Leon-Vizcaino v. NY George's Catering Corp. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LAURA VALENTINA LEON-VIZCAINO,
individually 	and 	on 	behalf 	of 	all 	others
similarly situated,
REPORT AND
RECOMMENDATION
25 CV 2902 (EK) (PCG)
Plaintiff,
-against-
NY GEORGE’S CATERING CORP., d/b/a
MAMA 	PISCO 	KITCHEN 	BAR 	and
CARLOS 	ANDRES 	SERNA, 	jointly 	and
severally
Defendants.
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CROSS-GOLDENBERG, United States Magistrate Judge:
On May 24, 2025, plaintiff Laura Valentina Leon-Vizcaino commenced this action
against defendants NY George’s Catering Corp., d/b/a Mama Pisco Kitchen Bar, and Carlos
Andrews Serna, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201
et seq., the New York Labor Law (“NYLL”), §§ 190 et seq., and N.Y. Comp. Codes R. & Regs.
tit.12 § 142–2.2. (Dkt. No. 1 (“Compl.”)). Presently before the Court is plaintiff’s motion for
conditional certification of a collective action. (Dkt. No. 19 (“Mot.”)). For the reasons set forth
below, the Court respectfully recommends that plaintiff’s motion for conditional certification be
denied.
FACTUAL BACKGROUND
According to the Complaint and plaintiff’s declaration submitted with the present motion,
defendant Serna owned and operated a Peruvian restaurant, NY George’s Catering Corp., d/b/a
Mama Pisco, where plaintiff worked as a waitress from May 22, 2022 to December 31, 2022,
and as an assistant manager from January 1, 2023 to May 31, 2025. (Compl. ¶¶ 1, 2, 11, 20; Dkt.
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No. 23-1 (“Leon-Vizcaino Decl.”) ¶¶ 3, 7). Plaintiff alleges that, as a waitress, she was paid $10
an hour and received tips and that, as an assistant manager, she was paid $600 per week and
performed non-tipped tasks 40% of the time and received tips from customers for other tasks.
(Compl. ¶¶ 22-24; Leon-Vizcaino Decl. ¶¶ 9-11). 	Throughout her employment, plaintiff alleges
she typically worked 6 days per week, averaging 63 hours per week.1 (Compl. ¶¶ 25-27; Leon-
Vizcaino Decl. ¶¶ 12-14). Plaintiff alleges she did not receive overtime compensation despite
working greater than 40 hours per week. (Compl. ¶¶ 28, 30; Leon-Vizcaino Decl. ¶ 17). 	She
contends that at least 2 days per week she worked at least 11 hours but she did not receive
spread-of-hours pay. (Compl. ¶ 33). She also alleges she was not provided with wage
statements or notices. (Compl. ¶ 32).
As part of the motion for collective certification, plaintiff submits the declaration of opt-
in plaintiff Jorge Ulloa-Gonzales, another former employee of Mama Pisco. (Dkt. No. 19-2
(“Ulloa-Gonzales Decl.”)). Mr. Ulloa-Gonzales declares that he worked for defendants from
September 1, 2022 to August 31, 2025 as a cook. (Id. ¶¶ 3, 7, 8). During that time, Mr. Ulloa-
Gonzales declares he worked 6 days per week for an average of between 55 and 58 hours per
week. (Id. ¶¶ 10, 11, 14). He claims he was paid $15 per hour from September 1, 2022 to
February 28, 2023, and then $1,000 per week from March 1, 2023 to August 31, 2025. (Id. ¶
13). He claims that during this time, he was not paid overtime wages. (Id. ¶ 14, 16). He does
not declare defendants failed to pay him spread-of-hours pay or that he was not provided
adequate wage statements or notices.
1 Plaintiff alleges that “[o]n average, [she] worked 60 hours each week.” (Compl. ¶ 27). However, she also alleges
she worked 12 hours per day on Tuesdays, 11 hours per day on Thursdays, and 10 hours per day Wednesdays and
Fridays through Sundays. (Id. ¶ 26). Thus, she alleges she worked 63 hours per week on average.
