Ramos v. Simplexgrinnell LP

Decision Date21 June 2011
Docket NumberNo. 07–CV–981 (SMG).,07–CV–981 (SMG).
PartiesRoberto RAMOS, et al., Plaintiffs, v. SIMPLEXGRINNELL LP, Defendant.
CourtU.S. District Court — Eastern District of New York


Jason J. Rozger, Beranbaum Menken Ben–Asher & Fishel LLP, Kerin E. Coughlin, Constantine Cannon, P.C., New York, NY, Raymond C. Fay, Mehri & Skalet PLLC, Washington, DC, Pro Hac, Vice, for Plaintiffs.

David Allen Copus, Dominick Cameron Capozzola, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Morristown, NJ, Jennifer A. Rygiel–Boyd, Beranbaum Menken Ben–Asher & Fishel LLP, New York, NY, for Defendant.

Bruce E. Menken, Beranbaum Menken Ben–Asher & Fishel LLP, New York, NY.

Memorandum & Order

STEVEN M. GOLD, United States Magistrate Judge:


Plaintiffs, on behalf of themselves and other employees of defendant, bring this action seeking to recover unpaid prevailing wages for their work on various public works projects. The parties have filed cross-motions for summary judgment. Plaintiffs have also moved for class certification pursuant to Federal Rule of Civil Procedure 23(b)(3). Finally, defendant has filed a Daubert motion seeking to exclude the testimony of plaintiffs' expert.


Defendant SimplexGrinnell, formed in 2001, is a “leader[ ] in fire and life-safety systems” with offices throughout the United States, including New York. Zammitti Aff. ¶ 2, Docket Entry 111–4. More specifically, defendant manufactures, installs and services fire alarm and sprinkler systems and equipment. Zammitti Certification ¶ 2, Docket Entry 109–26; see also Hext 3/25/10 Aff. ¶ 2, Docket Entry 111–15 at 19–24. Over the years, defendant has entered into thousands of contracts with New York State and City agencies for installation, maintenance, repair and inspection of their safety systems. Zammitti Aff. ¶ 5.

Pursuant to New York law, public works contracts—i.e., contracts with state or local governmental agencies to perform construction, maintenance and repair of public buildings—must provide that all laborers will be paid prevailing wages. N.Y. Labor Law § 220(3). Plaintiffs are fifteen current and former employees of defendant who performed electrical and sprinkler work, including installation, maintenance, inspection, testing, repairs, and replacement of fire alarms and security systems, on various public works projects throughout the state. Am. Compl. ¶ 18, Docket Entry 56. Plaintiffs contend that defendant failed to pay the named plaintiffs and the members of the putative class all the prevailing wages due to them for their work on public works projects.


New York has a strong public policy of protecting its workers, rooted in a 1905 amendment to the state's Constitution.

Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed. No laborer, worker or mechanic ... engaged in the performance of any public work[ ] shall be ... paid less than the rate of wages prevailing in the same trade or occupation in the locality within the state where such public work is to be situated, erected or used.

N.Y. Const. art. I, § 17. Labor Law § 220, a codification of the Constitutional amendment, was enacted “to ensure that employees on public works projects are paid wages equivalent to the prevailing rate of similarly employed workers in the locality where the contract is to be performed.” Beltrone Constr. Co. Inc. v. McGowan, 260 A.D.2d 870, 871–72, 688 N.Y.S.2d 783 (3d Dep't 1999); see also Cayuga–Onondaga Counties Bd. of Co-op. Educ. Servs. v. Sweeney, 89 N.Y.2d 395, 401, 654 N.Y.S.2d 92, 676 N.E.2d 854 (1996) (discussing briefly the legislative history of § 220 and the prevailing wage constitutional amendment). Today, [i]t is well-settled that the primary purpose and intent of the prevailing wage law (Labor Law § 220) is to protect workers by ensuring that they have an effective remedy to secure the prevailing wage and supplements.” E. Williamson Roofing & Sheet Metal Co. v. Town of Parish, 139 A.D.2d 97, 103, 530 N.Y.S.2d 720 (4th Dep't 1988).

As noted above, under New York law, every public works contract must provide that all laborers employed on the public works project will be paid prevailing wages. N.Y. Labor Law § 220(3)(a). The Labor Law provides for administrative enforcement of its wage provisions. Id. § 220(7)-(9). See also Brown v. Tomcat Elec. Sec. Inc., 2007 WL 2461823, at *3 (E.D.N.Y. Aug. 27, 2007) (describing the administrative scheme that an aggrieved employee may follow to pursue payment of alleged unpaid prevailing wages). There is no private right of action directly under the Labor Law “until an administrative determination in the employee's favor has been made and has gone unreviewed or has been affirmed.” Marren v. Ludlam, 14 A.D.3d 667, 669, 790 N.Y.S.2d 146 (2d Dep't 2005). The New York Court of Appeals, however, has held that an administrative claim is not the exclusive avenue for relief available to an employee denied prevailing wages, who may bring a common law breach of contract claim as the intended third-party beneficiary of a public works contract. Fata v. S.A. Healy Co., 289 N.Y. 401, 404–07, 46 N.E.2d 339 (1943). See also Quintanilla v. Suffolk Paving Corp., 2011 WL 1323033, at *7 (E.D.N.Y. Feb. 10, 2011).


