Bonett v. Shawmut Woodworking & Supply, Inc.

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FEB - 8 2021 J

UNITED STATES DISTRICT COURT Map OER

WESTERN DISTRICT OF NEW YORK Wesposwensuttog S

KEVIN BONETT, 19-CV-1125-LJV-MJR

individually and on behalf of all similarly DECISION AND ORDER

situated employees,

Plaintiff,

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SHAWMUT WOODWORKING & SUPPLY, INC.,

d/b/a Shawmut Design & Construction

Defendant.

This case has been referred to the undersigned by the Hon. Lawrence J. Vilardo

for all pre-trial matters and to hear and report on dispositive motions. (Dkt. No. 4).

Presently before the Court is plaintiffs motion for conditional certification of a Fair Labor

Standards Act [“FLSA”], 29 U.S.C. §§ 201, et seq., collective action. (Dkt. No. 22). For

the following reasons, plaintiffs motion for conditional certification and court-authorized

notice is denied without prejudice."

BACKGROUND

Plaintiff Kevin Bonett (“plaintiff’) brings this action on behalf of himself and all other

similarly situated individuals seeking relief for alleged willful violations of the FLSA

overtime compensation requirements by defendant Shawmut Woodworking & Supply,

Inc. (“defendant”). (Dkt. No. 1 (Complaint)).2

‘A motion for conditional certification of an FLSA collective action is a non-dispositive motion. See Summa

v. Hofstra Univ., 715 F. Supp. 2d 378, 383-84 (E.D.N.Y. 2010).

? Plaintiff also seeks relief on behalf of himself and all other similarly situated individuals for defendant's

alleged willful violations under the New York Minimum Wage Act, Labor Law § 650, et seq., and the New

York Wage Payment Act, Labor Law § 190, et seq. (collectively, the “NYLL”). (See Dkt. No. 1 (Complaint).

Defendant is a nationwide construction management. company that provides

management and design services on behalf of various clients, including luxury home

builders, sports venues, commercial offices, and academic facilities. (/d. at pg. 2).

Defendant employs: a variety of construction management professionals to assist its

clients with developing their construction projects. (/d.). These employees hold the titles

of Project Manager, Superintendent, and Estimator and have responsibility for all major

project decisions and supervision of construction site operations. (/d.). To assist in

building its professional workforce, defendant recruits recent, or soon-to-be, college

graduates to join its Construction Management Skills Training [‘CMST’] program and gain

“on-the-job” training. (/d. at 3). The program lasts a period of thirty-six months; separated

into three. distinct twelve-month installments, in which each participant spends twelve

months working as an Assistant Project Manager, Assistant Superintendent, and

Assistant Estimator [collectively “Assistants”]. (/d.). During the program, the CMST

participants shadow one of the construction management professionals in the area

matching their assigned role, fe. Assistant Project Managers shadow Project Managers.

(Id.).

Plaintiff claims that regardless of the order in which a CMST participant is assigned

to each Assistant position, defendant classifies first-year participants as non-exempt

employees under the FLSA entitled to receive overtime wages and classifies second- and

third-year participants as exempt employees not eligible to receive overtime wages. (/d.)

Regardless of whether a CMST participant was eligible or not eligible to receive overtime

wages, defendant alleges that the duties they perform are ail the same. (/d.). Defendant

alleges that Assistants provide routine office support and complete tasks assigned by

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their construction management professional. (/d.). He state their responsibilities are non-

managerial in nature, do not involve the use of discretion or independent judgment, and

participants never have authority to act on their own. (/d.). Plaintiff asserts that he and

other CMST participants regularly worked over forty hours per week, often fifty to sixty

hours per week, and were not paid overtine compensation. (/d. at 4). Plaintiff also alleges

that defendant did not allow its non-exempt CMST participants to record all their overtime

hours. (/d.) The gravamen of plaintiffs FLSA claim is that defendant misclassified CMST

participants as exempt employees in order to evade paying them overtime wages they

are owed. (/d.).