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Both plaintiff Leon-Vizcaino and Mr. Ulloa-Gonzales state that they have spoken with
other employees and they believe the “failure to pay overtime wages is widespread throughout
the company, and occurs across various job titles.” (Leon-Vizcaino Decl. ¶¶ 18-20; Ulloa-
Gonzales Decl. ¶¶ 17-19).
Plaintiff asserts individual causes of action for unpaid overtime under the FLSA and
NYLL, unpaid minimum wage under the NYLL, and failure to pay spread-of-hours pay pursuant
to the NYLL. She also brings collective action allegations on behalf of “[a]ll persons employed
by defendants…who worked as cooks, waitresses, bartenders, busboys, assistant managers, and
all other employees who were not paid overtime wages for at least one week in which they
worked in excess of 40 hours.” 2 (Mot. at 1–2). 	She does not bring minimum wage, spread-of-
hours, wage notice, or wage statement claims on behalf of the collective.
DISCUSSION
I. 	Legal Standards
A. Collective Action Certification Process
The standard for conditional certification of a collective action under the FLSA is
“considerably more liberal than class certification under Rule 23.” Iglesias-Mendoza v. La Belle
Farm, Inc., 239 F.R.D. 363, 368 (S.D.N.Y. 2007). This conditional certification analysis,
occurring before significant discovery ensues, requires only “a ‘modest factual showing that
[plaintiffs] and potential opt-in plaintiffs together were victims of a common policy or plan that
violated the law.’” Gonzalez v. Wicked Taco LLC, 764 F. Supp. 3d 77, 95 (E.D.N.Y. 2025)
2 Plaintiff’s definition of the collective in the motion for collective certification differs from that proposed in the
Complaint. The Complaint proposes this definition: “All persons employed by Defendants, at any time from April
30, 2019 to April 30, 2025, through the entry of judgment in this case (the ‘Collective Action Period’), who worked
as waitresses, bartenders, busboys, assistant managers, and all other employees who were not paid the applicable
minimum wage or overtime wages in weeks in which they worked in excess of 40 hours in a week (the ‘Collective
Action Members’).”
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(quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)). See Costello v. Kohl’s
Illinois, Inc., No. 13 CV 1359, 2014 WL 4377931, at *4 (S.D.N.Y. Sept. 4, 2014) (“The question
presented is not simply whether or not Plaintiffs were subject to a common plan or policy, but,
rather, whether or not they were victims ‘of a common policy or plan that violated the law’”
(emphasis included and quotation omitted)). “A named plaintiff is not required to show ‘an
actual FLSA violation’ at this stage, but rather only that ‘a factual nexus exists between the
plaintiff's situation and the situation of other potential plaintiffs.’” Calderon v. King Umberto,
Inc., 892 F. Supp. 2d 456, 459 (E.D.N.Y. 2012) (quoting Sobczak v. AWL Indus., Inc., 540 F.
Supp. 2d 354 (E.D.N.Y. 2007)). Notably, “‘[t]he sole consequence of conditional certification is
the sending out of court-approved written notice to employees;’” it does not create a class with
independent legal status. Puglisi v. TD Bank, N.A., 998 F. Supp. 2d 95, 99 (E.D.N.Y. 2014)
(quoting Genesis Healthcare Corp. v. Symczyk, 569 U.S. 55, 75 (2013)).
To determine whether a collective should be certified in a FLSA case, courts in this
Circuit engage in a two-step analysis. Valerio v. RNC Indus., LLC, 314 F.R.D. 61, 65 (E.D.N.Y.
2016). At the first step, conditional certification, the district court determines whether “‘to send
notice to potential opt-in plaintiffs who may be similarly situated to the named plaintiffs with
respect to whether a FLSA violation has occurred.’” Gonzalez, 764 F. Supp. 3d at 94–95
(quoting Myers, 624 F.3d at 555). Plaintiffs and opt-in plaintiffs must “share a similar issue of
law or fact material to the disposition of their FLSA claims” to be conditionally certified. Scott
v. Chipotle Mexican Grill, Inc., 954 F.3d 502, 516 (2d Cir. 2020). The second step of the process
takes place after discovery, allowing the Court to look at the evidentiary record to “make[] a
factual finding regarding the similarly situated requirement; if the claimants are similarly
situated, the collective action proceeds to trial, but if they are not, the [collective] is decertified.”
