United States District Court, W.D. Kentucky, Louisville Division
FELIPE CRUZ PEREZ and MARLIN PALMA, on behalf of themselves and others similarly situated PLAINTIFFS
EL TORAZO MEXICAN RESTAURANT, INC.; and GUSTAVO ORTIZ DEFENDANTS
MEMORANDUM OPINION AND ORDER
N. Stivers, Judge United States District Court.
matter is before the Court on Plaintiffs' Motion for
Conditional Certification (DN 26). The motion has been fully
briefed and is ripe for decision. For the reasons stated
below, the Court GRANTS the motion and
ADOPTS Plaintiffs' proposed notice and
consent forms with modifications.
action is brought to recover unpaid compensation in the form
of unpaid wages and overtime allegedly owed to Plaintiffs,
who are former employees of Defendants, El Torazo Mexican
Restaurant, Inc. (“El Torazo”) and Gustavo Ortiz
“Defendants”) pursuant to the Fair Labor
Standards Act (“FLSA”) and the Kentucky Wage and
Hour Act (“KWHA”). (Second Am. Compl.
¶¶ 1-2, 55-78, DN 34). Plaintiffs claim they were
forced to participate in a “tip pooling”
agreement in which they were required to remit approximately
1.5% of all food and beverage sale orders to restaurant
management. (Second Am. Compl. ¶¶ 37, 68).
original plaintiff, Felipe Cruz Perez (“Perez”),
filed the Complaint on August 24, 2016. (Compl., DN 1). Perez
amended the Complaint on January 11, 2017. (Am. Compl., DN
18). On March 17, 2017, Perez moved for leave to amend the
Complaint again to add Marlin Palma (“Palma”) as
a plaintiff and assert a collective action. (Pl.'s Mot.
Leave Am. Compl., DN 21). Plaintiffs filed the pending Motion
for Conditional Certification, which is fully briefed and
ripe for decision. (Pls.' Mot. Conditional Certification,
DN 26 [hereinafter Pls.' Mot. Cond. Cert.]).
action arises under the laws of the United States and the
Court has jurisdiction pursuant to 28 U.S.C. § 1331 and
has supplemental jurisdiction over Plaintiffs' state law
claims under 28 U.S.C. § 1367(a).
STANDARD OF REVIEW
actions under 29 U.S.C. § 216(b) require that:
“(1) the plaintiffs must actually be similarly
situated, and (2) all plaintiffs must signal in writing their
affirmative consent to participate in the litigation.”
Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546-47
(6th Cir. 2006) (internal quotation marks omitted) (citation
omitted). “Unlike class actions under
Fed.R.Civ.P. 23, collective actions under FLSA require
putative class members to opt into the class, ” and
“[t]hese opt-in employees are party plaintiffs, unlike
absent class members in a Rule 23 class action.”
O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d
567, 583 (6th Cir. 2009) (citation omitted), abrogated on
other grounds by Campbell-Ewald Co. v. Gomez, 136 S.Ct.
663 (2016). Therefore, the Court's task is to
“first consider whether plaintiffs have shown that the
employees to be notified” of the collective action
“are, in fact, similarly situated.”
Comer, 454 F.3d at 546- 47 (6th Cir. 2006) (internal
quotation marks omitted) (citation omitted). If the
plaintiffs meet this burden, then “[t]he district court
may use its discretion to authorize notification of similarly
situated employees to allow them to opt into the
lawsuit.” Id. (citation omitted). Therefore,
these similarly-situated employees must be notified of the
have used a two-phase inquiry when determining whether
employees are similarly situated.” Hathaway v.
Shawn Jones Masonry, No. 5:11-CV-121, 2012 WL 1252569,
at *2 (W.D. Ky. Apr. 13, 2012). “The first phase takes
place at the beginning of discovery.” Id.
“Authorization of notice requires only a modest factual
showing that the plaintiff's position is similar, not
identical, to the positions held by the putative class
members.” Id. (internal quotation marks
omitted) (citing Comer, 454 F.3d at 546). “At
this stage, courts generally consider the pleadings and any
affidavits which have been submitted.” Id.
