Rosario v. Valentine Ave. Discount Store, Co.

• Decision Date: 02 November 2011
• Docket Number: No. 10 CV 5255 (ERK) (LB).,10 CV 5255 (ERK) (LB).
• Citation: 828 F.Supp.2d 508
• Parties: Julian ROSARIO, on behalf of himself and all others similarly situated, Plaintiff, v. VALENTINE AVENUE DISCOUNT STORE, CO., INC., El Mundo of 133rd Street, Inc., El Mundo of Amsterdam, Inc., El Mundo of Jamaica, Inc., El Mundo of Knickerbocker, Inc., El Mundo of Southern Boulevard, Inc., El Mundo of Steinway, Inc., El Mundo of Willis Avenue, Inc., American Place at 86th Street, Inc., American Place at Fourth Avenue, Inc., American Place at Nostrand, Inc., American Place of Broadway, Inc., 13th Avenue Bergament Home Center, Inc., 146 St. Discount Center Co., Inc., 158 St. Discount Center Co., Inc., American Department Store, Inc., Bergament Outlet Center, Inc., Elmundo Holding Co., Inc., Grand Concourse Discount, Inc., Grant Department Store Co., Inc., Willis Avenue Discount Center Co., Inc., Dominicano Department Store, Inc., El Mundo Department Store, Inc., Five Star Department Store, Inc., Hamilton Variety Co., Inc., American Home Ctr., Kingstone Distributors Co., Inc., and Raymond Srour, Defendants.
• Court: U.S. District Court — Eastern District of New York

828 F.Supp.2d 508

Julian ROSARIO, on behalf of himself and all others similarly situated, Plaintiff,

v.VALENTINE AVENUE DISCOUNT STORE, CO., INC., El Mundo of 133rd Street, Inc., El Mundo of Amsterdam, Inc., El Mundo of Jamaica, Inc., El Mundo of Knickerbocker, Inc., El Mundo of Southern Boulevard, Inc., El Mundo of Steinway, Inc., El Mundo of Willis Avenue, Inc., American Place at 86th Street, Inc., American Place at Fourth Avenue, Inc., American Place at Nostrand, Inc., American Place of Broadway, Inc., 13th Avenue Bergament Home Center, Inc., 146 St. Discount Center Co., Inc., 158 St. Discount Center Co., Inc., American Department Store, Inc., Bergament Outlet Center, Inc., Elmundo Holding Co., Inc., Grand Concourse Discount, Inc., Grant Department Store Co., Inc., Willis Avenue Discount Center Co., Inc., Dominicano Department Store, Inc., El Mundo Department Store, Inc., Five Star Department Store, Inc., Hamilton Variety Co., Inc., American Home Ctr., Kingstone Distributors Co., Inc., and Raymond Srour, Defendants.

No. 10 CV 5255 (ERK) (LB).

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

Nov. 2, 2011.

Alexander T. Coleman, Michael J. Borrelli, Borrelli& Associates, P.C., David H. Rosenberg, Stephanos Zannikos, The Law Office of Borrelli & Associates, P.L.L.C., Carle Place, NY, Robert John Valli, Jr., Valli & Kane, LLP, Aneeba Rehman, James Aldo Vagnini, Jesse Curtis Rose, Sumantra T. Sinha, Valli Kane & Vagnini LLP, Garden City, NY, for Plaintiff.

Jeffery A. Meyer, Keith J. Gutstein, Kaufman, Dolowich, Voluck & Gonzo, LLP, Woodbury, NY, for Defendants.

MEMORANDUM AND ORDER

BLOOM, United States Magistrate Judge.