Defendant disputes that plaintiff and other CMST participants are entitled to

overtime compensation in their second and third years of the program, arguing that

participants are properly classified as exempt from the overtime provisions of the FLSA

based on their job duties and functions. (Dkt. No..25-1, JJ 8-15). Defendant contends that

the non-exempt classification given to first-year CMST participants reflects that a

significant portion of the first year in the. CMST program is focused on “grounding

participants in the construction industry,” with less time spent on work that requires

advanced knowledge and training or the exercise of independent judgment and

discretion. (/d. at 10). Defendant states that as CMST participants progress through the

program, they take on greater substantive job functions and perform tasks requiring more

advanced knowledge, judgment, and discretion. (/¢. at 11). Defendant asserts that

participants in their second and third years of the program are properly classified as

exempt employees under FLSA because they have increased responsibility, including

financial and schedule management, direct client management, and subcontractor

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management responsibilities, they receive less oversight, and their work involves a great

deal of discretion and independent judgment. (Dkt. No. 25-2, J] 6-13).

Shortly after commencing this action, plaintiff filed the instant motion for conditional

certification of an FLSA collective action, which, if granted, will allow him to obtain contact

information regarding potential opt-in plaintiffs from defendants so that they may notify

the potential opt-in plaintiffs of the pendency of this lawsuit and their opportunity to join in

as represented plaintiffs. (Dkt. No. 22). Plaintiffs proposed opt-in class consists of “[alll

Assistants who worked for Defendant at any period during their second and third rotation

of the CMST program and were classified as exempt salaried ernployees not eligible for

overtime pay in the last three (3) years from when the Complaint was filed.” (Dkt. No. 22-

1, pg. 12). Defendant opposes plaintiff's motion for conditional certification, but in the

event conditional certification is granted, it asks the Court to make certain modifications

to plaintiffs proposal regarding the content and manner of notice to the potential opt-in

plaintiff class. (Dkt. No. 25). Plaintiff has filed an amended reply in further support of his

motion.> (Dkt. No. 27).

DISCUSSION

l. Conditional Certification

Under the FLSA, “no employer shall employ any of his employees [...] for a

workweek longer than forty hours unless such employee receives compensation for his

employment in excess of the hours above specified at a raté not less than one and one-

half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). The FLSA

creates a cause of action against employers who violate the overtime. requirement, and

3 Plaintiff's pending motion to amend his.reply to defendant's respanse is hereby granted. (Dkt. No. 27}.

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affected employees may bring suit against an employer on behalf of “themselves and

other employees similarly situated.” /d. § 216(b). “Unlike a representative action under

Rule 23 of the Federal Rules of Civil Procedure, where all persons in the defined class

are bound by the case outcome unless they affirmatively ‘opt out,’ an employee does not

become a party to an FLSA collective action unless he or she affirmatively ‘opts in’ by

filing written consent with the court.” Gordon v. Kaleida Health, No. 08-CV-378S, 2009

U.S. Dist. LEXIS 95729, at *11 (W.D.N.Y. Oct. 14, 2009).

The Court. has the discretion to facilitate notice to potential plaintiffs of the

pendency of an FLSA lawsuit and their opportunity to opt-in as represented plaintiffs. See

Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169-70 (1989); Myers v. Hertz Corp.,

624 F.3d 537, 554 (2d Cir. 2010). “This is often referred to as certification, although as

the Second Circuit Court of Appeals observed in Myers, it is not ‘certification’ in the

traditional class action sense and ‘nothing in the text of the statute prevents plaintiffs from

opting in to the action by filing consents with the district court, even when the notice [...]

has not been sent, so long.as such plaintiffs are ‘similarly situated’ to the named individual

plaintiff who brought the action.’” Acevedo v. WorkFit Med. LLC, No. 14-CV-06221 EAW,

2014 U.S. Dist. LEXIS 131269, at *5 (W.D.N.Y. Sept. 16, 2014) (alteration in original)

(quoting Myers, 624 F.3d at 555 n.10). Courts follow a two-step process to determine

whether a lawsuit should proceed as an FLSA collective action:

The first step involves the court making an initial determination

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. The court may send this notice

after plaintiffs 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. .. At the second stage, the

district court will, on a fuller record, determine whether a so-

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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 (internal quotation marks, citations, and alterations omitted). “The

first of these steps is typically referred to as ‘conditional certification.”” Acevedo, 2014

U.S. Dist. LEXIS 131269, at “6 (quoting Winfield v. Citibank, N.A., 843 F. Supp. 2d 397,

402 (S.D.N.Y. 2012)). “Plaintiffs’ burden on a conditional certification motion is ‘minimal,

especially since the determination that potential plaintiffs are similarly situated is merely

a preliminary one.” /d. at *4 (quoting Gjurovich v. Emmanuel’s Marketplace, Inc., 282

F. Supp. 2d 101, 104 (S.D.N-Y, 2003)). “[T]he court does not resclve factual! disputes,

decide substantive issues going to the ultimate merits, or make credibility determinationsf,

and aJccordingly, an FLSA collective action may be conditionally certified upon even a

single plaintiff's affidavit.” Robbins v. Blazin Wings, Inc., No. 15-CV-6340 CUS, 2016 U.S.