(citation omitted). The initial certification is
“conditional and by no means final.”
Comer, 454 F.3d at 546 (citation omitted). “If
the court conditionally certifies the class, the putative
class members are given notice and the opportunity to opt
in.” Hathaway, 2012 WL 125259, at *2 (citation
Plaintiffs bring their Motion for Conditional Certification
within the “first phase” of class certification,
the Court considers whether the proposed class consists of
similarly situated Plaintiffs under the “fairly
lenient” standard set forth by the Sixth Circuit.
Comer, 454 F.3d at 547 (citation omitted). The Court
must then determine that the proposed notice is
“timely, accurate, and informative” as to
properly notify the proposed class. Hoffmann-La Roche,
Inc. v. Sperling, 493 U.S. 165, 166 (1989). The Court
will consider each step in turn.
Class Certification of “Similarly Situated”
seek to certify a class of “servers, waiters,
waitresses, and other tipped employees” (hereinafter
“Tipped Employees”) employed by Defendants from
August 24, 2013 on. (Pls.' Mem. Supp. Mot. Conditional
Certification 5-6, DN 26 [hereinafter Pls.' Mem.]).
Plaintiffs contend that the class is similarly situated under
Section 216(b) because: (1) the same type of invalid policy
of “tip pooling” applied to similar types of
Tipped Employees, (2) the Tipped Employees were paid the same
rate for all hours of work, whether tip-producing or not, (3)
the Tipped Employees were not informed of the application of
a tip credit by Defendants, (4) the Tipped Employees were not
paid the minimum wage, and (5) the Tipped Employees were not
adequately compensated for overtime work. (Pls.' Mem.
17-18). Employees in the proposed class all engaged in the
service industry, performed duties to accomplish serving food
and drink to customers, and experienced similar policies and
alleged underpayments working for Defendants. (Perez Decl.
1-3, DN 26-1; Palma Decl. 1-3, DN 26-2; Perez Second Decl.
1-3, DN 39-1; Palma Second Decl. 1-3, DN 39-2; Pls.'
Reply Supp. Mot. Conditional Certification 5-6, DN 39).
argue that Plaintiffs' declarations are speculative,
self-serving, and reliant on inadmissible hearsay, and are
therefore not sufficient to establish a class of similarly
situated plaintiffs. (Defs.' Resp. Pls.' Mot.
Conditional Certification 5-11, DN 38 [hereinafter Defs.'
Resp.]). Defendants further allege that the
proposed class is overbroad, as it includes potential
plaintiffs who, unlike Plaintiffs, were not servers and
worked in both locations of the restaurant. (Defs.' Resp.
12). Defendants finally argue that Plaintiffs' affidavits
fail to identify how they are similarly situated to other
potential class members, and that Plaintiffs have failed to
obtain any affidavits from non-server employees who have not
received minimum and/or overtime wages. (Defs.' Resp.
Court has found similar declarations relating to observations
of FLSA violations in the workplace as sufficient evidence to
find a similarly situated class of plaintiffs in the first
phase of certification. See Hathaway, 2012 WL
1252569, at *3-4. These declarations are sufficient to meet
the modest showing needed to find a similarly situated class.
Id. (certifying a class based on affidavits of
laborers describing workplace travel); Comer, 454
F.3d at 546-47. As to Defendants' argument of
overbreadth, this Court has previously certified a class
under situations where a uniform corporate policy applied to
similar, but not identical, types of employees. Bassett
v. Tenn. Valley Auth., No. 5:09-CV-00039, 2013 WL
665068, at *2-9 (W.D. Ky. Feb. 22, 2013) (certifying a class
that consisted of many different types of employees including
laborers, foremen, managers, and equipment operators with
varying duties). Further, such a varied group of employees
can still constitute a class even under the stricter standard
of the “second phase” of class certification.
See Id. (various types of employees in the
construction process similarly situated in the later stage of
the certification process). Thus, a class may be certified
regardless of the differing categories of employees in the
minimum, Plaintiffs have offered a modest showing sufficient
to meet their burden under the fairly lenient standard to
establish a similarly situated class. Comer, 454
F.3d at 546. The Court finds such ...