Macci v. Federal Express Corporation

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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PETER MACCI, on behalf of himself,
FLSA Collective Plaintiffs, and the Class,
Plaintiffs,
v.
FEDERAL EXPRESS CORPORATION,
Defendant.
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LEE G. DUNST, Magistrate Judge:
Presently before the Court is Plaintiff’s Motion to Certify Collective Action (the
“Motion”) pursuant to the Fair Labor Standards Act (“FLSA”) at Electronic Case File (“ECF”)
No. 20. The motion is before the undersigned for a decision pursuant to District Judge Sanket J.
Bulsara’s Individual Practice Rule V.A.9. See also Summa v. Hofstra Univ., 715 F. Supp. 2d
378, 383 (E.D.N.Y. 2010) (“[A] magistrate judge has jurisdiction over a motion seeking
conditional class certification because it is only a ‘preliminary determination[ ] and [is] not
dispositive’”) (citations omitted). For the reasons discussed herein, the motion is granted in part
and denied in part.
I. 	FACTUAL AND PROCEDURAL BACKGROUND
A. 	Factual Background
According to the Complaint, Defendant Federal Express Corporation (“FedEx”) “is the
world’s largest express transportation company” and is based in Memphis, Tennessee. ECF No.
1 at 1, 3. Plaintiff Peter Macci was employed as a FedEx driver on Long Island for
approximately 25 years. Id. at 2. Specifically, Plaintiff was a “Shuttle Driver (DOT)” in the
ORDER
24-CV-04325 (SJB) (LGD)
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FedEx location in Hicksville from 1996 to 2019, and then a “Courier Driver (DOT)” in the
FedEx location in Melville (the “FRG Location”) from 2019 until his termination in June 2022.1
Id. at 9–11. According to Plaintiff, his roles included, but were not limited to, “[o]perating a
FedEx Express vehicle; [d]elivering packages to FedEx Express customers, and picking up
packages from FedEx Express customers . . . ; [and] [m]eeting on road with other drivers mid-
shift to pick up additional packages.” Id. at 10.
Plaintiff contends that FedEx violated the Fair Labor Standards Act (“FLSA”) and New
York Labor Law (“NYLL”) due to FedEx’s alleged failure to properly pay “overtime wages due
to commonly-applicable policies of time-shaving and unpaid off-the-clock work.” Id. at 2.
Specifically, Plaintiff claims that he was required to perform work-related tasks during his break
periods and argues that “FedEx Express’s policy of automatically deducting purported ‘breaks’
from Plaintiff’s paid time amounted to unlawful time shaving because Plaintiff was never
actually afforded uninterrupted, bona fide breaks, and was in fact required by FedEx Express to
work during the so-called ‘breaks.’” Id. at 15. Plaintiff further contends that FedEx employees
were required to wear their uniforms at all times and were “not permitted to clock into work
unless dressed in uniform, and may not remove their uniforms until after they finish working and
clock out” and improperly were not compensated for their time spent on “compensable off-the-
clock time spent ‘donning and doffing.’” Id. at 16. Defendants deny these allegations of any
improper time shaving or unpaid off-the-clock work. See ECF No. 9.
According to the Complaint (which was filed on June 18, 2024), Plaintiff seeks to bring
this case as a collective action “on behalf of all drivers (including, but not limited to the
following positions and classifications: Courier (DOT), Courier, Driver Courier (DOT), Driver
1 Plaintiff was a part-time driver from 1996 to 2019, and then was employed full-time from 2019 to 2022.
ECF. No. 22 at 1.
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Courier, Delivery Driver (DOT), Delivery Driver, and Shuttle Driver (DOT)) employed by
FedEx Express in the State of New York, on or after the date that is six (6) years before the filing
of the Complaint in this action (“FLSA Collective Plaintiffs”).” Id. at 5.
In support of the claims against FedEx, the Complaint refers primarily to Plaintiff’s own
personal experiences employed at FedEx. See generally id. Plaintiff also cites in the Complaint
to his “observations and conversations during his employment.” Id. at 11. The Complaint does
not provide any detail about any other FedEx drivers by name regarding any alleged time
shaving or unpaid off-the-clock work.
