Opinion
20 Civ. 8010 (LTS) (GWG)
06-09-2023
MARCO ANTONIO PEREZ PEREZ, et al., Plaintiffs, v. ESCOBAR CONSTRUCTION, INC., et al., Defendants.
REPORT & RECOMMENDATION
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
Plaintiffs Marco Antonio Perez Perez and Jose Eduardo Sanchez Arias (collectively “Perez”) have sued defendants Escobar Construction, Inc.; Nations Construction, Inc.; JRS Services, Inc.; Jhony Aris Escobar; Elias Osmin Alvarez Palacios; and Jenny Carolina Alvarez (collectively “Escobar”) for violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”) and the labor laws of New York, Ohio, Kansas, and Indiana. See Second Amended Complaint, filed Nov. 29, 2022 (Docket # 213) (“SAC”). Defendants have moved to “decertify” the FLSA collective action under which six opt-in plaintiffs have joined this case. For the reasons that follow, defendants' motion should be granted.
Memorandum of Law, filed Mar. 10, 2023 (Docket # 248) (“Escobar Mem.”); Memorandum of Law, filed Apr. 7 2023 (Docket # 260) (“Perez Opp.”); Reply Memorandum of Law, filed Apr. 14, 2023 (Docket # 263) (“Escobar Reply”).
I. BACKGROUND
On December 29, 2019, Perez filed a complaint in the Northern District of New York, see Complaint, filed Dec. 29, 2019 (Docket # 1), which Perez subsequently amended, see Amended Complaint, filed Aug. 3, 2020 (Docket # 28). The case was transferred by agreement to this district, see Order, dated Sept. 16, 2020 (Docket # 56), and Perez moved for conditional approval of a collective action under the FLSA, See Notice of Motion, filed Jan. 15, 2021 (Docket # 67).
The Court granted conditional approval of the collective action, finding that Perez was entitled to issue notices of this action to “all construction workers, painters, laborers, finishers, and supervisors employed by defendants who worked at the Binghamton or Ithaca work sites.” Opinion and Order, dated May 20, 2021 (Docket # 81), at 17. Six individuals then filed forms indicating their desire to “opt-in” as plaintiffs: Martin Galvan Guevara, Oscar Garza, Vicente Padilla, Kasheem Hill, Martin Galvan Jr., and Diego Becerra Villasenor. See FLSA Opt-in Forms (Docket ## 93, 95, 98, 105, 116); Memorandum Order, dated Jan. 9, 2023 (Docket # 221) (allowing Villasenor's belated opt-in).
On March 10, 2023, defendants filed the instant motion to “decertify” plaintiffs' conditional collective action, alleging that plaintiffs had failed to demonstrate that the opt-in plaintiffs are “similarly situated” to the named plaintiffs as required by 29 U.S.C. § 216(b). See Escobar Mem.
II. LEGAL STANDARD
The Second Circuit has laid out a two-step process for the evaluation of a putative collective action under the FLSA. “At step one, the district court permits a notice to be sent to potential opt-in plaintiffs if the named plaintiffs make a modest factual showing that they and others together were victims of a common policy or plan that violated the law. At step two, with the benefit of additional factual development, the district court determines whether the collective action may go forward by determining whether the opt-in plaintiffs are in fact similarly situated to the named plaintiffs.” Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016) (citing Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)).
The second step of the analysis normally “occurs upon completion of discovery.” Cuzco v. Orion Builders, Inc., 477 F.Supp.2d 628, 632 (S.D.N.Y. 2007). “A court, often prompted by a motion for decertification by the defendant, will examine all the evidence then in the record to determine whether there is a sufficient basis to conclude that the proposed class members are similarly situated.” Id. At this second stage, “the plaintiff[s] ha[ve] the burden of showing that the opt-in plaintiffs are similarly situated to [them].” Vecchio v. Quest Diagnostics, Inc., 2020 WL 5604080, at *10 (S.D.N.Y. Sept. 18, 2020) (citing Zivali v. AT&T Mobility, LLC, 784 F.Supp.2d 456, 460 (S.D.N.Y. 2011)). “If the plaintiffs fail to meet that burden . . . then the opt-in plaintiffs are dismissed without prejudice from the lawsuit.” Id.
