Schucker v. Flowers Foods, Inc.
| Decision Date | 24 August 2017 |
| Docket Number | No. 16-CV-3439 (KMK),16-CV-3439 (KMK) |
| Parties | ROSS SCHUCKER, TOM SHAFFER, VIRGILIO VALDEZ, EDWARD FRYAR, STEVEN HEINRICH, and SHANE BOWER, on behalf of themselves and all other employees similarly situated, Plaintiffs, v. FLOWERS FOODS, INC., LEPAGE BAKERIES PARK ST., LLC, C.K. SALES CO., LLC, and JOHN DOE 1-10, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Appearances:
Randy J. Perlmutter, Esq.
Gary S. Graifman, Esq.
Reginald H. Rutishauser, Esq.
Kantrowitz Goldhamer & Graifman, P.C.
Chestnut Ridge, NY
Matthew W. Lampe, Esq.
Craig Friedman, Esq.
Deborah A. Sudbury, Esq.
Karen Rosenfield, Esq.
Jones Day
Atlanta, GA
New York, NY
Plaintiffs Ross Schucker, Tom Shaffer, Virgilio Valdez, Edward Fryar, Steven Heinrich, and Shane Bower ("Plaintiffs") bring this Action against Flowers Foods, Inc., Lepage Bakeries Park St., LLC, C.K. Sales Co., LLC, and John Doe 1-10 ("Defendants"), on behalf of themselves and all other employees similarly situated, alleging that Defendants misclassified them as independent contractors and seeking remedies for statutory and common law violations that denied them the rights, obligations, privileges, and benefits owed to them as employees resulting from their misclassification pursuant to the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. § 201 et seq., New York Labor Law Articles 6 and 9 and their implementing regulations, 12 NYCRR § 138-2.1., et seq., New York Labor Law § 193 et. seq., and various provisions of the Employee Retirement Income Security Act of 1974. Before the Court is Plaintiffs' Motion for Conditional Certification of an FLSA collective class. (See Dkt. No. 44.) For the reasons to follow, the Motion is denied.
Defendant Flowers Foods, Inc. ("Flowers Foods") is a Georgia corporation with its principal place of business in Thomasville, Georgia. (See Am. Compl. ¶ 8.) Defendant LePage Bakeries Park Street, LLC ("LePage Bakeries") is a subsidiary of Flowers Foods with its principal place of business in Auburn, Maine. (See id. ¶ 9.) Defendant CK Sales, LLC ("CK Sales") is a subsidiary of LePage Bakeries with its principal place of business in Auburn, Maine. (See id. ¶ 10.) Defendants conduct business through distribution facilities in New York. (See id. ¶¶ 8-9.)
Prior to October 2013, Plaintiffs performed delivery work for Defendants and were designated as "employees" through either an employment agency or Hannafords Bros., Inc., which was later acquired by Flowers Foods. (See id. ¶¶ 20-21.) In or around October 2013, Plaintiffs were told that if they wished to continue their employment, each of them would berequired to enter into a "Distributor Agreement" and begin performing their work as independent contractors. (See id. ¶ 25.)
Plaintiff Ross Schucker worked for Flowers Foods from in or about October 2013 through January 2015. (See id. ¶ 2.) Plaintiff Tom Shaffer worked for Flowers Foods from in or about October 2013 through April 2016. (See id. ¶ 5.) Plaintiffs Edward Fryar, Virgilio Valdez, Steven Heinrich, and Shane Bower worked for Flowers Foods from in or about October 2013 through the present. During their respective periods of employment, Plaintiffs delivered products and performed merchandising duties on behalf of Defendants in New York. (See id. ¶¶ 2-7.)
Plaintiffs allege that Defendants required Plaintiffs to work more than 40 hours per week, that Plaintiffs regularly worked 55-60 hours per week, and that they did not receive overtime pay or any other employment benefits. Plaintiffs further allege that Defendants derived this plan to make employees independent contractors as a willful scheme to deprive Plaintiffs of their employee benefits because they knew that Plaintiffs and all similarly situated individuals performed work that required overtime pay. (See id. ¶ 33.)
Plaintiffs filed their Complaint on May 10, 2016, (see Dkt. No. 3), and an Amended Complaint on June 9, 2016, (see Dkt. No. 23). Defendants filed Answers to the Amended Complaint and Counterclaims against all Plaintiffs on July 8, 2016. (See Dkt. Nos. 29-31.) Plaintiffs filed Answers to the Counterclaims on July 29, 2016. (See Dkt. Nos. 37-39.) A case management plan and scheduling order was entered on October 11, 2016. (See Dkt. No. 43.)