Plaintiff expanded on these allegations in his subsequent declaration that was submitted
in support of the pending certification motion. See ECF No. 22. According to Plaintiff, he was
“never afforded uninterrupted, bona fide breaks” because “FedEx maintained a policy of
mandating employees to clock out for purported ‘breaks’ . . . even if the employee was working
and unable to take such breaks.” Id. at 2. Plaintiff added that “based on my observations and
conversations with other drivers in positions such as couriers, driver couriers, delivery drivers,
and shuttle drivers were similarly required to work during breaks without compensation.” Id.
Plaintiff cites his conversations with “numerous co-workers” with similar experiences and
specifically references approximately thirteen employees (five by their full names and the
remainder only by their first names). See id. at 2–3. Plaintiff includes no information about
where most of these FedEx drivers worked, except for one employee (identified by his full name)
who took over Plaintiff’s route in the Northport/Fort Salonga area and two employees (identified
by their first names only) who worked in the Syosset and Crossways Park areas. See id.
B. 	Procedural Background
As noted previously, Plaintiffs filed this action on June 18, 2024. ECF No. 1.
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Defendants answered the Complaint on August 26, 2024. ECF No. 9. On October 28, 2024, the
parties attended the Initial Conference, and the Court issued the discovery schedule noting that
“any motion to amend the pleadings to add claims or join addition[al] parties must be filed by
1/31/2025.” ECF No. 15. Plaintiff never sought to amend the Complaint at any time either
before or after January 31, 2025.
Plaintiffs filed the instant motion to certify this case as a FLSA collective action on
March 7, 2025, with a memorandum in support and an affirmation from Plaintiff Peter Macci.
See ECF Nos. 20–22. Plaintiff also filed an affirmation by Plaintiff’s counsel. ECF No. 23.
Plaintiffs did not submit affirmations from any other FedEx drivers. Notably, Plaintiffs have
narrowed the geographic scope of the proposed collective action from all FedEx drivers in New
York State to those “employed by Defendant in New York County, Queens County, Kings
County, Bronx County, Richmond County, Westchester County, Nassau County and Suffolk
County.” ECF No. 21 at 1–2. Defendant filed its opposition to the motion on April 11, 2025
(ECF No. 24), Plaintiff replied in further support of the motion on April 22, 2025 (ECF No. 26).
On May 22, 2025, the Court conducted a status conference and directed the parties to
submit a joint status report by June 12, 2025. See ECF No. 28. On June 12, 2025, the parties
reported that they “ha[d] been engaged in discussions regarding settlement.” ECF No. 29. As a
result, the Court directed the parties to submit another status report regarding their settlement
discussions. See Electronic Orders, dated June 16, 2025, and June 30, 2025. On July 14, 2025,
the parties reported that their settlement discussions were “at an impasse.” ECF No. 31. The
Court directed the parties to submit ex parte letters regarding these discussions (see Electronic
Order, dated July 31, 2025) and later conducted a status conference on August 26, 2025 (ECF
No. 32). The Court then scheduled a settlement conference for October 23, 2025, and held the
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motion for certification in abeyance pending that settlement conference. See ECF No. 32. The
subsequent settlement conference was unsuccessful and, as a result, the Court advised that it
would address the pending certification motion. See ECF. No. 35.
II. 	LEGAL STANDARD
“Section 216(b) of the FLSA provides employees with a right of action on behalf of
themselves and ‘others similarly situated.’” Villalta v. 101-11 86 Ave. Corp., No. 20-CV-0249,
2022 WL 462408, at *2 (E.D.N.Y. Feb. 15, 2022) (citing 29 U.S.C. § 216(b)). In considering
whether employees can bring a “collective action” pursuant to the FLSA, the Second Circuit
applies a two-step test:2 “[t]he first step involves the court making an initial determination 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.” Myers v. Hertz Corp., 624 F.3d 537,
555 (2d Cir. 2010). If the Court certifies the first step, potential class members may then “op-in”
to the case. Agonath v. Interstate Home Loans Ctr., Inc., No. 17-CV-5267, 2019 WL 1060627,
at *2 (E.D.N.Y. Mar. 6, 2019). After a fuller record has been developed, the second stage
(known as the “decertification stage”) occurs, wherein the court determines whether the “opt-in
plaintiffs are in fact similarly situated to plaintiffs.” Jibowu v. Target Corp., 492 F. Supp. 3d 87,
118 (E.D.N.Y. 2020) (citation omitted); see also Myers, 624 F.3d at 555; see Villalta, 2022 WL
462408, at *2.