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Puglisi, 998 F. Supp. 2d at 100 (quoting Kalloo v. Unlimited Mech. Co. of NY, Inc., 908 F. Supp.
2d 344, 346 (E.D.N.Y. 2014)). Here, plaintiff moves this Court for conditional certification.
Therefore, “the Court need only make a preliminary determination whether the Plaintiffs are
‘similarly situated.’” Romero v. H.B. Automotive Grp., Inc., No. 11 CV 386, 2012 WL 1514810,
at *8 (S.D.N.Y. May 1, 2012).
Plaintiffs can satisfy their burden at the first step through an affidavit containing hearsay.
Iriarte v. Redwood Deli & Catering, Inc., No. 07 CV 5062, 2008 WL 2622929, at *3 (E.D.N.Y.
June 30, 2008) (granting conditional certification where plaintiff submitted an affidavit stating
other employees were subject to the same wage practices, though plaintiff had not identified
other opt-in plaintiffs). See also Chang Yan Chen v. Lilis 200 West 57th Corp., No. 19 CV 7654,
2021 WL 135248, at *4 (S.D.N.Y Jan. 14, 2021) (finding “the Court may consider hearsay in
deciding a motion for conditional certification”). Although the burden is minimal, plaintiffs
must provide more than just unsupported assertions. Myers, 624 F.3d at 555. See also Chang
Yan Chen, 2021 WL 135248, at *2–4 (finding plaintiff provided “barely [enough] to warrant
conditionally certifying a collective of deliverymen at both restaurants” by providing other
employees’ schedules, their pay frequency and tip participation, and allegations of conversations
regarding compensation, but did not provide enough information to show that the wage practices
spread across other non-exempt job titles). Mere “anecdotal hearsay” will not suffice. Barfield
v. N.Y.C. Health and Hospitals Corp., No. 05 CV 6319, 2025 WL 3098730, at *1 (S.D.N.Y. Nov.
18, 2005) (denying collective action certification where plaintiff “present[ed] nothing but limited
anecdotal hearsay to suggest that there is a widespread practice” violating FLSA).
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B. FLSA and NYLL Exemptions
The FLSA requires employers to compensate covered employees for all work performed,
including minimum wage, overtime, and spread-of-hours pay, in order to prevent “labor
conditions detrimental to the maintenance of the minimum standard of living necessary for
health, efficiency, and general well-being of workers.” 29 U.S.C. §§ 202(a), 207(a)(1); see also
Guzman v. Three Amigos SJL Inc., 117 F. Supp. 3d 516, 522 (S.D.N.Y. 2015). Employees have
a private right of action to recover compensation from an employer violating the FLSA and may
do so via a collective action on behalf of themselves and other employees similarly situated.
Carabajo v. APCO Insulation Co., Inc., No. 22 CV 4175, 2023 WL 3931618, at *3 (E.D.N.Y.
June 9, 2023) (citing 29 U.S.C. § 216(b)).
Although the FLSA requires that most employees be paid overtime compensation, certain
categories of employees are exempt from this requirement. One such category of exempted
employees is individuals employed in a “bona fide executive, administrative, or professional
capacity.” 29 U.S.C. 213(a)(1). Congress left the definition of “executive” and “administrative”
employees to the Department of Labor, which, through FLSA’s implementing regulations,
classifies employees as “executives” if (1) they are “[c]ompensated on a salary basis;” (2) their
“primary duty is management of the enterprise ... or of a customarily recognized department or
subdivision thereof;” (3) they “customarily and regularly direct[ ] the work of two or more other
employees;” and (4) they “ha[ve] the authority to hire or fire other employees or” if their
“suggestions and recommendations” on personnel decisions “are given particular weight.”
