Peralta v. CB Hospitality and Events, LLC

Background

Plaintiffs Neptali Peralta and Maria Jovita Tapia Villanueva sued CB Hospitality and Events, LLC, CB Hospitality and Events II, LLC, CB Hospitality Ventures Holdings Corp., and Chris Barrett. They alleged wage violations under the federal Fair Labor Standards Act (FLSA) and New York law, along with other claims under the New York City Human Rights Law.

Villanueva moved for conditional certification of an FLSA collective action under 29 U.S.C. § 216(b). Conditional certification is an early-stage procedure that can allow a court-approved notice to be sent to potentially eligible workers, who may then join the case by filing written consent forms. Villanueva proposed a collective covering all non-managerial, hourly employees employed by the defendants within the previous three years. She also requested the employees’ names and contact information, approval of proposed notices and consent forms, and an order requiring the defendants to post the notices at their restaurants.

Villanueva stated that she worked as a dessert preparer at the East Village location from April through October 2021. She alleged that she worked 80 hours per week while receiving $700 per week from April through August, and 60 hours per week while receiving $600 per week from September through October, without receiving overtime premiums. Peralta worked as a cook at the same location, but the opinion states that he never worked more than 40 hours per week and did not have an FLSA overtime claim.

Legal standard

The court applied the first step of the two-step FLSA collective-action process. At this stage, a plaintiff must make a modest factual showing that the plaintiff and potential opt-in workers were victims of a common policy or plan that violated the FLSA. The burden is relatively low, but it is not automatic and cannot be met by unsupported assertions or beliefs. In cases involving multiple locations, the plaintiff must provide evidence supporting an inference of a uniform policy or practice and evidence relevant to common ownership or management.

The court was not supposed to decide the ultimate merits of the wage claims, resolve factual disputes, or make credibility determinations at this stage. But it still required some detail about the other workers, their jobs and hours, their pay, and the observations or conversations supporting the claim that they were similarly situated.

Court’s analysis

The court concluded that Villanueva’s own account, if credited, could show an FLSA overtime violation. But she did not identify a single coworker by name, nickname, description, or other identifying information who worked more than 40 hours without overtime pay or complained about that practice. Her statements that many coworkers received the same treatment and that workers generally complained about overtime were too broad and lacking in detail.

Peralta identified two coworkers by first names, “Victor” and “Jesus,” but did not identify their jobs, schedules, or the timing, location, or content of their alleged complaints. He also did not state whether the two workers were paid overtime for hours exceeding 40 per week. The court therefore could not fairly infer that they, other kitchen workers, front-of-house workers, or employees at other locations were similarly situated to Villanueva.

The court also rejected the evidence offered to extend the proposed collective to other St. Ned Pizza locations. Although the plaintiffs stated that the locations were jointly managed and that they believed the pay practices were consistent, neither plaintiff had worked at another location or had direct or indirect knowledge of the pay practices there. The court disregarded new factual assertions and an article submitted for the first time with the reply papers. It also disregarded the defendants’ sur-reply submissions.

Disposition and next steps

The court denied plaintiffs’ motion for conditional collective certification without prejudice. It did not authorize notice, order the defendants to provide employee contact information, approve the proposed notice and consent forms, or order the defendants to post the forms. The court stated that discovery could produce evidence supporting certification and that Villanueva could renew the motion. The discovery stay was lifted, and the court scheduled an initial conference for April 3, 2024, at 10:00 a.m.

The opinion was signed by United States Magistrate Judge Barbara Moses. The case had previously been reassigned to United States District Judge Gregory H. Woods, who referred the motion to Judge Moses for determination as a non-dispositive pretrial motion.