Although 29 U.S.C. § 216(b) does not define the term, the Second Circuit has held that plaintiffs are “similarly situated” where “they share one or more similar questions of law or fact material to the disposition of their FLSA claims.” Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 521 (2d Cir. 2020). Thus, “[i]f named plaintiffs and opt-in plaintiffs are similar in some respects material to the disposition of their claims, collective treatment may be to that extent appropriate, as it may to that extent facilitate the collective litigation of collective plaintiffs' claims.” Id. at 522. The Second Circuit has held that this standard “imposes a lower bar than Rule 23, [and] it imposes a bar lower in some sense even than Rules 20 and 42, which set forth the relatively loose requirements for permissive joinder and consolidation at trial.” Id. at 520 (citation omitted).
III. DISCUSSION
Perez argues that he has “made an adequate showing of [sic] that the members of the conditionally certified class was [sic] similarly situated,” because “[a]ll Plaintiffs worked for Escobar in various capacities as employees who worked in excess of forty (40) hours and were skimmed on their pay through time shaving practices.” Perez Opp. at 1. In other words, Perez argues that the opt-in and named plaintiffs are similarly situated because (a) opt-in plaintiffs and named plaintiffs were employees of the same company, and (b) both opt-in plaintiffs and named plaintiffs were improperly paid. Escobar responds that “[p]laintiffs fail to proffer any evidence to establish that [o]pt-ins were subjected to a common policy that is illegal if proven,” and thus cannot demonstrate that opt-in plaintiffs are similarly situated to the named plaintiffs. Escobar Reply at 8.
Escobar also raises arguments relating to the credibility of plaintiffs, adequacy of opt-in plaintiffs' consent forms, timeliness of claims, and defendants' alleged single-enterprise status. See Escobar Mem. Because the question of whether plaintiffs are similarly situated is dispositive, we do not reach these other issues.
In arguing that opt-in plaintiffs are similarly situated to named plaintiffs, Perez consistently fails to cite to any evidence as to the allegations central to the claims in this case: most obviously, Perez fails to cite to evidence showing that opt-in plaintiffs were deprived of either overtime or pay. Perez claims that “all [p]laintiffs experienced the same hardships at the hands of defendants,” Perez Opp. at 5, and “experienced the same problems such as not being paid one and one half for the hours they worked over forty hours, and not being paid for all the hours that they worked,” id. at 8, but Perez fails to identify admissible evidence that demonstrates that any opt-in plaintiff was improperly paid.
Perez's original opposition to the defendants' motion was devoid of any citation to evidence in the record. See Memorandum of Law, filed Mar. 24, 2023 (Docket # 254). The Court therefore issued an Order noting that the brief failed to the comply with Court directives in a number of ways. Because it is central to our ruling here, we quote this Order at length:
Plaintiffs' opposition is utterly deficient for three reasons. First, the opposition fails to include the filing of any evidence developed in discovery (or otherwise). Second, while the memorandum of law alludes to the existence of
evidence, large swaths of the memorandum of law make factual statements devoid of any citation to evidence. See, e.g., Opp. at 5-6, 8, 11-12, 14-16. And where are there are citations, they are often to inadmissible evidence such as a pleading (or, even worse, a proposed pleading). Third, the memorandum of law fails to contain a fact section.
In addition to the case law cited above that should have alerted plaintiffs to the need to file admissible evidence along with their brief, paragraph 2.D of the Court's Individual Rules requires in relevant part that any memorandum of law:
must contain a fact section that sets forth all facts relevant to the motion and, for each factual statement, provides one or more citations (with specific page or paragraph numbers) to pleadings, declarations, affidavits or other documents that have been separately filed. Any factual statement contained within other sections of a memorandum also must be followed by a citation to documents in the record.(emphasis added).
