Opinion
22-CV-4812 (JLR) (JW)
01-25-2023
MILAN LIPSTEIN, on behalf of himself and others similarly situated, Plaintiffs, v. 20X HOSPITALITY LLC d/b/a SPCIY MOON ET AL, Defendants.
REPORT & RECOMMENDATION
JENNIFER E. WILLIS, United States Magistrate Judge:
Plaintiff Milan Lipstein, on behalf of himself and all others similarly situated, alleges that Defendants 20X Hospitality LLC d/b/a Spicy Moon (“Spicy Moon” or the “Restaurant”), June Kwan, Joanna Avery, and Yidi Mao violated the Fair Labor Standards Act (“FLSA”) by not paying Back-of-House Employees for overtime wages and on or before their regularly scheduled paydays. Plaintiff now moves for an order (1) conditionally certifying the proposed collective action pursuant to 29 U.S.C. § 216(b) on behalf of all Back-of-House Employees employed by Defendants during the three years prior to the filing of the Complaint; (2) compelling Defendants to furnish the names, last known addresses, telephone numbers, email addresses, and dates of employment of those individuals in the collection action; (3) authorizing Plaintiff to circulate a Notice of Pendency and Consent to Join Form to all individuals who are similarly situated in this action; and (4) tolling the statute of limitations from August 25, 2022 until the close of the Court-ordered opt-in period (the “Motion”). The Court recommends that the Motion be denied without prejudice. The Court denies Defendants' motion for consideration of the Court's denial of extension of time to oppose the Motion (Dkt. No. 40) as moot given this Report and Recommendation.
BACKGROUND
Defendants own and operate Spicy Moon, a restaurant in Manhattan, New York. Dkt. No. 25 at 3. Kwan is the owner, Avery is the General Manager, and Mao was the Executive Head Chef as of the end of Plaintiff's employment. Dkt. No. 26 ¶¶ 3-6. Plaintiff was the Executive Head Chef of Spicy Moon from on or around January 5, 2021 through on or around September 2021, after which Plaintiff worked as a Preparation Cook until his termination on November 8, 2021. Id. ¶¶ 7-8. Back-of-House Employees are “Line Chefs, Preparation Cooks, Dish Washers, and all other employees who are not paid tips, with the exception of the Executive Head Chef, owners, and management.” Dkt. No. 25 at 3.
DISCUSSION
I. Standard for Conditional Certification of a Class Under the FLSA
The FLSA requires employers to pay “any of [their] employees who in any workweek . . . work longer than forty hours unless such employee receives compensation . . . at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U .S.C. § 207(a)(1). Section 216(b) provides for a private right of action to recover unpaid overtime compensation and liquidated damages from employers who violate the FLSA's overtime provisions, and has its own right of collective certification, separate and apart from Federal Rule of Civil Procedure 23:
An action . . . 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 Court of Appeals endorses a two-step method of certification in an opt-in collective action under the FLSA. Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010). First, the court must make “an initial determination to send notice to potential opt-in plaintiffs who may be ‘similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred.” Id. (citations omitted). This determination requires only a “modest factual showing” from plaintiffs that “they and potential opt-in plaintiffs together were victims of a common policy or plan that violated the law.” Id. (quotation marks and citations omitted). The standard at this point is “‘considerably less stringent' than the requirements for class certification under Rule 23.” Poplawski v. Metroplex on the Atl., LLC, No. 11-CV-3765 (JBW), 2012 WL 1107711, at *3 (E.D.N.Y. Apr. 2, 2012).