In considering this first step, Plaintiffs should make a “‘modest factual showing’ that they
and potential opt-in plaintiffs ‘together were victims of a common policy or plan that violated the
2 Defendant suggests that the Court should ignore this Second Circuit precedent and apply a different approach to
certification followed by other Circuits. ECF No. 24 at 19 (“FedEx’s position is that this Court, and the Second
Circuit should abrogate this approach and instead follow sister circuits who have done so in favor an approach based
more squarely upon the statutory language of the FLSA.”). The undersigned declines Defendant’s invitation to
ignore long-standing Second Circuit precedent. See, e.g., Delk v. Harborview Health Sys. Inc., No. 24-CV-4269,
2025 WL 2653903, at *3–8 (E.D.N.Y. Sept. 16, 2025) (applying the Second Circuit’s two-step approach to
certification of a collective action under the FLSA).
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law[.]’” Myers, 624 F.3d at 555 (quoting Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 261
(S.D.N.Y. 1997)); see also Rafter v. Everlast Sign & Serv. Inc., No. 21-CV-4588, 2023 WL
7687261, at *4 (E.D.N.Y. Apr. 13, 2023) (same). Documents that may be considered to
establish such a showing include “plaintiffs’ own pleadings, affidavits, declarations, or the
affidavits and declarations of other potential class members.” Chicas v. Kelco Constr., Inc., No.
21-CV-09014, 2023 WL 2072026, at *3 (S.D.N.Y. Feb. 19, 2023) (internal quotation marks and
citation omitted). At this stage, district courts “examine pleadings and affidavits, but ‘do[ ] not
resolve factual disputes, decide substantive issues going to the ultimate merits or make
credibility determinations.’” Villalta, 2022 WL 462408, at *3 (quoting Summa v. Hofstra Univ.,
715 F. Supp. 2d 378, 385 (E.D.N.Y. 2010)); see also Gonzalez v. Wicked Taco LLC, 764 F.
Supp. 3d 77, 96 (E.D.N.Y.) (“When applying this lenient evidentiary standard, a court evaluates
pleadings and affidavits, but does not resolve factual disputes, decide substantive issues going to
the ultimate merits, or make credibility determinations.”) (citation omitted), reconsideration
denied, 772 F. Supp. 3d 284 (E.D.N.Y.), objections overruled, No. 23-CV-09555, 2025 WL
2384040 (E.D.N.Y. 2025). In determining whether members of an action are similarly situated,
“district courts typically review several factors, including (1) the disparate factual and
employment settings of the individual plaintiffs; (2) the various defenses available to the
defendant which appear to be individual to each plaintiff; and (3) fairness and procedural
considerations.” McGlone v. Contract Callers, Inc., 49 F. Supp. 3d 364, 367 (S.D.N.Y. 2014)
(citation omitted); Chicas, 2023 WL 2072026, at *3–4 (applying these factors and finding
conditional class certification was warranted); Severino v. Avondale Care Grp., LLC, No. 21-
CV-10720, 2022 WL 16555372, at *3 (S.D.N.Y. Oct. 29, 2022) (same).
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III. 	DISCUSSION
Applying the above standard to the record, the Court finds that Plaintiff have
demonstrated that conditional certification is warranted but not to the extent sought by Plaintiff.
Plaintiff’s submissions in this case are sufficient to establish the “‘modest factual
showing’ that [he] and potential opt-in plaintiffs ‘together were victims of a common policy or
plan that violated the law.’” Myers, 624 F.3d at 555 (quoting Hoffmann, 982 F. Supp. at 261).