We note that this is not the first time that plaintiffs' filings have been deficient in this way. See Order, dated Sept. 19, 2022 (Docket # 168) (“plaintiffs' memoranda of law in numerous instances fail[ed] to comply with paragraph 2.D of the Court's Individual Practices”). The plaintiffs' current failure has needlessly delayed this action and will be the subject of a separate order to show cause as to why sanctions should not be issued against the plaintiffs.
In the meantime, while the Court could simply sanction the plaintiffs by deeming the motion to “decertify” unopposed, the Court will instead afford plaintiffs one final opportunity to file new opposition papers. Accordingly, plaintiffs are ordered to file, on or before midnight on April 7, 2023, a revised brief and a declaration attaching the evidence cited in the brief (which must of course be admissible and not merely allegations in a pleading). Obviously, the plaintiffs' revised filings must cure all three deficiencies listed above.Order, filed April 4, 2023 (Docket # 258) (emphasis in original).
Plaintiffs filed a replacement opposition brief, see Perez Opp., but it cured virtually none of the deficiencies. While it had a fact section, id. at 1-3, the fact section contained only the procedural history and none of the facts relevant to the issue in this motion: that is, whether the opt-in plaintiffs are “similarly situated” to the named plaintiffs. Worse, the remainder of the brief continued to cite to inadmissible evidence, including paragraphs that cite exclusively to either the unsworn Second Amended Complaint or, incredibly, the unsworn proposed Third Amended Complaint, the filing of which was never approved. See, e.g., Perez Opp. at 6-7, 12, 22. The brief features sentence after sentence of factual statements that are followed by no citations whatsoever. See, e.g., id. at 16-17. Among the few citations to evidence that do exist, some are merely citations to evidence cited in the defendant's moving brief as part of plaintiffs' efforts to explain that evidence. See, e.g., Id. at 12-13. Such citations do nothing to meet plaintiffs' burden of showing the opt-in plaintiffs are similarly situated to the named plaintiffs. See generally Myers, 624 F.3d at 555 (even at conditional approval stage, burden of proof “cannot be satisfied simply by unsupported assertions”).
The sum total of statements in the entirety of plaintiffs' brief that have any possible bearing on the “similarly situated” issue and that are supported by citation to evidentiary matter show only the following disjointed facts: (1) Escobar testified that his office set pay for subcontractors, and both Perez and Arias testified that Escobar set their pay rate. Perez Opp. at 7. (2) Escobar testified that his company kept a record of hours which was eventually lost. Id. at 8. (3) Padilla's employment agreement limited his responsibilities and discretion, and did not give him the ability to hire or fire employees. Id. at 10-11. (4) Villasenor testified that he took charge of the worksite and was a supervisor, and the reason for this was the absence of the appointed supervisor. Id. at 12-13. (5) A person who wrote Villasenor a recommendation letter believed he was hired as a spot laborer but took on management duties. Id. at 13. (6) Arias testified that Natalie Palacios was a secretary but could hire and fire employees. Id. at 18.
These are literally the only factual contentions made in Perez's opposition brief that cite to any admissible evidence and that are even marginally relevant to the “similarly situated” issue. Obviously, the Court cannot construct a decision from these six fragmentary facts to demonstrate (a) under what circumstances the named plaintiffs were not properly paid; and (b) how the opt-in plaintiffs are similarly situated to those named plaintiffs.
While the brief contains broad statements regarding the opt-in plaintiffs' circumstances, the statements are completely unsupported. For example, the brief states that “Plaintiff Padilla is owed at least two weeks['] wages from the defendants.” Id. at 12. This assertion is not supported by a citation to admissible evidence, however, but rather to a proposed complaint that was rejected by the Court. See id. (citing “Clean Version of Proposed Complaint,” filed Mar. 3, 2023 (Docket # 240-2)). As to Villasenor, Perez asserts that “Villasenor . . . was not compensated by defendants at a rate of one and one half for the hours that he worked,” id. at 14, but cites only to the same pleading. As to Guevara, Perez asserts that “defendants intentionally and willfully failed to pay [Guevara] for all his hours that he worked,” id. at 16, but gives no citation at all for this proposition. Perez asserts that “both named Plaintiffs and Plaintiffs Hill and Garza ....were hired and supervised by defendants and experienced the same treatments [sic] of not being paid for all the hours that they worked for defendants,” id. at 17, but again gives no citation at all. As to Galvan Jr., Perez asserts that “just like named Plaintiffs, Plaintiff Galvan Junior was not paid a one and a half rate at [sic] for the weeks he worked more than forty,” id. at 17 - but again the brief makes this assertion without citation to any evidence.
