ONA T. WANG, Magistrate Judge.
This is not a typical Fair Labor Standards Act ("FLSA") conditional certification motion. Courts apply a low standard to what evidence is sufficient to warrant conditional certification, mindful of the admonition to not make factual or credibility determinations at this initial stage. See Hamadou v. Hess Corp., 915 F.Supp.2d 651, 661 (S.D.N.Y. 2013) (noting only a "modest factual showing" is required). While defendants often try to attack the accuracy of a plaintiff's FLSA claims at the initial stage, it is a rare instance where, as here, there is serious doubt as to whether the plaintiff ever worked at the defendants' place of business. From the start of this suit, however, Defendants have adamantly maintained that Plaintiff Yu Zhang ("Plaintiff") never worked at their restaurant. (See ECF 13 at 8; ECF 21 at 1). Adding to the suspicion, Plaintiff has repeatedly altered his testimony concerning his employment by conveniently remembering new facts after his previous inaccuracies or omissions are pointed out. (See, e.g., ECF 23-2).
Plaintiff brought this action against Defendants Sabrina USA Inc., Qin Lan Inc., and Ai Lan Chen (collectively "Defendants") for violations of the FLSA and New York Labor Law ("NYLL"), alleging, inter alia, unpaid wages and overtime compensation. Before the Court now is Plaintiff's motion for conditional collective certification pursuant to 29 U.S.C. §216(b). (ECF 29). For the following reasons, Plaintiff's motion is
Plaintiff allegedly worked as a busboy at Defendants' restaurant,
On June 22, 2019, Defendants requested a conference with Judge Nathan, citing errors in Plaintiff's deposition testimony on June 17, 2019 that suggested he never worked at Defendants' restaurant. (ECF 21). Defendants also pointed out that Plaintiff was unable to name any of his co-workers. See Zhang Dep. Tr. at 28:2-3, 28:13-16, 29:6-8. Defendant Chen, the restaurant's owner, and Alex Wong, the restaurant's manager, both attended Plaintiff's deposition and upon seeing Plaintiff, asserted that Plaintiff never worked at the restaurant. Id. In opposition to the letter, Plaintiff submitted an affidavit, dated June 26, 2019, in which he attempted to correct the purported mistakes made at his deposition. (ECF 23-2).
On July 12, 2019, Plaintiff moved for conditional certification as a collective action under the FLSA. (ECF 29). In support of his motion for conditional certification, Plaintiff submitted another signed affidavit, also dated June 26, 2019, repeating the factual allegations in the complaint and attempting to show that his co-workers were victims of the same underpayment. (ECF 30-4). Plaintiff testified in his affidavit that "through chatting and nodding," he learned that other employees were also not paid overtime compensation. (Id. ¶¶ 26, 32, 38). In opposition, Defendants submitted a declaration from Rong Zheng,
Concerned about potential perjury, the Court held an evidentiary hearing on September 24, 2019. At the hearing, the Court heard testimony from Plaintiff and Defendant Chen. In addition to being questioned as to his recall on various features of the restaurant, Plaintiff added that based on a conversation with one of the stir-fry cooks, he learned that Defendants' stir-fry cooks were paid $3,200 per month and oil fryer cooks were paid $2,500 per month. Sept. 24, 2019 Tr. (ECF 46) at 21:8-25. He admitted, however, that he did not know how much the wait staff or hibachi chefs were paid. Id. at 22:10-15. Defendant Chen, the restaurant's owner, in turn, repeated under oath her contention that Plaintiff never worked at her restaurant and that the restaurant never had a full-time busboy. Id. at 46:9-20. At the close of the hearing, Plaintiff's counsel argued that Plaintiff's affidavits contained no contradictions and that Plaintiff's "proffer" that there were employees similarly situated to him was sufficient to grant conditional certification. Id. at 61:9-14. In opposition, Defendants pointed to the many alleged inconsistencies and inaccuracies in Plaintiff's testimony throughout this litigation. Id. at 61:18-20.
The FLSA allows an employee to bring an action against an employer on behalf of themselves and other employees similarly situated. See 29 U.S.C. § 216(b). Where a plaintiff seeks to bring a claim on behalf of similarly situated employees, courts have discretion to implement section 216(b) "`by facilitating notice to potential plaintiffs' of the pendency of the action and of their opportunity to opt-in as represented plaintiffs." Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010). Collective certification under the FLSA involves two steps: (1) determining whether there exist individuals similarly situated to the named plaintiff who have also been the victim of FLSA violations such that notice of the suit should be circulated, and (2) after providing notice to potential class members, determining whether any new plaintiffs who opted-in to the suit are in fact "similarly situated" to the named plaintiff. See id. at 555.
