Aderohunmu v. Loretto Health & Rehabilitation CenterAderohunmu v. Loretto Health & Rehabilitation Center
GATTUSO & CIOTOLI, PLLC FRANK S. GATTUSO, ESQ.
Attorneys for Plaintiffs
The White House
7030 East Genesee Street
Fayetteville, NY 13066
VIRGINIA & AMBINDER LLP ALANNA ROSE SAKOVITS, ESQ.
Attorneys for Plaintiffs JENNY S. BREJT, ESQ.
40 Broad Street, Suite 7th Floor LADONNA LUSHER, ESQ.
New York, NY 10004
BOND SCHOENECK & KING, PLLC SUZANNE M. MESSER, ESQ.
Attorneys for Defendant Loretto LEAH DAWIT, ESQ.
One Lincoln Center LIZA R. MAGLEY, ESQ.
Syracuse, NY 13202
HARRIS BEACH MURTHA SCOTT D. PIPER, ESQ.
CULLINA, PLLC WILLIAM M.X. WOLFE, ESQ.
Attorneys for Defendant CPS
99 Garnsey Road
Pittsford, NY 14534
DAVID N. HURD
United States District Judge
DECISION and ORDER
I. INTRODUCTION
On May 31, 2024, named plaintiffs Adeyemi Aderohunmu (“Aderohunmu“) and Alliyah Rawlins (“Rawlins“) (collectively “named plaintiffs“), certified nurse assistants, filed this putative class and collective action against defendant Loretto Health & Rehabilitation Center (“Loretto“), which operates
After Loretto answered the initial complaint, Dkt. No. 8, and an attempt at mediation failed, Dkt. No. 19, named plaintiffs filed a First Amended Complaint that, among other things, added as a named defendant CPS Recruitment (“CPS“), a medical staffing provider that hired and placed certain healthcare workers at Loretto‘s healthcare facilities.1 Dkt. No. 26.
On January 30, 2026, named plaintiffs moved to certify a class and collective action of similarly situated healthcare workers employed by Loretto and CPS (collectively “defendants“) based on defendants’ allegedly uniform policy and practice of auto-deducting meal breaks that plaintiffs were regularly required to work through in order to complete their job duties, resulting in unpaid wages and overtime and inaccurate wage statements.2 Dkt. No. 52.
The motion has been fully briefed, Dkt. Nos. 61, 62, 63, and will be considered on the basis of the submissions without oral argument.
Aderohunmu lives in Cortland County, New York. Second Am. Compl. ¶ 10. He was employed by Loretto as a Certified Nurse Assistant from November 20, 2023 through May 22, 2024. Id. ¶¶ 10, 27. Rawlins lives in Onondaga County, New York. Id. ¶ 11. She was employed by Loretto and CPS as a Certified Nurse Assistant in January of 2023. Id. ¶¶ 11, 29, 31.
Plaintiffs’ Second Amended Complaint alleges that they and similarly situated healthcare workers employed by Loretto (or jointly employed by CPS) were paid hourly wages that had thirty-minute meal breaks automatically deducted from their paychecks even though they were regularly required to work through those breaks. See, e.g., Second Am. Compl. ¶¶ 18, 39, 56. According to the Second Amended Complaint, these unpaid periods caused named plaintiffs and other similarly situated healthcare workers to perform work for defendants without receiving pay for all hours worked, including overtime compensation, in violation of the FLSA and related state law. See, e.g., id.
III. LEGAL STANDARDS
A. Class Actions
Second, the movant must demonstrate that their class fits within one of the recognized “types of class actions,” that is: (1) prosecuting separate actions would create a risk of (A) inconsistent results or (B) results that would hamper non-parties’ interests; (2) the party opposing the class has acted on common grounds; and/or (3) common questions of law or fact predominate and a class action is the best way to resolve them.