Perez does not identify any deposition testimony, affidavit, or other admissible evidence that suggests any opt-in plaintiff was in fact deprived of pay or overtime. Thus, Perez has not made even a minimal showing that the opt-in plaintiffs were victims of the alleged common policy or plan under which named plaintiffs were deprived of pay. Because Perez has not offered proof that the opt-in plaintiffs were the victims of an FLSA violation, the plaintiffs have not met their burden of showing that they “share one or more similar questions of law or fact material to the disposition of their FLSA claims,” as Scott requires, see 954 F.3d at 521.
Perez also appears to argue that, standing alone, plaintiffs' purported status as employees of Escobar demonstrates that they are “similarly situated” See Perez Opp. at 5. Obviously, this is insufficient to establish that opt-in plaintiffs qualify for collective action under the FLSA. Courts in this District have noted that “the Second Circuit's requirement that . . . common questions be ‘material' suggests that [p]laintiffs must do more than show that workers were employed by the same employer.” Pequero v. Montafon, LLC, 2020 WL 4016756, at *9 (S.D.N.Y. July 15, 2020); accord Hernandez v. NHR Hum. Res., LLC, 2021 WL 2535534, at *12 (S.D.N.Y. June 18, 2021). Although Perez argues that plaintiffs “were all exposed to Defendants' malicious, willful and intentional policies and practices,” Perez Opp. at 1, he fails to do more than assert (without citation to proof) that opt-in plaintiffs were subject to these unexplained “policies and practices.” Rather than providing factual support for his claim, Perez reiterates the same conclusory allegations throughout his papers and makes no attempt to specify the nature of the alleged violative “policies and practices” except to assert without support that they resulted in deprivations of pay. See id. at 1, 3, 5, 9. Nor does he provide information regarding opt-in plaintiffs' roles or compensation so that a finding could be made that there was a common policy. Thus, even if we were to find that the opt-in and named plaintiffs were all employees of Escobar, we would be left with nothing more than guesswork as to whether the employees were subject to a particular pay policy that would be subject to common proof at trial.
The few jumbled citations to admissible evidence in the brief make it impossible for the Court to determine whether opt-in plaintiffs are similarly situated to the named plaintiffs. Notably, on one occasion where plaintiffs cite to admissible evidentiary matter, it is simply to oppose arguments made by defendants and to deny the utility of evidence the defendants have offered - not to explain what admissible evidence exists in the record to support a finding that the opt-in plaintiffs are “similarly situated.” See id. at 12-13. In the end, Perez has failed to carry his burden of proof that this case should proceed as a collective action under the FLSA.
It may be that there is evidence somewhere in the record or in the hands of Perez's counsel that would allow for a finding that the parties are similarly situated. But Perez's counsel has failed to present it. As is true on a motion of summary judgment, it is not the job of the court on a motion to “decertify” an FLSA collective “to scour the record on its own in a search for evidence” that would show that opt-in plaintiffs are similarly situated to the named plaintiffs when the plaintiffs fail to present it. CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 125 (2d Cir. 2013) (internal quotation marks and citation omitted); accord Kiarie v. Dumbstruck, Inc., 473 F.Supp.3d 350, 357 (S.D.N.Y. 2020); see generally U.S. Secs. & Exch. Comm'n v. Collector's Coffee Inc., 537 F.Supp.3d 497, 502 (S.D.N.Y. 2021) (“A litigant may not place upon the Court the burden of scouring the factual record to determine how a legal principle applies to the facts of his case.”).
Conclusion
Defendants' motion to “decertify” the collective action (Docket # 247) should be granted. The claims of the opt-in plaintiffs should be dismissed without prejudice.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to Judge Swain. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
SO ORDERED.