Opinion
17 Civ. 2120 (GBD)(HBP)
08-23-2018
NANCY AMHAZ, on behalf of herself and those similarly situated, et al., Plaintiffs, v. BOOKING.COM (USA), INC., et al., Defendants.
REPORT AND RECOMMENDATION
: TO THE HONORABLE GEORGE B. DANIELS, United States District Judge,
I. Introduction
Nancy Amhaz, on behalf of herself and others similarly situated, brings this action under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and the New York Labor Law ("NYLL") alleging that defendant Booking.com (USA), Inc. ("Booking.com") failed to pay her overtime wages because it improperly misclassified her under the FLSA's administrative exemption. By notice of motion, dated January 5, 2018, plain- tiffs seek an Order (1) authorizing their FLSA claims to proceed as a collective action pursuant to 29 U.S.C. § 216(b), (2) approving their proposed notice of the collective action and authorizing them to mail the notice to all potential plaintiffs and (3) compelling Booking.com to post the proposed notice in all of its offices nationwide (Notice of Motion, dated Jan. 5, 2018 (D.I. 36)). For the reasons set forth below, I respectfully recommend that plaintiffs' motion be granted in part and denied in part.
Amhaz also alleges an individual sexual harassment claim in violation of New York State Human Rights Law and New York City Human Rights Law (Complaint, dated Mar. 23, 2017 (Docket Item ("D.I.") 1) ("Compl.") ¶¶ 60-71).
Amhaz initiated this action as the sole plaintiff. Opt-in plaintiff Raven Britt joined the action on November 27, 2017, opt~in plaintiff Bret Hamilton joined the action on January 9, 2018 and opt-in plaintiff Monica Hidalgo joined the action on February 12, 2018. All references herein to "plaintiffs" shall include these four individuals.
Plaintiffs also requested that Booking.com be ordered to produce the names and contact information of potential collective members. However, Booking.com maintains it provided this information to plaintiffs on January 12, 2018 pursuant to my December 22, 2017 Order (Memorandum of Law in Opposition to Plaintiff's Motion for Conditional Collective Certification, dated Feb. 16, 2018 (D.I. 49) ("Def. Memo.") at 12). Plaintiffs do not dispute this representation in their March 9, 2018 reply memorandum (see Reply Memorandum of Law in Support of Plaintiff's Motion for Conditional Collective Certification, dated Mar. 9, 2018 (D.I. 53) ("Pl. Reply")).
II. Facts
Booking.com is an online travel company that provides hotel clients, or "accommodation partners," with an online reservation system for its customers to book rooms in various hospitality and tourism markets throughout the United States (Declaration of Nancy Amhaz, dated Dec. 18, 2017 (D.I. 38) ("Amhaz Decl.") ¶ 2). Booking.com employs over three hundred account managers ("AM") and key account managers ("KAM") in nineteen separate offices across eighteen cities and fifteen states (Amhaz Decl. ¶¶ 2, 6; Def. Memo. at 1-2). There is a factual dispute between the parties about what specific tasks AMs and KAMs are required to perform at Booking.com, but the main difference between AMs and KAMs appears to be that AMs manage smaller properties, such as, "mom-and-pop" bed and breakfast partners and boutique hotels, while KAMs manage larger or higher profile properties, such as, major hotel chains (Amhaz Decl. ¶ 9; Def. Memo. at 4). With the exception of AMs assigned to Booking.com's California offices, the parties agree that Booking.com classified all AMs and KAMs as exempt under the FLSA and paid them a fixed salary without overtime pay for hours worked in excess of forty per week (Amhaz Decl. ¶ 8; Def. Memo. at 2).
Amhaz worked as an AM in Booking.com's Las Vegas office from approximately April 23, 2012 through December 29, 2014 and as a KAM in Booking.com's New York office from approximately December 29, 2014 through May 22, 2015 (Amhaz Decl. ¶¶ 1, 4-5). She was paid an annual salary of $55,000 while at the Las Vegas office and $77,800.03 while at the New York office (Amhaz Decl. ¶¶ 1, 4). Amhaz alleges that she regularly worked more than forty hours per week throughout her employment (Amhaz Decl. ¶ 5). She further alleges that while working for Booking.com, she and other AMs and KAMs "performed menial sales duties without any discretion, at the direction of [their] supervisors" (Amhaz Decl. ¶ 6). Amhaz maintains that her primary duty as an AM and a KAM in both offices "was to contact prospective and existing hotel clients and elicit their interest in listing their hotel inventory into Booking.com at competitive rates, using a set order of Q&A from [the] training manual that [was] provided by Booking.com" (Amhaz Decl. ¶ 10).
