Zivali v. AT & T Mobility LLC

646 F. Supp. 2d 658, 2009 U.S. Dist. LEXIS 74420
CourtDistrict Court, District of Columbia
DecidedAugust 21, 2009
DocketNo. 08 Civ. 10310(JSR)
StatusPublished
Cited by1 cases

This text of 646 F. Supp. 2d 658 (Zivali v. AT & T Mobility LLC) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zivali v. AT & T Mobility LLC, 646 F. Supp. 2d 658, 2009 U.S. Dist. LEXIS 74420 (D.D.C. 2009).

Opinion

MEMORANDUM ORDER

JED S. RAKOFF, District Judge.

On July 14, 2009, the Court issued a bottom-line Order granting plaintiffs’ motion for conditional class certification pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). This Memorandum Order explains the reasoning for the Court’s determination.

Defendant AT & T Mobility LLC (“Mobility”) owns and operates upwards of 2,000 retail stores across the country employing over 26,000 people, a substantial percentage of which are hourly “non-exempt” employees eligible for overtime pay. See Ex. A to Declaration of Karen Bennett dated March 11, 2009 (“Bennett Deck”) ¶¶ 5, 7. Non-exempt employees include assistant store managers (“ASMs”), retail sales consultants (“RSCs”), and other sales or sales support positions.

Plaintiffs in this action are ASMs and RSCs moving for conditional class action certification for violations of the FLSA. They allege that defendant Mobility’s timekeeping system, “MyTime,” systematically failed to fully account for the hours worked by non-exempt employees, effectively forcing them to work “off the clock” and thus without due compensation. More specifically, as set forth in the plaintiffs’ six supporting declarations, see Declaration of Brent E. Pelton dated February 20, 2009 (“Pelton Deck”) and Exs. C, D, E, F, and H attached thereto,1 plaintiffs were variously required to: (1) review and respond to company e-mails and text messages regardless of whether they were “punched in” to MyTime;2 (2) “punch out” of My-Time for lunch breaks despite working through them;3 (3) open and close Mobility’s retail stores off the clock;4 and (4) participate in a variety of company-related activities outside of normal business hours (i.e., participate in conference calls, review product information and sales promotions) 5 constituting work not captured in MyTime.

[661]*661Unlike a class action under Rule 23 of the Federal Rules of Civil Procedure, a collective action under the FLSA requires similarly-situated plaintiffs to “opt in” to the lawsuit by filing written consent with the court. See Masson v. Ecolab, Inc., No. 04 Civ. 4488(MBM), 2005 WL 2000133, at *4-5, 2005 U.S. Dist. LEXIS 18022, at *13 (S.D.N.Y. Aug. 17, 2005). Also unlike a Rule 23 class action, an FLSA certification at this early stage in the litigation does not require a showing of numerosity, typicality, commonality and representativeness. See Foster v. Food Emporium, No. 99 Civ. 3860(CM), 2000 WL 1737858, at *1, 2000 U.S. Dist. LEXIS 6053, at *1 (S.D.N.Y. Apr. 26, 2000). Rather, the Court’s primary responsibility is limited to determining whether the potential opt-in plaintiffs are similarly situated to the named plaintiffs. See Chowdhury v. Duane Reade, Inc., et al., No. 06 Civ. 2295(GEL), 2007 WL 2873929, at *2-3, 2007 U.S. Dist. LEXIS 73853, at *7 (S.D.N.Y. Oct. 2, 2007).

The standard for this determination is not a particularly stringent one. Indeed, though the plaintiffs bear the burden of producing a “modest factual showing that the plaintiff and the potential plaintiffs were victims of a common policy or plan violating FLSA, it may be appropriate in some cases to find plaintiffs and potential plaintiffs similarly situated based simply on plaintiffs’ ‘substantial allegations’ that they and potential plaintiffs were common victims of a FLSA violation, particularly where defendants have admitted that the actions challenged by plaintiffs reflect a company-wide policy.” Id. 2007 WL 2873929, at *2, U.S. Dist. LEXIS 73853, at *7-8 (citing Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F.Supp.2d 101, 104 (S.D.N.Y.2003)) (internal quotation marks omitted); see also Barfield v. New York City Health and Hospitals Corp., No. 05 Civ. 6319(JSR), 2005 WL 3098730, at *1 (S.D.N.Y. Nov.18, 2005) (citing Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)); Realite v. Ark Restaurants Corp., 7 F.Supp.2d 303, 306 (S.D.N.Y.1998) (stating that a plaintiff can justify class certification “by making a modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law”); Hoffmann, 982 F.Supp. at 261 (same). However, such initial class certification under section 216(b) of the FLSA is conditional and once discovery has been completed, defendants have the opportunity to move for decertification of the class on a more complete record. See Damassia v. Duane Reade, Inc., No. 04 Civ. 8819(GEL), 2006 WL 2853971, at *3, 2006 U.S. Dist. LEXIS 73090, at *3 (S.D.N.Y. Oct. 4, 2006) (only “[ajfter discovery” do courts “engage in a ‘second tier’ of analysis to determine on a full record — and under a more stringent standard — whether the additional plaintiffs are in fact similarly situated”).

Plaintiffs in this case have made the modest showing necessary for such conditional certification. First, there is no question that defendant Mobility uniformly utilizes the MyTime computerized timekeeping system across all of its retail stores to record the time worked by all hourly employees. See Defendant AT & T Mobility, LLC’s Memorandum of Law in Opposition to Plaintiffs Motion to Conditionally Certify a FLSA Collective Action and Authorize Notice to be Issued (“Def.Opp.”), Ex. B attached thereto, Declaration of Terry Fogle dated March 10, 2009 (“Fogle Deck”) ¶ 3. Second, only the time reported in MyTime is paid to hourly employees like ASMs and RSCs. See id. ¶ 5. Therefore, any time worked “off the clock” that is not inputted into MyTime goes unpaid. Third, Mobility employees who must rely on the MyTime system to keep accurate track of hours worked can only log into the system (i.e., “punch in” or “punch out”) while they are physically at a [662]*662retail store location where company terminals are available. Id. ¶¶ 4-5; Ex. C to Def. Opp., Declaration of Emanuelle Pallia dated March 12, 2009 (“Pallia Decl.”) ¶¶ 4-5; see also transcript, 6/26/09. Finally, only a supervisor has override capability to retroactively adjust an employee’s work hours as recorded in MyTime. See Fogle Decl. ¶ 9; Pallia Deck ¶¶ 6-7.

By definition, then, MyTime cannot, at the time work is completed, accurately capture hours with respect to certain work activities. For instance, plaintiffs allege that the opening or closing of the store itself — which necessarily occurs either before an employee can “punch in” or “punch out” of MyTime — cannot be accurately recorded at the time. See Fogle Deck ¶¶ 8-9; Ex. A to Def. Opp., Declaration of Karen Bennett dated March 11, 2009 (“Bennett Deck”) ¶ 21. Indeed, all activities that take place outside of the store location — like responding to company emails and texts on portable devices provided by the employer, or time spent servicing customers outside of the store — go uncaptured by the MyTime system.

These undisputed facts more than establish the modest showing of a factual nexus between plaintiffs’ claims and other potential class plaintiffs, since non-exempt employees who are potential members of the class would also be subject to the MyTime system and its attendant policies.

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Related

Zivali v. AT & T MOBILITY LLC
646 F. Supp. 2d 658 (S.D. New York, 2009)

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Bluebook (online)
646 F. Supp. 2d 658, 2009 U.S. Dist. LEXIS 74420, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zivali-v-at-t-mobility-llc-dcd-2009.