Summary
relying on job description requiring "the performance of nonexempt duties"
Summary of this case from Mason v. Lumber Liquidators, Inc.Opinion
11 Civ. 2395 (DAB)
07-16-2012
FRANCISCO FERREIRA, individually and on Behalf of all other similarly situated, Plaintiff, v. MODELL'S SPORTING GOODS, INC., and HENRY MODELL & COMPANY, INC., Defendants.
MEMORANDUM & ORDER
Plaintiff Francisco Ferreira moves this Court for conditional certification of a collective action and notice to the class pursuant to Section 16(b) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b). As set forth herein, Plaintiff's Motion for Conditional Certification is GRANTED.
I. BACKGROUND
Plaintiff was employed by Defendants Modell's Sporting Goods, Inc. and Henry Modell & Company, Inc. ("Defendants" or "Modell's") from December 2006 to February 2011. (Lesser Decl. Ex. c, Ferreira Dep. 24:9-14.) He worked primarily at 421 Boston Post Road in Port Chester, New York, but also at Modell's locations in Fordham, 125th and Harlem, Times Square, Stamford, 150 Broadway, and Pelham Manor. (Id. 25:11-28:25.) Ferreira was an Assistant Manager for the opening shift. (Id. at 115:4.) His responsibilities included preparing the store for customers, bringing merchandise to the floor, unloading trucks, and cleaning the stockroom. (Id. at 115:8-21.) These associate-type duties, according to Ferreira, constituted 90 percent of his workload. (Id. at 339:25-340:7.) He worked, on average, 50-55 hours per week but received no overtime pay for hours worked in excess of 40 hours per week. (Id. at 107:22-23, 83:23-84:8.) Ferreira worked at seven different locations and claims his duties and pay were "basically the same" at each location and for all other Assistant Managers with whom he worked. (Id. at 25:7-8, 339:25-340:7.)
II. DISCUSSION
A. FLSA Collective Action Certification Standard
Under Section 216(b) of the FLSA, employees may maintain actions to recover unpaid wages collectively where the employees are "similarly situated" and give consent in writing "to become . . . a party [to the action] and such consent is filed [with the Court]." 29 U.S.C. § 216(b). "District courts have discretion, in appropriate cases, to implement § 216(b) by facilitating notice to potential plaintiffs of the pendency of the action and of their opportunity to opt-in as represented plaintiffs." Klimchak v. Cardrona, Inc., No. 09 Civ. 4311, 2011 WL 1120463, at *4 (E.D.N.Y. Mar. 24, 2011) (internal quotations and alterations omitted) (quoting Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010). The Second Circuit has endorsed a two-step method of certification in an opt-in collective action under the FLSA. Myers, 624 F.3d at 555; see Gullien v. Marshalls of MA, Inc., 750 F. Supp. 2d 469, 475 (S.D.N.Y. 2010) ("Orders authorizing notice are often referred to as orders 'certifying' a collective action, even though the FLSA does not contain a certification requirement.").
In exercising its discretion at the conditional certification stage, "the court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations." Cunningham v. Elec. Data Sys., 754 F.Supp.2d 638, 644 (S.D.N.Y. 2010) (internal citations and quotations omitted). The plaintiff need only 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, Myers, 624 F.3d at 555 (internal quotations and citations omitted).
If the plaintiff demonstrates 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." Cunningham, 754 F.Supp.2d at 644.
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."Myers, 624 F.3d at 555.
B. Similarly Situated Employees
Plaintiff seeks to certify a collective action on behalf of all Assistant Managers employed by Defendants who were classified as exempt employees at any time from April 8, 2008 to present. Plaintiff alleges that although as an Assistant Manager he was classified as an exempt executive employee, he spent 90 percent of his time performing non-exempt work. (Ferreira Dep. 339:25-340:7.) Plaintiff provides documentation of the Assistant Manager's job description that includes many non-exempt tasks such as back end/receiving and facility maintenance. (Lesser Decl. Ex. B, at D0000104.) Thus, Plaintiff alleges he was misclassified as an exempt employee in violation of the FLSA, and should have been compensated for overtime hours in excess of 40 hours per week. (Compl. ¶ 1.) In addition, he alleges that these working conditions existed across all Modell's stores as part of a uniform corporate policy. (Lesser Decl. Ex. D.) Defendants counter that certification is inappropriate because Plaintiff has not met his burden of showing that potential opt-in plaintiffs suffered similar FLSA violations.
