Bethel v. Bluemercury, Inc.

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LESLIE BETHEL, on behalf of herself and all others similarly situated, Plaintiff, v. BLUEMERCURY, INC., a Delaware corporation, Defendant.

No. 21 Civ. 2743 (KPF)

United States District Court, S.D. New York

August 22, 2022

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Leslie Bethel brings this action for violations of the Fair Labor Standards Act (the “FLSA”), 29 U.S.C §§ 201-219, and the New York Labor Law (the “NYLL”), N.Y. Lab. Law §§ 195, 650-666 alleging that Defendant BlueMercury, Inc. (“BlueMercury”) failed to pay overtime wages and provide wage statements to its Store Managers. Plaintiff joined by opt-in plaintiffs Katherine McCloskey, Leyna B. Hanson, Gustavo Espinoza, Lourdes Lima, Alexa Suart, Ruben Bermudez, Albert Paris Suazo, and Joseph Montefinese (the “Opt-In Plaintiffs,” and together with Plaintiff, “Plaintiffs”), now moves for conditional certification of a nationwide collective and related relief under Section 216 of the FLSA.^[1] Separately, Plaintiffs move for equitable tolling on behalf of the putative collective action members. For the reasons that follow, Plaintiffs' motion for conditional collective certification is granted as to a more circumscribed collective of New York-based Store Managers. By contrast, Plaintiffs' motion for equitable tolling is denied without prejudice.

BACKGROUND^[2]

A. Factual Background^[3]

Defendant is a Delaware corporation with a principal place of business in Jupiter, Florida, that operates BlueMercury retail stores in over 20 states, including New York, Florida, California, and New Jersey. (Compl. ¶ 16). All told, Defendant operates approximately 161 stores nationwide. (Pl. Br. 2).

Plaintiffs worked as Store Managers at Defendant's retail stores. Plaintiff worked for Defendant in three of its stores in New York, New York, from approximately March 2018 to March 2019. (Bethel Decl. ¶¶ 2-3). The Opt-In Plaintiffs who have submitted declarations in connection with the present motions worked in Defendant's stores in Charleston, Mt. Pleasant, and Kiawah Island, South Carolina (Hanson Decl. ¶ 3); Edina, Minnesota (McCloskey Decl. ¶ 3); and Coral Gables, Miami Beach, and Boca Raton, Florida (Espinoza Decl. ¶ 2).^[4] As Store Managers, Plaintiffs assisted customers, received and unpacked products, cleaned, and assisted with merchandising. (Bethel Decl. ¶ 4; Hanson Decl. ¶ 4; McCloskey Decl. ¶ 4; Espinoza Decl. ¶ 4; see also Jones Decl., Ex. E-F (copies of Defendant's job postings for Store Managers in numerous stores)). Plaintiffs were paid on an hourly basis and were classified as non-exempt workers. (Id.).

Plaintiffs seek conditional certification of a FLSA collective comprising “[a]ll non-exempt, hourly Store Managers employed by [Defendant] at any location in the United States for the three (3) years preceding the filing of this action.” (Pl. Br. 1). In connection with this motion, Plaintiffs allege that Defendant maintains a “uniform, common[,] and widespread policy pursuant to which Plaintiffs and other [Store Managers] were required to respond to phone calls and text messages from their stores and their supervisors when they were out of the store and off-the-clock, without compensation” (the “Policy”). (Pl. Br. 4 (citing Bethel Decl. ¶ 10; Hanson Decl. ¶ 9; McCloskey Decl. ¶ 9; Espinoza Decl. ¶ 9)). According to Plaintiffs, the Policy is the same at all BlueMercury stores and is “not unique to any specific location or particular supervisor(s).” (Id.).

By way of illustration, Hanson avers that as a Store Manager in Defendant's Charleston, Mt. Pleasant, and Kiawah Island, South Carolina, retail stores, she regularly worked more than the 40 hours that she was scheduled to work per week. (Hanson Decl. ¶ 8). Hanson explains that her overtime work was occasioned by the fact that she “routinely received and responded to communications from my District Manager (‘DM') and other employees from my store via telephone, text message, and group messaging on my days off, or before and/or after my shifts when I was not in the store, and off the clock.” (Id. at ¶ 9). Hanson alleges that she was “expected to respond to these communications when they were received[,]” but that Defendant “did not compensate [her] and other [Store Managers] for the time [they] spent engaging in these work-related communications while not in the store and off the clock.” (Id.). Hanson states that she received phone calls from her DM and other employees at her store approximately three times per week while not working in the store. (Id. at ¶ 12). She further claims that “20 to 30 times a week, while [she] was not working the store, [she] also received text messages from [her] DM and other store employees.” (Id.). All said, Hanson asserts that she spent between three and five hours per week responding to work-related messages while out of the store and off the clock. (Id. at ¶ 13). Hanson suggests that these experiences are not unique, identifying two other Store Managers who also were required to respond to communications while off the clock but were not compensated for this labor. (Id. at ¶ 17).