Ahmed v. T.J. Maxx Corp., 103 F.Supp.3d 343, 345–46 (E.D.N.Y. 2015) (quoting 29 C.F.R. §
541.100(a)(1)–(4)); Indergit v. Rite Aid Corp., No. 08 CV 9361, 2010 WL 2465488, at *2
(S.D.N.Y. June 16, 2010). The Department of Labor categorizes an employee as
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“administrative” if her “‘primary duty [is] the performance of office or non-manual work directly
related to the management or general business operations of the employer or the employer’s
customers and include[] the exercise of discretion and independent judgment with respect to
matters of significance.’” Romero, 2012 WL 1514810, at *7 (quoting Kress v.
PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 630 (E.D. Cal. 2009) (internal quotations
omitted)). An employee’s concurrent performance of exempt and nonexempt duties does not
necessarily disqualify her from the exemption. Ahmed, 103 F. Supp. at 351. The question of
whether the exemption applies is a mixed question of law and fact. Id.
The determination of whether the executive or administrative exemption applies is not
appropriate at the conditional certification stage, but the possibility that such exemptions exist
may be relevant to an analysis of whether employees are similarly situated. Romero, 2012 WL
1514810, at *6 (finding that addressing the merits of a FLSA exemption is not appropriate at the
conditional certification stage but determining the possible existence of an exemption should be
made when deciding conditional certification). The Second Circuit has held that, in cases
involving FLSA exemptions, plaintiffs can show they are similarly situated to the proposed
collective only “by making some showing that ‘there are other employees…who are similarly
situated with respect to their job requirements and with regard to their pay provisions,’ on which
the criteria for many FLSA exemptions are based, who are classified as exempt pursuant to a
common policy or scheme.” Myers, 624 F. 3d at 555 (quoting Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1259 (11th Cir. 2008)). “‘Where a collective action contains a mix of
employees, some of whom are exempt from the FLSA’s requirements, and some of whom are
classified as non-exempt, there is no factual nexus between the collective action members’
situations, and conditional certification is not appropriate.’” Batten v. Citi Gen. Hardware, Inc.,
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No. 24 CV 2039, 2025 WL 2751149, at *3 (E.D.N.Y. Sept. 29, 2025) (quoting Romero, 2012 WL
1514810, at *12). Courts often deny conditional certification where a FLSA exemption may
apply to the named plaintiff but not to the opt-in plaintiffs. E.g., Romero, 2012 WL 1514810, at
*14 (holding that “because putative opt-ins are not similarly situated with respect to their job
duties or exempt-status, [the Court] cannot conditionally certify the whole class as it stands.”);
Batten, 2025 WL 2751149, at *5 (denying conditional certification where FLSA Motor Carrier
Exemption might apply to plaintiff but might not apply to all collective action members). Cf.
Iglesias-Mendoza, 239 F.R.D. at 368 (conditionally certifying a collective action where all
employees were covered by the same exemption).
II. 	Plaintiff’s Motion for Conditional Certification Should be Denied
At this preliminary certification stage, plaintiff has not cleared her burden of showing she
is “similarly situated” to the potential opt-in plaintiffs.
Plaintiff seeks to conditionally certify a collective of:
All persons employed by Defendants, at any time from [three years
preceding the Court’s Order granting conditional certification] to
May 24, 2025, through the entry of judgment in this case (the
“Collective Action Period”), who worked as cooks, waitresses,
bartenders, busboys, assistant managers, and all other employees
who were not paid overtime wages for at least one week in which
they worked in excess of 40 hours (the “Collective Action
Members”).
(Mot. at 1–2). During the entire proposed period, spanning three years prior to any Order from
the district court granting conditional certification, plaintiff was an assistant manager, spending
40% of her time performing non-tipped tasks such as training employees, setting employee
schedules, responding to customer complaints, taking catering orders, creating menu specials,
ordering food products, supporting the head restaurant manager, and scheduling the restaurant
for private parties. (Id. at 3). As assistant manager, she was paid a salary of $600 per week and
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received tips for 60% of her work. (Id. at 2). Prior to that period, plaintiff worked as a waitress
until she was promoted on January 1, 2023. (Id. at 2). As a waitress, she waited tables, took
customer orders, served food, and at times, worked as a bartender providing alcoholic drinks for
customers. (Id.) During this time, she was paid $10 per hour and received tips from customers.
(Id.)
