Valdez v. Michpat & Fam, LLC

Decision Date06 January 2022
Docket Number20-cv-2570 (AMD)(SIL)
CourtU.S. District Court — Eastern District of New York
PartiesJESSICA VALDEZ, individually and on behalf of all others similarly situated, Plaintiffs, v. MICHPAT & FAM, LLC, doing business as DAIRY QUEEN GRILL & CHILL RESTAURANT and PATRICIA NAPPO, also known as PATRICIA DEMINT, Defendants.

REPORT AND RECOMMENDATION

STEVEN I. LOCKE, United States Magistrate Judge.

Presently before the Court in this wage and hour action, on referral from the Honorable Anne M. Donnelly for report and recommendation, is Plaintiff Jessica Valdez's (“Valdez” or the “Named Plaintiff) Motion for Conditional and Class Certification, Disclosure of Contact Information, Leave to Distribute Notice, and Equitable Tolling Pursuant to Section 216(b) of the Fair Labor Standards Act (“FLSA”) and Federal Rule of Civil Procedure (Fed. R. Civ. P.) 23(b)(3) (Plaintiff's Motion” or “Pl Mot.”). See Docket Entry (“DE”) [30]. By way of Complaint dated June 9, 2020, the Named Plaintiff commenced this action against Defendants Michpat & Fam, LLC (Michpat) and Patricia Demint (“Demint, ” together with Michpat Defendants), alleging: (1) violations of the FLSA, 29 U.S.C. § 201 et seq. and sections 160, 191, and 195 of New York Labor Law (“NYLL”) concerning overtime pay, timing of pay, spread of hours pay and notice requirements, on behalf of herself and all others similarly situated; and (2) violations of the FLSA's and NYLL's minimum wage provisions, on behalf of herself only. See Complaint (“Compl.”), DE [1]. Defendants deny all of Valdez's material allegations. See generally Defendants' Memorandum of Law in Opposition to Plaintiff's Motion (“Def. Opp.”), DE [34].

Through Plaintiff's Motion, Valdez seeks: (1) conditional certification of her FLSA collective overtime claims for a class defined as: [c]urrent and former employees, who from the opening of Defendants' Dairy Queen restaurant on December 1, 2017, until March 1, 2020, performed any work for Defendants and who were paid on an hourly basis as ‘crew' members, and/or assistant managers, and/or managers, and who consent to file a claim to recover damages for unpaid overtime compensation and liquidated damages that are legally due to them”; and (2) certification of her NYLL claims for a class defined as: [c]urrent and former employees, who from the opening of Defendants' Dairy Queen restaurant until March 1, 2020, performed any work for Defendants in New York as ‘crew' members, and/or assistant managers, and/or managers, and who were paid on an hourly, bi-weekly basis.” See generally Plaintiff's Memorandum of Law in Support of Motion for Conditional and Class Certification, Disclosure of Contact Information, Leave to Distribute Notice, and Equitable Tolling Pursuant to 29 U.S.C. § 216(b) and Fed.R.Civ.P. 23(b)(3) (“Pl. Mem.”), DE [31]; Declaration of Michael R. Minkoff, Esq. in Support of Plaintiff Jessica Valdez's Motion for Conditional and Class Certification, Disclosure of Contact Information, Leave to Distribute Notice, and Equitable Tolling Pursuant to 29 U.S.C. § 216(b) and Fed.R.Civ.P. 23(b)(3) (“Minkoff Decl.”), DE [32]; Plaintiff Jessica Valdez's Declaration in Support of Plaintiff's Motion for Conditional and Class Certification, Disclosure of Contact Information, Leave to Distribute Notice, and Equitable Tolling Pursuant to 29 U.S.C. § 216(b) and Fed.R.Civ.P. 23(b)(3) (“Valdez Decl.”), DE [33].

