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explaining that "the focus of the court's inquiry is not on the defendants' evidence, but on whether the plaintiffs have made their requisite showing"
Summary of this case from Tello v. A.N.G. Diner Corp.Opinion
14-CV-3891 (RJD)(VVP)
07-23-2015
LUC A. BIJOUX and JUAN RODRIGUEZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. AMERIGROUP NEW YORK, LLC Defendants.
REPORT AND RECOMMENDATION :
Currently pending before the court is the plaintiffs' motion for conditional certification and court-authorized notice pursuant to FLSA § 216(b). The plaintiffs' motion relates to their Class and Collective Action Complaint ("Complaint"), in which they allege that, pursuant to a "policy to deprive Plaintiffs of all of their earned overtime wages," the defendant Amerigroup New York LLC ("Amerigroup" or "defendant") failed to provide overtime compensation to the plaintiffs and others who worked for the defendants in the capacity of Marketing Representatives ("MRs"), in violation of the Fair Labor Standards Act ("FLSA") and New York Labor Law. The Honorable Raymond J. Dearie has referred the plaintiffs' motion to this court for a report and recommendation. For the reasons that follow, I recommend that the plaintiffs' motion be granted.
I. BACKGROUND & PROCEDURAL HISTORY
According to the Complaint, Amerigroup is an insurance company that employs MRs—such as the named and opt-in plaintiffs—to enroll eligible New Yorkers for government-subsidized health insurance programs such as Medicaid. As alleged by the plaintiffs, the enrollment process requires MRs to meet with potential enrollees, complete detailed forms containing the enrollees' personal information, schedule and attend follow-up appointments at the enrollees' homes during evenings and weekends, and review the paperwork to ensure the applications are complete before submitting them to their supervisors. They further allege that MRs must meet Amerigroup's enrollment quotas, and that failure to do so may result in discipline or termination.
The plaintiffs allege that they have been victims of Amerigroup's policy of requiring MRs to work more than forty hours per week without compensating them for all overtime hours worked. More specifically, Amerigroup allegedly imposed "daunting productivity requirements" that required work weeks in excess of forty hours. Notwithstanding Amerigroup's official policy entitling MRs to overtime pay, the plaintiffs allege that Amerigroup required its MRs to work "off-the-clock" in order to meet their productivity requirements and did not permit MRs to log all of their overtime hours. These conditions, plaintiffs contend, constitute Amerigroup's de facto corporate policy of limiting the number of overtime hours for which MRs are paid.
As discussed below, notwithstanding the allegations of the complaint, the plaintiffs' declarations in support of their motion do not state that MRs were prohibited from logging their overtime hours. The court concludes, however, that this discrepancy does not preclude certification.
The named plaintiffs, Luc A. Bijoux ("Bijoux") and Juan Rodriguez ("Rodriguez") filed this action on June 23, 2014. Their complaint alleges, inter alia, violations of Section 7 of the Fair Labor Standards Act, 29 U.S.C. § 207(a)(1), which requires employers to pay non-exempt employees at a rate of at least one and one-half times their regular hourly rate for all time worked in excess of forty hours per week. This claim is brought "on behalf of [the plaintiffs] and all similarly situated persons who work or have worked for Defendant as a Marketing Representative within the last 3 years and who elect to opt-in to this action." See Complaint at ¶ 31. Following the filing of the Complaint, ten additional MRs joined this case as opt-in plaintiffs.
The plaintiffs also bring two related causes of action as a class action under Fed. R. Civ. P. 23. Because the instant motion concerns conditional collective action certification, the class action allegations are not immediately relevant.
The plaintiffs allege that they "and members of the FLSA Collective are non-exempt employees entitled to be paid overtime compensation for all overtime hours worked." See Complaint at ¶ 73.
The court granted the plaintiffs leave to file the instant motion, by which they request conditional collective action certification under Section 216(b) of the FLSA, and authorization to send notice of this action to other MRs so that they may decide whether to join the case. See, e.g., Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 260 (S.D.N.Y. 1997) (citing Soler v. G & U, Inc., 86 F.R.D. 524, 528-29 (S.D.N.Y. 1980)). The plaintiffs also seek approval of their proposed Collective Action Notice and Consent to Join form, as well as authorization to send a reminder postcard midway through the notice period.
In addition, the plaintiffs seek an order compelling the defendant to produce personal information concerning each collective member. The court denied this request at the January 14, 2015 motion hearing, see Dkt. No. 50 at p. 33.
DISCUSSION
II. STANDARD FOR CONDITIONAL CERTIFICATION UNDER THE FLSA
Under section 216 of the FLSA, "one or more employees" may bring an action under the FLSA "for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b); see, e.g. Gortat v. Capala Bros., No. 07 Civ. 3629, 2009 WL 3347091, at *8 (E.D.N.Y. Oct. 16, 2009) (citing Gjurovich v. Emmanuel's Marketplace, Inc., 282 F. Supp. 2d 101, 103 (S.D.N.Y.2003)), report and recommendation adopted, No. 07 Civ. Civ. 3629, 2010 WL 1423018 (E.D.N.Y. Apr. 9, 2010), aff'd sub nom. Gortat v. Capala Bros., Inc., 568 F. App'x 78 (2d Cir. 2014). Because section 216 carries the further requirement that "[n]o employee shall be a party plaintiff to any such action unless he gives his consent in writing," actions brought on behalf of other employees are not considered class actions, but collective actions. See, e.g., Gjurovich, 282 F. Supp. 2d at 103-04; Damassia v. Duane Reade, Inc., No. 04 Civ. 8819, 2006 WL 2853971, at *2 (S.D.N.Y. Oct. 5, 2006) ("In a collective action under FLSA—unlike in a class action under Federal Rule of Civil Procedure 23—only plaintiffs who affirmatively opt in can benefit from the judgment or be bound by it."). Nevertheless, as with class actions, courts have established a certification process for determining whether a case may proceed as a collective action. See, e.g., Gjurovich, 282 F. Supp. 2d at 103-04.
In Myers v. Hertz Corp., the Second Circuit explained the two-step process for determining whether to certify collective actions under the FLSA. 624 F.3d 537, 554-55 (2d Cir. 2010). The instant motion concerns only the first step of the process, called conditional certification. Here, the court addresses whether notice is to be sent to "similarly situated" employees to provide them the opportunity to join, or "opt in" to, the action. Id. at 554-55 (citing Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)). Once additional plaintiffs have opted in and a fuller record has been developed, the court may proceed to the second step to determine whether the action should be decertified if the record discloses that the opt-in plaintiffs are not, in fact, similarly situated. Id. at 555.