Plaintiffs assert that all Booking.com's AMs and KAMs are similarly situated nationwide because they performed "substantially the same job duties and [had the same] working hours," were misclassified as exempt under the FLSA and were not paid overtime (Amhaz Decl. ¶ 6). However, plaintiffs admit that AMs assigned to Booking.com's California offices are not considered exempt employees (Amhaz Decl. ¶ 6). Given that plaintiffs' FLSA claim is based exclusively on alleged misclassification, it follows that AMs in the California offices are not similarly situated for purposes of conditional certification and all subsequent discussion regarding AMs nationwide will exclude California.
In support of their motion, plaintiffs filed declarations from opt-in plaintiffs Raven Britt, Bret Hamilton and Monica Hidalgo, who worked as AMs or KAMs in Booking.com's New York and Los Angeles offices (see Declaration of Raven Britt, dated Jan. 5, 2018 (D.I. 39) ("Britt Decl."); Declaration of Bret Hamilton, dated Mar. 2, 2018 (D.I. 54) ("Hamilton Decl."); Declaration of Monica Hidalgo, dated Mar. 8, 2018 (D.I. 55) ("Hidalgo Decl.")). These declarations are almost identical to Amhaz's declaration and state that all AMs and KAMs regularly worked in excess of forty hours per week and held substantially the same job responsibilities without "any discretion", "managerial responsibilities" or "administrative activities" (Amhaz Decl. ¶¶ 6, 12; Britt Decl. ¶¶ 6, 10; Hamilton Decl. ¶¶ 6, 10; Hidalgo Decl. ¶¶ 5, 9). Plaintiffs also state that they spoke with various AMs and KAMs from Booking.com's other offices and claim that based on these conversations, all AMs and KAMs "across the United States have the same job duties and were paid similarly" (Amhaz Decl. ¶¶ 13-14; Britt Decl. ¶¶ 11-12; Hamilton Decl. ¶¶ 11-12; Hidalgo Decl. ¶¶ 10-11).
Booking.com describes a very different work environment for AMs and KAMs in its opposition papers. Booking.com contends that AMs and KAMs are paid properly under the administrative exemption of the FLSA and that their main job responsibilities include "actively engaging in, and analyzing their specific hospitality markets, and then using their own independent judgment and discretion to advise the accommodation partners about specific market conditions" to "maximize the benefits [for accommodation partners] using the Booking.com online reservation platform to increase their sales" (Def. Memo. at 3). According to Booking.com, AMs and KAMs are responsible for maintaining their own portfolios of accommodation partners and, depending on what geographical market they are in, acquiring new accommodation partners (Def. Memo. at 3). Moreover, Booking.com argues that AMs and KAMs throughout its nineteen offices are not similarly situated because their day-to-day job responsibilities vary drastically depending on their location. Booking.com explains that some AMs and KAMs "manage accommodation partners in well-developed metropolitan cities, such as New York and Washington, D.C., whereas others are responsible for properties in less populated or more seasonal areas, such as the eastern Florida-Georgia line, or the beaches of Maryland and Delaware" (Def. Memo. at 3). In opposition to plaintiffs' motion, Booking.com filed twelve affidavits from AMs and KAMs working in Orlando, Miami, New York, Washington, D.C. and Bellevue who describe vastly different job responsibilities and client portfolios depending on the tourism market for which they are responsible (Declaration of Wendy J. Mellk, Esq., dated Feb. 16, 2018, annexed as Exs. K through V (D.I. 50-1) (collectively, "Competing Affidavits")).
III. Analysis
A. Applicable Legal Principles
1. The FLSA's Administrative Exemption
The FLSA requires employers to pay their employees overtime wages at the rate of one and one-half their regular rate of pay for all hours worked in excess of forty hours per week unless the employees are exempt from the provisions of the FLSA. 29 U.S.C. § 207. "The FLSA provides an exemption for 'any employee employed in a bona fide executive, administrative, or professional capacity.'" Costello v. Kohl's Illinois, Inc., 13 Civ. 1359 (GHW), 2014 WL 4377931 at *3 (S.D.N.Y. Sept. 4, 2014) (Woods, D.J.), quoting 29 U.S.C. § 213(a)(1). "[A]n 'employee employed in a bona fide administrative capacity' is defined as a person '(1) [c]ompensated on a salary of fee basis at a rate not less than $455 per week . . . (2) [w]hose primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer's customers; and (3) [w]hose primary duty includes the exercise of discretion and independent judgement with respect to matters of significance.'" Cohen v. Gerson Lehrman Grp., Inc., 686 F. Supp. 2d 317, 327-28 (S.D.N.Y. 2010) (Castel, D.J.), quoting 29 C.F.R. § 541.200(a).
2. Conditional Certification Under FLSA Section 216(b)
Section 216(b) of the FLSA provides, in pertinent part:
An action to recover . . . liability . . . may be maintained against any employer . . . 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.
