Kwan v. Sahara Dreams Co. Ii Inc., 17-CV-4058 (RA)

CHUI-FAN KWAN, on behalf of herself and all others similarly situated, Plaintiff, v. SAHARA DREAMS CO. II INC., SAHARA DREAMS LLC, HAMPSHIRE HOTELS &RESORTS, LLC, DREAM HOTEL GROUP, LLC, Defendants.

No. 17-CV-4058 (RA)

United States District Court, S.D. New York

July 7, 2021

ORDER ADOPTING REPORT AND RECOMMENDATION

RONNIE ABRAMS, United States District Court Judge

Plaintiff Chui-Fan Kwan, on behalf of herself and others similarly situated, brings this action principally alleging that Defendants Sahara Dreams Co. II Inc, Sahara Dreams LLC Hampshire Hotels & Resorts, LLC, and Dream Hotel Group LLC (collectively, “Defendants”) engaged in several forms of time-shaving practices and misclassified floor managers like herself as exempt employees in violation of the Fair Labor Standards Act (“FLSA”). Plaintiff has moved to conditionally authorize collective-action status under the FLSA and to certify a class action pursuant to Federal Rule of Civil Procedure 23. Now before the Court is Magistrate Judge Cave's Report and Recommendation (“Report”) recommending that the Court deny both motions without prejudice.

Plaintiff timely objected to that portion of the Report that denied conditional certification of a class comprising all non-managerial employees who worked for Defendants, and has asked this Court to certify a more limited collective, of only floor managers and room attendants. For the reasons that follow, the Court agrees that Plaintiff has made a factual showing sufficient for conditional certification of floor managers. The Court otherwise adopts the Report and denies the motions.

BACKGROUND

As the Court presumes the parties' familiarity with the facts and procedural history of this action, the following background addresses only those issues pertinent to the instant motion.

Plaintiff Chui-Fan Kwan worked as a room attendant at the Dream Hotel Downtown-a hotel operated by Defendants-from May 16, 2011 to April 30, 2015. See Dkt. 49-5, Affidavit of Chui-Fan Kwan in Support of Plaintiff's Motion for Conditional Collective Certification (“Kwan Affidavit”) ¶ 3. In that position, her regular work schedule “ran from 8:30 to 16:30, with one hourlong break for lunch during the day . . . five days per week, ” for “approximately 40 hours per week.” Id. ¶ 5. According to Plaintiff, Defendants calculated her hours as if she had taken a one-hour lunch break even when her time records indicated differently. Id. ¶ 7. Plaintiff further alleges that she was frequently required to work beyond her scheduled hours without compensation. Dkt 63, Second Amended Complaint (“Complaint”) ¶¶ 89-90.

On or about May 4, 2015, Plaintiff was promoted to floor manager at the Dream Hotel Downtown, a job she held until August 6 2016. Kwan Affidavit ¶ 11. Her annual salary was initially $45, 000 and rose to $46, 349.86 as of July 1, 2016. Id. ¶ 15. Plaintiff alleges that she was misclassified as an exempt managerial employee not entitled to overtime pay, although her job duties did not justify a managerial classification. Id. ¶¶ 18-23, 25. Throughout her employment, Defendants provided her wage statements that did not accurately reflect the hours that she purportedly worked. Id. ¶¶ 24-25.

On June 15, 2018, Plaintiff filed the instant motion for conditional collective certification asserting that she and all similarly situated non-exempt employees whom Defendants employed were subject to a common policy of “not paying (i) the total number of hours worked and (ii) overtime premiums for the hours worked in excessive of forty hours in a single workweek.” Dkt. 50 (“Motion”) at 9. Citing both personal observations of, and discussions with, co-workers who held the same positions at the Dream Downtown Hotel, Plaintiff attests that other employees were victims of the above violations. Specifically, she affirms that floor managers Sharon Enchill, Lourdes Plasencia, Yanette Urbaez, Bozena Steswoski, Liliette Borges, and Sagmo Tsewang were paid for 35 weekly work hours even though they worked more than 35 hours per week. Kwan Affidavit ¶¶ 32-39. Plaintiff similarly alleges that room attendants “Sandy, ” Hellen Xiu Juan, Hai Zheng Chong, Sophia Pun, Mariella Montero, “Jan, ” and “Angel” were not able to take full lunch breaks during their shifts, and were not compensated for this additional work. Id. ¶¶ 40-48.