Conditional certification presents plaintiffs with a "minimal burden." Iglesias-Mendoza v. La Belle Farm, Inc., 239 F.R.D. 363, 367-68 (S.D.N.Y. 2007). Certification is appropriate upon a modest factual showing that the plaintiffs and others are "similarly situated" because they "together were victims of a common policy or plan that violated the law." Id. (quoting Realite v. Ark Restaurants Corp., 7 F. Supp. 2d 303, 306 (S.D.N.Y. 1998) and citing Krueger v. New York Telephone Co., No. 93 Civ. 0178, 1993 WL 276058 (S.D.N.Y. July 21, 1993)); see also Myers, 624 F.3d at 555 (same) (quoting Hoffmann v. Sbarro, Inc., 982 F.Supp. 249, 261 (S.D.N.Y.1997)). At this stage the plaintiffs need demonstrate that they are similarly situated to the defendants' other employees only with respect to the FLSA violations they allege—not other factors. Damassia, 2006 WL 2853971, at *6 (law looks to whether the plaintiffs "are similarly situated 'with respect to their allegations that the law has been violated.'") (quoting Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (emphasis omitted). The standard of proof at this stage is low; the court's task is "only to conclude whether there may be other similarly situated workers," Shi Yong Li v. 6688 Corp., No. 12 Civ. 6401, 2013 WL 5420319, at *2 (S.D.N.Y. Sept. 27, 2013) (emphasis in original), and "need not evaluate the underlying merits of a plaintiff's claims." Mendoza v. Ashiya Suhi 5, Inc., No. 12 Civ. 8629, 2013 WL 5211839, at *3 (S.D.N.Y. Sept.16, 2013) (quoting Damassia, 2006 WL 2853971, at *6 and citing Hoffmann v. Sbarro, 982 F. Supp. at 262). Although this modest factual showing cannot rest on unsupported assertions, a plaintiff can meet this burden by "rely[ing] on the pleadings, but only as supplemented by other evidence, such as affidavits from named plaintiffs, opt-in plaintiffs, or other putative collective action members." Lin v. Benihana Nat'l Corp., 755 F. Supp. 2d 504, 509 (S.D.N.Y. 2010) (citing Fasanelli v. Heartland Brewery, Inc., 516 F. Supp. 2d 317, 321 (S.D.N.Y. 2007); Prizmic v. Armour, Inc., No. 05 Civ. 2503, 2006 WL 1662614, at *2 (E.D.N.Y. June 12, 2006)).
III. THE PARTIES' ARGUMENTS AND THE EVIDENCE BEFORE THE COURT
In support of their motion, the plaintiffs have submitted declarations from the two named plaintiffs and ten opt-in plaintiffs. See Declaration of Rachel M. Bien in Support of Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA ("Bien Decl.") and Exs. A-L thereto. The declarations are largely identical with respect to substantive matters and may be summarized as follows. Each plaintiff worked as an MR for Amerigroup at some point from May 2012 through the filing of the Complaint, and was primarily responsible for obtaining enrollments in the government-subsidized health insurance programs offered by Amerigroup. This required the plaintiffs (as well as other MRs with whom they worked) to speak with potential enrollees about the details of the health plans, assist with the completion of paperwork, gather necessary documents, and perform whatever follow-up was needed to complete the enrollees' applications.
Plaintiffs' Reply is similarly supported by supplemental declarations of one named and four opt-in plaintiffs. See Supplemental Declaration of Rachel M. Bien in Support of Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA ("Supp. Bien Decl.") and Ex.'s Q-U thereto.
Each declarant asserts that he or she "regularly worked more than 40 hours in a workweek for which Amerigroup did not pay [them] overtime." The declarations include itemized breakdowns of the plaintiffs' approximate work schedules, which reflect work weeks well exceeding forty hours and describe tasks performed at various locations including Amerigroup's offices, designated areas at which the MRs sought to sign up new enrollees, and both the plaintiffs' and the potential enrollees' homes.
The declarations also discuss Amerigroup's enrollment quotas, which the plaintiffs state they were required to satisfy in order to avoid discipline or termination. Several declarations state that Amerigroup employees received verbal warnings, were written up, or were terminated for failure to meet their quotas. See, e.g., Declaration of Pascal Saint-Aude, attached as Exhibit L to Bien Decl., at ¶ 30 ("My former co-workers, including Oscar Landaverde was written-up and eventually terminated for failing to meet Amerigroup's quotas. . . . [M]y supervisor confirmed during our team meeting that Oscar Landaverde was terminated because he failed to meet the quota."). Further, each of the plaintiffs expressly connects his or her work schedule to the quota requirement, stating that they would not have been able to meet their quotas without working beyond their scheduled shifts, largely because enrollees typically did not have the necessary paperwork with them at the meetings during the MRs' scheduled shifts. The plaintiffs also state that the quota requirement, which was impossible to meet without working on evenings and weekends, applied to "all Marketing Representatives."
The plaintiffs' declarations further provide that the MRs' supervisors knew that MRs were working more than forty hours per week. The MRs were required to report the number of people they had enrolled to their supervisors at the end of their scheduled shifts, and to update this figure later in the day, after they had completed evening home visits and meetings with potential enrollees. The plaintiffs further documented their additional hours on paperwork submitted to Amerigroup, and were instructed that they were required to answer telephone calls both from prospective enrollees "at all hours of the day and 7 days a week" and from their supervisors, "regardless of what time of day or day of the week the communication was sent." See, e.g., Declaration of Jose F. Alarcon, attached as Exhibit A to Bien Decl. ("Alarcon Decl."), at ¶¶ 32-36.
Most significantly, each plaintiff's declaration includes the following paragraph:
Throughout my employment, Amerigroup occasionally paid me for some of the hours I worked in excess of 40 per week. However, I was never compensated for all of the hours I worked in excess of 40 per week. Even when I was paid overtime, Amerigroup did not pay me for all of the hours I worked over 40.
Each of the plaintiffs lists several other MRs—among them the named plaintiffs, opt-in plaintiffs, and others—who stated that they likewise were "not paid for many of the hours that they worked over 40 in a week." See, e.g., Alarcon Decl. at ¶ 38. Finally, several of the plaintiffs state that their former supervisor informed them that he was terminated because he tried to pay overtime to the MRs. See Alarcon Decl. at ¶ 40; Declaration of Luc A. Bijoux, attached as Exhibit B to Bien Decl., at ¶ 42; Declaration of Juan Rodriguez, attached as Exhibit K to Bien Decl., at ¶ 41. Relying on this information, the plaintiffs contend that they have satisfied the "minimal burden" necessary to warrant conditional collective action certification.