On November 23, 2016, Plaintiffs filed their Motion for Conditional Certification, seeking an order conditionally certifying their proposed FLSA collective action. (See Dkt. No.44.) In addition to conditional certification, Plaintiffs request that the Court approve the content and manner of the notice to prospective class members and that the Court equitably toll the statute of limitations for the class members. ( ) Defendants filed their opposition on April 7, 2017. Mot. for Conditional Certification and Judicial Notice ( ) (Dkt. No. 78).) On April 12, 2017, Plaintiffs filed a request for an extension of time to file a reply to Defendants' opposition, (see Dkt. No. 82), and on April 13, 2017, the application was granted, (see Dkt. No. 83). On April 24, 2017, Plaintiffs filed their reply. (See Dkt. No. 86.)
The FLSA provides that an employee whose rights were violated under the FLSA may file an action in any state or federal court of competent jurisdiction "for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). Although the FLSA does not require them to do so, "the district courts have discretion, in appropriate cases, to implement § 216(b) by facilitating notice to potential plaintiffs of the pendency of the action and of their opportunity to opt-in as represented plaintiffs." Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (alterations and internal quotation marks omitted). "Section 216(b) . . . grant[s] the court the requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to statutory commands or the provisions of the Federal Rules of Civil Procedure." Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989).
The Second Circuit has endorsed "a two-step method of certification in an opt-in collective action under the FLSA." Amador v. Morgan Stanley & Co., No. 11-CV-4326, 2013 WL 494020, at *2 (S.D.N.Y. Feb 7, 2013). First, the district court must make "an initial determination and send notice to potential opt-in plaintiffs who may be similarly situated to the named plaintiffs with respect to whether a[n] FLSA violation has occurred." Id. (internal quotation marks omitted). "Once a court conditionally certifies a collective action, it may then facilitate notice to all of the putative class members by approving a notice form." Jenkins v. TJX Cos., 853 F. Supp. 2d 317, 320 (E.D.N.Y. 2012). Second, after discovery is completed, "if it appears that some or all members of a conditionally certified class are not similarly situated," a "defendant may move to challenge certification, at which point a court will conduct a more searching factual inquiry as to whether the class members are truly similarly situated." Id. at 320-21.
This case comes before the Court at the first phase, which means Plaintiffs need only make a "modest factual showing that they and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law." Myers, 624 F.3d at 555 (internal quotation marks omitted). Although this "modest factual showing" cannot "be satisfied simply by unsupported assertions," it remains a "low standard of proof because the purpose of this first stage is merely to determine whether similarly situated plaintiffs do in fact exist." Id. (internal quotation marks omitted). "Plaintiffs may satisfy this requirement by relying on their own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members." Hallissey v. Am. Online, Inc., No. 99-CV-3785, 2008 WL 465112, at *1 (S.D.N.Y. Feb. 19, 2008). Because "the court applies a fairly lenient standard," courts "typically grant[]conditional certification." Malloy v. Richard Fleischman & Assocs. Inc., No. 09-CV-322, 2009 WL 1585979, at *2 (S.D.N.Y. June 3, 2009) (internal quotation marks omitted).
Importantly, at this stage, "a court should not weigh the merits of the underlying claims in determining whether potential opt-in plaintiffs may be similarly situated." Amador, 2013 WL 494020, at *3 (internal quotation marks omitted). "[A]ny factual variances that may exist between the plaintiff and the putative class do not defeat conditional class certification," Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 369 (S.D.N.Y. 2007), and even if "dates of employment and hours worked are unique to each employee," that "does not necessarily create dissimilarity under the FLSA," Hallissey, 2008 WL 465112, at *2.
Defendants argue that Plaintiffs' motion should be denied as duplicative and unnecessary because conditional certification and notice has already been granted and issued in pending cases raising the same claims—Neff v. Flowers Foods, Inc., No. 15-CV-254 (D. Vt.), and Carr v. Flowers Foods, Inc., No. 15-CV-6391 (E.D. Pa.)—and 94 of the 95 distributors in Plaintiffs' proposed FLSA collective action have already received notice and opportunity to join in either the Neff litigation or the Carr litigation, with 19 distributors receiving notice in both actions. (See Defs.' Opp'n 10-12.) Defendants contend that where the same group of individuals received at least one chance to join a collective action, conditionally certifying a second (or third)...
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