At the first stage of collective certification, the Court requires only a "modest factual showing that [the named plaintiffs] and others together were victims of a common policy or plan that violated the law." See Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 540 (2d Cir. 2016). "[T]he court does not resolve factual disputes, decide substantive issues going to the ultimate merits, or make credibility determinations." McGlone v. Contract Callers, Inc., 867 F.Supp.2d 438, 442 (S.D.N.Y. 2012) (quoting Cunningham v. Elec. Data Sys. Corp., 754 F.Supp.2d 638, 644 (S.D.N.Y. 2010)). Instead, the Court just looks to the pleadings and submitted affidavits to determine whether there are other potential class members who are similarly situated to the named plaintiff(s). See Yap v. Mooncake Foods, Inc., 146 F.Supp.3d 552, 560 (S.D.N.Y. 2015). Although this is a fairly low evidentiary standard, the plaintiff cannot merely rely on "unsupported assertions." See Myers, 624 F.3d at 555.
At the conditional certification stage, Plaintiff must provide a factual showing other than the complaint's allegations, typically through affidavits. See Prizmic v. Armour, Inc., No. 05-CV-2503 (DLI) (MDG), 2006 WL 1662614, at *2 (E.D.N.Y. June 12, 2006). A plaintiff may not rely on mere "conclusory allegations" that there exist other similarly-situated employees. See Morales v. Plantworks, Inc., No. 05-CV-2349 (DC), 2006 WL 278154, at *3 (S.D.N.Y. Feb. 2, 2006) (finding insufficient "conclusory allegation" in complaint that other employees were not paid minimum wage or overtime pay). Otherwise, "an employer may be `unduly burdened by a frivolous fishing expedition conducted by plaintiff at the employer's expense.'" Prizmic, 2006 WL 1662614, at *2 (quoting D'Anna v. M/A-COM, Inc., 903 F.Supp. 889, 894 (D. Md. 1995)).
Likewise, certifying suits by plaintiffs who produce serious doubts whether they ever worked at the defendants' place of business would encourage the proliferation of frivolous lawsuits, knowing that employers would be pressured to settle or that conditional certification would produce legitimate opt-in plaintiffs to then substitute as the named plaintiff. Without having worked at the defendants' business, any plaintiff declaration would also not be based on personal knowledge, rendering the affidavit useless for conditional certification. See McGlone, 867 F. Supp. 2d at 444. Therefore, despite the modest evidentiary standard, courts must still enforce a baseline.
The Court recognizes that many of Defendants' raised inconsistencies in Plaintiff's testimony and affidavits regarding facts of the restaurant could be attributed to a faulty memory or inability to precisely recall details from three years prior.
Plaintiff's pattern of revising his factual allegations after Defendants point out the inaccuracies also raises questions as to the reliability of Plaintiff's affidavits. In response to Defendants' citing factual inaccuracies in Plaintiff's deposition testimony, Plaintiff subsequently submitted an affidavit correcting various facts. (ECF 23-2). Similarly, after Rong Zheng stated in his affidavit that the employee van pick-up location was outside the QQ bakery, ECF 35 ¶ 10, Plaintiff testified at the hearing that he knew the van pick-up location was outside the QQ bakery, despite previously testifying at his deposition that he could not remember the location. Sept. 24, 2019 Tr. at 42:5-14. Plaintiff explained that he now "remember[ed]" the location because he frequently visits that bakery and one day after the deposition, he saw Defendants' van "pass by," but not stop at, the bakery, triggering his memory. Id. at 42:21-43:2. Plaintiff failed to explain how he recognized Defendants' van, considering that he had previously testified that the vehicle was a non-descript white van. See Zhang Dep. Tr. at 38:17-24.