As discussed below, Amerigroup offers two primary arguments against conditional certification. One focuses on the "unlawful policy or plan" requirement and asserts that Amerigroup's pay and overtime policies are lawful. Because, for example, Amerigroup managers are not instructed to require MRs to reach their enrollment goals without working overtime, and eleven of the twelve plaintiffs were paid varying amounts of overtime, Amerigroup contends that the plaintiffs cannot establish the existence of any unlawful policy relating to Amerigroup's quota requirement, and accordingly, lack the necessary "glue" to bind together the putative collective.
Amerigroup also maintains that the putative collective does not satisfy the "similarly situated" requirement because neither the named plaintiffs, opt-in plaintiffs, or putative collective members are similarly situated to one another. This argument rests on several different factual contentions—that "MR" is a catch-all title which pertains to various classes of employees with a range of positions, managers, locations, responsibilities, and schedules; that Amerigroup managers had varying degrees of knowledge of the MRs' alleged off-the-clock work; and that Amerigroup's corporate history renders collective treatment inappropriate.
As discussed below, Amerigroup support their opposition with declarations from individuals who work for Amerigroup in MR, human resources, and managerial capacities. See generally Defendant's Appendix to its Brief in Opposition to Plaintiffs' Motion for Conditional Certification and Court-Certified Notice Pursuant to Section 216(b) of the FLSA ("Defendant's Appendix").
IV. ANALYSIS
A. Unlawful Policy or Plan Requirement
As noted, the plaintiffs have alleged that Amerigroup failed to pay them for all overtime hours worked "pursuant to a corporate policy or practice of limiting the amount of overtime reported and compensated." See Memorandum of Law in Support of Plaintiffs' Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA ("Plaintiffs' Motion") at p. 1. Amerigroup disputes the premise that there in fact existed a "policy or plan that violated the law," as would be required for conditional certification. See, e.g., Myers, 624 F.3d at 555. Specifically, Amerigroup argues that since its enrollment goals were facially lawful, plaintiffs "show no link [between] the goals and an actual common policy that violates the law." Accordingly, Amerigroup contends that "there is no factual nexus between the goals and any policy to limit overtime." Transcript of Oral Argument dated January 14, 2015, Dkt. No. 50, at pp. 12-15. Therefore, "what this boils down to is plaintiffs['] own individual decision[s]" whether to work outside their scheduled shifts and report their overtime hours, see id. at pp. 18-19, rather than a "formal pay policy that is intended to have the effect of denying or limiting overtime." Defendant's Brief in Opposition to Plaintiffs' Motion for Conditional Certification and Court-Certified Notice Pursuant to Section 216(b) of the FLSA ("Opposition") at p. 18.
This argument misconstrues the nature of the court's analysis at this stage. "At this conditional certification stage, the focus of the inquiry 'is not on whether there has been an actual violation of law but rather on whether the proposed plaintiffs are similarly situated under 29 U.S.C. § 216(b) with respect to their allegations that the law has been violated.'" Levy v. Verizon Info. Servs. Inc., No. 06 Civ. 1583, 2007 WL 1747104, at *3 (E.D.N.Y. June 11, 2007) (quoting Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y. 2005) (internal quotation marks omitted). Accordingly, "[t]he Court need not evaluate the merits of plaintiffs' claims in order to determine whether a 'similarly situated' group exists." Id. (quoting Krueger v. N.Y. Tel. Co., 93 Civ. 0178, 1993 WL 276058, at *2 (S.D.N.Y. July 21, 1993)). Thus, the question of whether Amerigroup's overtime policies were in fact illegal takes a back seat to the paramount issue of whether the plaintiffs are similarly situated as to their allegations concerning the allegedly unlawful policies.
That said, the plaintiffs must still make some showing of an unlawful policy, a requirement that they have satisfied. Initially, Amerigroup's contention that "Defendant's policies regarding payment of overtime are lawful," see Opposition at p. 2, is of no moment, since it is settled that "the existence of a formal policy that is facially unlawful is not a prerequisite for conditional certification. Instead, it is sufficient to show that a facially lawful policy was implemented in an unlawful manner, resulting in a pattern or practice of FLSA violations." Amador v. Morgan Stanley & Co. LLC, No. 11 Civ. 4326, 2013 WL 494020, at *6 (S.D.N.Y. Feb. 7, 2013) (quoting Winfield v. Citibank, N.A., 843 F. Supp. 2d 397, 405 (S.D.N.Y. 2012) and citing Hernandez v. Merrill Lynch & Co., No. 11 Civ. 8472, 2012 WL 1193836, at *4-5 (S.D.N.Y. Apr. 6, 2012)); see also Winfield, 843 F. Supp. 2d at 408 ("[T]he existence of a formal policy of requiring overtime pay should not immunize the defendant where the plaintiffs have presented evidence that this policy was commonly violated in practice.") (collecting cases).
To this end, courts routinely find an illegal common policy or practice in cases involving allegations similar to those before the court. The Amador court, for example, wrote that "[p]laintiffs argue and provide evidence indicating that Morgan Stanley's formal policy was obviated by a de facto policy . . . of requiring overtime work without attendant compensation. Such allegations are sufficient at the conditional certification stage . . . ." 2013 WL 494020, at *6; see also Levy v. Verizon Info. Servs. Inc., No. 06 Civ. 1583, 2007 WL 1747104, at *2, 4 (E.D.N.Y. June 11, 2007) (granting conditional certification where defendant "exerted significant pressure on its sales representatives to meet or exceed strict sales quotas," resulting in employees "routinely work[ing] in excess of forty hours a week" for which they were not paid overtime).
Here, too, the plaintiffs have made a sufficient showing that Amerigroup's "facially lawful policy was implemented in an unlawful manner, resulting in a pattern or practice of FLSA violations." See Amador, 2013 WL 494020, at *6 (quoting Winfield, 843 F. Supp. 2d at 405). It is true, as Amerigroup argues, that the plaintiffs' declarations do not expressly state that Amerigroup unlawfully limited or discouraged overtime. Although the plaintiffs' complaint alleges that, in an effort to avoid paying overtime premiums, Amerigroup required its MRs to work off-the-clock and forbade the MRs from logging all of their overtime hours, see Complaint at ¶¶ 5-6, the plaintiffs' declarations do not specifically assert that Amerigroup discouraged MRs from reporting overtime. Nevertheless, since the declarations make a sufficient showing that Amerigroup (1) imposed enrollment quotas; (2) was aware that its MRs were working overtime in order to meet those quotas; and (3) did not compensate the MRs for all overtime worked, it is reasonable to infer a practice of either discouraging the reporting of overtime hours or failing to compensate MRs for all of the hours that were reported. Moreover, three of the plaintiffs' declarations state that an Amerigroup manager was fired for trying to pay his employees overtime, further suggesting an unlawful policy geared toward depriving MRs of overtime pay. The plaintiffs therefore "have [ ] made a modest factual showing that they and potential opt-in plaintiffs were subject to an unlawful policy or practice whereby they were effectively required to work uncompensated overtime." Winfield, 843 F. Supp. 2d at 409.