B. Collective Actions
The Fair Labor Standards Act permits workers to create a “collective action” by opting-in to wage-and-hour claims brought by similarly situated employees.
IV. DISCUSSION
The FLSA “imposes minimum-wage and maximum-hour requirements on certain U.S. employers.” Perry v. City of N.Y., 78 F.4th 502, 512 (2d Cir. 2023).3 For instance, the Act mandates that employees get paid a higher, overtime rate for working more than 40 hours in a single workweek.
Under the FLSA, “employment” is “work” that is “suffered or permitted.”
“Because FLSA and [state law] claims usually revolve around the same set of facts, plaintiffs frequently bring both types of claims together in a single action using the procedural mechanisms available under
Plaintiffs have done just that. Because Rule 23‘s class certification mechanism imposes a more rigorous set of requirements than the FLSA‘s collective action tool, see, e.g., Scott, 954 F.3d at 520, the Court begins its analysis with plaintiffs’ motion to certify a Rule 23 class action based on claims under New York Labor Law (“NYLL“).
A. NYLL Class Action
Plaintiffs’ Second Amended Complaint asserts NYLL claims for unpaid wages and overtime (Second Cause of Action) and inaccurate wage statements (Third Cause of Action). Plaintiffs seek to certify the following NYLL class under Rule 23:
All current and former employees who worked at Loretto Health & Rehabilitation Center as Licensed Practical Nurses, Certified Nursing Assistants, and/or other personal care support at any time from May 31, 2018, through the date of final judgment (the “Putative Class” or “Putative Class Members“). Corporate officers, shareholders, directors, and administrative employees shall not be part of the proposed class.
Dkt. No. 52-27 at 10 (emphasis added).
Class certification is the exception, not the rule, so the party moving for class certification “must affirmatively demonstrate” compliance with Rule 23. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011). A plaintiff‘s burden
First, a plaintiff‘s proof must survive a “rigorous analysis” of whether Rule 23(a)‘s requirements have been satisfied. Roach v. T.L. Cannon Corp., 778 F.3d 401, 405 (2d Cir. 2015) (citing Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)). As noted supra, there are four requirements: “(1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.” Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 538 (2d Cir. 2016).
Second, even if the four requirements of Rule 23(a) are satisfied, the plaintiff must prove that one of the three subcategories of permissible class actions under Rule 23(b) fit the particular case.
1. Rule 23(a) - Numerosity
The first element of Rule 23(a) requires plaintiffs to demonstrate that “the class is so numerous that joinder of all members is impracticable.”
the numerosity inquiry is not strictly mathematical but must take into account the context of the particular case, in particular whether a class is superior to joinder based on other relevant factors including: (i) judicial economy, (ii) geographic dispersion, (iii) the financial resources of class members, (iv) their ability to sue separately, and (v) requests for injunctive relief that would involve future class members.
Pa. Pub. Sch. Emps.’ Ret. Sys. v. Morgan Stanley & Co., Inc., 772 F.3d 111, 120 (2d Cir. 2014) (citing Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993)).
“The numerosity requirement in Rule 23(a)(1) does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate.” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, LLC, 504 F.3d 229, 244–45 (2d Cir. 2007).
Plaintiffs have carried their burden on this element. Numerosity is typically presumed if the class would include more than forty members. See, e.g., Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). As plaintiffs point out in their moving brief, defendants’ interrogatory responses establish that Loretto employed over 400 putative class members and CPS employed at least 44 putative class members. Dkt. No. 52-27 at 19 (citing records). Indeed, as plaintiffs point out in reply, defendants do not meaningfully contest this element in their opposition papers. See Dkt. No. 61; see also Dkt.
2. Rule 23(a) - Commonality
The second element of Rule 23(a) requires plaintiffs to demonstrate that there are “questions of law or fact common to the class.”
“The common question must lend itself to ‘classwide resolution’ such that ‘determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.‘” Sykes, 285 F.R.D. at 286 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. at 350). In other words, what matters is “the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Id. (emphasis in original).