Applying “this lenient evidentiary standard,” the evidence suggests at this early stage of the case
that certain FedEx drivers worked under similar conditions and were likely victims of a common
policy or plan that may have violated the FLSA. See Gonzalez, 764 F. Supp. 3d at 95. The Court
finds that Plaintiffs have made a sufficient showing to grant conditional certification of a
collective as to Plaintiff and certain FedEx drivers. However, as set for the herein, Plaintiff has
failed to meet his burden as to the expansive geographic scope and time period for the proposed
collective that he seeks in the pending motion.
1. 	Unlawful Policy
“To bring a collective action, Plaintiffs must show they were victims of Defendants’
illegal pay practices.” Villalta, 2022 WL 462408, at *5. Here, the Court finds sufficient facts at
this stage to show Defendant may have been employed an improper break policy in violation of
the FLSA – to wit, Defendant required Plaintiff to work during breaks – and Plaintiff did not
receive proper pay as a result. Plaintiff’s reliance on his affirmation (which includes references
to other employees who were subject to this policy) is sufficient to satisfy the “modest factual
showing” at this stage. Myers, 624 F.3d at 555.
2. 	Similarly Situated Employees
“Next, the Court considers whether similarly situated employees exist with respect to
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Defendants’ alleged FLSA overtime violations.” Villalta, 2022 WL 462408, at *6. Plaintiff
explains that similar break policies were applied to other drivers at FedEx, citing his
conversations were several other drivers. The Court finds that Plaintiffs’ allegations are
sufficient to establish a nexus between the situation of Plaintiffs and the other drivers as possible
victims of a common policy or plan that violated the law.3 See Neris v. R.J.D. Constr., Inc., No.
18-CV-1701 (ADS) (AKT), 2019 WL 1458239, at *5 (E.D.N.Y. Mar. 29, 2019) (concluding that
Plaintiff had met the “lenient” evidentiary standard in showing a “plausible factual nexus”
concerning Plaintiff and other employees).
3. 	Geographic Scope
The regional breadth of the proposed collective action has evolved from the entire State
of New York, as set forth in the Complaint (ECF No. 1 at 5), to (1) Nassau County, (2) Suffolk
County, (3) New York City (including all five counties therein), and (4) Westchester County, as
set forth in the Motion (ECF No. 21 at 1–2). Defendant argues that Plaintiff has not met his
burden to seek certification of such a broad geographic collective. See ECF No. 24 at 19–20.
The Court agrees.
Plaintiff worked only at the FRG Location on Long Island after 2019 and did not work at
any FedEx location in New York State. Plaintiff’s affirmation includes references to other
FedEx drivers (a few by their full name and most by their first name only), but lacks sufficient
information about where they actually worked (other than some vague details about three
employees). Notably, Plaintiff has submitted no declarations from any other FedEx drivers, let
3 Defendant contends that Plaintiff is not similarly situated to other FedEx drivers because Plaintiff proposes “an
overly broad collective comprised of various types of driving positions employed by FedEx.” ECF No. 24 at 9. The
Court rejects Defendant’s argument at this early stage that similarly situated employees should be limited to those
with the same work title as Plaintiff. However, Plaintiff’s allegations are sufficient at this first step of the
certification process, and Defendant retains the right to argue this at the second step of the certification process in
the future. See Rafter, 2023 WL 7687261, at *4 (E.D.N.Y. Apr. 13, 2023).
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alone anyone who worked anywhere other than the FRG Location. Finally, Plaintiff has had the
opportunity to amend the Complaint to address these deficiencies, but has failed to do so since he
filed the Complaint more than seventeen months ago. Thus, even under the lenient evident
standard at the conditional certification stage, Plaintiff’s barebones submission fails to satisfy his
burden to certify a collective action for all eight counties in the New York metropolitan area.
See, e.g., Johnson-Cradle v. KPS Affiliates Inc., No. 22-CV-1052, 2023 WL 3091675, at *8
(S.D.N.Y. Apr. 26, 2023) (limiting the geographic scope of the conditional certification when
“[plaintiff] ha[d] not offered evidence relating to [defendant’s] compensation policies for
security guards at any location other than the Bronx Location”); Laroque v. Domino's Pizza,
LLC, 557 F. Supp. 2d 346, 355 (E.D.N.Y. 2008) (limiting the geographic scope of the
conditional certification, noting that “[a]lthough plaintiffs, all of whom were employed at the
Coney Island Store, ha[d] alleged enough facts to allow the court to certify a class of individuals
who worked at the same location during the same period, those facts fail[ed] to demonstrate that
plaintiffs [were] similarly situated to individuals who worked at a number of different locations,
and under a number of different managers”).
