Bittencourt v. Ferrara Bakery & Café Inc.

310 F.R.D. 106, 2015 U.S. Dist. LEXIS 134386, 2015 WL 5698550
CourtDistrict Court, S.D. New York
DecidedSeptember 25, 2015
DocketNo. 15 Civ. 0499(JPO)(JCF)
StatusPublished
Cited by67 cases

This text of 310 F.R.D. 106 (Bittencourt v. Ferrara Bakery & Café Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bittencourt v. Ferrara Bakery & Café Inc., 310 F.R.D. 106, 2015 U.S. Dist. LEXIS 134386, 2015 WL 5698550 (S.D.N.Y. 2015).

Opinion

MEMORANDUM AND ORDER

JAMES C. FRANCIS IV, United States Magistrate Judge.

Plaintiff Jucialaine Bittencourt brings this action pursuant to the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. § 201 et seq., and New York Labor Law (“NYLL”), seeking compensation for wage violations allegedly committed by her employers, Ferrara Bakery & Café, Inc., Ferrara Foods & Confections, Inc., Ernest Lepore, and Adeline Lepore Sessa. The plaintiff now moves for an order (1) conditionally certifying a collee-five action pursuant to 29 U.S.C. § 216(b); (2) approving the proposed notice and consent form for mailing to putative plaintiffs; (3) requiring the defendants to post the notice and consent form in their place of business; and (4) permitting all similarly situated individuals 90 days to opt into this case. For the reasons that follow, the plaintiffs motion is granted in part and denied in part.1

Background

The defendants own and operate a restaurant located at 195 Grand Street in Manhattan. (Complaint (“Compl.”), ¶ 14). The plaintiff was employed by the defendants as a waitress between September 2005 and December 2014. (Declaration of Jucialaine Bit-tencourt dated July 14, 2015 (“Bittencourt Deck”), ¶¶ 3-1).

Ms. Bittencourt alleges that the defendants failed to pay her the minimum wage. Prior to 2012, the defendants failed to pay her an hourly wage and, after April 2012, the defendants paid her an hourly wage of $5.00. (Bittencourt Deck, ¶ 6). Further, the plaintiff alleges that the defendants did not inform her of the tip credit and did not keep track of tips. (Bittencourt Deck, ¶ 10). She asserts that other individuals working for the defendants were similarly deprived of lawful pay. (Bittencourt Deck, ¶ 9). In addition, Czako Zsolt, who was employed by the defendants as a waiter from March 2012 to June 2012 and again from September 2012 to September 2013, has submitted an affidavit alleging that the defendants paid him an hourly wage of $4.65 and did not inform him of the tip credit. (Declaration of Czako Zsolt dated June 21, 2015 (“Zsolt Deck”)), ¶¶3-4, 6. Mr. Zsolt also alleges that he observed the defendants paying other waiters an hourly wage of $4.65. (Zsolt Deck, ¶ 8).

The plaintiff initiated this action on January 22, 2015. She alleges that she is entitled to (1) unpaid minimum wages, (2) unpaid uniform maintenance pay, (3) reimbursement of required uniform costs, (4) liquidated damages, (5) statutory damages, and (6) attor[111]*111neys’ fees and costs, all arising out of the defendants’ violations of the FLSA and NYLL. (Compl., ¶ 65). The plaintiff now seeks collective action status for “all nonexempt hourly employees of the defendants who were employed at any time after three years before the date of [the] complaint.” (Proposed Order Conditionally Certifying Collective Action (“Proposed Order”), ¶2). The defendants oppose conditional certification on the grounds that the plaintiff has not established a common unlawful policy in violation of the FLSA and argue that if conditional certification is to be granted, it should only be granted as to waitstaff. The defendants also challenge the plaintiffs proposed notice.

Discussion

A. Legal Standard

Under the FLSA, plaintiffs may elect to seek certification to proceed as a collective action. See 29 U.S.C. § 216(b); Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367 (S.D.N.Y.2007). The Second Circuit has endorsed a two-step method to certify FLSA collective actions. Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir.2010). The first step — the current stage of this litigation — requires the district court to determine whether there are “similarly situated” potential plaintiffs who should receive notice of the pending FLSA action and have an opportunity to join it. Id.

Unlike under Rule 23 of the Federal Rules of Civil Procedure, the size of the putative class is not material to certifying a collective action under the FLSA — indeed, “no showing of numerosity, typicality, commonality and representativeness need be made.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.2005) (quoting Foster v. Food Emporium, No. 99 Civ. 3860, 2000 WL 1737858, at *1 (S.D.N.Y. April 26, 2000); see also Lee v. ABC Carpet & Home, 236 F.R.D. 193, 197 (S.D.N.Y.2006) (“Even if the group of eligible plaintiffs is small, they all ‘have a right to notice of these claims and an opportunity to join this action.’ ”) (quoting Davis v. Lenox Hill Hospital, No. 03 Civ. 3746, 2004 WL 1926086, at *7 (S.D.N.Y. Aug. 31, 2004))). Instead, the threshold question is whether the plaintiffs have shown that the proposed members of the collective action are “similarly situated.” See, e.g., Mendoza v. Casa de Cambio Delgado, Inc., No. 07 Civ. 2579, 2008 WL 938584, at *1 (S.D.N.Y. April 7, 2008); Realite v. Ark Restaurants Corp., 7 F.Supp.2d 303, 306 (S.D.N.Y.1998). The term “similarly situated” is not defined by the FLSA or its implementing regulations. Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997); accord Iglesias-Mendoza, 239 F.R.D. at 367. However, courts have determined that the applicable test is whether the plaintiffs have established a sufficient “factual nexus” between their claims and the potential claims of other putative collective action members. See, e.g., Mentor v. Imperial Parking Systems, Inc., 246 F.R.D. 178, 181 (S.D.N.Y.2007); Young, 229 F.R.D. at 54. Courts may approve sending notice if “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.’ ” Myers, 624 F.3d at 555 (quoting Hoffmann, 982 F.Supp. at 261).

In making this showing, plaintiffs can rely on the pleadings, but only as supplemented by other evidence, such as affidavits from named plaintiffs, opt-in plaintiffs, or other putative collective action members. See Fasanelli v. Heartland Brewery, Inc., 516 F.Supp.2d 317, 321 (S.D.N.Y.2007) (“[T]he appropriate inquiry ... is whether the putative class alleged by Plaintiffs is similarly situated based on the pleadings and any affidavits.”); Prizmic v. Armour, Inc., No. 05 CV 2503, 2006 WL 1662614, at *2 (E.D.N.Y. June 12, 2006) (“[M]ere allegations in the complaint are not sufficient [to meet the plaintiffs burden on a motion for collective action certification]; some factual showing by affidavit or otherwise must be made.”) (quoting Camper v. Home Quality Management Inc., 200 F.R.D. 516, 519 (D.Md.2000)). A court “need not evaluate the underlying merits of a plaintiffs claims to determine whether the plaintiff has made the minimal showing necessary for court-authorized notice,” Damassia v. Duane Reade, Inc., No. 04 Civ. 8819, 2006 WL 2853971, at *3 (S.D.N.Y. Oct. 5, 2006), nor “resolve factual disputes, decide substantive issues going to the ulti[112]

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310 F.R.D. 106, 2015 U.S. Dist. LEXIS 134386, 2015 WL 5698550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bittencourt-v-ferrara-bakery-cafe-inc-nysd-2015.