Plaintiffs have carried their burden on this element. Plaintiffs’ Second Amended Complaint alleges that defendants engaged in a common, unlawful policy or practice of failing to pay named plaintiffs and those similarly situated to them for all hours worked, including for overtime, by improperly auto-deducting at least thirty minutes from plaintiffs’ wages each shift despite the fact that plaintiffs regularly worked through their meal breaks. Plaintiffs further
Defendants characterize this theory of class commonality as “conclusory” and claim that plaintiffs’ “proof is thin, inconsistent, or limited.” Dkt. No. 61 at 20. But the Court finds that plaintiffs have supported their allegations of commonality with a strong showing of supporting proof: declarations by named plaintiffs and several putative class members, together with excerpts from defendants’ policy documents and time and pay and time records. Dkt. No. 52-27 at 20 (cataloguing evidence).
Defendants go on to make a number of additional arguments that are either premature (because they go to the actual merits and might perhaps justify class decertification in the future) or based on an assumed premise (that just because the policy is not per se unlawful the policy is therefore not a violation).4
These arguments are all rejected. First off, “claims by workers that their employers have unlawfully denied them wages to which they were legally entitled have repeatedly been held to meet the commonality prerequisite for class certification.” Espinoza v. 953 Assocs., LLC, 280 F.R.D. 113, 127 (S.D.N.Y.
For instance, defendants argue that it is not necessarily unlawful to have time automatically deducted from employees’ pay for meal breaks. Dkt. No. 61 at 21. To be sure, a so-called “auto-deduct” policy might not necessarily be unlawful. See Dkt. No. 61 at 20–22 (referencing Dkt. No. 61 at 15–16); see also Desilva v. N. Shore-Long Island Jewish Health Sys., Inc., 27 F. Supp. 3d 313, 321 (E.D.N.Y. 2014) (collecting cases). In fact, some courts in this circuit have held that “employers utilizing an automatic meal deduction policy may legally shift the burden to their employees to cancel the automatic meal deduction if they work through an unpaid meal.” Briceno v. USI Servs. Grp., Inc., 2012 WL 4511626, at *6 (E.D.N.Y. Sept. 28, 2012).
The Court takes no position on whether that statement is correct as a legal matter under the governing law. But even assuming that it is, that does not necessarily mean that defendants’ allegedly common policy or practice could not—or did not—lead to class-wide wage-and-hour violations. Plaintiffs have submitted evidence sufficient to establish for purposes of class certification that defendants knew, or had reason to know, that plaintiffs regularly worked through meal breaks without compensation. Dkt. No. 63-3 at 7–10 (cataloguing supporting evidence).
3. Rule 23(a) - Typicality
The third element of Rule 23(a) requires plaintiffs to demonstrate that “the claims or defense of the representative parties are typical of the claims or defenses of the class.”
Upon review, plaintiffs have carried their burden on this element for substantially the same reasons set forth supra with regard to commonality. Sykes, 285 F.R.D. at 287 (“The commonality and typicality requirements of Rule 23(a) tend to merge such that similar considerations inform the analysis for both prerequisites.“).
Even so, defendants argue that named plaintiffs’ work experiences are “highly individualized” and “plainly atypical” and emphasize that the proposed class would encompass “employees working in two different buildings with
This argument is rejected. Typicality “does not require factual identity between the named plaintiffs and the class members, only that the disputed issues of law or fact occupy essentially the same degree of centrality to the named plaintiff‘s claim as to that of other members of the proposed class.” Gonzalez v. Hanover Ventures Marketplace, LLC, 2024 WL 1157074, at *5 (S.D.N.Y. Mar. 18, 2024) (cleaned up) (explaining typicality is “not demanding” and does not “require that damages be identical among class members“).
