Rubery v. Buth-Na-Bodhaige, Inc.

• Decision Date: 08 August 2008
• Docket Number: No. 04-CV-6337L.,04-CV-6337L.
• Citation: 569 F.Supp.2d 334
• Parties: Yvette RUBERY on behalf of herself and all other employees similarly situated, Plaintiff, v. BUTH-NA-BODHAIGE, INC., Defendant.
• Court: U.S. District Court — Western District of New York

Page 334

569 F.Supp.2d 334

Yvette RUBERY on behalf of herself and all other employees similarly situated, Plaintiff, v. BUTH-NA-BODHAIGE, INC., Defendant.

No. 04-CV-6337L.

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

August 8, 2008.

Michael J. Lingle, Patrick J. Solomon, Dolin, Thomas & Solomon LLP, Rochester, NY, for Plaintiff.

Jerauld E. Brydges, Harter, Secrest and Emery, LLP, Rochester, NY, Kerry Alan Scanlon, Kaye Scholer LLP, Washington, DC, for Defendant.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Plaintiff Yvette Rubery ("plaintiff") brings this action against defendant Buth-Na-Bodhaige, Inc., ("defendant" or "The Body Shop") pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b) ("FLSA") and New York Labor Law § 651(5)(c) for defendant's alleged failure to pay plaintiff and other Body Shop Managers overtime pay. Plaintiff claims that during her tenure as a Body Shop Manager from June of 1996 until July 6, 2003, she often worked in excess of forty hours per week, but was not compensated at the requisite overtime pay-rate because she and others had been improperly classified by defendant as "exempt" employees under the FLSA.

Pending before the Court is plaintiffs motion for conditional certification of a collective action under the FLSA (Dkt.# 18). For the reasons that follow, plaintiff's motion is granted.

FACTS

Plaintiff claims that during her tenure as a Body Shop Manager from June of 1996 until July 6, 2003, she was improperly classified as exempt because she primarily performed sales functions, and did not customarily and regularly supervise two fulltime employees or their equivalent. Plaintiff also claims that the Body Shop failed to credit or compensate her for work duties which she performed "off the clock."

In response to an informal class notice from plaintiff, several dozen additional plaintiffs have "opted in" to this action. Plaintiff now moves for formal, conditional certification of an FLSA collective action (Dkt.# 18).

DISCUSSION

Plaintiff seeks conditional certification of an FLSA collective action, to include:

current or former employees of defendant who had job duties which included performing sales functions while supervising fewer than two employees and who did not receive compensation at time and one half for hours they worked over 40 hours in a week. The class includes, without limitation, those employees with the job title of Shop Manager, or with any title who performed similar duties of the Named Plaintiff and were paid as exempt employees.

Section 216(b) of Title 29 provides that:

an action to recover [unpaid wages] may be maintained against any employer ... 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).

The Second Circuit has recognized a district court's authority to order that notice be given to potential members of a plaintiff class in actions under this section (generally referred to as "collective actions"), pursuant to the opt-in provisions of the FLSA. See e.g., Braunstein v. Eastern Photographic Labs., Inc., 600 F.2d 335 (2d Cir.1978), cert. den., 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1046 (1979).

Courts utilize a two-step process when analyzing motions to certify a collective action under the FLSA. First, the court determines whether the proposed class members are "similarly situated." See Mooney v. Aramco Services Co., 54 F.3d 1207, 1213-1213 (5th Cir.1995). If so, the court conditionally certifies the class and orders putative notice to class members, who are then afforded the opportunity to "opt in." Because a collective action requires written consent from the opt-in plaintiffs, "it lies within the discretion of a district court to begin its involvement early, at the point of the initial notice," in order to ensure that the drafting and distribution of the notice is "timely, accurate and informative." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171-172, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989).

At this early stage,¹ however, the evidentiary standard is lenient, and "courts appear to require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan ..." Scholtisek v. The Eldre Corp., 229 F.R.D. 381, 387 (W.D.N.Y.2005), quoting Mooney, 54 F.3d 1207 at 1213. In so doing, plaintiff must make a "modest factual showing sufficient to demonstrate that [they] and potential plaintiffs together were victims of a common policy or plan that violated the law." Scholtisek, 229 F.R.D. 381 at 387, quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997).