While true that "it is not unlawful for an employer to have a policy of discouraging overtime," if such a policy, "in combination with other factors, leads to a consistent pattern of FLSA violations, it can support a finding that plaintiffs are similarly situated for purposes of section 216." Winfield, 843 F. Supp. 2d at 405 (quoting Falcon v. Starbucks Corp., 580 F. Supp. 2d 528, 536 (S.D. Tex. 2008)). Here, these additional factors consist of Amerigroup's quota requirements and the practical impossibility of meeting those requirements without working overtime, which, coupled with a policy of discouraging overtime, would suffice to establish an unlawful policy.
Amerigroup nonetheless contends that the plaintiffs' allegations may be attributed to individual decisions whether to work and report overtime hours. See Dkt. No. 50 at pp. 18-19. Even if this assertion were accurate, it would at best give rise to a factual dispute which the court may not resolve at this stage. See, e.g., Hamadou v. Hess Corp., 915 F. Supp. 2d 651, 660 (S.D.N.Y. 2013) (citing Lynch v. U.S. Auto. Assoc., 491 F. Supp. 2d 357, 367 (S.D.N.Y. 2007)). More significantly, this factor would not relieve Amerigroup of its duty to pay overtime. It is settled "[a]n employer who is armed with th[e] knowledge [of its employees working overtime] cannot stand idly by and allow an employee to perform overtime work without proper compensation . . . ." Chao v. Gotham Registry, Inc., 514 F.3d 280, 288 (2d Cir. 2008) (quoting Forrester v. Roth's I. G. A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981)). In fact, the duty to pay overtime "arises even where the employer has not requested the overtime be performed or does not desire the employee to work, or where the employee fails to report his overtime hours." Id. (citing Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 718 (2d Cir. 2001); Holzapfel v. Town of Newburgh, N.Y., 145 F.3d 516, 524 (2d Cir. 1998); 29 C.F.R. §§ 785.11-12).
The cases relied upon by Amerigroup are distinguishable. Brickey v. Dolgencorp., Inc., 272 F.R.D. 344 (W.D.N.Y. 2011), in which conditional certification was denied, illustrates by way of contrast why the same should not hold here. In Brickey, the plaintiffs alleged that the defendant maintained a practice of "allocating payroll hours . . . to each of its [stores], limiting the number of hours per week that each store is permitted to have its employees work and record," and that "if a store manager exceed[ed] her allocated payroll hours or permit[ted] her employees to work overtime, she could be subject to reprimand or termination." Id. at 346. This policy, the plaintiffs contended, had "the direct and foreseeable effect of motivating managers to falsely reduce reported work hours for their employees, and/or to assign employees tasks to be performed 'off the clock,' which result[ed] in undercompensation of employees for overtime." Id. at 347.
On these facts, the Brickey court concluded that the plaintiffs failed to make the "modest showing" that they were subject to a "common policy or plan that violated the law." Id. (quoting Ayers v. SGS Control Servs., Inc., No. 03 Civ. 9078, 2004 WL 2978296, at *4 (S.D.N.Y. Dec. 21, 2004) and citing Scholtisek v. Eldre Corp., 229 F.R.D. 381, 390 (W.D.N.Y. 2005)) (emphasis in original). As distilled by the Brickey court, the plaintiffs' claim was based on the defendant's knowledge "that if it created incentives for managers to stay within their 'budget' for work hours, some managers might take it upon themselves to mischaracterize, under-report, or falsify the time records of their employees in order to lay claim to those incentives." Id. at 348. Accordingly, it was "not so much [defendant's] hours allocation policy about which plaintiffs complain, but the potential and indirect results of that policy." Id. The court "decline[d] to hold that [these] facially-lawful policies . . . can form the equivalent of a 'common policy or plan that violate[s] the law,' merely because they indirectly might encourage the minimization of overtime." Id. (citing Eng-Hatcher v. Sprint Nextel Corp., No. 07 Civ. 7350, 2009 WL 7311383, at *1 (S.D.N.Y. Nov. 13, 2009)).
This stands in contrast to the matter before the court. The plaintiffs here complain of much more than "the potential and indirect results" of Amerigroup's enrollment quotas and overtime reporting system. See id. Rather, as described above, the combination of Amerigroup's enrollment goals, the necessity that the plaintiffs work overtime hours to reach those goals, and Amerigroup's failure to compensate its MRs for all of the overtime hours it knew they were working bespeaks a deliberate policy not to pay overtime, not one that is contingent on individual managers "tak[ing] it upon themselves to" deprive their employees of overtime wages. See id. Thus, Amador, which is directly on point, explicitly distinguished Brickey on the grounds that in Brickey, "there was no evidence that [the] 'employer intended, compelled[,] or condoned unlawful consequences that were a direct result of the [alleged unlawful] policy.'" Amador, 2013 WL 494020, at *7 (quoting Brickey, 272 F.R.D. at 347-48). As in Amador, the plaintiffs here have provided sufficient proof of Amerigroup's intent to avoid paying them for all of the overtime worked.
As discussed, the plaintiffs have made a sufficient showing that Amerigroup knew that its MRs were working in excess of forty hours per week, yet failed to compensate them accordingly. By contrast, the Brickey defendant was possessed merely of the knowledge that "some managers might take it upon themselves" to take actions resulting in the underpayment of overtime. See Brickey, 272 F.R.D. at 348 (emphasis added).
A review of Amerigroup's cited authority (most of which comes from outside this circuit) reveals those matters to be distinguishable on various grounds. For example, the court in Beecher v. Steak N Shake Operations, Inc., 904 F. Supp. 2d 1289 (N.D. Ga. 2012) found numerous substantive deficiencies in the plaintiffs' "similarly situated" argument which are absent here. Among these shortcomings were (1) that in light of the fact that "individual store managers typically make the changes to the [putative plaintiffs'] payroll records, a class action would result in calling numerous supervisors from individual stores"; (2) "the large size of the class" (i.e. 65,000 employees nationwide); and (3) the fact that "Plaintiffs have made an insufficient showing of willingness from others to join the suit," which, as discussed below, is not required outside of the Eleventh Circuit, where Beecher was venued. See id. at 1299-1300 (internal citation omitted).
