Knox v. John Varvatos Enters. Inc.

• Decision Date: 17 October 2017
• Docket Number: 17 Civ. 772 (GHW) (GWG)
• Citation: 282 F.Supp.3d 644
• Parties: Tessa KNOX, Plaintiff, v. JOHN VARVATOS ENTERPRISES INC., Defendant.
• Court: U.S. District Court — Southern District of New York

282 F.Supp.3d 644

Tessa KNOX, Plaintiff,

v.JOHN VARVATOS ENTERPRISES INC., Defendant.

17 Civ. 772 (GHW) (GWG)

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

Signed October 17, 2017

William Irvin Dunnegan, Andrew Sup Chung, Laura Jean Scileppi, Richard Weiss, Dunnegan & Scileppi LLC, New York, NY, for Plaintiff.

Ned Henry Bassen, Jordan Elliot Pace, Hughes Hubbard & Reed LLP, New York, NY, for Defendant.

OPINION AND ORDER

GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE

Tessa Knox has sued her former employer, John Varvatos Enterprises, Inc. ("JV") on the ground that JV gave an annual $12,000 clothing allowance to male sales associates but not to female sales associates in violation of the Equal Pay Act ("EPA"), 29 U.S.C. § 206(d).¹ Knox now moves to have this case conditionally approved as a collective action with notice being sent to all women who are currently employed, or were employed at any time after February 1, 2014, as sales associates at a JV-operated store in the United States.² For the following reasons, Knox's motion is granted in part and denied in part.

I. BACKGROUND

JV designs clothing and sells that clothing at JV-operated retail locations. See Second Am. Compl. ¶ 8. JV operates 22 such stores in the United States: four in New York City, three in Las Vegas, Nevada; and one each in East Hampton, New York; Central Valley, New York; Boston, Massachusetts; Clarksburg, Maryland; Houston, Texas; Cabazon, California; San Francisco, California; San Diego, California; Malibu, California; West Hollywood, California; Costa Mesa, California; Detroit, Michigan; Miami Beach, Florida; Sunrise, Florida; and Bal Harbor, Florida. See Pl. Mem. at 7; see also John Varvatos Store Locator (annexed as Ex. A to Declaration of Richard Weiss in Support of Plaintiff's Motion for Conditional Certification, filed May 26, 2017 (Docket # 42) ("Weiss Decl.")) ("JV Store Locator").

From approximately August 2016 to February 2017, JV employed Knox as a sales associate in its East Hampton, New York store. See Declaration of Plaintiff Tessa Knox in Support of Her Motion for Conditional Certification, filed May 26, 2017 (Docket # 41) ("Knox Decl.") ¶ 2. Knox's responsibilities as a sales associate included "greeting customers when they entered the store, answering customer's [sic] questions regarding merchandise, promoting merchandise to customers in the store, retrieving apparel from the storage room for customers, advising customers as to whether clothes fit well, ringing up purchases, processing returns, folding clothes, and maintaining the cleanliness and tidiness of the store." Pl. Mem. at 7; Second Am. Compl. ¶ 11.

Knox has submitted a declaration stating that before she began working as a sales associate for JV, she visited JV's East Hampton store on at least three or four occasions, including while her application for employment with JV was being reviewed. Knox Decl. ¶¶ 3–4. On those occasions, she observed female sales associates—including her predecessor, Francesca Salvati—performing the duties that Knox herself would later perform as a female sales associate. Id. ¶¶ 3–5. Knox states that Salvati described her own duties to Knox before JV hired Knox, and that these duties were the same as those Knox later performed. Id. ¶ 6. Knox further reports observing female sales associates working at two other JV stores in New York, as well as one JV store in West Hollywood, California, performing the same duties that Knox performed as a sales associate. Id. ¶¶ 9–10.

Knox's complaint alleges that at least as early as 2014, JV offered the clothing allowance to its male sales associates throughout the United States, but has not offered this allowance to its female associates. See Second Am. Compl. ¶¶ 1–25. Knox alleges that under this policy, male sales employees, and only male sales employees, working at JV-operated stores are provided with a $12,000 annual allowance to purchase JV-branded clothing to wear to work. Id. ¶¶ 1, 14. To demonstrate this policy, Knox has supplied a written employee dress code which addresses itself to "[a]ll employees working in our retail locations" and states that "all male retail employees receive a clothing allowance." See John Varvatos Appearance and Dress Standards—Retail Locations (annexed as Ex. A to Declaration of Benjamin Harris, filed Apr. 10, 2017 (Docket # 20) ("Harris Decl.")) ("JV Dress Policy"). Knox has also offered an email exchange she had with an employee in JV's human resources department, in which the employee informed Knox that JV does not "provide a clothing allowance for female employees." Email from Richard Weiss to Jennifer Rafuse, Jan. 31, 2017 (annexed as Ex. A to Second Am. Compl.) ("Weiss Email"). Finally, when Knox asked JV's East Hampton store manager, Peter Ngo, about the clothing allowance policy, Ngo mentioned that a former female sales associate had complained that female sales associates did not receive this allowance. See Knox Decl. ¶¶ 2, 8. Benjamin Harris, the Vice President of Retail at JV, stated in his declaration that the clothing allowance policy was in place when he began working at JV in June 2014 and has existed ever since. See Harris Decl. ¶¶ 1, 5, 7.