"Under the FLSA, potential class members in a collective action must affirmatively opt-in to be covered by the suit." Malena v. Victoria's Secret Direct, LLC, 09 Civ. 5849 (WHP), 2010 WL 4642443 at *3 (S.D.N.Y. Nov. 16, 2010) (Pauley, D.J.), citing 29 U.S.C. §§ 216(b), 256(b). Although the FLSA does not contain a certification requirement similar to Fed.R.Civ.P. 23, a district court has the discretionary power to certify a collective action to facilitate notice to potential opt-in plaintiffs. Myers v. Hertz Corp., 624 F.3d 537, 555 n.10 (2d Cir. 2010); Braunstein v. E. Photographic Labs., Inc., 600 F.2d 335, 335-36 (2d Cir. 1978) (per curiam); see also Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989); Zhenkai Sun v. Sushi Fussion Express, Inc., 16 CV 4840 (WFK)(LB), 2018 WL 2078477 at *3 (E.D.N.Y. Jan. 2, 2018) (Report & Recommendation), adopted at, 2018 WL 1168578 (E.D.N.Y. Mar. 6, 2018); Brown v. Barnes & Noble, Inc., 252 F. Supp. 3d 255, 261 (S.D.N.Y. 2017) (Parker, M.J.).
The Second Circuit has endorsed a two-step process to assess whether it is appropriate to certify a collective action:
The first step involves the court making 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. See, e.g., Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258-62 (11th Cir. 2008); Damassia v. Duane Reade, Inc., No. 04 Civ. 8819, 2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5, 2006) (Lynch, J.); Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997) (Sotomayor, J.). The court may send this notice after plaintiffs 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." [Hoffman v.] Sbarro, [supra,] 982 F. Supp. at 261. . . . The "modest factual showing" cannot be satisfied simply by "unsupported assertions," Dybach v. State of Fla. Dep't of Corrections, 92 F.2d 1562, 1567 (11th Cir. 1991), but it should remain a low standard of proof because the purpose of this first stage is merely to determine whether "similarly situated" plaintiffs do in fact exist, see [Hoffman v.] Sbarro, [supra,] 982 F. Supp. at 261. 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, and the opt-in plaintiffs' claims may be dismissed without prejudice. See, e.g., [Morgan v.] Family Dollar [Stores, Inc.], [supra,] 551 F.3d at 1261; Hipp [v. Liberty Nat'l Life Ins. Co.,] 252 F.3d [1208, 1218 (11th Cir. 2001) (per curiam)].Myers v. Hertz Corp., supra, 624 F.3d at 555.
"The Second Circuit has explained that, in a case such as this that involves an exemption to the FLSA, plaintiffs meet their burden 'by making some showing that there are other employees . . . who are similarly situated with respect to their job requirements and with regard to their pay provisions, on which the criteria for many FLSA exemptions are based, who are classified as exempt pursuant to a common policy or scheme.'" Costello v. Kohl's Illinois, Inc., supra, 2014 WL 4377931 at *3, quoting Myers v. Hertz Corp., supra, 624 F.3d at 555 (internal citation and quotation marks omitted); see also McDermott v. Federal Savings Bank, 14-CV-6657 (JMA)(GRB), 2018 WL 1865916 at *3 (E.D.N.Y. Apr. 18, 2018) ("In a misclassification case, the plaintiffs must show that they are similarly situated with respect to the exemption at issue."); Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469, 476 (S.D.N.Y. 2010) (Gorenstein, M.J.) (holding that in an administrative exemption case, plaintiff must "show he is similarly situated to the employees he proposes to include in the collective action with respect to his claim that he performed non-exempt duties").
"The statute does not define 'similarly situated,' but Courts have found the operative test to be 'whether there is a factual nexus between the claims of the named plaintiff[s] and those who have chosen to opt-in to the action.'" Zhenkai Sun v. Sushi Fussion Express, Inc., supra, 2018 WL 2078477 at *3, quoting Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 321 (S.D.N.Y. 2007) (Batts, D.J.). "[A]lthough a court does not adjudicate the merits of a claim at the first stage [of certification], the elements of, and defenses to, the [exemption] claim inform the analysis of whether employees are similarly situated." Korenblum v. Citigroup, Inc., 195 F. Supp. 3d 475, 480 (S.D.N.Y. 2016) (Furman, D.J.); see also Fraticelli v. MSG Holdings, L.P., 13 Civ. 6518 (JMF), 2014 WL 1807105 at *2 (S.D.N.Y. May 7, 2014) (Furman, D.J.) ("Of course, the Court is not permitted to weigh the merits of Plaintiffs' claims at this stage of litigation, but the legal standard governing the [exemption] is relevant here because the modest factual showing that Plaintiffs must make under Myers is that they were victims of a common policy or plan that violated the law.").
