Cabrera v. Stephens

INES CABRERA on behalf of herself,individually, and on behalf of all others similarly-situated, Plaintiffs, v. CHRISTOPHER STEPHENS, doing business as 7-Eleven;ATTAULLAH KHAN, Defendants.

16-CV-3234 (ADS) (SIL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 28, 2017

ORDER

LOCKE, Magistrate Judge:

Plaintiff Ines Cabrera ("Cabrera") commenced this action against Defendants Christopher Stephens ("Stephens"), doing business as 7-Eleven and Attaullah Khan ("Khan") (collectively, "Defendants"), on behalf of herself and all other similarly situated individuals (collectively "Plaintiffs"), seeking to recover unpaid minimum and overtime wages pursuant to the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq., and the New York Labor Law ("NYLL"), N.Y. Lab. Law § 190, et seq. See Complaint ("Compl."), Docket Entry ("DE") [1].¹ Presently before the Court, on referral from the Honorable Arthur D. Spatt, is Plaintiffs' motion for an order conditionally certifying this action as an FLSA collective action pursuant to 29 U.S.C. § 216(b), authorizing dissemination of a proposed notice and consent to sue form (the "Notice and Consent Form") to potential opt-in plaintiffs, and providing other relatedrelief ("Motion for Conditional Certification"). See Plaintiffs' Motion for Conditional Certification ("Pl. Cert. Mot."), DE [22]. Defendants oppose conditional certification as well as certain aspects of the proposed Notice and Consent Form. See Defendants' Opposition to Conditional Certification ("Def. Cert. Opp."), DE [25].

While the Motion for Conditional Certification was pending, Plaintiffs filed a letter motion to strike ("Motion to Strike") the affidavits submitted with Defendants' opposition to the Motion for Conditional Certification and Defendants' opposition to a separate motion to compel. See Plaintiffs' Motion to Strike ("Pl. Strike Mot."), DE [31]. The Motion to Strike, which Defendants opposed, is also presently before the Court on referral from Judge Arthur D. Spatt. See Defendants' Opposition to Plaintiffs' Motion to Strike ("Def. Strike Opp."), DE [33-35]. The Court conducted an evidentiary hearing on the Motion to Strike with respect to whether any of the affidavits or declarations at issue were obtained in bad faith through coercion or misrepresentations. See DE [38-40]. For the reasons set forth herein, Plaintiffs' motion for conditional certification is granted in part and denied in part, and Plaintiffs' motion to strike is denied.

I. BACKGROUND

A. Summary of Relevant Facts

Defendant Stephens owns and operates several 7-Eleven convenience stores on Long Island and employs a staff of non-managerial hourly employees, such as assistant managers, cashiers, and store clerks. Compl. ¶¶ 28-32; Declaration of Ines Cabrera ("Cabrera Decl."), DE [22-5], ¶¶ 1-3; Declaration of Ivan Sinchi ("SinchiDecl."), DE [22-6], ¶¶ 1-3. One of Defendants' principal places of business is 653 Montauk Highway, Montauk, Suffolk County, New York ("Montauk Store"), and, with respect to this store, Stephens and Khan make all of the managerial and employment decisions regarding the hourly employees. See Compl. ¶¶ 28-30; Cabrera Decl. ¶¶ 1-2; Sinchi Decl. ¶¶ 1-2. According to Cabrera, Defendants other 7-Eleven stores are located in East Patchogue and Smithtown. Declaration of Muhammad Anwar, ("Anwar Decl."), DE [22-11], ¶ 9.

From approximately October 1, 2010 until October 24, 2013, Cabrera worked as an assistant manager at Defendants' Montauk Store. Compl. ¶ 31; Cabrera Decl. ¶ 1. Cabrera was required to clock in and out at the start and end of each shift; however, it is alleged that Defendants routinely altered Cabrera's timesheets in order to make it appear that Cabrera worked fewer hours. Compl. ¶¶ 2, 43-5; Cabrera Decl. ¶¶ 5-7. The purpose of these reductions was to maintain an ideal sales-to-salary ratio, presumably to ensure a certain level of profitability. See Anwar Decl. ¶¶ 8-9. As a result, Defendants are alleged to have failed to pay Cabrera for all of her hours worked in compliance with the federally mandated minimum wage. Pl. Cert Mot. at 4-5. Additionally, it is alleged that Defendants failed to pay Cabrera the mandated overtime premium for any hours that she worked over forty per week. Cabrera Decl. ¶¶ 4-6.

