Shillingford v. Astra Home Care, Inc.

• Decision Date: 23 February 2018
• Docket Number: 16 Civ. 6785 (KPF)
• Citation: 293 F.Supp.3d 401
• Parties: Ella SHILLINGFORD, Plaintiff, v. ASTRA HOME CARE, INC. d/b/a True Care Home Health Care, Michael Werzberger, Rebecca Rosenzweig, and John Does #1–10, Defendants.
• Court: U.S. District Court — Southern District of New York

293 F.Supp.3d 401

Ella SHILLINGFORD, Plaintiff,

v.ASTRA HOME CARE, INC. d/b/a True Care Home Health Care, Michael Werzberger, Rebecca Rosenzweig, and John Does #1–10, Defendants.

16 Civ. 6785 (KPF)

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

Signed February 23, 2018

William Coudert Rand, Law Office of William Coudert Rand, New York, NY, for Plaintiff.

Christopher Paul Hampton, Gerald Charles Waters, Jonathan D. Farrell, Larry Rafael Martinez, Meltzer, Lippe, Goldstein & Breitstone, LLP, Mineola, NY, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Ella Shillingford brings this action for violations of the Fair Labor Standards Act (the "FLSA"), 29 U.S.C. §§ 206(a) and 207(a), and the New York Labor Law, Consol. Laws 1909, ch. 31 (the "NYLL"), against Defendants Astra Home Care, Inc. d/b/a True Care Home Health Care ("Astra"), Michael Werzberger, Rebecca Rosenzweig, and several John Does (collectively, "Defendants"). The gravamen of Plaintiff's complaint is that she often worked 24–hour shifts as a home health care aide without receiving breaks for sleep or meals and, further, that Defendants improperly counted each 24–hour period as a single shift (without regard to the number of hours actually worked), for which Plaintiff was paid a flat fee. Plaintiff also alleges, more broadly, that she was not given overtime pay for hours worked in excess of 40 hours in a workweek; that she did not receive the requisite minimum wage; and that Defendants did not comply with New York's "spread of hours" requirement, the New York Wage Parity Act (the "WPA"), or the New York Wage Theft Prevention Act (the "WTPA").

Plaintiff now moves for conditional certification of a collective action under § 216(b) of the FLSA for her overtime and minimum wage claims. Plaintiff also moves under Federal Rule of Civil Procedure 23 to certify several classes under the NYLL. For the reasons that follow, the Court grants Plaintiff's motion for conditional certification, but denies without prejudice Plaintiff's motion for class certification.

BACKGROUND¹

A. Factual Background

1. Plaintiff's Employment at Astra

Plaintiff was a home health care aide ("aide") employed by Astra from June 19, 2014, to January 31, 2016. (Compl. ¶ 20). Plaintiff alleges that she was "not paid full regular wages for all of her hours worked[,] was not paid overtime wages for all of her hours worked over [40] in a workweek ..., and was not paid an extra hour of pay for all her hours worked over a spread of 10 hours per day." (Id. at ¶ 23). Typically, Plaintiff worked

24 hour shifts staying overnight at the client's house, and on these days was only paid for 13 hours generally at the rate of $10.93 per hour equal to $142.09 or at the rate of $15 per hour equal to $195, despite the fact that her sleep was regularly interrupted at least 3–4 times by the client throughout the night, causing [Plaintiff] not to get 5 hours of uninterrupted sleep[,]

and despite the fact that Plaintiff often "did not receive a meal break and generally ate while working." (Id. at ¶¶ 24, 35). The Complaint recounts Plaintiff's experiences with several clients who would wake her throughout the night to request assistance and would prevent her from taking continuous sleep breaks. (Id. at ¶¶ 25–30). Plaintiff states that she "generally worked 4–6 24 hour shifts per week." (Id. at ¶ 31). Plaintiff describes herself as a "home health aide/maid" and makes a variety of allegations about performing household work, such as "dusting, vacuuming, cleaning the bathroom ... mopping the kitchen floors, scrubbing the kitchen counters, cleaning the pots and pans, loading/unloading the dishwasher, feeding and taking care of cats, and taking out the garbage." (Id. at ¶¶ 20–45).

2. Plaintiff's Collective Claims

In support of her collective claims, Plaintiff submitted a declaration that largely tracks the allegations made in her Complaint regarding her own experiences while employed by Defendants. (See generally Pl. Decl.). When speaking about other aides, however, Plaintiff often speaks in conclusory terms—asserting, for example, that Defendants employ at least 40 other home health aides who were similarly not paid overtime and only compensated for 13 hours of their 24–hour shifts. (Id. at ¶¶ 28, 30). Plaintiff identifies in her declaration one other aide, Matilda, who also claims that she was only paid 13 hours for a 24–hour shift when she did not receive five hours of uninterrupted sleep time. (Id. at ¶ 33). Matilda is further alleged to have told Plaintiff that she (Matilda) was not paid any premium for working more than 40 hours per week and did not receive WPA wages. (Id. ).