Typically a court looks to the pleadings and any supporting affidavits at the first stage of certification to determine whether the named plaintiff has made the modest factual showing that she is similarly situated to any potential opt-in plaintiffs with respect to the unlawful practice. See Cheng Xia Wang v. Shun Lee Palace Restaurant, Inc., 17 Civ. 0840 (VSB), 2018 WL 3155835 at *3 (S.D.N.Y. June 28, 2018) (Broderick, D.J.); Fernandez v. Sharp Mgmt. Corp., 16 Civ. 0551 (JGK)(SN), 2016 WL 5940918 at *2 (S.D.N.Y. Oct. 13, 2016) (Netburn, M.J.). "Plaintiffs may satisfy their 'minimal' burden by relying on their own pleadings and affidavits, or the affidavits of other potential class members." Diaz v. S & H Bondi's Dep't Store, Inc., 10 Civ. 7676 (PGG), 2012 WL 137460 at *3 (S.D.N.Y. Jan. 18, 2012) (Gardephe, D.J.) (citation omitted). However, although the standard of proof at the first step is low, it "cannot be satisfied simply by unsupported assertions." Cunningham v. Elec. Data Sys. Corp., 754 F. Supp. 2d 638, 644 (S.D.N.Y. 2010) (Holwell, D.J.), citing Myers v. Hertz Corp., supra, 624 F.3d at 555; see also Brown v. Barnes & Noble, Inc., supra, 252 F. Supp. 3d at 261.
B. Application of the Foregoing Principles
Plaintiffs seek to certify all Booking.com AMs and KAMs nationwide. Generally, to certify a nationwide collective action in an FLSA exemption case, a plaintiff "'must ultimately demonstrate a nationwide policy pursuant to which [managers] are assigned duties that render [the employer's] exempt classification inappropriate.'" Costello v. Kohl's Illinois, Inc., supra, 2014 WL 4377931 at *3, quoting Jenkins v. TJX Companies Inc., 853 F. Supp. 2d 317, 323 (E.D.N.Y. 2012). However, plaintiffs here do not appear to contend that they were misclassified as exempt pursuant to the official nation-wide policy of Booking.com or the official job titles of AMs or KAMs; rather, plaintiffs contend that, in practice, AMs and KAMs primarily performed non-exempt duties on a day-to-day basis in contravention of their formal job description. Because plaintiffs do not assert that a formal policy violates the law, "to obtain conditional certification, [plaintiffs] must make a modest factual showing that [AMs and KAMs] were subject to a common 'de facto illegal policy.'" Costello v. Kohl's Illinois, Inc., supra, 2014 WL 4377931 at *4, quoting Jenkins v. TJX Companies Inc., supra, 853 F. Supp. 2d at 322. Thus, plaintiffs must allege that AMs and KAMs are "similarly situated 'with respect to the claim that they were required to perform nonmanagerial job duties in contravention of the formal job description.'" Jenkins v. TJX Companies Inc., supra, 853 F. Supp. 2d at 324, quoting Khan v. Airport Mgmt. Servs., LLC, 10 Civ. 7735 (NRB), 2011 WL 5597371 at *4 (S.D.N.Y. Nov. 16, 2011) (Buchwald, D.J.); see also Guillen v. Marshalls of MA, Inc., supra 750 F. Supp. 2d at 476.
Plaintiffs also request that the position of junior account manager be included in the collective. As Booking.com correctly points out, plaintiffs do not make any mention of or articulate any allegations regarding junior account managers in the complaint (see generally Compl.). Furthermore, Hamilton is the only plaintiff who ever held this position and he admits when he held this position, he was classified as non-exempt (Hamilton Decl. ¶¶ 1, 6). Booking.com's senior human resources manager, Amy Accettura, also testified that all junior account managers are salaried, non-exempt positions (Deposition of Amy Accettura, dated Feb. 2, 2018, annexed to Declaration of Wendy J. Mellk, Esq. as Ex. E (D.I. 50-1) at 9). Thus, junior account managers are not similarly situated to AMs or KAMs and should not be included in the proposed collective.
For the reasons set forth below, I find that plaintiffs have shown that they are similarly situated to AMs and KAMs in Booking.com's New York and Las Vegas offices and to KAMs in the Los Angeles office; however, they have failed to make the modest factual showing necessary to certify a nationwide collective of AMs and KAMs.