Plaintiff attributes the Policy to “tight labor budgets[.]” (Compl. ¶ 10). According to Plaintiff, Defendant's budgets do not allow Store Managers sufficient time to perform the customer service and other tasks that they are required to complete each day. (Id.). “As a result,” Plaintiff claims, “to ensure that they do not exceed [Defendant's] established labor budgets, Store Managers, including [Plaintiff] are forced to work off the clock” as described above. (Id.). Plaintiff alleges that Defendant is aware that its Store Managers are forced to work uncompensated overtime hours, but has continued not to compensate them for these hours or to accurately reflect the number of hours its Store Managers work in its time records. (Id. at ¶¶ 34-38).

B. Procedural Background

Plaintiff filed the Complaint in this case on March 31, 2021. (Dkt. #1). On May 19, 2021, Defendant filed its answer to the Complaint (Dkt. #11), and the parties were automatically referred to the Court's mediation program shortly thereafter (Dkt. #13). Following this referral, Plaintiff filed notices reflecting that several of the Opt-In Plaintiffs, including McCloskey, Hanson, Espinoza, and Lima, had consented to join the case. (Dkt. #15-18).

On August 13, 2021, Plaintiffs filed a letter requesting that the case be removed from mediation. (Dkt. #19). In the letter, Plaintiffs explained that in a pre-mediation conference held with the mediator, Plaintiffs' counsel indicated their intent to mediate on behalf of the putative nationwide collective. (Id. at 2). Defendant's counsel, per Plaintiffs' letter, “maintained that it would only mediate on behalf of the Plaintiffs.” (Id.). This impasse as to the appropriate scope of the mediation led Plaintiffs to conclude that mediation would be “futile.” (Id.). Indeed, Plaintiffs stated that the parties would “not be able to agree on the core issue of scope . . . of the mediation until there is a ruling on Plaintiffs' anticipated motion for conditional certification, which will establish the scope of the case[.]” (Id.). The Court endorsed Plaintiffs' letter on August 16, 2021, withdrawing the case from mediation and setting a briefing schedule for Plaintiffs' anticipated motion for conditional certification. (Dkt. #20).

Plaintiffs filed their motion for conditional collective certification and supporting papers on September 24, 2021. (Dkt. #27-30). Defendant filed a memorandum of law and supporting declarations on October 25, 2021 (Dkt. #31-32), arguing that conditional certification of a nationwide collective is inappropriate because, among other reasons, the Court lacks personal jurisdiction over claims brought by Store Managers who neither resided nor worked for Defendant in New York (Dkt. #31 at 13-18). A few days later, on October 29, 2021, Plaintiffs filed a letter requesting both an extension of time and an extended page limit for their reply brief. (Dkt. #33). Plaintiffs asserted in this letter that Defendant's “belated” jurisdictional argument “insert[ed] a significant issue in the litigation, which requires significantly more briefing than Plaintiff can address in a 10-page reply[.]” (Id. at 2). After Defendant submitted an opposition letter (Dkt. #36), the Court granted Plaintiffs' request and authorized them to file a reply brief that included “no more than 10 additional pages that shall be limited solely to the issue of personal jurisdiction” (Dkt. #37). Plaintiffs ultimately filed their reply brief on November 15, 2021. (Dkt. #38). Following the close of briefing, Plaintiff filed notices reflecting that the remaining Opt-In Plaintiffs - Suart, Bermudez, Suazo, and Montefinese - had consented to join the case. (Dkt. #42-44).

On April 26, 2022, Plaintiffs filed a motion and supporting memorandum of law for equitable tolling of the limitations period for claims brought by Plaintiffs and potential other opt-in plaintiffs from November 15, 2021 (the date briefing concluded on Plaintiffs' motion for conditional certification), until the date of the Court's order on Plaintiffs' motion for conditional certification. (Dkt. #45-47). Defendant filed a brief in opposition to the motion on May 10, 2022. (Dkt. #48). Plaintiffs filed a reply brief on May 16, 2022. (Dkt. #49). Thus, Plaintiffs' motions are fully briefed and ripe for the Court's decision.

DISCUSSION

A. Applicable Law

1. The FLSA Generally

The FLSA permits aggrieved employees to bring collective actions against their employers for unlawful employment practices. The statute authorizes suits “by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.” 29...