Several other courts denied collective certification due to the scant evidence provided to support it. In Jenkins v. TJX Companies Inc., 853 F. Supp. 2d 317 (E.D.N.Y. 2012), the plaintiff sought to certify a nationwide collective, but relied solely upon his own deposition testimony, offering "no other affidavits, depositions, or even hearsay evidence that he was actually aware of other ASMs who also primarily performed non-exempt duties." See id. at 322. Similarly, the court in West v. Border Foods, Inc., No. 05 Civ. 2525, 2006 WL 1892527 (D. Minn. July 10, 2006) denied conditional certification because, among other factors, "Plaintiffs' showing demonstrate[d] that . . . 2.5 per cent of the potential class-were allegedly required by their store managers to work off-the-clock." It opined that "[s]uch a limited sampling of employees does not support the Plaintiffs' assertion of widespread violations resulting from a common policy or plan." See id. at *6. In Barfield v. New York City Health & Hospitals Corp., No. 05 Civ. 6319, 2005 WL 3098730 (S.D.N.Y. Nov. 18, 2005), the plaintiff presented "nothing but limited anecdotal hearsay to suggest that there is a widespread practice of referral nurses working in excess of 40 hours per week . . . and no evidence whatever that this is pursuant to a policy" of the defendants. See id. at *1. Bernard v. Household Int'l, Inc., 231 F. Supp. 2d 433 (E.D. Va. 2002) found the "evidence provided by plaintiffs suffic[ient] to demonstrate that collection employees in the Chesapeake and Virginia Beach offices are similarly situated" but insufficient "to warrant further extension of the class," as the plaintiffs sought to do, noting that statements from employees outside of these areas were "prefaced with phrases such as 'It is my understanding' and 'I believe that,'" and that there were "no declarations from employees in offices other than Chesapeake and Virginia Beach. Id. at 435-36. Lastly, Williams v. Accredited Home Lenders, Inc., No. 1:05 Civ. 1681, 2006 WL 2085312 (N.D. Ga. July 25, 2006) is distinguishable on procedural grounds because there, "the parties and the Court [ ] essentially skipped the" first stage of collective certification analysis. See id. at *4.
Although similar phrases appear in the plaintiffs' declarations, the propositions that they preface are also supported by references to the declarants' personal experiences and conversations with named co-workers.
Amerigroup fares no better with its assertion that the fact that "eleven out of twelve Plaintiffs' Opt-ins requested and were paid for varying amounts of overtime since mid-2012 . . . rebut[s] Plaintiffs' naked allegation that they worked overtime hours for which they were not paid." Opposition at pp. 19-20. As noted in Amador, "[t]he question for the Court is not whether Defendants paid any overtime to some of the Plaintiffs but whether they paid all overtime or had a policy of limiting the amount of overtime pay." Amador, 2013 WL 494020, at *8 (citing Hens v. ClientLogic Operating Corp., No. 05 Civ. 38IS (WMS), 2006 WL 2795620, at *5 (W.D.N.Y. Sept. 26, 2006)). Amador thus concluded, as we do here, that "the mere fact that [defendant] paid a significant sum in overtime to [employees] is not dispositive or even relevant at the conditional certification stage." Id. (citing Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819, 836-37 (N.D. Ohio 2011)).
Accordingly, the court finds that the plaintiffs have made a sufficient showing that the defendant was engaged in an illegal plan or policy for purposes of conditional collective certification. The court now turns to the more central question of whether the plaintiffs are similarly situated with regard to this policy.
B. Similarly Situated Requirement
To meet the "similarly situated" requirement, the plaintiffs bear "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 (citing Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261 (S.D.N.Y. 1997)); see also Stevens v. HMSHost Corp., No. 10 Civ. 3571 (E.D.N.Y. June 15, 2012) (order granting conditional certification) ("Stevens") at pp. 12-13 (the "case law . . . consistently holds that a class of potential plaintiffs need not have identical job descriptions . . . to be similarly situated for collective action notice purposes") (collecting cases in which courts granted collective certification notwithstanding variances in proposed plaintiffs' job descriptions).
The plaintiffs have offered sufficient evidence to satisfy the "similarly situated" requirement. As noted, their motion is supported by declarations from two named and ten opt-in plaintiffs, largely identical in substance, which assert that the plaintiffs (and other MRs) had similar job responsibilities, routinely (and with Amerigroup's knowledge) worked in excess of forty hours per week in order to satisfy Amerigroup's enrollment quota, and were not fully compensated for all of their overtime hours. Allegations of this sort are consistently found to satisfy the "similarly situated" requirement. See, e.g., Chen v. Oceanica Chinese Rest., Inc., No. 13 Civ. 4623, 2014 WL 1338315, at *4 (E.D.N.Y. Apr. 2, 2014) ("Here, the plaintiffs have met their minimal initial burden of showing that they are similarly situated to the defendants' other employees. The plaintiffs' pleadings and attached declarations tend to establish that the four plaintiff-declarants and others were subject to the same pattern of underpayments in apparent violation of the FLSA."); Amador, 2013 WL 494020, at *5, 9 (similarly situated requirement satisfied where "three plaintiffs, five opt-in plaintiffs, and three declarants each allege that he or she was [employed in same non-exempt position], and was not always compensated for time worked in excess of forty hours per week"); Winfield, 843 F. Supp. 2d at 403 (S.D.N.Y. 2012) ("[P]laintiffs have satisfied their minimal burden of showing that they are similarly situated to one another and to potential opt-in plaintiffs" where "declarants each allege that they were . . . non-exempt, and were not always compensated for time worked in excess of forty hours per week" as a "result of the defendant's conflicting policies" of limiting overtime hours while imposing "strict sales quotas that could not reasonably be accomplished in a forty-hour work week."); Levy, 2007 WL 1747104, at *4-5 (E.D.N.Y. June 11, 2007) (finding plaintiffs similarly situated where declarations and allegations "establish that defendants classified TSRs as non-exempt under the FLSA but failed to pay them overtime for all hours worked over forty per workweek . . . [and] that defendants had a policy and practice of maintaining no system by which employees could record their hours worked") (citing cases "where courts have granted certification after reviewing summary allegations culled from as few as one affidavit and the complaint").
Amerigroup offers several arguments for why the "similarly situated" requirement has not been satisfied, none of which the court finds persuasive. For example, the argument that plaintiff Bijoux is not similarly situated with the potential opt-ins because of variances between their respective experiences with Amerigroup, see Opposition at pp. 6-7, fails because it requires a "person-by-person fact-intensive inquiry," which "is premature at the conditional certification stage and has been specifically rejected by courts within this Circuit." Raniere v. Citigroup Inc., 827 F. Supp. 2d 294, 323 (S.D.N.Y. 2011) (citing Cohen v. Gerson Lehrman Group, Inc., 686 F.Supp.2d 317, 326 (S.D.N.Y. 2010); Neary v. Metro. Prop. & Cas. Ins. Co., 517 F. Supp. 2d 606, 621-22 (D. Conn. 2007)), rev'd and remanded on separate grounds, 533 F. App'x 11 (2d Cir. 2013), abrogated by Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013).