1. AMs and KAMs in New York, Los Angeles and Las Vegas
Plaintiffs all worked as either AMs or KAMs in Booking.com's New York, Los Angeles and Las Vegas offices. As noted above, plaintiffs claim that they regularly worked in excess of forty hours per week, were never paid overtime and were misclassified because they performed "menial sales" tasks, "did not have any discretion" or "independent business judgment" and were required to follow detailed instructions from supervisors (Amhaz Decl. ¶¶ 6, 10, 12; Britt Decl. ¶¶ 6, 10; Hamilton Decl. ¶¶ 6, 10; Hidalgo Decl. ¶¶ 5, 9). Plaintiffs also state that they had an opportunity to observe other AMs and KAMs in their respective offices who also worked similar hours, had the same job duties and were paid similarly (Amhaz Decl. ¶ 8; Britt Decl. ¶ 7; Hamilton Decl. ¶ 7; Hidalgo Decl. ¶ 6).
Plaintiffs have made the modest factual showing that they are similarly situated to AMs and KAMs in Booking.com's New York and Las Vegas offices and to KAMs in the Los Angeles office. Although plaintiffs could have provided more detail in their declarations, it is well settled that personal experiences combined with observations of other potential opt-in plaintiffs are sufficient at the conditional certification stage. Costello v. Kohl's Illinois, Inc., supra, 2014 WL 4377931 at *5 (plaintiffs sufficiently alleged their claim that managers engaged in primarily non-managerial duties through their own experiences and observations of other managers within the stores in which they work); Jeong Woo Kim v. 511 E. 5th Street, LLC., 985 F. Supp. 2d 439, 448 (S.D.N.Y. 2013) (Maas, M.J.) (declarations describing personal observations of other employees' work hours and responsibilities sufficient for conditional certification); Hernandez v. Bare Burger Dio Inc., 12 Civ. 7794 (RWS), 2013 WL 3199292 at *3 (S.D.N.Y. June 25, 2013) (Sweet, D.J.) ("Indeed, courts in this circuit have routinely granted conditional collective certification based solely on the personal observations of one plaintiff's affidavit."); Cohen v. Gerson Lehrman Grp., Inc., supra, 686 F. Supp. 2d at 330-31 (plaintiff's assertions that potential opt-in plaintiffs had similar responsibilities "based on his own experiences and observations" sufficient to meet the "low bar . . . required for collective action certification" (internal quotation marks omitted)).
As noted above, AMs in Los Angeles were non-exempt employees and received overtime pay.
Booking.com asserts several arguments in opposition to plaintiff's motion. First, Booking.com contends that its AMs and KAMs are not similarly situated because, by the very nature of their positions, their job duties differ significantly and, thus, it is impossible for plaintiffs to allege they were all subject to a de facto common illegal policy. In support of this argument, Booking.com heavily relies on the twelve Competing Affidavits from AMs and KAMs in five different offices -- including New York -- that describe in detail extremely different day-to-day job responsibilities from plaintiffs (see generally Competing Affidavits). Plaintiffs in turn argue that Booking.com's Competing Affidavits should be wholly rejected because they create a factual dispute which cannot be properly considered on a motion for conditional certification.
Plaintiffs also make numerous allegations that Booking.com's attorneys have behaved improperly and unethically in obtaining these Competing Affidavits (Pl. Repy Memo. at 14-15). "Because attorney discipline is not the subject of the present [m]otion" and because, as explained below, I am not considering the Competing Affidavits for purposes of the present motion, I need not address this issue. See Nabi v. Hudson Group (HG) Retail, LLC, 310 F.R.D. 119, 121 n.1 (S.D.N.Y. 2015) (Caproni, D.J.).
The overwhelming consensus in this District is that "[d]efendants . . . may not defeat a court's determination that [p]laintiffs are similarly situated by submitting their own affidavits" at the conditional certification stage. Colon v. Major Perry Street Corp., 12 Civ. 3788 (JPO), 2013 WL 3328223 at *5 (S.D.N.Y. July 2, 2013) (Oetken, D.J.); accord Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 407 n.6 (S.D.N.Y. 2012) (Koeltl, D.J.) ("[C]ourts in this Circuit regularly conclude that [competing] declarations do not undermine the plaintiff's showing in the first stage of the conditional certification process."), class decertified, 93 F. Supp. 3d 279 (S.D.N.Y. 2015); Pippins v. KPMG LLP, 11 Civ. 0377 (CM)(JLC), 2012 WL 19379 at *12 (S.D.N.Y. Jan. 3, 2012) (McMahon, D.J.) ("To balance the parties' competing affidavits at this stage would require the Court to determine the facts, determine credibility of the affiants, and resolve legal contentions, all of which the conditional certification . . . process is structured so as to avoid."); Francis v. A & E Stores, Inc., 06 Civ. 1638 (CS)(GAY), 2008 WL 4619858 at *3 (S.D.N.Y, Oct. 16, 2008) (Seibel, D.J.) (adopting Report & Recommendation as modified) (declining to consider defendants' competing affidavits to show manager duties were not similarly situated); Damassia v. Duane Reade, Inc., 04 Civ. 8819 (GEL), 2006 WL 2853971 at *4 (S.D.N.Y. Oct. 5, 2006) (Lynch, then D.J., now Cir. J.) (declining to consider 56 affidavits submitted by defendants where plaintiffs had not yet had an opportunity to depose affiants).