Accordingly, at this preliminary stage, the focus of the inquiry “is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are ‘similarly situated' under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated.” Guillen v. Marshalls of Mass., Inc., 750 F.Supp.2d 469, 475 (S.D.N.Y. 2010) (citations omitted). “The test is whether there is a ‘factual nexus' between the claims of the named plaintiff and those who have chosen to opt-in to the action.” Davis v. Lenox Hill Hosp., No. 03-CV-3746 (DLC), 2004 WL 1926086, at *7 (S.D.N.Y. Aug. 31, 2004) (citation omitted). “Because the standard at the first stage is ‘fairly lenient,' courts applying it ‘typically grant[ ] conditional certification.'” Amador v. Morgan Stanley & Co. LLC, No. 11-CV-4326 (RJS), 2013 WL 494020, at *3 (quoting Malloy v. Richard Fleischman & Assocs. Inc., No. 09-CV-332 (CM), 2009 WL 1585979, at *2 (S.D.N.Y. June 3, 2009)). Indeed, at the notice stage, “courts require nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy or plan.” Rodolico v. Unisys Corp., 199 F.R.D. 468, 480 (E.D.N.Y. 2001) (quotation marks and citations 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 (KTD), 2008 WL 465112, at *1 (S.D.N.Y. Feb .19, 2008). The Court may also consider hearsay statements. Ali v. N.Y.C. Health & Hospitals Corp., No. 11-CV-6393 (PAC), 2013 WL 1245543, at *2 (S.D.N.Y. Mar. 27, 2013). Defendants, however, may not defeat a court's determination that Plaintiffs are similarly situated by submitting their own affidavits. See Francis v. A & E Stores, Inc., No. 06-CV-1638 (CS) (GAY), 2008 WL 4619858, at *3 (S.D.N.Y. Oct. 16, 2008) (“[W]hile Defendant has supplied what it calls ‘undisputed store manager affidavits,' . . . on which it also relies for the proposition that ASM duties are variable, those affidavits should be discounted at this stage.”).
“At this procedural stage, the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations.” Lynch v. United Services Auto. Ass'n, 491 F.Supp.2d 357, 368 (S.D.N.Y. 2007) (citation omitted). “A court should not weigh the merits of the underlying claims in determining whether potential opt-in plaintiffs may be similarly situated.” Id. (citing Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005)). This initial step, in other words, is not the place to scrutinize possible factual variations between plaintiffs. Accord Lynch, 491 F.Supp.2d at 369 (“Thus, any factual variances that may exist between the plaintiff and the putative class do not defeat conditional class certification.”); see also Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y. 2007) (“[T]he factual variations defendants rely on do not undercut plaintiffs' allegations of common wage and overtime practices that violate the FLSA.”).
Despite the leniency of this standard, conditional certification is not automatic. “The modest factual showing cannot be satisfied simply by unsupported assertions.” Myers, 624 F.3d at 555 (internal citation and quotation marks omitted). “Conclusory allegations” are not enough to satisfy this burden. See Morales v. Plantworks, Inc., No. 05-CV-2349 (DC), 2006 WL 278154, at *3 (S.D.N.Y. Feb. 2, 2006) (citation omitted); see also Prizmic v. Armour, Inc., No. 05-CV-2053 (DLI) (MDG), 2006 WL 1662614, at *3 (E.D.N.Y. June 12, 2006) (declining to find employees were similarly situated where “plaintiff has not submitted any evidence by affidavit or otherwise to demonstrate that he and other potential plaintiffs were victims of a common policy or plan that violated the law”).
“If the plaintiffs demonstrate that ‘similarly situated' employees exist, the Court should conditionally certify the class, order that appropriate notice be given to putative class members, and the action should continue as a ‘collective action throughout the discovery process.'” Winfield v. Citibank, N.A., 843 F.Supp.2d 397, 402 (S.D.N.Y. 2012) (citation omitted). “At the second stage, the district court will, on a fuller record, determine whether a so-called ‘collective action' may go forward by determining whether the plaintiffs who have opted-in are in fact ‘similarly situated' to the named plaintiffs. The action may be ‘de-certified' if the record reveals that they are not . . . .” Myers, 624 F.3d at 555.