During her deposition, Plaintiff identified two other aides with whom she had spoken about their experiences. (Dkt. # 37–4 ("Pl. Dep.") ). First , Plaintiff spoke to an aide named Katy during "in-service training," who told Plaintiff that she had only been paid for 13 hours of a 24–hour overnight shift in which she had not been able to get five uninterrupted hours of sleep. (Pl. Dep. 322:13–323:7). Second , Plaintiff mentioned that she spoke to an aide named Maranga. (Id. at 402:6–10). The excerpts of the deposition provided to the Court do not include the substance of Plaintiff's discussions with Maranga, and the Court is thus unable to find that Plaintiff is similarly situated to her. Even crediting the additional statements Plaintiff made during her deposition, the Court finds that this evidence is not, on its own, enough to sustain Plaintiff's collective claims.

More persuasive is the documentary payroll evidence Plaintiff obtained during discovery and submitted with her attorney's supporting declaration. Plaintiff's pay stubs reflect several categories of compensation: (i) Astra InService, (ii) live in, (iii) regular, (iv) overtime, (v) holiday, and (vi) vacation. (Rand Decl., Ex. A). Several of her pay stubs list only "live in" compensation; on these pay stubs, the "hours" column reflects between four and six "hours" of work compensated at a flat rate of $142.09 per "hour" (id. ); the Court understands from the oral argument in this matter that the references to "hours" in the live-in payment context are payroll record idiosyncrasies that were fixed sometime in late 2015 or early 2016, and that the $142.09 figure is in fact payment for a 13–hour shift. (See Dkt. # 42 ("Oral Arg. Tr.") 8:7–17, 20:14–18, 28:23–29:4). Certain other pay stubs reflect multiple forms of compensation. For example, from September 6–12, 2014, Plaintiff worked 40 hours of "regular" time (compensated at $15 per hour), eight hours of "overtime" (compensated at $22.50 per hour), and two "hours" of "live in" time (which, again, the Court understands to reflect two shifts compensated at $195.00 per shift). (Rand Decl., Ex. A). Plaintiff submitted payroll documents for 10 other aides. (Id. at Ex. B–K). Each set of pay stubs reveals instances of aides working live-in shifts for no more than seven "hours" per week for which they were compensated a flat fee. (Id. ). Several were compensated at the same rate as Plaintiffs—$142.09 per shift. (E.g. , Rand Decl. Ex. B, D, E, F, I).²

B. Procedural Background

Plaintiff filed this suit on August 29, 2016 (Dkt. # 1), and Defendants filed their Answer on October 7, 2016 (Dkt. # 13). On January 11, 2017, the Court granted in part Plaintiff's motion for discovery related to her class and collective action claims. (Dkt. # 15, 20). The Court ordered Defendants to produce "(i) the name and contact information and (ii) the wage and hour information of two randomly selected home health aide employees for each of the six years that Plaintiff was allegedly employed by Defendants, resulting in the sampling of twelve aides." (Dkt. # 20). The parties completed collective and class discovery on March 30, 2017 (Dkt. # 25), and on May 2, 2017, Plaintiff moved for conditional certification of a collective action under 29 U.S.C. § 216(b) and to certify several classes under Federal Rule of Civil Procedure 23 (Dkt. # 26–28). Defendants filed their opposition on June 1, 2017. (Dkt. # 32). Plaintiff filed her reply brief on June 15, 2017. (Dkt. # 38). The unredacted Declaration of Ella Shillingford and Exhibits B through M of the Declaration of William C. Rand, Esq. were filed under seal, but redacted versions are on the docket at Docket Entries 34 and 35.

On January 4, 2018, the Court ordered the parties to appear for oral argument to discuss certain concerns about the record on Plaintiff's collective claims. (Dkt. # 41). The Court held oral argument on January 12, 2018, and the Court's resolution of this motion benefitted greatly from the capable advocacy on both sides. (See Dkt. # 42 (transcript) ).

DISCUSSION

A. Applicable Law

1. Collective Certification Under § 216(b) of the FLSA

The FLSA provides for common resolution of wage and hour claims. Under 29 U.S.C. § 216(b), a claim can be brought against an employer "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Unlike class actions brought under Rule 23, FLSA collective actions "need not satisfy the standards of numerosity, typicality, commonality, or representativeness." Mendoza v. Ashiya Sushi 5, Inc. , No. 12 Civ. 8629 (KPF), 2013 WL 5211839, at *2 (S.D.N.Y. Sept. 16, 2013) (citing Young v. Cooper Cameron Corp. , 229 F.R.D. 50, 54 (S.D.N.Y. 2005) ).

District courts in the Second Circuit apply a two-step process when presented with an application for certification of a collective action under § 216(b).³ First , courts consider "whether to send notice to potential opt-in plaintiffs who may be similarly situated to the named plaintiffs with respect to whether an FLSA violation has occurred." Morano v. Intercontinental Capital Grp., Inc. , No. 10 Civ. 2192 (KBF), 2012 WL 2952893, at *4–5 (S.D.N.Y. July 17, 2012) (internal quotation marks and citation omitted). Second , the collective action may be de-certified if the...