The FLSA provides that employees who are "employed in a bona fide executive ... capacity" are exempt from its overtime provisions. 29 U.S.C. § 213(a)(1). An employee in an executive capacity is one.who meets the statutory wage threshold, "[w]hose primary duty is management ... [w]ho customarily and regularly directs the work of two or more other employees; and [w]ho has the authority to hire or fire other employees or whose suggestions as to ... change of status of other employees are given particular weight." 29 C.F.R. § 541.100(a).

Plaintiff alleges that defendant has a policy and practice of violating the FLSA by failing to pay overtime to Shop Managers who supervise fewer than two full-time employees (that is, fewer than eighty total "subordinate hours") per week Plaintiff contends that the defendant maintains over three hundred store locations, all of which are staffed and operated in a similar fashion, and assigns all of its Shop Managers similar responsibilities and duties.

Defendant maintains that there is no basis for a collective action because plaintiff has failed to demonstrate that she is similarly situated to the other members of the proposed class. Specifically, defendant claims that plaintiff has failed to show that other Shop Managers primarily engaged in sales activities, and customarily and regularly supervised fewer than eighty subordinate hours per week. For example, defendant notes that out of the several dozen putative plaintiffs who have already filed consent forms, fewer than half had actually supervised fewer than eighty subordinate hours per week at any point during their employment. Defendant also urges the Court to apply heightened scrutiny to plaintiffs certification motion, in light of the substantial discovery that has taken place.

At this juncture, however, plaintiff need not conclusively demonstrate that she and the other putative class members are, in fact, similarly situated. Rather, she must show that she "and potential plaintiffs together were victims of a common policy or plan that violated the law." Ayers v. SGS Control Servs., Inc., 2004 WL 2978296, at *1, 2004 U.S. Dist. LEXIS 25646 at *4 (S.D.N.Y.2004). See also Scholtisek, 229 F.R.D. 381, at 390 ("[w]hat is important is that these employees were allegedly subject to a common practice or scheme on [their employer's] part"). Moreover, notwithstanding the substantial class discovery that has taken place, "it would be inappropriate ... to require plaintiff to meet a more stringent standard than that typically applied at the early stages of litigation" before discovery is complete. Chowdhury v. Duane Reade, Inc., 2007 WL 2873929, at *3, 2007 U.S. Dist. LEXIS 73853 at *10-*11 (S.D.N.Y. 2007), citing Prizmic v. Armour, Inc., 2006 WL 1662614, 2006 U.S. Dist. LEXIS 42627 (E.D.N.Y.2006) ("[o]nly after discovery has been completed should the Court engage in a second more heightened stage of scrutiny").

I find that plaintiff has met her burden to demonstrate, by producing affidavits and time records from other Shop Managers which are indicative of a common policy or plan with respect to the duties and supervisory responsibilities of Shop Managers. While there will undoubtedly prove to be variances among the putative class members concerning their duration of employment, the extent to which they performed non-managerial functions, and the percentage of time, if any, that they supervised fewer than eighty subordinate hours per week, plaintiffs fundamental allegation is that defendant denied overtime wages to a number of Shop Managers, by classifying them as exempt even though their duties and supervisory responsibilities fell short of the requirements of the FLSA's executive exemption. As such, the class members are "similarly situated with respect to their allegations that the law has been violated," and preliminary certification is appropriate. Hallissey v. America Online, Inc., 2008 WL 465112, at *2, 2008 U.S. Dist. LEXIS 18387 at *6 (S.D.N.Y. 2008) (emphasis added). See also Parks v. Dick's Sporting Goods, Inc., 2007 WL 913927, at *3-*4, 2007 U.S. Dist. LEXIS 20949 at *9-*10 (although similarity considerations might prove dispositive on a "second stage" analysis, evidence of discrepancies between putative class members is insufficient to defeat FLSA certification at the initial stage, due to plaintiffs "relatively lenient" burden to demonstrate that the class members were...