Although some courts have considered competing affidavits at the conditional certification phase, this has been limited to circumstances where a significant amount of discovery on the issue of certification has already taken place. See Brown v. Barnes & Noble, Inc., 16 Civ. 7333 (RA)(KHP), 2018 WL 3105068 at *18 (S.D.N.Y. June 25, 2018) (Parker, M.J.) (considering defendant's eighteen competing affidavits after "six months of extensive discovery focused on issues pertinent to conditional certification"); Eng-Hatcher v. Sprint Nextel Corp., 07 Civ. 7350 (BSJ), 2009 WL 7311383 at *4 (S.D.N.Y. Nov. 13, 2009) (Jones, D.J.) (considering defendants' "more than a dozen affidavits to support their argument that Plaintiff is not similarly situated to her potential class members" after four months of collective based discovery).
While Booking.com may have a well supported merits-based argument to plaintiffs' claim, during this initial stage "the court does not resolve factual disputes, decide ultimate issues on the merits, or make credibility determinations." Cohen v. Gerson Lehrman Grp., Inc., supra, 686 F. Supp. 2d at 326, citing Lynch v. United Servs. Auto. Ass'n, 491 F. Supp. 2d 357, 368-69 (S.D.N.Y 2007) (McMahon, D.J.) (collecting cases). As the Honorable Naomi Reice Buchwald, United States District Judge, explained, Booking.com will have a later opportunity to challenge plaintiffs' claims that New York, Los Angeles and Las Vegas AMs and KAMs are not similarly situated:
As the term conditional class certification suggests, a court's determination at the first stage is only "preliminary." . . . At the second stage, typically after discovery has been completed, defendants may make a motion for decertification of the class . . . . At this later stage, a court will apply increased
scrutiny to determine, based on the developed record, whether the additional plaintiffs are, in fact, similarly situated. . . . If the court is not satisfied that the plaintiffs are similarly situated, the collective action will be decertified and the claims of the opt-in plaintiffs will be dismissed without prejudice.In re Penthouse Exec. Club Comp. Litig., 10 Civ. 1145 (NRB), 2010 WL 4340255 at *2 (S.D.N.Y. Oct. 27, 2010) (Buchwald, D.J.) (citations omitted); see also Cohen v. Gerson Lehrman Grp., Inc., supra, 686 F. Supp. 2d at 327. Thus, I shall not consider the Competing Affidavits for purposes of the present motion.
Next, Booking.com makes a similar merit-based argument that "any claim that the administrative exemption does not apply will require [a] highly individualized determination not appropriate for collective treatment" (Def. Memo. at 23). The Honorable P. Kevin Castel, United States District Judge, rejected this precise argument in Cohen v. Gerson Lehrman Grp., Inc., supra, 686 F. Supp. 2d 317. In Cohen v. Gerson Lehrman Grp., Inc., Judge Castel recognized that while some courts in other jurisdictions have denied conditional certification where a "fact-intensive" analysis was necessary to determine whether the FLSA's administrative exemption applied to plaintiffs, "courts in this District weighing motions for preliminary FLSA certification have rejected the reasoning of [those] cases." Cohen v. Gerson Lehrman Grp., Inc., supra, 686 F. Supp. 2d at 329. Judge Castel "declined to wade into a thicket of competing factual assertions at [the] preliminary stage" of conditional certification and noted that "'to hold to the contrary would preclude certification of a collective action in any FLSA case where the defendant was asserting an administrative exemption defense.'" Cohen v. Gerson Lehrman Grp., Inc., supra, 686 F. Supp. 2d at 330, quoting Neary v. Metro. Property & Casualty Insurance Co., 517 F. Supp. 2d 606, 621-22 (D. Conn. 2007).
Finally, Booking.com makes various arguments attacking Amhaz's credibility. As already discussed, any inconsistencies in Amhaz's statements go to credibility, and at this preliminary stage of the proceedings, it is inappropriate to make credibility determinations. See Qing Tian Zhuo v. Jia Xing 39th Inc., 14 Civ. 2848 (SHS), 2015 WL 1514950 at *2 (S.D.N.Y. Apr. 1, 2015) (Stein, D.J.); Flood v. Carlson Rests. Inc., 14 Civ. 2740 (AT), 2015 WL 260436 at *5 (S.D.N.Y. Jan. 20, 2015) (Torres, D.J.); Sharma v. Burberry Ltd., No. 12-6356 (LDW)(AKT), 2014 WL 4385426 at *11 (E.D.N.Y. Sept. 4, 2014); Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 662 (S.D.N.Y. 2013) (McMahon, D.J.); Lynch v. United Servs. Auto. Ass'n, supra, 491 F. Supp. 2d at 368.