For its part, JV does not dispute this policy's existence. JV has stated in prior filings in this case that it provides male sales associates with a "credit" to purchase JV-branded clothing, which the male sales associates are required to wear while working. See Memorandum of Law in Support of Defendant John Varvatos Enterprises, Inc.'s Motion to Dismiss or, Alternatively, for Summary Judgment, filed Apr. 10, 2017 (Docket # 22) ("Def. Mot. to Dismiss"), at 1; Jointly Submitted Letter to the Court, filed May 12, 2017 (Docket # 33) ("Joint Letter"), at 2. In its memorandum in opposition to this motion, JV describes this policy as "giving a credit to male sales professionals who, unlike female sales professionals, are required to wear expensive [JV] menswear when working." Def. Mem. at 1. JV disagrees with Knox's characterization of this policy as an "allowance" insofar as that term implies that JV gives an additional sum of money to its male employees. Id. at 1 n.1. However, in light of the fact that JV's own corporate statements use the term "allowance," see JV Dress Policy, the Court will also use the term "allowance" in this Opinion.

Knox seeks an order allowing this case to proceed as a collective action, with the proposed persons to be notified consisting of all current and former female sales associates employed by JV at JV-operated stores in the United States at any time since February 1, 2014. See Plaintiff's Proposed Order Conditionally Certifying the Equal Pay Act Claims in this Action as a Collective Action Pursuant to 29 U.S.C. § 216(b) (annexed to Notice of Motion); Def. Mem. at 9–10; Pl. Reply at 8–9. JV opposes this motion. See Def. Mem.

II. APPLICABLE LEGAL PRINCIPLES

The Equal Pay Act of 1963 ("EPA") amended the Fair Labor Standards Act ("FLSA") to address the negative effects of "wage differentials based on sex." See Equal Pay Act of 1963, Pub. L. No. 88–38, 77 Stat. 56 (1963) (codified at 29 U.S.C. § 206(d) ). The EPA prohibits employers from "paying wages to [subject] employees" in a given establishment "at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex in such establishment for equal work ...." 29 U.S.C. § 206(d)(1). "As part of the FLSA, the EPA utilizes the FLSA's enforcement mechanisms and employs its definitional provisions." Kassman v. KPMG LLP, 2014 WL 3298884, at *4 (S.D.N.Y. July 8, 2014) (internal quotation marks and citation omitted).

Section 216(b) of the FLSA provides, in pertinent part:

An action to recover ... liability ... may be maintained against any employer ... by any 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). While the statute does not prescribe any procedures for approval of collective actions, section 216(b) has long been construed to grant authority to a district court to permit notices be sent to potential plaintiffs informing them of the option to join the suit. See Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 169, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ("[D]istrict courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b)... by facilitating notice to potential plaintiffs.") (citations omitted); Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335, 336 (2d Cir. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1046 (1979) ("Although one might read the [FLSA], by deliberate omission, as not providing for notice, ... it makes more sense, in light of the ‘opt-in’ provision of s. 16(b) of the Act, 29 U.S.C. s. 216(b), to read the statute as permitting, rather than prohibiting, notice in an appropriate case.") (citations omitted). "Orders authorizing notice are often referred to as orders ‘certifying’ a collective action, even though [the] FLSA does not contain a certification requirement." Damassia v. Duane Reade, Inc., 2006 WL 2853971, at *2 (S.D.N.Y. Oct. 5, 2006). The act of "certifying" a collective action, however, means only that this Court has "exercise[d] ... [its] discretionary power ... to facilitate the sending of notice to potential class members." Myers v. The Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010),(internal quotation marks and citation omitted), cert. denied, 565 U.S. 930, 132 S.Ct. 368, 181 L.Ed.2d 234 (2011). The approval of a collective action thus amounts to a " ‘case management’ tool for district courts to employ in ‘appropriate cases.’ " Id. (quoting Hoffmann–La Roche Inc., 493 U.S. at 169, 174, 110 S.Ct. 482 ). Because the EPA uses the same enforcement mechanism as the FLSA, an application...