The Court therefore limits the geographic scope of the collective action to just FedEx’s
FRG Location where Plaintiff was employed.
4. 	Temporal Scope
Plaintiff seeks to certify an action dating back to June 18, 2018 (six years prior to filing
of the Complaint) through the present. Defendant objects and argues that the action should be
limited to a three-year lookback period. See ECF No. 24 at 16. The Court agrees with
Defendant.
As set forth in Defendant’s submission, “the growing trend in this district appears to be
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limiting the notice period to three years.” ECF No. 24 at 21 (quoting McBeth v. Gabrielli Truck
Sales, Ltd., 768 F. Supp. 2d 396, 400 (E.D.N.Y. 2011)). Courts have held that “overall efficiency
concerns” also warrant limitation of claims to a three-year statute of limitations. Rafter, 2023
WL 7687261, at *8 (citation omitted). The Court is not convinced by Plaintiff’s argument about
the “limited burden” associated with certification of the longer six-year notice period. ECF No.
26 at 9.
The Court therefore limits the certification to the three-year time period prior to the filing
of the complaint – from June 18, 2021, through the present.
B. 	Proposed Notice
Given that the Court has made the initial finding to certify a collective action, the Court
needs to authorize the issuance of notice for additional opt-in Plaintiffs. See Villalta, 2022 WL
462408, at *7. The FLSA “vests the district court with broad discretion with respect to the
notice of pending litigation to be provided to potential opt-in plaintiffs.” Yi Mei Ke v. JR Sushi 2
Inc., No. 19-CV-7332, 2021 WL 148751, at *12 (S.D.N.Y. Jan. 15, 2021) (quotation marks and
citation omitted).
The parties have represented that they will meet and confer regarding the proposed notice
for submission to the Court. See ECF No. 24 at 19 (“[I]n the event the Court grants conditional
certification, FedEx requests that the Court order the parties to meet and confer to reach an
agreement as to the form and content of the notice”); ECF No. 26 at 9 (“Plaintiff respectfully
requests that the Court allow the parties an opportunity to amicably negotiate a proposed notice
to avoid unnecessary judicial intervention”). The Court agrees that this approach is most
efficient for the parties and the Court. The parties therefore shall meet and confer in good faith
and submit a proposed notice to the Court by January 5, 2026.
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IV. 	CONCLUSION
The Court grants Plaintiffs’ Motion to Certify FLSA Collective Action as follows: (1) conditional
certification of this action as a representative class action pursuant to the FLSA on behalf of all FedEx
drivers employed at the FedEx FRG location only from June 18, 2021 to the present; and (2) the parties
shall submit a proposed notice to potential opt-in plaintiffs by January 5, 2026.
V. 	OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(a), the parties shall have fourteen (14)
days from service of this Order to file written objections. See also Fed. R. Civ. P. 6(a) & (d)
(addressing computation of days). Any requests for an extension of time for filing objections
must be directed to Judge Bulsara. FAILURE TO FILE TIMELY OBJECTIONS SHALL CONSTITUTE A
WAIVER OF THOSE OBJECTIONS BOTH IN THE DISTRICT C OURT AND ON LATER APPEAL TO THE
UNITED S TATES C OURT OF APPEALS . See Thomas v. Arn, 474 U.S. 140, 154–55 (1985); Frydman
v. Experian Info. Sols., Inc., 743 F. App’x 486, 487 (2d Cir. 2018); McConnell v. ABC-Amega,
Inc., 338 F. App’x 24, 26 (2d Cir. 2009); F.D.I.C. v. Hillcrest Assocs., 66 F.3d 566, 569 (2d Cir.
1995).
SO ORDERED:
Dated: Central Islip, New York
November 20, 2025 	/s/ Lee G. Dunst__
LEE G. DUNST
United States Magistrate Judge
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