# Bonett v. Shawmut Woodworking & Supply, Inc.

> District Court, W.D. New York · February 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10363284

## Case

- **Court:** District Court, W.D. New York
- **Decided:** February 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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

5.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10363284. Public record. Not legal advice.