Dist. LEXIS 35446, at *19 (W.D.N.Y. Mar. 18, 2016) (second alteration in original)

(quoting Escobar v. Motorino E. Vill. Inc., No. 14 CIV. 6760(KPF), 2015 U.S. Dist. LEXIS

104348, at *2 (S.D.N.Y. Aug. 10, 2015)). Given this “fairly lenient” standard, conditional

certification is “typically grant[ed].” Chhab.v. Darden Rests., Inc., No. 11 Civ. 8345(NRB),

2013 U.S. Dist. LEXIS 135926, at *30 (S.D.N.Y. Sept. 20, 2013) (quoting Malloy v.

Richard Fleischman & Assocs. Inc., No. 09 Civ. 322(CM), 2009 U.S. Dist. LEXIS 51790,

at *2 (S.D.N.Y. June 3, 2009).

Here, it is clear that this case is in the initial step of the certification process which

requires plaintiff only to make a modest factual showing that he and others were victims

of a common policy or plan that violated the FLSA. In opposition to certification, defendant

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argues, inter alia, that plaintiff has not shown that he is similarly situated to his proposed

collective.

Although plaintiffs burden is not onerous, he must provide actual evidence of a

factual nexus between his situation and those that he claims are similarly situated rather

than mere conclusory allegations. Qing Gu v. T.C. Chikurin, Inc., CV-2013-2322, 2014

U.S. Dist. LEXIS 53813, at “9 (E.D.N.Y. Apr. 17, 2014); see Myers, 624 F.3d at 555 ("The

"modest factual showing” cannot be satisfied simply by "unsupported assertions [...]).

Plaintiff has not done so here.

In support of this motion, plaintiff has submitted only his own sworn declaration. In

it, states that he and other employees in their second and third year of defendant's

CMST program regularly worked more than forty hours per week for defendant without

receiving overtime compensation. (Dkt. No. 22-3). Plaintiff states that during his first

rotation in the program he was classified as a non-exempt employee who was paid an

annual salary and was eligible to receive overtime, and that during his second rotation he

and other Assistants in the program were reclassified as “exempt salaried employees who

are not entitled to overtime.” (/d. at ff] 20-21). Plaintiff attests that regardless of whether

participants held the position of Assistant Project Manager, Assistant Superintendent, or

Assistant Estimator, their duties were non-managerial in nature and always performed

under direct supervision. (/d. at J 8). Plaintiff states that he was aware of the workload of

other CMST participants and he learned that employees were subject to improper

compensation policies “through regularly communicating with Shawmut’s other

Assistants.” (/d. at J] 23-24, 28). Lastly, he states that “[d]ozens of Assistants have been

harmed by this policy, regardless of their particular title or location.” (Id.).

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With these allegations alone, plaintiff fails to demonstrate how he knows that other

Shawmut employees are similarly situated to him. Plaintiffs reliance on his own

declaration is not an inherent problem. As noted above, a single affidavit can be sufficient

to meet the low standard for conditional class certification. See Bhumithanarn v. 22

Noodle Mkt. Corp., 14-CV-3624, 2015 U.S. Dist. LEXIS 90616, at *9 (S.D.N.Y. July 13,

2015); Robbins, 2016 U.S. Dist. LEXIS 35446 at *19. However, the factual allegations

contained within plaintiff's affidavit are insufficient even for this modest standard. See

Romero v. H.B. Auto. Group, Inc., 11-Civ-386, 2012 U.S. Dist. LEXIS 61151, at *27

(S.D.N.Y. May 1, 2012) (“While plaintiff's burden of proof is low, it is not non-existent —

‘certification is not automatic.’).

Courts commonly deny conditional certification for failure to provide factual support

for allegations of a common scheme impacting other employees. See Ding v. Baumgart

inc., 2:18-CV-10358, 2020 US. Dist. LEXIS 15722 (D. N.J. Jan. 30, 2020) (denying

conditional certification where plaintiffs affidavit did not explain how he knew other

members of the class were underpaid); Mata v. Foodbridge, LLC, 14-Civ-8754, 2015 U.S,

Dist. LEXIS 70550 (S.D.N.Y. June 1, 2015) (finding an inadequate factual showing where

plaintiff's allegations provided no concrete facts of wage violations for employees

engaged in different job functions and for lack of detail about specific observations or

conversations with coworkers); Sanchez v. JMP Ventures, L.L.C., 13-Civ-7264, 2014 U.S.