For the reasons set forth herein, the Court respectfully recommends that the Named Plaintiff's motion be granted in part and denied in part, as follows: (1) this matter should be conditionally certified as a FLSA collective action for a class defined as all current and former employees, who from April 23, 2018 to April 23, 2021, performed any work for Defendants and who were paid on an hourly basis as ‘crew' members, assistant managers, or managers, and who consent to file a claim to recover damages for unpaid overtime compensation and liquidated damages; (2) a three-year statute of limitations should be applied to the FLSA claims, and should be tolled from the date the Named Plaintiff filed Plaintiff's Motion until the date of the adoption or modification of this Report and Recommendation; (3) this matter should be certified as a NYLL Rule 23 class action for a class defined as all current and former employees, who from the opening of Defendants' Dairy Queen restaurant until March 1, 2020, performed any work for Defendants in New York as ‘crew' members, assistant managers, or managers, and who were paid on an hourly, bi-weekly basis; (4) a six-year statute of limitations should be applied to the NYLL causes of action, and should be tolled from the date the Named Plaintiff filed the Complaint until the date of the adoption or modification of this Report and Recommendation; (5) the Named Plaintiff should revise her proposed notice consistent with Judge Donnelly's adoption or modification of this Report and Recommendation; (6) the Named Plaintiff should be permitted to send the notice to potential FLSA collective and NYLL Rule 23 class members via first-class mail, email, and text message, as well as to post it at Michpat's Medford, New York Dairy Queen location and send a reminder notice; and (7) Defendants should be directed to provide the Named Plaintiff with a computer-readable data file containing the names, addresses, telephone numbers, email addresses, work locations, and dates of employment of all crew members, assistant managers, and managers employed by Defendants as hourly, non-exempt, overtime-eligible employees at any point between December 1, 2017 and March 1, 2020.

I. BACKGROUND
A. The Parties

Unless otherwise indicated, the facts set forth herein are taken from the Complaint, as well as the Named Plaintiff's declaration submitted in support of her motion for both FLSA conditional certification and Rule 23 class certification, and are accepted as true for purposes of the instant motion. See generally Compl.; Valdez Decl.[1]

Defendant Demint is a New York resident who is the managing member and general manager of Defendant Michpat, a New York limited liability company that operates a Dairy Queen fast-food establishment located at 2846 Route 112, Medford, New York 11763, that opened on December 1, 2017. See Compl. ¶¶ 12-14. Demint was responsible for day-to-day management of the Dairy Queen, including hiring and firing all employees, supervising and controlling employee work schedules, determining the rate and method of wages paid to all employees, and was and is responsible for maintaining the employment records at issue. Id. at ¶ 31. Valdez, also a New York resident, worked for Defendants as a grill-line worker from approximately late-December 2017 until mid-May 2018, and then as a “manager” until she was terminated by Demint on October 25, 2019. Id. at ¶¶ 2, 32. Demint personally set the Named Plaintiff's pay rate and weekly schedule, and both hired and fired her. Id. at ¶ 31. At all times throughout her employment, Valdez was paid hourly and on a bi-weekly basis. Id. at ¶¶ 31, 35. The Named Plaintiff was required to work five to six days each week, typically ranging from 32 to 45 working hours. Id. at ¶ 37.

B. The Named Plaintiff's Allegations

Valdez initially alleges that her primary duties as a grill-line worker consisted of preparing food for the Defendants' restaurant customers, ” and that, as a manager, she “continued to perform her duties as a manual grill-line worker, and also ran the ice cream section, prepared the work schedules, ordered supplies, cleaned the restaurant and equipment, ensured the food was cooked at the right temperature and that the staff wore proper equipment, and hired and fired staff.” Id. at ¶¶ 33-34. Moreover, “regardless of whether [the Named Plaintiff] worked as a grill-line worker or a manager, more than 25% of [her] work, and indeed virtually 100% of her work, was spent completing manually laborious tasks” such as “cooking, cleaning, serving food, checking food temperatures, and handling store equipment orders as they arrived.” Id. at ¶ 35.

The Complaint further asserts that Defendants paid Valdez at a rate of $11.50 per hour in December 2017, $12.50 per hour from January 2018 to July 2018, $14.00 per hour from August 2018 to September 2019, and $16.00 per hour in October 2019. Id. at ¶ 38. The Named Plaintiff was allegedly not compensated at a rate of one and one-half times her regular rate of pay for any hours she worked in a week above 40. Id. at ¶ 39. In fact, the Complaint asserts that if Valdez worked more than 40 hours per week, Demint would modify her time records to reflect that the Named Plaintiff had only worked up to 40 hours for that week and would shift the hours in excess of forty to another week where Valdez had worked fewer than 40 hours. Id. Effectively, the Named Plaintiff was compensated at her straight-time pay rate for all hours she worked above 40 in a week. Id.

Additionally, from April to September 2019, Defendants allegedly withheld Valdez's paychecks and, at their discretion, would deposit these paychecks into a bank account held by Demint who would then deposit money into the Named Plaintiff's account at her discretion. Id. at ¶ 41. Valdez further alleges that Defendants required her to work shifts exceeding ten hours from start to finish without paying an additional hour's pay at the applicable minimum wage rate, and that she was not provided a wage notice at the time of her hire, nor was she provided a wage statement for any pay period that listed her hours worked, rates of pay, and spread-of-hours pay owed for that week. Id. at ¶¶ 42-44.

Through her Declaration, the Named Plaintiff repeats many of the same facts alleged in the Complaint regarding her own employment and also...

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