Gedeon v. Valucare, Inc.
| Decision Date | 31 March 2021 |
| Docket Number | CV 19-6954 (JS) (AKT) |
| Parties | FRANCESCA GEDEON on behalf of herself, individually, and on behalf of all others similarly-situated, Plaintiff, v. VALUCARE, INC., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
I. PRELIMINARY STATEMENT
Plaintiff Francesca Gedeon ("Plaintiff") commenced this putative collective and class action on behalf of herself and all others similarly situated against Defendant Valucare, Inc. ("Defendant" or "Valucare") for violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. ¶¶ 201 et seq., and the New York Labor Law ("NYLL"). See generally Complaint ("Compl.") [DE 1]. On behalf of herself and potential collective and/or class members, Plaintiff seeks to recover for Defendant's alleged failure to pay minimum wages and overtime compensation, failure to pay timely wages, spread of hours violations, and failure to furnish proper wage statements and notices. See id. ¶¶ 38.-87. Plaintiff also alleges individual claims against the Defendant for retaliation. See id. ¶¶ 88-96.
Plaintiff has moved for conditional certification as a collective action and for court-authorized notice pursuant to § 216(b) of the FLSA. See Plaintiff's Memorandum of Law in Support of Motion for Conditional Certification ("Pl.'s Mem.") [DE 27]. Defendant opposes Plaintiff's motion, primarily arguing that Plaintiff has failed to demonstrate she is similarly situated to the other potential members of the collective or that these employees were subject to a common unlawful policy or plan. See Memorandum of Law in Opposition to Plaintiff's Motion for Conditional Collective Action Certification ("Def.'s Opp'n") [DE 31]. Plaintiff submitted a reply. See Plaintiff's Reply Memorandum of Law ("Pl.'s Reply") [DE 30]. For the reasons that follow, Plaintiff's motion is GRANTED, in part, and DENIED, in part.
II. BACKGROUND
The following allegations are taken from Plaintiff's Complaint and are assumed to be true for purposes of the instant motion. See Islam v. LX Avenue Bagels, Inc., No. 18 Civ. 04895, 2019 WL 5198667, at *1 n.3 (S.D.N.Y. Sept. 30, 2019). Defendant is a Long Island and Brooklyn-based home healthcare staffing agency. See Compl. ¶ 2. Defendant provides in-home healthcare services to its clients such as personal grooming, meal and errands preparation, house cleaning, general housekeeping, and other services. See id. ¶ 15. Plaintiff began working for Defendant on September 28, 2014 as a home health aide coordinator based in Defendant's Brooklyn location. Id. ¶ 16. At the time the Complaint was filed on December 11, 2019, Plaintiff remained employed by Defendant. See id. ¶ 17. Although Plaintiff primarily works at the Brooklyn location, she also periodically works at the Long Island location in Hempstead. Id.
Plaintiff's primary duties as a home health aide coordinator consist of scheduling home health aides for Defendant's clients and resolving scheduling conflicts and staffing issues to ensure Defendant's clients are adequately cared for and supervised. Id. ¶ 18. Throughout Plaintiff's employment, "Defendant has scheduled and required Plaintiff to work, and Plaintiff has in fact worked and continues to work, five days per week, Monday through Friday,beginning between 9:00 and 10:00 a.m. and ending between 5:00 and 6:00 p.m., for a total of approximately forty hours per week." Id. ¶ 19. Although Plaintiff is supposed to receive a 30-minute uninterrupted break during each of her shifts, her break is frequently interrupted and she occasionally does not receive a break at all. Id.
Plaintiff has also been required to work "overnight on-call shifts." Id. ¶ 20.
[E]ach Thursday and Friday and sometimes a third day, Plaintiff is required to work, and does work, an on-call shift beginning at the conclusion of her regular shift, between 5:00 or 6:00 p.m. until 9:00 a.m. the following morning. Moreover, from September 28, 2014 until on or about July 21, 2019, Defendant additionally required Plaintiff, every-other Sunday, to work a twenty-four-hour on-call shift from 9:00 a.m. Sunday morning until 9:00 a.m. Monday morning. Thereafter, from on or about July 22, 2019 through the present, Defendant has required Plaintiff to work this twenty-four-hour Sunday on-call shift at least once per month, and sometimes more.