Amerigroup similarly discusses purported variances among the levels of MR positions, the MRs' enrollment goals, the extent to which overtime was necessary to meet those goals, the MRs' work schedules, "the type and extent of alleged off-the-time overtime work performed," the MRs' managers' knowledge of the alleged off-the-clock work, and each MR's individual pay structure. See generally Opposition at pp. 9-15. Amerigroup contends that these discrepancies preclude a finding that the MRs are similarly situated. The overwhelming weight of authority, however, is to the contrary. For example, in addressing various arguments in opposition to conditional certification—among them "that plaintiffs' claims will require a person-by-person analysis"—the Hernandez court expressly declined to "engage in a lengthy discussion of each [argument]," finding it "suffic[ient] it to say that none defeats the required 'modest showing' because all would require the Court to resolve factual disputes or make credibility determinations[, which] would be inappropriate on this motion at this first stage." 2012 WL 1193836 at *4-5.
Amador is particularly instructive. There, the defendants argued that collective certification was not warranted in light of a number of purported variances strongly resembling those suggested here by Amerigroup. Namely,
(1) whether and to what extent the CSAs worked overtime; (2) whether overtime was requested and approved; (3) whether CSAs recorded their overtime using Morgan Stanley's timekeeping
mechanism and, if not, why not; (4) whether Morgan Stanley paid the CSAs overtime; (5) whether the CSAs performed compensable work; and (6) whether the managers or supervisors knew or should have known that the CSAs worked unpaid overtime.Amador, 2013 WL 494020, at *8. Quoting Hernandez, the court in Amador declined to engage in a "lengthy discussion of each," and opined that none of the above issues "defeats the required 'modest showing' because all would require the Court to resolve factual disputes or make credibility determinations," which it deemed "inappropriate on this motion at the first stage." Id. It quoted Raniere for the proposition that "the type of 'person-by-person fact-intensive inquiry [sought by Defendants] is premature at the conditional certification stage and has been specifically rejected by courts within this Circuit,'" and Francis v. A & E Stores, Inc., No. 06 Civ. 1638, 2008 WL 4619858, at *3 n.3 (S.D.N.Y. Oct. 16, 2008), which wrote that those cases "denying conditional certification where fact-specific inquiry might be required, seem to be against the weight of authority in undertaking that analysis at the first stage of the certification process." See id.; see also Salomon v. Adderley Indus., Inc., 847 F. Supp. 2d 561, 565 (S.D.N.Y. 2012) ("The Defendant will have an opportunity to argue that individual inquiries predominate over common issues, based upon the discovery, at the second phase."); Francis, 2008 WL 4619858, at *3 (disparate settings to be considered at second stage) (quoting White v. MPW Industrial Servs., Inc., 236 F.R.D. 363, 373 (E.D. Tenn. 2006)); Neary v. Metro. Prop. & Cas. Ins. Co., 517 F. Supp. 2d 606, 620 (D. Conn. 2007) ("Several courts have stated . . . that disparate factual and employment settings of the individual plaintiffs should be considered at the second stage of analysis.") (quoting White, 236 F.R.D. at 373 and citing cases). This court likewise declines to conduct the "person-by-person analysis" Amerigroup's argument entails.
Nor would such individual discrepancies, even if present, provide a basis for denying conditional certification. See, e.g., McGlone v. Contract Callers, Inc., 49 F. Supp. 3d 364, 367 (S.D.N.Y. 2014) ("Courts have found opt-in plaintiffs similarly situated in large off-the-clock cases despite the individualized issues such cases present") (quoting Barry v. S.E.B. Serv. of New York, Inc., No. 11 Civ. 5089, 2013 WL 6150718, at *6 (E.D.N.Y. Nov. 22, 2013)); Salomon, 847 F. Supp. 2d at 565 (rejecting argument that the "[p]laintiffs and putative class members are not similarly situated because they worked different hours, completed different jobs during the day, and thus received different pay"); Raniere, 827 F. Supp. 2d at 323 (S.D.N.Y. 2011) ("The issue here is not whether Plaintiffs and other [putative class members] were identical in all respects, but 'rather whether they were subjected to a common policy to deprive them of overtime pay when they worked more than 40 hours per week.'") (quoting Vaughan v. Mortgage Source LLC, No. 08 Civ. 4737, 2010 WL 1528521, at *7 (E.D.N.Y. Apr. 14, 2010)); Cano v. Four M Food Corp., No. 08 Civ. 3005, 2009 WL 5710143, at *7 (E.D.N.Y. Feb. 3, 2009) ("It is not necessary for the purposes of conditional certification that the prospective class members all performed the same duties, or worked during the same time periods, or worked at the same locations as the named plaintiffs. . . . As long as they were all similarly situated with respect to being subject to the same policy of being denied overtime compensation, and there exists a factual nexus among the plaintiffs.") (collecting cases) (emphasis in original). Indeed, courts have rejected similar arguments even at the decertification stage, where the plaintiffs' burden is significantly higher. See, e.g., Alonso v. Uncle Jack's Steakhouse, Inc., No. 08 Civ. 7813, 2011 WL 4389636, at *3 (S.D.N.Y. Sept. 21, 2011) (rejecting argument that "decertification is appropriate because individualized proof would be required as to each Plaintiff's claim for overtime wages" and because "Plaintiffs are not similarly situated due to differences in job titles, store locations, managers, and schedule"); Ayers v. SGS Control Servs., Inc., No. 03 Civ. 9078, 2007 WL 646326, at *5 (S.D.N.Y. Feb. 27, 2007 (rejecting argument that class should be decertified because "plaintiffs' claims . . . require individualized inquiry and cannot be decided on a class-wide . . . basis").
Amerigroup also argues that plaintiff Rodriguez is not similarly situated with the putative class, because Rodriguez "already has sued legacy HP for the same alleged violation on the same theory, and, therefore, a portion of his claim in this action is barred." See Opposition at p. 7. However, Amerigroup cites no authority supporting the notion that one named plaintiff previously suing an entity with some corporate connection to the defendant precludes a finding that conditional certification is warranted, nor does the court believe this to be so.