The lack of corroborating evidence that Plaintiff ever worked at Defendants' restaurant distinguishes this from other cases where the court declined to make a credibility determination as to a plaintiff's disputed testimony. See, e.g., Qian Xiong Lin v. DJ's Int'l Buffet Inc., No. 17-CV-4994 (JS) (AYS), 2019 WL 584798, at *5 (E.D.N.Y. Nov. 7, 2019) (granting certification where plaintiff's affidavit allegedly contained false statements but was corroborated by co-plaintiff's affidavit); Islam v. LX Ave. Bagels, Inc., No. 18-CV-4895 (RA) (RWL), 2019 WL 5198667 at *1 n.3, 7 (S.D.N.Y. Sept. 30, 2019) (granting certification where defendants disputed whether they were the employer under the FLSA but did not dispute that plaintiff worked at the restaurant); Placinta v. Grazina Pilka, Inc., No. 16-CV-4272 (KAM) (SJB), 2018 WL 5024170, at *7 (E.D.N.Y. Oct. 5, 2018) (granting certification where defendants disputed plaintiff's claim of full-time employment but conceded he was a seasonal employee); Gonzalez v. Scalinatella, Inc., No. 13-CV-3629 (PKC), 2013 WL 61761311, at *3 (S.D.N.Y. Nov. 25, 2013) (granting certification where the defendant claimed plaintiff's declaration was false but did not dispute that plaintiff worked for them). Here, there are no other affidavits supporting Plaintiff's claims of FLSA violations or even Plaintiff's claim that he worked at the restaurant. Plaintiff also did not persuade the Court at the evidentiary hearing that he had any confidence in his answers regarding the restaurant.
Other evidence in the record further raises questions whether Plaintiff submitted his affidavits in bad faith. Plaintiff submitted two signed affidavits, both dated June 26, 2019, which appear to contain identical signature pages, even to the point of containing the same inadvertent pen mark above Plaintiff's signature.
As an initial matter, it is unclear why Plaintiff needed to sign a second affidavit to correct errors in another affidavit that had been signed on the same day and was not yet filed; merely re-drafting and signing a single comprehensive and accurate affidavit would have been the logical step. Plaintiff's explanation makes even less sense when one considers that neither of the affidavits purports to correct the other; instead, they deal with two separate topics: one to correct Plaintiff's deposition testimony, the other to support a motion for conditional certification. Because Plaintiff's testimony raises questions of: (1) whether Plaintiff understood the contents of his affidavits and (2) whether Plaintiff willfully committed perjury in the affidavits, the Court declines to credit either of Plaintiff's affidavits as evidence. See Capitol Records, Inc. v. MP3tunes, LLC, No. 07-CV-9931 (WHP), 2008 WL 4450259, at *2 (S.D.N.Y. Sept. 29, 2008) (disregarding parts of an affidavit that "are not based upon the affiant's personal knowledge"). Without Plaintiff's affidavits, the sole evidence submitted in support of conditional certification, there is no support for Plaintiff's claim that there are similarly situated employees.
Even if Plaintiff's affidavit in support of conditional certification were assumed to be true for purposes of this motion,
Although the Court does not need to make a credibility determination at the conditional certification stage, Plaintiff cannot rely on "unsupported assertions." See Myers, 624 F.3d at 555. Here, Plaintiff does not provide details of the conversations or name any of the employees spoken to, but merely copies and pastes the same general allegation that Plaintiff learned through "chatting and nodding" of others' lack of overtime pay. See Zhang Decl. (ECF 30-4) ¶¶ 32, 42, 51. This is the type of conclusory evidence that is insufficient to merit conditional certification. See Zamora, 2019 WL 5460559, at *4 (denying certification where the plaintiff failed to identify particular conversations); Gomez v. Kitchenette 123 Inc., No. 16-CV-3302 (AJN), 2017 WL 4326071, at *4 (S.D.N.Y. Sept. 5, 2017) ("when a plaintiff submits only one affidavit, without corroboration, the level of detail in that affidavit becomes particularly important"); Sanchez v. JMP Ventures, LLC, No. 13-CV-7264 (KBF), 2014 WL 465542, at *2 (S.D.N.Y. Jan. 27, 2014) (denying certification where the plaintiff's knowledge of pay was generally based on "observations" and "conversations" without providing "where or when" the conversations occurred); Eng-Hatcher v. Sprint Nextel Corp., No. 07-CV-7350 (BSJ), 2009 WL 7311383, at *3 (S.D.N.Y. Nov. 13, 2009) (denying certification upon finding that the plaintiff's conclusory claims of conversations were "anecdotal hearsay").
For the foregoing reasons, Plaintiff's motion for conditional certification is DENIED. The Clerk of Court is directed to close ECF 29.
