Hypolite v. Health Care Services of New York Inc.

256 F. Supp. 3d 485, 2017 WL 2712947, 2017 U.S. Dist. LEXIS 97897
CourtDistrict Court, S.D. New York
DecidedJune 23, 2017
Docket16-cv-04922 (JGK)
StatusPublished
Cited by18 cases

This text of 256 F. Supp. 3d 485 (Hypolite v. Health Care Services of New York 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.

Bluebook
Hypolite v. Health Care Services of New York Inc., 256 F. Supp. 3d 485, 2017 WL 2712947, 2017 U.S. Dist. LEXIS 97897 (S.D.N.Y. 2017).

Opinion

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff, Allison Hypolite, on behalf of a putative class has moved this Court to grant a conditional certification and provide notice to a proposed class pursuant to § 216(b) of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq.1 The defendants, Home Health Care Services of New York Inc. d/b/a HCS Healthcare (“HCS”) and Agnes Shemia (“Shemia”), oppose the motion. The s have also moved to strike portions of the reply papers filed by the plaintiff.

The plaintiff seeks conditional certification of a class consisting of all current and former employees of the s (a) who are or were formerly employed by the s as home health aides at any time since June 24, 2010 to the entry of judgment in this case (the “Collective Action Period”); and (b) who were non-exempt employees within the meaning of the FLSA, who were not paid minimum wages and/or overtime wages at rates not less than one and one-half times their regular rate of pay for hours worked in excess of forty (40) hours per workweek.

For the following reasons, the plaintiffs conditional certification motion is denied in part and granted in part, and the s’ motion to strike is denied.

I.

The s’ motion to strike portions of the plaintiffs reply memorandum and the [489]*489Rand Reply Declaration is without merit. Pursuant to a stipulation entered into after the parties had begun briefing the conditional certification motion, the parties agreed that the plaintiff could rely on newly produced factual material — specifically, payroll information — in her reply papers and that the s could file a sur-reply. See Dkt. 39. The s protest that the plaintiffs reply papers exceeded the scope of the stipulation, but the reply papers were fair comment on the payroll information and the arguments raised by the s in their opposition papers. Moreover, the s filed a sur-reply, which cured any potential prejudice. Accordingly, the s’ motion to strike is denied.

II.

Under § 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) (quoting Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010)). The Court of Appeals for 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 554-55. At the first step, the Court must determine whether it is appropriate 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. at 555, thus issuing a “conditional certification” of the collective action, see Schwerdtfeger v. Demarchelier Mgmt., Inc., No. 10 Civ. 7557, 2011 WL 2207517, at *3 (S.D.N.Y. June 6, 2011); Guillen 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, ever! 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. Corp., 754 F.Supp.2d 638, 644 (S.D.N.Y. 2010) (citations omitted). The plaintiffs 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 (citations and internal quotation marks omitted).

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.” 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; see also Winfield v. Citibank, N.A., 843 F.Supp.2d 397, 401-02 (S.D.N.Y. 2012).

III.

The following facts are taken from the parties’ submissions.

[490]*490HCS provides home health care services to clients living in- the New York City metropolitan area. See Shemia Deck ¶ 1. Shemia is the Administrator of HCS. She-mia Decl. ¶ 1.

Since about June 2013, HCS has employed approximately 6,600 home health aides. Shemia Deck ¶ 12. HCS’s home health aides provide in-home care services to HCS’s clients. Shemia Deck ¶ 1. Home health aides may work with more than one client over the course of their employment with HCS. Am. Compl. ¶ 2; Shemia Deck ¶ 12. However, typically a single home health aide works with a single client at any given time. Am. Compl. ¶2; Shemia Deck ¶ 12. From approximately 2013 through 2015, HCS served around 2,200 cltents. Shemia Deck ¶ 12.

Before assigning a home health aide to a client, HCS or a referring agency develops an individualized care plan for the client. See Shemia Deck ¶¶ 2, 8, 12, 17; Shemia Deck, Ex. 2 (Examples of Care Plans).''The tasks each home health aide performs for each client vary,' as does their frequency, according to the specific needs of the client. Shemia Deck ¶ 17. The HCS Policy Manual, a copy of which was provided to HCS’s home health aides, states that home health aides should “CALL THE OFFICE IMMEDIATELY' TO NOTIFY YOUR COORDINATOR IF ... The patient, the patient’s doctor, or family asks you to do something that is not on the plan of care.” Shemia Deck, Éx. 1 (The HCS Policy Manual) at 60; see also Shemia Deck ¶¶ 3, 7. The HCS Policy Manual also provides:

LIVE-IN SLEEP ¡AND MEAL PERIODS:
Specifically, under this policy, you are permitted 8 hrs. for sleep, 5 hrs of which must be uninterrupted, and a total of 3 hrs for meals during each 24 hour shift you work.
In the event that work prohibits you from receiving 5 hrs of uninterrupted sleep or a total of 3 hrs for meal periods, you must immediately notify your case coordinator at HCS in writing using our certification form ....

Shemia Deck, Ex. 1 at 20. The plaintiff — who is the only named plaintiff; no other potential class members have joined the litigation — worked for the s as a home health aide from about January 2, 2010 until about December 20, 2010, and from about April 15, 2014 until about April 29, 2016. Hypolite Deck ¶ 1.

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Cite This Page — Counsel Stack

Bluebook (online)
256 F. Supp. 3d 485, 2017 WL 2712947, 2017 U.S. Dist. LEXIS 97897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hypolite-v-health-care-services-of-new-york-inc-nysd-2017.