In Stevens, we considered a similar argument against conditional certification premised upon variances in the proposed class members' work locations and responsibilities. See Stevens at p. 11. Despite the fact that "[t]he plaintiffs [did] little to dispute these factual contentions," we rejected this argument, writing that although the defendant's "assertions regarding the distinctions between AMs in different restaurants and types of facilities may be relevant to the second stage, . . . the court has no way to make those distinctions now." See id. Accordingly, although the court acknowledged that "there undoubtedly are differences between AMs operating at different Host locations," the plaintiffs' evidence sufficiently demonstrated a potential class of employees who were "similarly situated as to an alleged wrongful denial of overtime compensation." See id. at p. 12.
The authority upon which Amerigroup primarily relies (none of which, it bears mention, emanates from within this circuit) is readily distinguishable. For example, although the court in Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265 (M.D. Ala. 2004) found the putative plaintiffs not to be similarly situated, see id. at 1275, that case is procedurally inapposite. Holt referenced the two-step process for conditional certification, and acknowledged that the first stage generally entails a "'fairly lenient standard' because 'the court has minimal evidence.'" Id. at 1274 (quoting Cameron-Grant v. Maxim Healthcare Servs.,Inc., 347 F.3d 1240, 1243 (11th Cir. 2003)). Because, however, the Holt court was "presented with fairly extensive evidence on the issue of whether putative class members are similarly situated," and therefore resembled a case "in which the parties have conducted extensive discovery," it conducted a conditional certification (i.e. "stage one") analysis akin to that usually reserved for the second stage, which entails "applying a stricter standard where discovery ha[s] been conducted." See id. (citing, inter alia, Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 498 (D.N.J. 2000)). Specifically, the court considered—and largely rested its conclusion upon—declarations submitted by the defendants which were "inconsistent with the evidence submitted by the Plaintiffs," see id. at 1274-75, "because if this court were to allow the case to proceed past stage one of the collective action certification process, the court would have to consider this evidence in revisiting the similarly-situated inquiry on the Defendant's motion to de-certify at stage two." See id. at 1274 n.4. As discussed below, courts generally do not afford much weight—let alone base decisions to deny certification—upon evidence submitted by plaintiffs at the conditional certification stage. Hart is therefore something of a procedural aberration and accordingly not persuasive in the present matter.
Holt is also substantively distinguishable because the plaintiffs there failed to "offer any sort of analytical method for determining whether the[ir] experience is similar to that of other Assistant Managers and/or Store Managers." See Holt, 333 F. Supp. 2d at 1272.
Similarly, the record in Hart v. JPMorgan Chase Bank, N.A., No. 8:12 Civ. 00470-T-27, 2012 WL 6196035 (M.D. Fla. Dec. 12, 2012) revealed "inconsistencies between the allegations in the Amended Complaint and the conduct complained of in the declarations" as well as the fact that "at least four of the seven declarants are not viable opt-in plaintiffs." Id. at *2. And unlike the plaintiffs here, the Hart plaintiffs made allegations of "widely divergent 'off-the-clock' violations," which gave rise to "divergent theories of liability." Id. at *5. The court stated that "[a]s a result [of this divergence], plaintiff-specific inquiries would be required as to numerous issues," see id. (emphasis added), indicating that the necessity for individualized inquiries was a direct outgrowth of the plaintiffs' disparate theories of liability, a deficiency that does not beset the plaintiffs here.
Amerigroup also argues that "adjudicating Plaintiffs' claims would require determination of individual defenses to Plaintiffs' claims." See Opposition at p. 24. The cases Amerigroup cites as support, however, are facially distinguishable. Zivali v. AT & T Mobility, LLC, 784 F. Supp. 2d 456 (S.D.N.Y. 2011) concerned a motion for decertification, and Spann v. AOL Time Warner, Inc., 219 F.R.D. 307 (S.D.N.Y. 2003) considered a motion for class certification under Fed. R. Civ. P. 23. "[I]t is well settled that the existence of certain individual claims or defenses does not preclude the conditional certification of an FLSA collective action." Cruz v. Lyn-Rog Inc., 754 F. Supp. 2d 521, 525-26 (E.D.N.Y. 2010) (quoting Sexton v. Franklin First Financial, Ltd., No. 08 Civ. 04950, 2009 WL 1706535, at *8-9 (E.D.N.Y. June 16, 2009); see also Summa v. Hofstra University, No. 07 Civ. 3307, 2008 WL 3852160, at *5 (E.D.N.Y. Aug. 14, 2008) (inquiry into individual defenses "is not a proper inquiry for the court on this [conditional collective certification] motion. Such factual determinations will be addressed at the second stage of the certification process after the completion of discovery.") (internal citation omitted). Accordingly, the presence of individual defenses does not undermine the court's determination that conditional certification is warranted here.
Finally, Amerigroup opposes conditional certification on the basis of the several declarations submitted along with its Opposition, which purport to demonstrate, among other things, "substantial divergence within the putative class as to [whether] off-the-clock- overtime was necessary to meet enrollment goals," and that failure to meet enrollment goals did not necessarily result in discipline. See Opposition at p. 11. However, declarations submitted in opposition to a motion for conditional certification carry limited weight, since "[t]he focus of the court's inquiry is not on the defendants' evidence, but on whether the plaintiffs have made their requisite showing." Stevens at p. 14 (citing Lujan v. Cabana Mgmt., Inc., No. 10 Civ. 755, 2011 WL 317984, at *6-7 (E.D.N.Y. Feb. 1, 2011); Damassia, 2006 WL 2853971, at *7). The following statement from Damassia is instructive:
[Defendant's] challenges to plaintiffs' factual showing are both inadequate and premature. . . . [T]he question at this early stage is only whether, applying a "lenient" standard, the court is satisfied that plaintiffs, through their allegations, affidavits and other evidence, have met their "minimal" burden of demonstrating entitlement to a "preliminary" determination that they are similarly, even if not identically, situated with respect to their FLSA claims. At most, defendant's attacks on plaintiffs' affidavits and other evidence raise questions as to whether plaintiffs could prevail under a more stringent standard and whether the opt-in plaintiffs will survive a decertification motion at the close of discovery; defendant's arguments and evidence do not, however, undermine plaintiffs' "modest factual showing" to such an extent that a preliminary determination in favor of plaintiffs is unwarranted at this stage.2006 WL 2853971, at *5; see also Colon v. Major Perry Street Corp., No. 12 Civ. 3788, 2013 WL 3328223, at *5 (S.D.N.Y. July 2, 2013) ("Defendants . . . may not defeat a court's determination that [p]laintiffs are similarly situated by submitting their own affidavits.") (citing Francis, 2008 WL 4619858, at *3); Ravenell v. Avis Budget Car Rental, LLC, No. 08 Civ. 2113 (SLT)(ALC), 2010 WL 2921508, at *5 (E.D.N.Y. July 19, 2010) ("[T]he employee declarations submitted by [defendant] 'should be discounted at this stage' because Plaintiffs have not yet been able to depose the employees who signed them. . . . It would be inappropriate for the Court to credit those declarations and render a final determination based on them at this juncture in the case.") (quoting Francis, 2008 WL 4619858, at *3). Accordingly, the court "finds that the defendants' submissions, while potentially relevant at a later stage, do not serve to defeat the collective action motion at this stage." See Stevens at p. 14.