Dist. LEXIS 14980 (S.D.N.Y. Jan. 27, 2014) (deciding that conditional certification was

not supported where plaintiffs declaration made general allegations about common

practices at defendant's restaurants but failed to “provide any detail as to a single such

observation or conversation’). In Brown v. Barnes & Noble, Inc., 252 F. Supp. 3d 255,

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263 (S.D.N.Y. 2017), a District Court declined to grant conditional certification based on

declarations of a small number of plaintiffs asserting that they were aware of other

managers who performed non-exempt duties (despite exempt classification) because of

observations and discussions with other managers. There, plaintiffs “fail[ed] to provide

any details about those observations and discussions, how often they occurred, or the

sum and substance of what was discussed or observed.” /d. at 266-67. The Court stated

that it could not infer that defendant had a de facto policy of requiring a group of 1,100

managers to perform non-exempt work based only on the personal experiences of nine

plaintiffs who had joined the suit. /d.4

Here, as in Brown, the evidence plaintiff presents is insufficient for the Court to find

a factual nexus between plaintiff's personal experiences in the CMST program and the

experience of other program participants, locally or nationwide. Plaintiffs affidavit

provides no details as to when and how he conversed with his coworkers about

defendant's contested practices, or otherwise learned of these violations. His declaration

speaks in the most general terms about observing tasks assigned to other Assistants.

Plaintiff's statement to the effect that he knew that others were affected by a similar policy

“through regularly communicating” with other Assistants provides no concrete facts about

these conversations and does not name a single coworker with whom he communicated.

His declaration does not lay out the source of his knowledge about the job duties, hours

worked, or compensation of other CMST participants in any of the three Assistant roles.

a renewed motion the following year, the Brown Court again denied conditional certification to

plaintiffs. See 2018 U.S, Dist. LEXIS 106098 (S.D.N.Y. June: 25, 2018). Citing that decision, defendants in

this case ask the Court to apply a “modest plus” standard to plaintiff, applicable to conditional certification

decisions where substantial discovery has-already been completed. See id. at “17-19. The record shows

that only limited discovery has occurred here, and the “modest plus” standard is not applicable at this

time. Nonetheless, plaintiff has not met the lower standard.

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Reliance on plaintiffs own observations or conversations with other employees may not

be fatal to conditional class certification, but those allegations must be specific and

demonstrate the basis of his knowledge. See Guaman v. DL Rest. Dev. LLC, 14-Civ-

2587, 2015 U.S. Dist. LEXIS 146254, at *7 (S.D.N.Y. Oct. 27, 2015). Plaintiff does not

provide any documentary evidence to support the allegations in his declaration.

Defendant also argues that plaintiff is not similarly situated to other employees

because his alleged job duties and responsibilities are not representative of the CMST

program as a whole and that he lacks knowledge of the duties of other CMST participants

at multiple office locations.® Indeed, plaintiff provides no information about his knowledge

of CMST participants at locations other than the office where plaintiff worked. Plaintiff

seeks to certify a nationwide class composed of as many as 842 CMST participants

working in offices in ten states, (Dkt. No. 22-1, pgs. 12-13), but he makes no allegation

that he had any contact at all with employees outside the New York City office where he

was personally located. As a result, the Court cannot determine which, if any, CMST

participants would be properly included in a potential collective. See Sanchez, 2014 U.S.

Dist. LEXIS 14980, at *5 (‘[T]he Court does not Know where or when conversations or

observations occurred, which is critical in order for the Court to determine the appropriate

scope of the proposed class and notice process.”).

5 Defendant has submitted opposing evidence in the form of declarations stating that expectations of

independent work increased for second- and third-year rotations and that assignments for program

participants varied based on the nature and scope of the project on which they were working. (Dkt. Nos.

25-1; 25-2). The use of these opposing declarations is improper at the conditional certification stage. and

the Court does not rely on them. See Heitzenrater-v. Officemax, Inc., 2014.U.S. Dist. LEXIS 13823, at *13

(W.D.N.Y, Feb. 1, 2014) ("[T]he court does not resolve factual disputes, decide substantive issues going

to the ultimate merits, or make credibility determinations. Indeed, a court should not weigh the merits of

the underlying claims in determining whether potential opt-in plaintiffs may be similarly situated.").