II. Conditional Certification is Not Appropriate
Plaintiff alleges that Defendants have engaged in a common policy and practice of denying Back-of-House Employees overtime compensation for any hours worked in excess of 40 hours in a workweek and failing to timely pay Back-of-House Employees' wages. Dkt. No. 25 at 1. In support of Plaintiff's claims, Plaintiff references his own pay stubs, hours, and declaration. See Dkt. No. 26.
The Court acknowledges, as Plaintiff points out, that courts in this District have previously found that the representations of a single named plaintiff can be sufficient to support conditional certification of a collective. See Zhang v. Hiro Sushi at Ollie's Inc., No. 17-CV-7066 (DF), 2019 WL 699179, at *8 (S.D.N.Y. Feb. 5, 2019). In Zhang, however, the Court noted that a single plaintiff, a delivery worker, had described conversations with several other current and former delivery workers, and had attested that, based on those conversations, the other workers were paid at the same rate as he was, which was below the minimum wage. 2019 WL 699179, at *9.
A review of the case law shows that, in cases with one plaintiff's declaration as support for a condition certification motion, courts in this District have generally not granted conditional certification of a collective absent some representation by the plaintiff that he or she had observed, or had specific conversations with, others in similar roles, and could therefore state with some specificity that other employees were also not properly paid. See, e.g., Jung v. Gina Group, LLC, No. 19-CV-8624 (MKV), 2021 WL 4120642, at *3 (S.D.N.Y. Sept. 9, 2021) (finding that plaintiff's declaration provided “nothing of evidentiary value” to support the conditional certification motion because plaintiff offered “no personal observations, hearsay evidence, or specific factual details”) (internal citation and quotation omitted); Huertero-Morales v. Raguboy Corp., No. 17-CV-2429 (JCF), 2017 WL 4046337, at *3 (S.D.N.Y. Sept. 12, 2017) (finding plaintiff's affidavit insufficient to grant conditional certification because while plaintiff said he spoke with five other employees about defendant's pay policies, he did not state that any of those employees except one told him that they experienced time shaving).
See also Qing Tian Zhuo v. Jia Xing 39th Inc., No. 14-CV-2848 (SHS), 2015 WL 1514950, at *4 (S.D.N.Y. Apr. 1, 2015) (finding plaintiff's declaration to be sufficient at the conditional certification stage because “[f]or each purported violation, [plaintiff] describes either observing that violation as to other employees or being told about the same violation by one or more coworkers . . . .”); Sanchez v. JMP Ventures, L.L.C., No. 13-CV-7264 (KBF), 2014 WL 465542, at *2 (S.D.N.Y. Jan. 27, 2014) (denying conditional certification motion because plaintiff did not “provide any detail as to a single observation or conversation” with other employees) (emphasis included); Ali v. New York City Health and Hospitals Corp., No. 11-CV-6393 (PAC), 2013 WL 1245543, at *3 (S.D.N.Y. Mar. 27, 2013) (denying conditional certification motion where the “sole basis” for plaintiff's belief that others were similarly situated was “conversations with other respiratory therapists,” without providing additional information about the conversations or their substance); Hernandez v. Bare Burger Dio Inc., No. 12-CV-7794 (RWS), 2013 WL 3199292, at *2 (S.D.N.Y. June 25, 2013) (granting conditional certification where plaintiff asserted that “he personally observed that other tipped employees were also paid below the statutory wage”).
In the instant case, Plaintiff merely states that “in conversations with Back-of-House Employees . . . I am aware that Defendants failed to pay [them] overtime compensation ....” Dkt. No. 26-3 ¶ 26. Plaintiff then states that he spoke to unidentified line chefs, a dishwasher, and a preparation cook who were not paid minimum wage and/or overtime. Id. ¶¶ 27-30. “Defendants often failed to pay Plaintiff and other Back-of-House Employees on or before their regularly scheduled payday.” Id. ¶ 34.