Thus, I respectfully recommend that plaintiffs' request to conditionally certify AMs and KAMs in New York and Las Vegas and KAMs in Los Angeles be granted.
2. AMs and KAMs in Other Offices
Plaintiffs also move to conditionally certify AMs and KAMs in Booking.com's other offices. Plaintiffs argue that all AMs and KAMs are similarly situated nationwide because they hold the same job title, are all classified as exempt by Booking.com and consistently work over forty hours per week without overtime pay. Plaintiffs base these claims on Booking.com's employee handbook describing its universal corporate policies and various conversations they claim to have had with other AMs and KAMs.
As Booking.com correctly argues, its "classification of [AMs and KAMs] as exempt, standing alone, is insufficient to satisfy the low threshold for conditional certification." Brown v. Barnes & Noble, Inc., supra, 252 F. Supp. 3d at 262; accord Costello v. Kohl's Illinois, Inc., supra, 2014 WL 4377931 at *4 ("Plaintiffs cannot meet their burden for conditional certification merely by pointing to the fact that the employer has classified all employees in a particular job category as exempt."); Jenkins v. TJX Companies Inc., supra, 853 F. Supp. 2d at 323 (holding that "the mere classification of a group of employees -- even a large or nationwide group -- as exempt under the FLSA is not by itself sufficient to constitute the necessary evidence of a common policy, plan, or practice that renders all putative class members as similarly situated for § 216(b) purposes"). Moreover, because plaintiffs are challenging Booking.com's de facto practice of requiring AMs and KAMs to perform primarily non-exempt tasks, "it is not sufficient for [plaintiffs] to show that [they] and the proposed class of [AMs and KAMs] operated under the same job description." Guillen v. Marshalls of MA, Inc., supra 750 F. Supp. 2d at 476. "Instead, [plaintiffs] must show that [they] and other [AMs and KAMs] were similarly situated with respect to the claim that they were required to perform non-managerial job duties in contravention of the formal job description." Guillen v. Marshalls of MA, Inc., supra 750 F. Supp. 2d at 476.
Plaintiffs have failed to make this showing with respect to AMs and KAMs outside the New York, Los Angeles and Las Vegas offices. The only evidence plaintiffs offer with respect to AMs and KAMs in other locations is that AMs and KAMs from other locations told plaintiffs that they worked in excess of forty hours per week without overtime pay and felt that they were underpaid. Although plaintiffs make the conclusory statement that they know all AMs and KAMs "across the United States have the same job duties", this assertion is completely unsupported because plaintiffs do not point to a single conversation in which an AM or KAM from another office described their actual day-to-day job responsibilities and explained why those responsibilities were primarily non-managerial tasks. Courts have routinely found that broad assertions like those made by plaintiffs here "are precisely the vague, conclusory, and unsupported assertions that are an insufficient basis for conditional certification" because they are "void of detail required to show that employees in other positions were similarly situated." Lianhua Wenq v. Kung Fu Little Steamed Buns Ramen Inc., 17 Civ. 273 (LAP), 2018 WL 1737726 at *4 (S.D.N.Y. Mar. 26, 2018) (Preska, D.J.) (internal quotation marks and citations omitted)); accord Fernandez v. Sharp Mgmt. Corp., supra, 2016 WL 5940918 at *2 (granting conditional certification to superintendents in Manhattan, but denying it as to superintendents nationwide where plaintiffs only presented declarations of two Manhattan superintendents without reference to any specific information about other superintendents nationwide); Qi Zhang v. Bally Produce, 12-CV-1045 (FB)(JMA), 2013 WL 1729274 at *4 (E.D.N.Y. Apr. 22, 2013) (uniform employer policy of classifying all vegetable loaders as exempt "standing alone [is] insufficient to warrant conditional certification absent some evidence indicating that other vegetable loaders had similar duties and responsibilities as plaintiff"); Eng-Hatcher v. Sprint Nextel Corp., supra, 2009 WL 7311383 at *3 (nationwide conditional certification denied where plaintiff claimed she had conversations with other retail consultants who were not paid overtime, but did not provide any details of those conversations).