Plaintiff Julian Rosario brings this action on behalf of himself and all others similarly situated against defendants Valentine Avenue Discount Store Co., Inc., El Mundo of 133rd Street, Inc., El Mundo of Amsterdam, Inc., El Mundo of Jamaica, Inc., El Mundo of Knickerbocker, Inc., El Mundo of Southern Boulevard, Inc., El Mundo of Steinway, Inc., El Mundo of Willis Avenue, Inc., American Place at 86th Street, Inc., American Place at Fourth Avenue, Inc., American Place at Nostrand, Inc., American Place of Broadway, Inc., 13th Avenue Bergament Home Center, Inc., 146 St. Discount Center Co., Inc., 158 St. Discount Center Co., Inc., American Department Store, Inc., Bergament Outlet Center, Inc., Elmundo Holding Co., Inc., Grand Concourse Discount, Inc., Grant Department Store Co., Inc., Willis Avenue Discount Center Co., Inc., Dominicano Department Store, Inc., El Mundo Department Store, Inc., Five Star Department Store, Inc., Hamilton Variety Co., Inc., American Home Ctr., Kingstone Distributors Co., Inc., (collectively, the “Stores”) and Raymond Srour to recover unpaid overtime compensation and minimum wages pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., and the New York Labor Law. Plaintiff moves for: (1) conditional certification as a collective action pursuant to 29 U.S.C. § 216(b); (2) production of the names and personal information of potential opt-in plaintiffs; and (3) authorization to post and circulate a proposed notice of pendency to potential opt-in plaintiffs. The Honorable Edward R. Korman referred plaintiff's motion to me. For the following reasons, plaintiff's motion is granted.¹

BACKGROUND

The Stores are independently incorporated discount department stores. (Compl., ¶¶ 8–34; Ans., ¶¶ 8–34.) Defendant Srour serves as the chairman or chief executive officer of each of the Stores. (Compl., ¶¶ 8–34; Ans., ¶¶ 8–34.) Plaintiff alleges that the Stores are commonly owned and managed, and operate as a chain of twenty-seven department stores. (Compl., ¶ 35.)

Plaintiff worked at two of the Stores from 2006 through 2010. (Docket entry 20–5, Rosario Decl., ¶¶ 2, 10, 13.) In August 2006, plaintiff was hired to work in the electronics department of Valentine Avenue Discount Store Co., Inc. ( Id. at ¶¶ 2–3.) Plaintiff's job duties included receiving merchandise, helping customers, selling merchandise, pricing merchandise, cleaning, and making repairs in the store. ( Id. at ¶¶ 3, 6, 10, 13.) Plaintiff alleges he worked ten hours per day for six days per week and was paid a weekly salary of $300. ( Id. at ¶¶ 4–5.) Although plaintiff worked six days per week, he was instructed to clock in for only four days. ( Id. at ¶ 7.) Moreover, two dollars were deducted from plaintiff's weekly salary to pay for the bathroom to be cleaned. ( Id. at ¶ 8.) In 2007, plaintiff's pay was increased to a weekly salary of $325, and in 2008 plaintiff was transferred to the furniture department of Valentine Avenue Discount Store Co., Inc. ( Id. at ¶¶ 6, 9.) In 2009, plaintiff was transferred to Grand Concourse Discount, Inc., where he worked the same hours as before, but was paid a weekly salary of $400. ( Id. at ¶¶ 10–12.) In 2010, plaintiff returned to Valentine Avenue Discount Store Co., Inc. and worked in the detergents department. ( Id. at ¶ 13.) Plaintiff states that he only worked five days per week in the weeks preceding the termination of his employment. ( Id. at ¶ 17.) Plaintiff claims that he was not paid the minimum wage and was not properly compensated for his overtime hours while employed by Valentine Avenue Discount Store Co., Inc. and Grand Concourse Discount, Inc. ( Id. at ¶¶ 5, 9, 12.)