Id. During these on-call shifts, Plaintiff receives hourly emails on the company cell phone assigned to her by Defendant from its home health exchange. Id. ¶ 21. She is required to telephonically verify a home health aide's attendance with patients and manually enter the aide's time in and out in the exchange system and in the on-call log. Id. At the end of her weekday on-call shifts, Plaintiff is also required to submit the completed report to various management personnel at the end of her shift. Id. At the end of her weekend on-call shifts, Plaintiff must submit the report to the on-call nurse and manager on duty at 9:30 a.m., 1:30 p.m., 4:30 p.m., and 8:30 p.m. Id. As such, Plaintiff works between 69.5 hours and 110.5 hours per week, depending on how many on-call shifts Plaintiff is assigned. See id. ¶ 22.
Throughout her employment with Defendant, Plaintiff was paid at an hourly rate for her regularly scheduled Monday through Friday shifts. Id. ¶ 23. Plaintiff's hourly rate has periodically increased over the years, from $15.00 per hour to her current rate of $18.00. Id. Although Defendant pays Plaintiff at her agreed-to hourly rate for most of the time she worksduring regular shifts, Defendant "regularly deducts time that Plaintiff actually works from her weekly compensable time, including thirty minutes from each shift . . . regardless of whether Plaintiff in fact receives a thirty-minute uninterrupted break during that shift, as well as other random amounts of time as it sees fit and at its whim." Id. Plaintiff was compensated differently for her on-call shifts. See id. ¶ 24. Plaintiff has been paid a flat rate of $40.00 for each 16-hour weekday on-call shift, including Thursday and Friday nights. Id. From September 2014 to April 2019, Plaintiff was paid a flat rate between $80.00 and $97.50 for each 24-hour Sunday on-call shift. Id. Then, from May 2019 to the present, Defendant has been paying Plaintiff a flat rate between $120.00 and $153.00 for each 24-hour Sunday on-call shift. Id. Plaintiff claims Defendant has failed to pay Plaintiff her overtime rate Id. ¶ 25. Plaintiff also claims that Defendant has failed to pay her regular rate for all hours that she works up to 40 hours per week. See id. The Complaint then sets forth two schedules which Plaintiff was required to work and which support this claim. See id. ¶¶ 26-27.
The first schedule Plaintiff set forth provides as follows:
Id. ¶ 26. Plaintiff worked 110.50 hours during the week of July 10, 2017 and was paid a total of $672.65, comprised of $15.00 per hour for only the first 31.51 hours that she worked during regularlyscheduled shifts and $200 for her on-call shifts. Id. The second schedule provides that Plaintiff worked the following hours:
Id. ¶ 27. For this particular week, Plaintiff worked a total of 94.13 hours and was paid a total of $852.75, comprised of $18.50 per hour for the first 36.5 hours worked and $177.50 for the on-call shifts.
Defendant pays Plaintiff on a weekly basis by check. Id. ¶ 29. On each occasion Plaintiff is paid, Defendant has failed to provide Plaintiff with a wage statement that accurately reflects the number of hours she worked, her regular hourly rate of pay, and her overtime rate of pay for all hours in excess of 40. Id. ¶ 30. Plaintiff was also not provided with any wage notice at the time she was hired. Id. ¶ 31.
On February 27, 2019, Plaintiff notified various members of Valucare's management personnel via email that, beginning March 13, 2019, Plaintiff was no longer able to work the 24-hour Sunday on-call shifts because she had to find a second job. Id. ¶ 35. The next day, Reginald Villier, an Administrator, responded to Plaintiff's email and informed her that her request could not be accommodated and that she must continue to work that shift. Id. Plaintiff sent a second email reiterating her need to take a second job to supplement her income. Id. Notwithstanding Plaintiff's request, she was scheduled to work a 24-hour on-call shift on March 17, 2019. Id. ¶ 36. Two days prior to this shift, Plaintiff met with Paula Smith-Morrison,her direct supervisor, and complained that she could not continue to work on-call shifts for a "mere flat rate . . . between $80.00 and $97.50, which was obviously below minimum wage and did not include overtime pay." Id. ¶¶ 35-36. After this meeting, Plaintiff sent another email to management...
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