Brown v. Barnes & Noble, Inc., supra, 252 F. Supp. 3d 255 involved very similar facts. In that case, plaintiffs claimed that they were similarly situated to café managers nationwide based on defendant's common classification of them as exempt, defendant's single job description for all café managers and defendant's uniform corporate policies. Brown v. Barnes & Noble, Inc., supra, 252 F. Supp. 3d at 262. The Honorable Katharine H. Parker, United States Magistrate Judge, found defendant's common classification and common job description for plaintiffs insufficient to warrant conditional certification, because, like plaintiffs here, plaintiffs in Brown were alleging "their primary duties were non-exempt tasks that [were] not listed in the job description." Brown v. Barnes & Noble, Inc., supra, 252 F. Supp. 3d at 263. Magistrate Judge Parker further found that plaintiffs' declarations that described discussions with other café managers to be insufficient because plaintiffs failed to provide any details about these conversations "including when they occurred, how often they occurred, or the sum and substance of what was discussed . . . ." Brown v. Barnes & Noble, Inc., supra, 252 F. Supp. 3d at 266. As Magistrate Judge Parker explained, "[w]hile [p]laintiffs are not required to establish that [café managers] in every single store performed primarily non-exempt duties, they must provide some evidence from which the Court can infer that they and the other potential members of the collective together were victims of a common policy or plan that violated the law." Brown v. Barnes & Noble, Inc., supra, 252 F. Supp. 3d at 267.
Both parties also submitted excerpts of and refer to Amhaz's deposition on this issue (see Def. Memo. at 20; Excerpts of Nancy Amhaz Deposition, dated Dec. 19, 2017, annexed to Declaration of Wendy J. Mellk, Esq. as Ex. A (D.I. 50-1); Digest of Nancy Amhaz Transcript, undated, annexed to Pl. Reply Memo. as Ex. B (D.I. 53-2) at 2-4). When Amhaz was repeatedly asked questions about the day-to-day responsibilities of AMs and KAMs in offices outside of New York and Las Vegas, Amhaz repeatedly answered "I'm not sure" (Def. Memo. at 20). Because plaintiffs cannot controvert the transcript, they simply argue that plaintiffs do not need to show that potential plaintiffs are identical to one another and rely on the fact that Amhaz was aware that other AMs and KAMs did not receive overtime, which, as discussed above, is insufficient for conditional certification (Pl. Reply Memo. at 8). This evidence further illustrates that Amhaz did not appear to have any knowledge of the day-to-day responsibilities of other AMs and KAMs in offices in which she did not work (except opt-in plaintiff Hamilton whose Los Angeles office is being certified). See McDermott v. Federal Savings Bank, supra, 2018 WL 1865916 at *5 ("While it is true that the Court does not decide the merits at this stage, the Court is not required to turn a blind eye to evidence in the record that is relevant the to conditional certification determination.").
Thus, I respectfully recommend that plaintiffs' request to conditionally certify AMs and KAMs nationwide be denied.
C. Notice
Plaintiffs attached their proposed notice to their motion papers and request approval of the notice and authorization to mail the notice to all potential plaintiffs (Proposed Notice, annexed to Pl. Memo. as Ex. F (D.I. 37-7) ("Proposed Notice")). Plaintiffs additionally move to compel Booking.com to post the Proposed Notice inside its offices.
Booking.com makes no specific objections to plaintiffs' Proposed Notice or any counterproposal and, instead, "requests a separate opportunity to confer regarding an appropriate notice process, and if necessary an opportunity to brief any issues relating to the form and manner of dissemination of any notice ordered by the Court" (Def. Memo. at 25).
In this District, parties have often been ordered to meet and confer with respect to the content of the notice. Cohen v. Gerson Lehrman Grp., Inc., supra, 686 F. Supp. 2d at 331-32; Davis v. Abercrombie & Fitch Co., 08 Civ. 1859 (PKC), 2008 WL 4702840 at *12 (S.D.N.Y. Oct. 23, 2008) (Castel, D.J.). Thus, should this Report and Recommendation be adopted, I respectfully recommend that the parties be directed to meet and confer and submit a joint proposal for court approval.
D. Summary
Accordingly, for all the foregoing reasons, I respectfully recommend that (1) plaintiffs' motion to conditionally certify a collective of AMs and KAMs in Booking.com's New York and Las Vegas offices and KAMs in Booking.com's Los Angeles office be granted; (2) plaintiffs' motion to conditionally certify a collective of all Booking.com AMs and KAMs nationwide be denied and (3) the parties be directed to meet and confer and submit a joint collective notice proposal.
V. OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6(a). Such objections (and responses thereto) shall be filed with the Clerk of Court, with courtesy copies delivered to the Chambers of the Honorable George B. Daniels, United States District Judge, 500 Pearl Street, Room 1310, and to the Chambers of the undersigned, 500 Pearl Street, Room 1670, New York, New York 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels. FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension Fund v. Herrman, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1983) (per curiam). Dated: New York, New York
August 23, 2018
Respectfully submitted,
/s/_________
HENRY PITMAN
United States Magistrate Judge Copies transmitted to: All Counsel