Plaintiffs have made this showing in their papers. As plaintiffs explain, the claims of the named plaintiffs and the putative class members “arise from the same unlawful schemes implemented by Defendants.” Dkt. No. 52-27 at 24 (cataloguing support proof). They have offered proof that named plaintiffs and opt-in plaintiffs have “testified that they worked through most, if not all, of their meal breaks.” Dkt. No. 63-3 at 12–13 (cataloguing additional
4. Rule 23(a) - Adequacy of Representation
The fourth element of Rule 23(a) requires plaintiffs to demonstrate that “the representative parties will fairly and adequately protect the interests of the class.”
This inquiry “serves to uncover conflicts of interest between the parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997). “Not every conflict, however, precludes a finding of adequacy.” Sykes, 285 F.R.D. at 287. “The conflict that will prevent a plaintiff from meeting the Rule 23(a)(4) prerequisite must be fundamental, and speculative conflict should be disregarded at the class certification stage.” Id. (citation omitted).
Plaintiffs have carried their burden on this element. There is no indication at this point that named plaintiffs’ interests have diverged from that of
These arguments are rejected. First off, the Court does not buy defendants’ argument that named plaintiffs’ disciplinary histories are going to present the kind of “unique defenses” to this litigation that threaten to overcome the common questions of law and fact here, which are about defendants’ policy of auto-deducting meal breaks that they knew or should have known their workers were working through. See V.W. ex rel. Williams v. Conway, 236 F. Supp. 3d 554, 576 (N.D.N.Y. 2017).
Second, Courts are generally loathe to disqualify proposed class representatives based on inaccurate or conflicting testimony. See Carollo v. United Capital Corp., 528 F. Supp. 3d 37, 56 (N.D.N.Y. 2021). Defendants’ showing is not enough to justify disqualification of the named plaintiffs. Accordingly, plaintiffs have satisfied this element by a preponderance of the evidence.
5. Rule 23(b) - Type of Class Action
Plaintiffs have also satisfied this requirement. They rely on
a. Predominance
“As a general matter, the Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d Cir. 2006) (cleaned up). In short, the Rule “encompasses those cases in which a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Id.
Measured against this standard, plaintiffs have carried their burden on this element. Although this inquiry is “more demanding” than the commonality requirement, Comcast Corp., 569 U.S. at 34, predominance is satisfied “if resolution of some of the legal or factual questions that qualify each class member‘s case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof.” Glatt, 811 F.3d at 538 (cleaned up). That standard is met here. The individualized questions identified by defendants as justification to conclude otherwise largely go to damages, which are ordinarily not a
b. Superiority
In assessing this “superiority” question,
Upon review, these factors favor certification. Although defendants insist that liability “turns on highly individual employee-by-employee analysis” because the meal-break policy alone is not necessarily unlawful, Dkt. No. 61 at 27–28, courts routinely find that “a class action is superior where, as here potential class members are aggrieved by the same policy, the damages suffered are small in relation to the expense and burden of individual litigation, and many potential class members are currently employed by defendants.” Schear v. Food Scope Am., Inc., 297 F.R.D. 114, 126 (S.D.N.Y. 2014) (collecting cases).
6. Rule 23 & Ascertainability
Finally, courts have written a third, “implied requirement” into Rule 23: a party seeking class certification must demonstrate that the proposed class is
Plaintiffs have also satisfied this requirement. Dkt. No. 52-27 at 27. The members of the class are readily identifiable pursuant to objective criteria, including but not limited to the records maintained by defendants. In sum, plaintiffs have affirmatively demonstrate their compliance with the requirements for class certification. Accordingly, plaintiff‘s motion for Rule 23 class certification will be granted.
B. FLSA Collective Action
Plaintiffs’ Second Amended Complaint asserts an FLSA claim for unpaid overtime (First Cause of Action). Plaintiffs seek to certify the following collective under the FLSA:
All current and former employees who worked at Loretto Health & Rehabilitation Center as Licensed Practical Nurses, Certified Nursing Assistants, and/or other personal care support at any time from January 17, 2022, through the date of final judgment (the “Putative Class” or “Putative Class Members“). Corporate officers, shareholders, directors, and administrative employees shall not be part of the proposed class.