Several of Amerigroup's more specific arguments warrant brief discussion. Amerigroup contends that organizational changes, consisting of April 2012 and December 2012 acquisitions affecting Amerigroup's and its predecessor entities' corporate status, "render collective treatment inappropriate" because pre-acquisition MRs were employed by "completely different companies [which] operated as such." See Opposition at p. 4. However, the plaintiffs have sought to certify a collective of "[a]ll Marketing Representatives who are currently or have been employed by Amerigroup in New York at any time from May 1, 2012 through the present." See Plaintiffs' Motion at p. 9 (emphasis added). Amerigroup's own declarations make clear that it was "[b]efore the [April 2012] acquisition" that MRs worked for "completely different companies [which] operated as such." See, e.g., Declaration of Kathleen Dwyer, attached as Exhibit 7 to Defendant's Appendix, at ¶ 9 (emphasis added). Accordingly, any pre-May 1, 2012 organizational changes are irrelevant for present purposes. As for any operational changes occasioned by the December 2012 acquisition, plaintiffs' declarations assert that their "duties, hours, and the other conditions of work" did not change as a result of the acquisition. See, e.g., Alarcon Decl. at ¶ 3. Any factual dispute concerning whether and to what extent changes in the MRs' working conditions resulted from the December 2012 acquisition does not preclude a finding that the MRs are similarly situated in this first stage of conditional certification. Accordingly, Amerigroup's argument that the defendants' corporate history precludes a finding that MRs are similarly situated holds no water.
The same holds true regarding Amerigroup's argument that the plaintiffs and opt-ins are not similarly situated "with respect to pay," because before the April 2012 merger, employees of legacy AG were classified as exempt and not entitled to overtime pay, while legacy HP and AG/HP employees were entitled to overtime pay. See Opposition at p. 15. --------
Amerigroup further asserts that "after the rollout of the Affordable Care ACT ("ACA") in December 2013, Defendant eliminated enrollment goals altogether." Opposition at p. 11. The plaintiffs' supplemental declarations, however, assert that enrollment goals were still in place after December 2013. See Supp. Bien. Decl. Exs. Q-U. Because the court is required to focus on the plaintiffs' evidence and to refrain from making credibility determinations, the court cannot credit the argument that the rollout of the ACA "eliminated the ability of [the named plaintiffs] to be similarly situated to any MR after that time." See Opposition at pp. 11-12.
Finally, Amerigroup argues that the plaintiffs have failed to demonstrate sufficient interest in joining the putative collective, citing three district court decisions from the Eleventh Circuit to support its contention that this is a proper ground for denying the plaintiffs' motion. See Opposition at pp. 24-25. The Eleventh Circuit's requirement that a plaintiff must demonstrate this showing of interest, however, is an outlier. See, e.g., Gortat v. Capala Bros., No. 07 Civ. 3629 (ILG), 2010 WL 1423018, at *10 (E.D.N.Y. Apr. 9, 2010), aff'd sub nom. Gortat v. Capala Bros., Inc., 568 F. App'x 78 (2d Cir. 2014) ("This Court similarly rejects the 'desire to opt in' requirement, and follows the overwhelming majority of district courts outside of the Eleventh Circuit in requiring only a showing of similarly situated persons."). Moreover, even if the court were to require this showing of interest, Amerigroup points to no authority indicating that the number of individuals who have already opted in to this matter (ten) falls short of satisfying this requirement.
Accordingly, the court is unconvinced by Amerigroup's arguments which seek to undermine the notion that the named plaintiffs, opt-ins, and potential opt-ins are similarly situated for purposes of conditional collective certification. It therefore recommends granting the plaintiffs' motion insofar as it seeks conditional certification and authorization to send notice to potential opt-in plaintiffs.
V. PLAINTIFFS' PROPOSED NOTICE AND NOTICE PROCESS
The plaintiffs have requested the court's approval of their proposed Collective Action Notice and Consent to Join Form, as well as authorization to send a reminder notice mid-way through the notice period. Amerigroup provides in a footnote a laundry list of objections to the proposed notice and reminder, but does not present any authority supporting its protestations. It instead offers its own Proposed Notice as well as a reservation of its "right to fully brief its objections in the event notice is permitted." Opposition at p. 25 n.28. Because the proposed Collective Action Notice—to which Amerigroup has been given the opportunity to substantively object—is "accurate" and "informative," see Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 172 (1989), it should be approved. The plaintiffs' proposed Consent to Join Form is also satisfactory and should be approved. Finally, the plaintiffs' request for authorization to send a reminder notice during the notice period should be granted. See, e.g., Chhab v. Darden Restaurants, Inc., No. 11 Civ. 8345, 2013 WL 5308004, at *16 (S.D.N.Y. Sept. 20, 2013) ("Given that notice under the FLSA is intended to inform as many potential plaintiffs as possible of the collective action and their right to opt-in, we find that a reminder notice is appropriate.") (collecting cases); Morris v. Lettire Const., Corp., 896 F. Supp. 2d 265, 275 (S.D.N.Y. 2012) (same) (citing Harris v. Vector Mktg. Corp., 716 F. Supp. 2d 835, 847 (N.D. Cal. 2010)). The plaintiffs' proposed reminder postcard is appropriate, and it too should be approved.
CONCLUSION
For the foregoing reasons, I recommend that the court conditionally certify the plaintiffs' proposed collective action under 29 U.S.C. § 216(b), and authorize notice to be issued to putative collective members. I further recommend that the court approve the plaintiffs' proposed Consent to Join form, and the plaintiffs' proposed Collective Action Notice. Finally, I recommend that the plaintiffs be authorized to send a reminder notice mid-way through the notice period.
* * * * * * * * * * * *
Any objections to the Report and Recommendation above must be filed with the Clerk of the Court within 14 days of receipt of this report. Failure to file objections within the specified time waives the right to appeal any judgment or order entered by the District Court in reliance on this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see, e.g., Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985); Mario v. P & C Food Markets, Inc., 313 F.3d 758, 766 (2nd Cir. 2002); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298 (2d Cir.),cert. denied, 113 S. Ct. 825 (1992); Small v. Secretary of Health and Human Serv., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).
Respectfully Recommended,
/s/_________
VIKTOR V. POHORELSKY
United States Magistrate Judge Dated: Brooklyn, New York
July 23, 2015