The various pending motions were, for all practical purposes, brought simultaneously. Because a ruling on any of the pending motions would affect issues raised by the others, the first question that arises is the order in which the motions should be addressed. I begin by ruling on the class certification motion. I next consider defendant's motion for summary judgment. I then turn to defendant's Daubert motion and finally address plaintiffs' motion for summary judgment.

1. Class Certification

Plaintiffs move for class certification of their prevailing wage claims pursuant to Rule 23(b)(3). Plaintiffs propose to certify a class defined as follows:

[A]ll laborers, workmen and mechanics who furnished labor to SimplexGrinnell on non-federal public works projects in the State of New York at any time from February 6, 2001[, or from July 14, 2001 for sprinkler work] until the final judgment in this matter, and who ... have not been paid prevailing wages and benefits as required by law.1

Pl. Mem. 18; 2 see also Am. Compl. ¶ 7.

Plaintiffs bear the burden of establishing, by a preponderance of the evidence, the four prerequisites of Rule 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) fairness and adequacy of representation. A plaintiff must also qualify under one of the subdivisions of Rule 23(b). See Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir.2008); Marisol A. v. Giuliani, 126 F.3d 372, 375–76 (2d Cir.1997). A district court undertakes a “rigorous analysis” and “assess [es] all of the relevant evidence admitted at the class certification stage [to] determine whether each Rule 23 requirement has been met.” In re Initial Pub. Offerings Secs. Litig., 471 F.3d 24, 33, 42 (2d Cir.2006). Although a court deciding a certification motion should not evaluate aspects of the merits unrelated to the requirements of Rule 23, it must determine whether each of the rule's requirements has been satisfied, even when doing so involves resolving a question that also bears on the merits. Id. at 41. “The Second Circuit has emphasized that Rule 23 should be ‘given liberal rather than restrictive construction,’ ... and ‘it seems beyond peradventure that the Second Circuit's general preference is for granting rather than denying class certification.’ Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 361–62 (E.D.N.Y.2009) (internal citations omitted).

a. Numerosity

Plaintiffs must show that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Courts in the Second Circuit presume numerosity when the putative class has at least forty members. Gortat, 257 F.R.D. at 362 (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995)). Plaintiffs estimate that the class would be comprised of at least 400 and possibly more than 600 members based on an employee list produced by defendant. Pl. Mem. 21; Pl. R.56.1 ¶ 11; Pl. Ex. 1, Docket Entry 109–3 at 34–49 (identifying hundreds of employees with damages); Tr. 5–6 (noting that over 700 SimplexGrinnell employees worked on public sites).3 Even defendant appears to concede that numerosity is met. Love 3/7/07 Decl. ¶ 5, Pl. Ex. 16 (declaring that defendant has employed more than 400 individuals to perform electrical work in New York during the relevant time period). Clearly, numerosity is satisfied.

b. Commonality

Rule 23(a)(2) requires a showing that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality may be met even though individual circumstances differ, so long as class members' ‘injuries derive from a unitary course of conduct.’ Noble v. 93 Univ. Place Corp., 224 F.R.D. 330, 338 (S.D.N.Y.2004) (quoting Marisol, 126 F.3d at 377).

Here, the requirement of commonality is satisfied. Plaintiffs' claim—that they and the proposed class members were denied prevailing wages by defendant—raises common questions of law and fact. Employees from defendant's various offices throughout New York have stated that, at least prior to 2007, they and their fellow SimplexGrinnell employees were paid the same wages for their work on public and private projects and did not receive prevailing wages for their work on public job sites. Ford Decl. ¶¶ 13–14, Pl. Ex. 13; Hobbs Decl. ¶ 5, Pl. Ex. 14; Kuhlman Decl. ¶ 8, Pl. Ex. 15; Mitchell Decl. ¶¶ 11–12, Pl. Ex. 17; Stickney Decl. ¶¶ 10–12, Pl. Ex. 18; Ward Decl. ¶¶ 10–11, Pl. Ex. 19; Ziolkowski Decl. ¶¶ 9, 10, 12, Pl. Ex. 21. Plaintiffs have also submitted evidence indicating that defendant's payroll procedures were centralized. Bourgoin Dep. 59–61, Pl. Ex. 56; Love Dep. 105–09, Pl. ...

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