is an online retailer of fragrances, hair and skin care products, cosmetics, candles and accessories. Compl. ¶ 20. Defendant Piyush Golia has been the President of Perfume Worldwide during the six-year period preceding the commencement of this action. Id. ¶ 25. Plaintiffs are former employees of Defendants who worked as warehouse workers or in customer service. Id. ¶¶ 55, 65, 74, 86, 97. They bring this action on behalf of "themselves and other similarly situated persons who were current and former workers employed by the Defendant, at any time during the three year period prior to the filing of this complaint and who elect to opt-in to this action." Id. ¶ 31. The Complaint also contains class action allegations on behalf of plaintiffs "and a class consisting of all non-exempt workers who have been employed by the Defendant in the State of New York at any time during the six-year period prior to the filing of this complaint." Id. ¶ 35.
Plaintiffs allege that Defendants implemented a uniform policy of deducting 20 minutes a day from the Plaintiffs' work hours for a morning break. Id. ¶ 49; see id. ¶¶ 58, 67, 76, 87. According to the Complaint, as a result of this policy, the Defendants failed to pay workers for all compensable working hours. Id. ¶ 50. Plaintiffs aver that, "in most instances," this policy resulted in the defendant's failure to pay employees overtime for hours worked in excess of 40 hours per week, id. ¶ 51; see id. ¶¶ 60, 68, 78, 89, and, "in some instances," the policy resulted in a failure to pay for all straight hours worked. Id. ¶ 52; see id. ¶¶ 61, 70, 80, 91. Based on these allegations, the Complaint sets forth causes of action for failure to pay overtime in violation of the FLSA, NYLL and NYCRR, failure to pay straight wages in violation of NYLL,and failure to compensate spread-of-hours pay in violation of the NYCRR. See generally Compl.
Plaintiffs commenced this action against Defendants on May 16, 2017. See generally Compl. Plaintiffs filed the instant motion on August 5, 2017. DE 11. Two days later, Plaintiffs filed an application with the Court seeking the ability to file the motion nunc pro tunc and requesting that the Court set a briefing schedule for Opposition and Reply papers. See DE 14. That same day, counsel for Defendants filed a motion to strike Plaintiffs' motion for conditional certification on the grounds that it was filed in violation of this Court's Individual Practice Rules. DE 15. The Court issued an Order addressing both filings on August 8, 2017. See 8/8/17 Electronic Order. The Court held that, in its discretion, it would accept Plaintiffs' motion for conditional certification as filed, denying Defendants' application to strike the motion. Id. The Court also set deadlines for the filing of Defendants' Opposition and Plaintiffs' Reply. Id. Judge Seybert subsequently referred Plaintiff's motion for conditional certification to this Court for a decision.1 DE 29.
III. LEGAL STANDARD
The FLSA provides, in pertinent part, as follows:
Any employer who violates the provisions of section 206 or section 207 of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. . . . An action to recover . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction byany one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b). Section 216(b) provides an employee with a private right of action to recover overtime compensation and/or minimum wages. Id.; Cabrera v. Stephens, No. 16CV3234, 2017 WL 4326511, at *4 (E.D.N.Y. Sept. 28, 2017) (citing Bifulco v. Mortg. Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y. 2009)) ("The FLSA provides a private right of action to recover unpaid overtime compensation and/or minimum wages."); Moore v. Eagle Sanitation, Inc., 276 F.R.D. 54, 57 (E.D.N.Y. 2011) (citing 29 U.S.C. § 216(b)); Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 103 (S.D.N.Y. 2003) (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 260 (S.D.N.Y. 1997)). "Although the FLSA does not contain a class certification requirement, such orders are often referred to in terms of 'certifying a class.'" Bifulco, 262 F.R.D. at 212 (quoting Parks v. Dick's Sporting Goods, Inc., No. 05 Civ. 6590, 2007 WL 913927, at *3 (W.D.N.Y. Mar. 23, 2007)) (internal quotation marks omitted).