Plaintiff does not provide any information as to the details of his conversations, much less that these individuals told him that they were not paid minimum wage and/or overtime. Plaintiff does not assert any allegations as to “the specific hours worked by, or the amounts paid to,” these individuals either. She Jian Guo v. Tommy's Sushi Inc., No. 14-CV-3964 (PAE), 2014 WL 5314822, at *3 (S.D.N.Y. Oct. 16, 2014) (finding plaintiff's allegations to be vague, conclusory, and unsupported because they did not contain detailed factual allegations such that the court could conclude that employees were similarly situated). “This is exactly the type of ‘unsupported assertion[]' that, according to the Second Circuit, ‘cannot . . . satisf[y]' a plaintiff's burden at the preliminary certification stage.” Ikikhueme v. CulinArt, Inc., No. 13-CV-293 (JMF), 2013 WL 2395020, at *2 (S.D.N.Y. June 3, 2013) (finding that plaintiff did not meet his burden at the preliminary certification stage by asserting that “it is his ‘understanding that the other Sous Chef employees of Defendants had similar duties and responsibilities and also were not managers'”). The Court declines to assume that these unnamed individuals told Plaintiff that they were not paid minimum wage and/or overtime because there is no factual evidence to support such an assumption. See Huer Huang v. Shanghai City Corp., No. 19-CV-7702 (LJL), 2020 WL 5849099, at *12 (S.D.N.Y. Oct. 1, 2020) (declining to make an assumption in plaintiffs' favor because there was no evidence to support such an assumption).
Plaintiff's text messages with Avery do not help either. Plaintiff told Avery “[t]he dishwasher last week was missing 80 dollars i[n] cash” and “Morgan said she wasn't paid and she worked one day last week,” and asked whether Avery “square[d] everything away with the missing money from Jorge's paychecks.” Dkt. No. 26-5.However, Plaintiff does not identify who Morgan, Jorge, or any other named individual in the texts is and their work such that the Court could find that they are part of the putative collective. That “[t]he dishwasher . . . was missing 80 dollars i[n] cash” is merely conclusory and not based on any alleged observation or conversation with the unnamed dishwasher. Moreover, Plaintiff's own paystubs are insufficient because they “fail to support [Plaintiff's] legal conclusion with a factual showing that extends beyond [his] own circumstances.” Levinson v. Primedia Inc., No. 02-CV-2222 (CBM), 2003 WL 22533428, at *2 (S.D.N.Y. Nov. 6, 2003).
Plaintiff asserts that the text messages also demonstrate “cut[ting] OT across the board.” Dkt. No. 25 at 12. However, the text messages provided in Exhibit E to the Motion do not say that. Dkt. No. 26-5.
Lastly, the Court finds it problematic that Plaintiff purports to certify a collective of “Line Chefs, Preparation Cooks, Dish Washers, and all other employees who are not paid tips, with the exception of the Executive Head Chef, owners, and management.” Dkt. No. 25 at 3 (emphasis added). Plaintiff does not identify any other employee beyond vague references to two line chefs, a dishwasher and a preparation cook who were subject to Defendants' allegedly unlawful common policies and practices. Therefore, this Court has no basis to conclude that “all other employees who are not paid tips” are similarly situated to Plaintiff. See Hernandez v. NHR Human Resources, LLC, No. 20-CV-3109 (PGG) (DF), 2021 WL 2535534, at *12 (S.D.N.Y. June 18, 2021) (denying conditional certification motion in part because plaintiff did not identify any other employee as to whose hours and wages he purportedly had personal knowledge). Therefore, Plaintiff has failed to provide any probative information regarding other similarly situated employees such that the Court can conditionally certify an FLSA collective action.
CONCLUSION
For the reasons stated above, the Court respectfully recommends that the Motion be denied without prejudice. The Court denies Defendants' motion for reconsideration (Dkt. No. 40) as moot.
SO ORDERED.