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The cases cited by plaintiff wherein conditional certification was granted based on

evidence presented by a single plaintiff are distinguishable in that they sought to certify a

much smaller group, or they presented more compelling proof about knowledge of being

similarly situated to other employees, or both. See Miranda. Gen. Auto Body Works,

Inc., 17-C\VV-04166, 2017 U.S. Dist. LEXIS 172563 (E.D.N.Y. Oct. 18, 2017) (conditionally

certifying based on declaration which identified two other auto mechanics who claimed

they were not paid overtime compensation); Bhumithanam, 2015 U.S. Dist. LEXIS 90616

(granting conditional certification of food service employees at defendants’ Manhattan

fast food restaurants based on affidavit citing at least 25 other workers who suffered wage

violations, sometimes as punishment); Eseano v. N&A Produce & Grocery Corp., 14-CV-

4239, 2015 U.S. Dist. LEXIS 29785 (S.D.N.Y. Mar. 141, 2015) (conditionally certifying

where plaintiff had personal experience at all locations were supermarket stockmen were

proposed to be noticed and spoke with other employees about how they did not get paid

for extra work, recalling two specific stockmen complaining about not being paid

overtime); Hernandez v. Bare Burger Dio Inc., 12-Civ-7794, 2013 U.S. Dist. LEXIS 89254

(S.D.N.Y. June 25, 2013) (conditionally certifying tipped employees at a single restaurant

location); Salazar-Martinez v. Fowler Bros., 10-C\VV-6257, 2011 U.S. Dist. LEXIS 166758

(W.D.NLY. Apr. 29, 2011) (conditionally certifying class of approximately 100 other H-2A

visa workers); Wraga v. Marble Lite, Inc., 05-CV-5038, 2006 U.S. Dist. LEXIS 60457

(E.D.N.Y. Aug. 22, 2016) (granting certification based on plaintiffs description of

conversations between employees and a defendant and naming seven employees

allegedly subjected to overtime violations); but see Gonzalez v. Scalinatella, inc., 13-Civ-

3629, 2013 U.S. Dist. LEXIS 168540 (S.D.N.Y. Nov. 22, 2013) (granting conditional

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certification of an unspecified sized collective based only on generalized observations of

other employees).

Here, plaintiff seeks to certify a large, nationwide class of workers based only a

declaration containing little more than generalized, conclusory allegations. These

unsupported assertions are inadequate as they stand. Accordingly, the Court finds it

unnecessary to reach any additional arguments.

Given the “broad remedial goal of the statute,” the broad discretion courts have to

authorize notice and discovery in FLSA actions, the Court has considered whether

defendant should be ordered to identify the names of potential collective members. See

Hoffmann-La Roche Inc., 493 U.S. at 172-73. Even where a plaintiff's motion to certify an

FLSA collective action fails to assert facts sufficient to meet the § 216(b) threshold, courts

have ordered the disclosure of contact information for potential opt-in plaintiffs so that

discovery into the collective allegations could continue and the plaintiffs could renew their

motion for certification at a later date. Guan Ming Lin v. Benihana Nat! Corp., 755 F.

Supp. 2d 504, 513 (S.D.N.Y. 2010) (collecting cases); see also Mata, 2015 U.S. Dist.

LEXIS 70550 at *12-13 (ordering disclosure of contact information for certain potential

opt-in plaintiffs named by plaintiff in his declaration and denying certification without

prejudice to renewal). Here, defendant submits that plaintiff has already been able to

contact other CMST participants about joining this lawsuit. Indeed, plaintiff acknowledges

that an “attorney advertising campaign” has been conducted by plaintiff's counsel to reach

at least a portion of the potential opt-in plaintiffs. While acknowledging that the effect of

court-authorized notice is distinct from that of attorney advertising, plaintiff has not met

his burden to justify broad court-authorized notification. In addition, the Court does not

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find it appropriate, under these circumstances, to compel the production of names or

contact information for the collective proposed by plaintiff.

CONCLUSION

For the foregoing reasons, plaintiffs’ motion for conditional certification of an FLSA

collective action and court-authorized notice is denied without prejudice. (Dkt. No. 22). To

the extent discovery reveals additional evidentiary support for the assertion that other

employees are similarly situated, plaintiff may renew his motion.

Plaintiffs motion to amend his reply (Dkt. No. 27) is granted.

SO ORDERED.

Dated: February 3, 2021

Buffalo, New York

MICHAEL J. RO

United States Magistrate Judge

= Tee