Courts within the Second Circuit apply a two-step analysis to determine whether an action should be certified as an FLSA collective action. See Myers v. Hertz Corp., 624 F.3d 537, 544-45 (2d Cir. 2010) (); see also Keawsri v. Ramen-Ya Inc., No. 17-CV-2406, 2018 WL 279756, at *5 (S.D.N.Y. Jan. 2, 2018) (citing Myers, 624 F.3d 544-45); Bijoux v. Amerigroup New York, LLC, No. 14-CV-3891, 2015 WL 4505835, at *2 (E.D.N.Y. July 23, 2015) (citing the same), report and recommendation adopted by 2015 WL 5444944 (E.D.N.Y. Sept. 15, 2015). First, the court determines whether the proposed class members are "similarly situated." Puglisi v. TD Bank, N.A., 998 F. Supp. 2d 95, 99 (E.D.N.Y.2014) (quoting Kalloo v. Unlimited Mech. Co. of NY, Inc., 908 F. Supp. 2d 344, 346 (E.D.N.Y. 2012)) (citing Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y. 2006)); McGlone v. Contract Callers, Inc., 867 F. Supp. 2d 438, 442 (S.D.N.Y. 2012) (quoting Myers, 624 F.3d at 555). If the court decides in the affirmative, then the proposed class members must consent in writing to be bound by the result of the suit, or "opt-in." McGlone, 867 F. Supp. 2d at 442 (citing Cunningham v. Elec. Data Sys. Corp, 754 F. Supp. 2d 638, 644 (S.D.N.Y. 2010)); see 29 U.S.C. § 216(b). The second step, which typically occurs after the completion of discovery, requires the court to make factual findings whether the class members are actually similarly situated. Rosario v. Valentine Ave. Discount Store, Co., 828 F. Supp. 2d 508, 514 (E.D.N.Y. 2011) (quoting Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 368 (S.D.N.Y. 2007)). "At that juncture, the court examines the evidentiary record to determine whether the 'opt-in' plaintiffs are, in fact, similarly situated to the named plaintiff." Bifulco, 262 F.R.D. at 212 (quoting Hens v. ClientLogic Operating Corp., No. 05-381S, 2006 WL 2795620, at *4 (W.D.N.Y. Sept. 26, 2006)) (internal quotation marks omitted).
The instant motion concerns only the first step — whether the proposed opt-in members are "similarly situated" such that conditional certification should be granted. At this stage, "the evidentiary standard is lenient," Bifulco, 262 F.R.D. at 212 (quoting Rubery v. Buth-Na-Bodhaige, Inc., 569 F. Supp. 2d 334, 336 (W.D.N.Y. Aug. 8, 2008)), and plaintiffs need only "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.'" Myers, 624 F.3d at 555 (quoting Hoffmann, 982 F. Supp. at 261); see, e.g., Perez v. Allstate Ins. Co., No. 11-CV-1812, 2014 WL 4635745, at *5 (E.D.N.Y. Sept. 16, 2014); Trinidad v. Pret A Manger (USA) Ltd., 962 F. Supp. 2d 545, 552 (S.D.N.Y. 2013); Cano v. Four M Food Corp., No. 08-CV-3005, 2009 WL 5710143, at *3(E.D.N.Y. Feb 3, 2009); Doucoure v. Matlyn Food, Inc., 554 F. Supp. 2d 369, 372 (E.D.N.Y. 2008). "In making this showing, 'nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan' is required." Sexton v. Franklin First Fin., Ltd., No. 08-CV-4950, 2009 WL 1706535, at *3 (E.D.N.Y. June 16, 2009) (quoting Scholtisek v. Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005)). Moreover, courts have repeatedly stated that Section 216(b)'s "similarly situated" requirement is "considerably less stringent" than the requirements for class certification under Federal Rule of Civil Procedure 23, and "that a party seeking to maintain a collective action need not meet the...
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