According to Plaintiffs, other employees were similarly underpaid. Cabrera Decl. ¶¶ 7-11; Anwar Decl. ¶ 10; Sinchi Decl. ¶¶ 3-10. Opt-in Plaintiff Ivan Sinchi ("Sinchi") claims to have worked for Defendants as an assistant manager and storeclerk at the Montauk Store from April 2010 through October 2013 during which time he alleges that Defendants also altered his timesheets, refused to pay him for all hours worked, and denied him overtime at the statutory rate. Sinchi Decl. ¶¶ 1-7. Cabrera and Sinchi claim that approximately thirteen other named employees at the Defendants' Montauk Store were all similarly mistreated. Cabrera Decl. ¶ 10, Sinchi Decl. ¶ 9. Muhammad Anwar previously brought suit against Defendants under the FLSA and NYLL, raising similar allegations, which settled. See Anwar v. Stephens et al., 2:15-cv-04493., ECF # 27 (Feb. 2, 2017).

Plaintiffs also contend that the wage violations carried out at the Montauk Store, occurred at Defendants' other locations. In support, Plaintiffs cite to Khan's confirmation that the same scheme to reduce pay to maintain a certain salary-to-sales ratio was applied to all of Defendants' employees regardless of their location. See id. ¶¶ 7-9 ("Khan instructed [Anwar] to reduce virtually every employees' hours to avoid paying them overtime for their hours worked over forty...pay was limited based on a uniform policy that applied to all of Defendants' employees.").

B. Present Motions

1. Plaintiffs' Motion for Conditional Certification

Plaintiffs argue that they have satisfied the low evidentiary burden applicable to conditional certification of a collective action under the FLSA by submitting declarations identifying putative opt-in plaintiffs and substantiating a factual nexus between the wage violations that Plaintiffs allegedly suffered and those potentially suffered by other similarly situated employees. See Pl. Cert. Mot. at 11-13. Theaffidavits of Cabrera and Sinchi provide the names of specific individuals who are alleged to be similarly situated potential opt-in plaintiffs: Jorge Alvarez, Muhammed Anwar, Luz Guanga, Maria Guanga, Ximena Jarrin, Rodrigo Taturi, "Ali," "Dorine," "Erika," "Ibrahim," "Jarira," "Marva," and "Patricia" (collectively, "Opt-In Plaintiffs"). See id. Further, Plaintiffs seek notice to be sent to all current and former employees who worked for Defendants at all locations owned and operated by Stephens, not simply the Montauk Store at which Cabrera and Sinchi worked, and that the notice should be sent to all individuals who were employed during the last six years in light of the NYLL violations alleged in the Complaint. See id. at 14-16. They seek to distribute notice and reminder notices by electronic and traditional means, in Spanish and English, and by posting them at each of Defendants' stores. See id. at 17-21. Finally, Plaintiffs petition the Court to toll the FLSA statute of limitations from the date of the filing of the Complaint until the deadline that the Court grants certification. See id. at 22-23.

Defendants oppose arguing that Plaintiffs cannot show an unlawful common policy because they have only submitted sworn statements of two employees that are primarily composed of boilerplate conclusory language. See Def. Cert. Opp. at 4-5. Additionally, any allegations contained in those statements concerning other employees are anecdotal, inadmissible hearsay. See id. Defendants further assert that Cabrera's own overtime claim is contradicted by the paystub that she provided, which shows that she was compensated at the applicable overtime rate in that instance. See id.

Were the Court to grant certification, Defendants argue that notice should be limited to the Montauk Store as Plaintiffs have failed to make any factual allegations related to any other named employee at another location, and as each of the 7-Eleven stores owned by Stephens are operated independently of one another. See id. at 5. Further, Defendants request that the Court limit notice to a three-year period based upon the lack of viable federal claims extending beyond this time frame, see id. at 11, and they seek to prevent notice from being posted at any of Stephens' stores, as all current employees would be covered by notice served by mail. See id. at 12. Finally, Defendants dispute the form of and deadlines related to the notice and any tolling of the statute of limitations as Plaintiffs have failed to plead any extraordinary circumstances warranting such relief. See id. at 13-15.

C. Plaintiffs' Motions to Strike

Plaintiffs subsequently filed a motion to strike the affidavits that were submitted with Defendants' opposition to the Motion for Conditional Certification and other affidavits submitted in opposition to a separate subsequent motion to compel (collectively, the "Affidavits"). See DE [25-1, 28].² Plaintiffs argue that the affidavits should be stricken due to the bad faith and the coercive manner in which they were obtained. See Pl. Strike Mot. 1. Secondarily, Plaintiffs move for the Affidavits to be precluded for a failure to disclose the identities of the individual witnesses in Defendants' initial disclosures and responses to interrogatories pursuant to Federal Rule of Civil Procedure 26 ("Rule 26"). See id. at 2-3.

Defendants oppose the motion to strike arguing that there was no prohibition on pre-certification communications with potential opt-ins and that Plaintiffs had failed to show that Defendants had committed any bad faith acts or coercion as would justify an order being imposed by the Court. See Def. Strike Opp. 1 at 1-2. Additionally, there was no violation of Rule 26 and no possibility of prejudice as Defendants...