Pichardo v. Boston Post Food Corp.

Background

The plaintiffs brought wage-and-hour claims under the Fair Labor Standards Act, New York Labor Law, and New York’s Wage Theft Prevention Act against Boston Post Food Corp., doing business as C-Town. They alleged failures to pay wages and spread-of-hours premiums, failures involving meal-break compensation, and failures to provide wage notices and wage statements.

The action originally included Secundino Garcia Pichardo and Eric Ratzlaff as named plaintiffs. Ratzlaff later voluntarily dismissed his claims without prejudice. The parties stipulated to conditional certification of a federal wage-law collective covering current and former non-exempt employees employed by Boston Post during a specified period. Two additional plaintiffs, Emmanuel Diaz and Jaedin M. Nunez, later opted into the action.

Boston Post’s initial counsel withdrew, and the company did not retain replacement counsel. The company therefore defaulted, and the Clerk entered a certificate of default. The court later granted the plaintiffs’ motion for default judgment as to liability at a hearing but reserved a decision on damages and class certification. The plaintiffs also abandoned their remaining claims against “C-Town Supermarkets 1-20,” and the court directed that those parties be dismissed or terminated from the action.

Class-certification standard

The plaintiffs sought certification under Rule 23 of the Federal Rules of Civil Procedure for a class consisting of non-exempt employees employed by the defendant on or after October 25, 2016. To obtain certification, they had to show that the class was sufficiently numerous, that common legal or factual questions existed, that the representative plaintiffs’ claims were typical, and that the representatives would adequately protect the class. They also had to show under Rule 23(b)(3) that common issues predominated over individual issues and that a class action was the superior method for resolving the dispute.

Court’s analysis

The court held that the plaintiffs had not shown that common issues predominated. Their principal evidence consisted of declarations from Pichardo, Diaz, and Nunez. The court found that Diaz’s and Nunez’s declarations addressed mainly their own experiences. Pichardo stated that, based on personal observations and conversations with coworkers, all employees were subject to the same wage-and-hour policies, but he identified only five employees with whom he regularly spoke and provided few details about those conversations.

The court also found that the plaintiffs offered no statistical analysis and insufficient anecdotal evidence to establish a uniform or nearly uniform practice. The declarations did not show whether all employees worked under the same supervisors or whether supervisors engaged in the same alleged unlawful practices. The court considered some of Pichardo’s statements too imprecise and beyond what he could reliably know, because they lacked dates, identified speakers, and other details.

The court found individualized issues especially significant because the claims involved recurring alleged failures to pay overtime, spread-of-hours premiums, and compensation for work during meal breaks. The time records showed that employees regularly clocked out for approximately half-hour lunch breaks, but the allegation that they nevertheless worked during those breaks rested mainly on anecdotal testimony. Determining liability and damages for that claim would require individualized proof about which employees worked during breaks and on which days.

The court also found that fewer than half of the employees in the plaintiffs’ data worked at least one spread-of-hours day, and fewer than ten worked more than ten such days. Those differences made it less likely that common issues predominated. The court was also skeptical of the plaintiffs’ assertion that payroll records showed that spread-of-hours premiums were never paid because the records were not attached to the class-certification motion. Differences in employees’ hours further undermined the claim that employees were treated uniformly.

The court additionally identified manageability concerns. Plaintiffs’ counsel had not confirmed contact with most of the identified employees and had identified only about half of the estimated class. The court was not persuaded that counsel could practically and affordably locate and notify the proposed class, particularly because roughly half of the estimated class members might not exist.

Ruling and next steps

Judge Oetken denied the motion for class certification because the plaintiffs failed to establish commonality under Rule 23(a) and predominance under Rule 23(b)(3). The court stated that denial of certification left the claims of Pichardo, Diaz, and Nunez available for individual damages proceedings. Because the plaintiffs’ proposed damages calculation sought damages for the entire class, the court directed them to file, within 30 days after entry of the opinion, a letter stating the individual damages sought for those plaintiffs and the basis for each damages category, including interest, attorney’s fees, and costs if applicable. The Clerk was directed to close the class-certification motion and terminate “C-Town Supermarkets 1-20” as parties.