Plaintiff also submitted the declaration of Jorge Ulloa-Gonzales. (Dkt. No. 23-2). Mr.
Ulloa-Gonzales worked for defendants as a cook from September 1, 2022 to August 31, 2025.
(Id. ¶¶ 3, 8). His job duties included preparing food items, cooking food, and cleaning the
workstation. (Id. ¶ 8). He also claims he spent 30% of his time performing managerial tasks,
though he does not expand upon that point. (Id.) From September 1, 2022 to February 28, 2023,
Mr. Ulloa-Gonzales was paid $15 per hour, and from March 1, 2023 to August 31, 2025, he was
paid $1,000 per week regardless of how many hours he worked. (Id. ¶ 13).
Defendants argue that conditional certification is inappropriate because plaintiff’s role as
an assistant manager may implicate potential FLSA exemptions and because plaintiff’s proposed
collective would involve differing compensation structures. (Dkt. No. 22 at 2, 6). Defendants
contend that the proposed collective definition is “sweeping” and covers groups of employees
with no similar practice linking them. (Id.) Moreover, plaintiff does not dispute that she may be
covered by the FLSA exemption or, alternatively, that some proposed collective members are
similarly exempted. (See generally Dkt. No. 23 (“Reply”)).
The Court agrees that plaintiff does not, at this stage, provide a sufficient factual showing
that she and other employees were similarly situated with respect to a common policy or plan
that violated the law. Plaintiff may very well have been subject to the FLSA executive or
administrative exemption when other employees in the proposed collective were not. In fact, she
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concedes that she is not “an ordinary employee,” because as an assistant manager, she had “a
much greater view of the operations and pay practices of Defendants.” (Reply at 5). 	The fact
that she performed both managerial and non-managerial work does not necessarily preclude a
finding that plaintiff is covered by the exemption.
Moreover, although plaintiff and Mr. Ulloa-Gonzales claim that many other employees
have been denied overtime pay, nothing in plaintiff’s submissions supports this anecdotal hearsay
enough to find plaintiff was similarly situated to other employees. The only support plaintiff
provides is a supposed work schedule attached to her declaration which lists several individuals.
(Leon-Vizcaino Decl. at 4–7). Notably, Mr. Ulloa-Gonzales is not included on the schedule.
Plaintiff does not state whether she created this work schedule or if it was made by defendants.
The exhibit does not list employee job titles or even allege that the individuals were employed by
defendants. Although it lists where employee were stationed—either at the bar, serving, or
bussing—the only tasks listed on the schedule are “preparation opening and closing,” “break,”
“busiest time at the restaurant,” and an unmarked category that spans 88 combined hours
throughout the employees’ schedules. (Id. at 7 (quotations translated from Spanish)).3 Plaintiff
provides no insight into whether the listed employees are putative opt-ins, how the listed
employees were paid, or whether they were similarly denied overtime. Plaintiff fails to state
whether this was a typical workweek. The schedule is also undated, and the Court cannot
therefore determine if this workweek occurred before or after plaintiff’s promotion to assistant
manager. This work schedule does little, if anything, to show plaintiff is similarly situated to the
putative collective in pay structure, job duties, or FLSA exemption status.
3 The original categories were: “preparación apertura y cierre,” “break,” and “momentos de más movimiento del
restaurante.”
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In consequence, there is no factual nexus between the putative collective action members’
potential claims and plaintiff’s claims and the Court respectfully recommends that the district
court deny plaintiff’s motion for conditional certification.
CONLCUSION
For the reasons set forth above, the Court respectfully recommends that the district court
deny plaintiff’s motion for conditional certification and that plaintiff pursue her claims alone.
Any objections to this Report and Recommendation must be filed with the Clerk of the
Court, with a copy to the undersigned, within fourteen (14) days of receipt of this Report. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(a) (providing the method
for computing time). Failure to file objections within the specified time waives the right to
appeal the district court’s order. See, e.g., Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir.
2008).
The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing (ECF) system or by mail.
SO ORDERED.
Dated: Brooklyn, New York
February 26, 2026 /s/ Peggy Cross-Goldenberg
Peggy Cross-Goldenberg
United States Magistrate Judge
Eastern District of New York
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