Dkt. No. 52-27 at 10 (emphasis added).
Under
“At step one, the district court permits a notice to be sent to potential opt-in plaintiffs if the named plaintiffs make a modest factual showing that they and others together were victims of a common policy or plan that violated the law.” Scott v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 515 (2d Cir. 2020) (cleaned up). The inquiry at this first step uses a “low standard of proof” and only requires a “modest factual showing” that the named plaintiffs and the potential opt-ins “were victims of a common policy or plan that violated the law.” Myers, 624 F.3d at 555.
“At step two, with the benefit of additional factual development, the district court determines whether the collective action may go forward by determining whether the opt-in plaintiffs are in fact similarly situated to the named plaintiffs.” Scott, 954 F.3d at 515 (cleaned up). If the record shows that the opt-ins are not similarly situated, the case may be “de-certified,” and the opt-in‘s claims dismissed without prejudice. Myers, 624 F.3d at 555.
The Second Circuit has cautioned that FLSA certification “not only imposes a lower bar than Rule 23, it imposes a bar lower in some sense even than Rules 20 and 42, which set forth the relatively loose requirements for permissive joinder and consolidation at trial.” Scott, 954 F.3d at 520. Accordingly,
Upon review of the briefing, and for substantially the reasons discussed at length supra, plaintiffs’ motion for conditional certification under the FLSA will be granted. Plaintiffs’ evidentiary showing more than meets the “modest” evidentiary burden required at this stage of the case. Dkt. No. 52-27 at 31; Dkt. No. 63-3 at 6–10.
In reaching this conclusion, the Court rejects defendants’ argument that a “modest plus” burden should apply where, as here, some fact discovery has taken place. See Dkt. No. 61 at 14–15. As plaintiffs point out, the Second Circuit has not endorsed this standard. See Louis v. Ajay Glass & Mirror Co., 2026 WL 482589, at *3 (N.D.N.Y. Feb. 20, 2026) (explaining same). But even assuming otherwise, plaintiffs’ showing is more than enough to satisfy the more demanding “modest plus” standard, too.
Plaintiffs’ request for equitable tolling will also be granted. “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Mottahedeh v. United States, 794 F.3d 347, 352 (2d Cir. 2015) (citation omitted).
However, courts routinely grant equitable tolling in the context of a collective action under the FLSA. See, e.g., Cooke v. Frank Brunckhorst Co., LLC,
In sum, after considering the parties’ briefing, and defendants’ arguments against tolling, Dkt. No. 61-30–31, the Court agrees with plaintiffs that tolling is appropriate. Accordingly, the Court will equitably toll the FLSA statute of limitations in accordance with plaintiff‘s request: “from January 17, 2025 . . . until the close of any Court-ordered opt-in period.” Dkt. No. 52-27 at 32.
IV. CONCLUSION
Therefore, it is
ORDERED that
- Plaintiffs’ motion for class certification (Dkt. No. 52) and for leave to file the Second Amended Complaint is GRANTED;
- Plaintiffs shall FILE and SERVE the Second Amended Complaint;
- Defendants shall ANSWER the Second Amended Complaint within FOURTEEN DAYS of the date on which the pleading is filed and served;
Plaintiffs’ proposed notice and consent forms are AUTHORIZED to be published (Plaintiffs’ Exhibits U and V); and - Defendants shall PRODUCE a full and complete class list of all class members in accordance with the proposed publication order (“Plaintiffs’ Exhibit W).
The Clerk of the Court is directed to terminate the pending motion.
IT IS SO ORDERED.
Dated: August 5, 2026
Utica, New York.
David N. Hurd
U.S. District Judge