Opt-in plaintiff Maria Gomez worked at six of the Stores from 1992 through 2009. (Docket entry 20–6, Gomez Decl., ¶¶ 1, 10, 13, 15, 23, 33.) In 1992, Gomez was hired to work in the curtains department of El Mundo of 133rd Street, Inc. ( Id. at ¶¶ 2–3.) Her job duties included receiving merchandise, helping customers, selling merchandise, pricing merchandise, cleaning, and arranging displays. ( Id. at ¶ 3.) Gomez alleges she worked nine and a half hours per day for seven days per week and was paid a weekly salary of $180. ( Id. at ¶¶ 4–5.) In 1994, 1995 and 1996, her weekly pay was increased to $207, $220, and $240, respectively. ( Id. at ¶¶ 7–9.) In 1997, Gomez was transferred to the 157th Street location,² where she worked nine and a half hours per day for six days per week and was paid a weekly salary of $260. ( Id. at ¶¶ 10–12.) For the next year, Gomez was periodically sent to work at 146 St. Discount Center Co., Inc. for fifteen-day stretches. ( Id. at ¶ 13.) After suffering a back injury on the job in 1998, Gomez stopped working for defendant Srour. ( Id. at ¶ 14.) Gomez started working for defendant Srour again in 2000 at the El Mundo store located on 203rd Street.³ ( Id. at ¶ 15.) From 2000 until 2007, Gomez worked nine and a half hour shifts in the curtains department and was paid $6.25 per hour. ( Id. at ¶¶ 16, 20, 21.) Although Gomez worked until at least 7:30 p.m. each night, she was required to clock out at 7:00 p.m. and was not paid for the time she worked after she was required to clock out. ( Id. at ¶¶ 20–21.) In 2007, Gomez was transferred to Valentine Avenue Discount Store Co., Inc., where her hours remained the same, but her hourly pay rate was reduced to $5.75. ( Id. at ¶¶ 23–24.) Moreover, Gomez states that four dollars were deducted from her paycheck every week while at Valentine Avenue Discount Store Co., Inc. to pay for the bathroom to be cleaned. ( Id. at ¶ 27.) At the end of 2008, Gomez was transferred to the El Mundo store located at 173rd Street.⁴ ( Id. at ¶ 33.) There, Gomez worked about ten hours per day for five days per week during the first month, and for four days per week thereafter. ( Id. at ¶¶ 34–35.) Gomez was paid a weekly salary of $180. ( Id. at ¶ 35.) Gomez's employment was terminated in 2009. ( Id. at ¶ 38.)

Plaintiff commenced this action on November 15, 2010, on behalf of himself as well as all other similarly situated employees of the Stores. (Docket entry 1.) Maria Gomez opted-in as a plaintiff to the instant action on March 15, 2011.⁵ (Docket entry 11.) Plaintiff initially sought conditional certification as a collective action on March 16, 2011. (Docket entry 12.) However, plaintiff voluntarily withdrew his motion without prejudice on May 4, 2011. (Docket entry 19.) The instant motion renews plaintiff's request for conditional certification as a collective action. (Docket entry 20.) Defendants oppose plaintiff's motion and plaintiff has replied. (Docket entry 24, Defs.' Mem. of Law in Opp. to Pl.'s Mot. for Prelim. Certification (“Defs.' Opp.”); docket entry 25, Rely Mem. of Law in Supp. of Pl.'s Mot. for Conditional Certification (“Pl.'s Reply”).)

DISCUSSION

A. Conditional Certification

Plaintiff seeks conditional certification as a collective action pursuant to 29 U.S.C. § 216(b). The FLSA provides in pertinent part that:

An action ... may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction 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). “Although the FLSA does not contain a class certification requirement, such orders are often referred to in terms of ‘certifying a class.’ ” Bifulco v. Mortgage Zone, Inc., 262 F.R.D. 209, 212 (E.D.N.Y.2009) (citations omitted). The “certification” of a FLSA collective action “is only the district court's exercise of the discretionary power, upheld in [ Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989) ], 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). As such, “ ‘certification’ is neither necessary nor sufficient for the existence of a representative action under FLSA, but may be a useful ‘case management’ tool for district courts to employ in ‘appropriate cases.’ ” Id. (quoting Hoffmann–La Roche Inc., 493 U.S. at 169, 110 S.Ct. 482). “[U]...