At this stage in the litigation, Plaintiff need only make a "modest factual showing," that similarly situated potential plaintiffs exist. Myers, 624 F.3d at 555. Plaintiff can make this showing with allegations and testimony of FLSA violations, coupled with evidence that policies governing employees apply equally to other locations and employees. Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317 (S.D.N.Y. 2007) (certifying based on declarations of other employees alleging similar FLSA violations and a wage policy that was uniform across all locations); Lynch v. United States Auto. Ass'n, 491 F. Supp. 2d 357 (S.D.N.Y. 2007) (certifying based on depositions and declarations by a single insurance investigator plaintiff as well as documentary evidence that employment conditions were similar for all investigators); Patton v. Thomson Corp., 364 F. Supp. 2d 263 (E.D.N.Y. 2005) (certifying based on plaintiff's allegations that she had been improperly classified as exempt along with documentary evidence of uniform exemption policies).
Here, Plaintiff provides specific allegations of FLSA misclassification and his own deposition testimony that these violations occurred at each of the seven locations where he worked. (Ferreira Dep. 25:7-8, 339:25-340:7.) He also submits the deposition of Modell's Senior Vice President of Operations, James Argerakis, and documented company policies that suggest the complained of practices are uniform across all of Defendants' stores. (Lasser Decl. Ex. A, Argerakis Dep. 45:5-10; Lesser Decl. Ex. D.) Plaintiff has thus made his modest factual showing required for conditional certification of the collective action.
Defendants contend that Plaintiff's own testimony and the existence of uniform policies is insufficient to meet the burden at this stage in light of numerous declarations by current Modell's employees that indicate that Assistant Managers spend somewhat less than 50 percent of their working hours performing non-exempt job duties. (See, e.g., Stoler Decl. Ex. A, ¶ 33; Ex. B, ¶¶ 28-29.) However, such evidence cannot be used to undermine a plaintiff's initial showing because doing so would require a court to weigh evidence and determine credibility. See Winfield v. Citibank, ___ F. Supp. 2d ___, Nos. 10 Civ. 7304, 10 Civ. 5950, 2012 WL 423346, at *12, n.6 (S.D.N.Y. Feb. 9, 2012); See also Hernandez v. Merrill Lynch, No. 11 Civ. 8472, 2012 WL 1193836, at *5 (S.D.N.Y. Apr. 6, 2012) Alonso v. Uncle Jack's Steakhouse, Inc., 648 F. Supp. 2d 484, 488 (S.D.N.Y. 2009).
Furthermore, although some courts in this Circuit have found that a plaintiff's testimony and uniform corporate policies alone are insufficient to support conditional certification, see, e.g., Jenkins v. The TJX Companies Inc., No. 10 Civ. 3753, 2012 WL 1099964 (E.D.N.Y. Mar. 31, 2012); Guillen v. Marshalls of MA, Inc., ___ F. Supp. 2d. ___, No. 09 Civ. 9575, 2012 WL 117980 (S.D.N.Y. Jan. 13, 2012) ("Guillen II"); Guillen v. Marshalls of MA, Inc., 750 F. Supp. 2d 469 (S.D.N.Y. 2010) ("Guillen I"), those cases are distinguishable. Here, the job descriptions for Assistant Managers demand the performance of nonexempt duties. (Argerakis Decl. Ex. D; Lesser Decl. Ex. B.) Plaintiffs in Guillen and Jenkins, on the other hand, did not produce any evidence of a corporate policy requiring the performance of non-exempt job duties. See Jenkins, 2012 WL 1099964, at *3 ("Notably, the Plaintiff does not allege that HomeGoods' official, formal policy mandates non-exempt job duties and thus violates FLSA in and of itself."); Guillen II, 2012 WL 117980, at *3 ("There is nothing, for example, in Marshall's job description that calls for the performance of these non-exempt duties. Nor is there anything in the record suggesting that Marshalls expects [Assistant Store Managers] nationwide to perform non-exempt work or is aware that they do so.") Here, even the Declarations submitted by Defendants in opposition to conditional certification indicate that Assistant Managers spend at least a portion of their time on non-exempt duties. (See, e.g., Stoler Decl. Ex. A, ¶ 33; Ex. B, ¶¶ 28-29.)
Accordingly, this Court concludes that Plaintiff has satisfied his burden of setting forth specific facts demonstrating that he is sufficiently similarly situated to the employees he proposes to include in this collective action to warrant conditional certification of the collective action, and for notice to be sent to those potential plaintiffs.
III. CONCLUSION
For the reasons set forth above. Plaintiff's Motion for Conditional Certification of a FLSA Collective Action, and for Court-authorized Notice, is GRANTED;
The Court conditionally certifies a collective action pursuant to 29 U.S.C. § 216(b) on behalf of all Assistant Managers employed by Defendants who were classified as exempt employees at any time from April 8, 2008 to present;
The Parties are directed to meet and confer regarding a proposed form of Notice to current and former Assistant Managers and a proposed Plan for Distribution of such Notice; and
Plaintiff shall provide the Court with a proposed Notice and Plan for Distribution within 30 days of the date of this Order. SO ORDERED. DATED: New York, New York
July 16, 2012
/s/_________
Deborah A. Batts
United States District Judge