The Court referred the motion to Judge Cave, who recommended that conditional certification of the proposed collective be denied without prejudice to renewal on a more developed factual record. The Report also recommended that Defendants be ordered to provide Plaintiff with the full names, job titles, last known mailing addresses, email addresses, telephone numbers and dates of employment for all floor managers employed at the Dream Downtown Hotel during the previous three years. Plaintiff timely submitted a notice of partial objection to that Report, objecting to the “wholesale” denial of conditional collective certification. Plaintiff contends that the Report should have narrowed the scope of the collective to only floor managers and room attendants at the Dream Hotel Downtown. For the following reasons, the Court agrees that conditional certification of a more limited collective is appropriate in this instance.

STANDARD OF REVIEW

When a magistrate judge issues a report and recommendation, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made [therein].” 28 U.S.C. § 636(b)(1)(C). “When a timely and specific objection to a report and recommendation is made, the Court reviews de novo the portion of the report and recommendation to which the party objects.” Tagliaferri v. United States, No. 17-CV-3026 (RA), 2019 WL 498361, at *1 (S.D.N.Y. Feb. 8, 2019) (internal quotation marks omitted). In the absence of specific written objections, the Court may accept such a report so long as the factual and legal bases supporting the findings are not clearly erroneous. See, e.g., Carmichael v. Chappius, 340 F.Supp.3d 340, 345 (S.D.N.Y. 2018), aff'd, 811 Fed.Appx. 41 (2d Cir. 2020). A decision is clearly erroneous “only if the reviewing court is left with the definite and firm conviction that a mistake has been committed.” Clerveaux v. E. Ramapo Cent. Sch. Dist., 984 F.3d 213, 228 (2d Cir. 2021) (internal quotation marks omitted).

DISCUSSION

Plaintiffs object only “to the portion of [the Report] denying conditional certification of a collective altogether and suggest that the Court conditionally certify a collective of room attendants and floor managers.” Dkt. 116 (“Objection”). The Report denied conditional certification for Plaintiff's “overly-broad collective action comprised of ‘all non-managerial employees who worked for Defendants' for the last six years.” Report at 11-12. According to the Report, the relevant record, which consists only of Plaintiff's affidavit, lacks the requisite detail to meet the standard of a “modest factual showing” required at this stage of the proceeding. Id. at 11. Although the Court agrees that Plaintiff's proposed collective was overly broad in scope, the record is sufficient to demonstrate, for purposes of conditional certification, that floor managers at the Dream Hotel Downtown-i.e., those who shared the same job title and duty location as Plaintiff-are similarly situated within the meaning of the FLSA.

Section 216(b) of the FLSA permits employees to “assert claims on behalf of other ‘similarly situated' employees, ” in a so-called “collective action.” Myers v. Hertz Corp., 624 F.3d 537, 542 (2d Cir. 2010). Unlike a traditional class action, plaintiffs in FLSA collective actions “must affirmatively ‘opt in' to be part of the class and to be bound by any judgment.” Id. Accordingly, conditional certification “does not produce a class with an independent legal status, or join additional parties to the action, ” but merely results in the “sending of court-approved written notice to employees.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013).

The Second Circuit has endorsed a two-step process for approval of a collective action. Myers, 624 F.3d at 555. “At step one, the district court permits a notice to be sent to potential opt-in plaintiffs if the named plaintiffs make a modest factual showing that they and others together were victims of a common policy or plan that violated the law.” Scott v. Chipotle Mexican Grill, Inc. 954 F.3d 502, 515 (2d Cir. 2020). The Court of Appeals has made clear that a “‘modest factual showing' . . . should remain a low standard of proof because the purpose of this first stage is merely to determine whether ‘similarly situated' plaintiffs do in fact exist.” Myers, 624 F.3d at 555 (emphasis in original). Because certification at this early juncture is merely preliminary, “a plaintiff's burden is low, ” and may be satisfied by “relying on [plaintiff's] own pleadings, affidavits, declarations, or the affidavits and declarations of other potential class members.” Qiang Lu v. Purple Sushi Inc., 447 F.Supp.3d 89, 93-94 (S.D.N.Y. 2020). The Court need only “find some identifiable factual nexus which binds [Plaintiff] and potential class members together as victims of a particular practice.” Julian v. MetLife, Inc., 298 F.Supp.3d 699, 702 (S.D.N.Y. 2018). While a Court need not consider “unsupported assertions, ” Myers 624 F.3d at 555, or “conclusory allegations, ” Qiang Lu, 447 F.Supp.3d at 94, courts within the District have conditionally certified FLSA collective actions based on facts affirmed in a single plaintiff's affidavit. See id. (collecting cases); Juarez v. 449 Rest., Inc., 29 F.Supp.3d 363, 369 (S.D.N.Y. 2014) (noting that district courts “often authorize notice based ‘solely on the personal observations of one plaintiff...