SDNY.jpgCo-authored by Brett Bartlett and Kevin Young

This week, a federal judge in the Southern District of New York confirmed that an FLSA plaintiff cannot win certification of a sweeping collective action by talking only about himself. 

In Ikikhueme v. Culinart, Inc., [here] a Sous Chef originally sought to represent a class of all food services employees, not just fellow Sous Chefs, that Culinart employed across 200 locations.  By the time briefing closed, he’d limited his proposed class to just Sous Chefs, whom he claimed Culinart misclassified as overtime-exempt.  The court denied his motion, finding that his evidence was not enough to satisfy a lenient conditional certification standard.

Perhaps by virtue of cases like Comcast, which we’ve reported on several times before, it seems most plaintiffs’ attorneys are beginning to understand that evidence regarding the experience of one individual is unlikely to merit certification of a class of droves more.  The plaintiff in this case anticipated otherwise. 

In support of his bid for conditional certification, the Sous-Chef-turned-plaintiff served up two self-serving declarations.  As the Court acknowledged, they spoke only of his own employment and circumstances at the single location where he worked as the only Sous Chef.  He made “no allegations regarding the responsibilities or pay practices of the Sous Chefs who preceded him or succeeded him” at his location, much less at the hundreds of other locations.  “This,” wrote the Court, “is exactly the type of ‘unsupported assertion[]’” that falls short in the Second Circuit.

In sending this flawed conditional certification bid back to the kitchen, the judge offered several instructions that are sure to whet future defense counsel’s appetites.  Among them was a recognition that while a plaintiff’s burden for conditional certification “is lax, and their burden modest, a court must nonetheless take a measured approach when addressing [such] a request . . . , mindful of the potential burden associated with defending against an FLSA claim involving a broadly defined collective group of plaintiffs.”

Certainly, the plaintiff in this case was left wanting much more.  He will now be forced to litigate the question of whether he, individually, performed duties as a Sous Chef that qualified him for exemption from the FLSA’s overtime requirements.  On his motion for conditional certification, however, his proof should have been in the pudding. . . it was not.