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Rogers v. The Webstaurant Store, Inc.

United States District Court, W.D. Kentucky, Owensboro Division

September 25, 2018

BRITTANY ROGERS, on Behalf of Herself and All Others Similarly-situated PLAINTIFF
v.
THE WEBSTAURANT, INC. DEFENDANT

          MEMORANDUM AND OPINION ORDER

          Joseph H. McKinley, Jr., Chief Judge

         This matter is before the Court on Plaintiff's Motion for Conditional Certification, Expedited Discovery, and Court-Authorized Notice [DN 8]. Fully briefed, this matter is ripe for decision.

         I. Background

         Plaintiff, Brittany Rogers, filed a civil action against Defendant, The Webstaurant Store, Inc. (“Webstaurant”), alleging that Webstaurant willfully engaged in the practice of not recording employees' time for work performed and failed to compensate Rogers and others similarly situated with appropriate payment for such work in excess of forty hours in a work week in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (Complaint ¶1.) Rogers was employed by Webstaurant as a Consumer Solutions Specialist at the customer support facility in Madisonville, Kentucky from April 13, 2015 to December 19, 2017.

         Rogers now moves the Court to conditionally certify a class of current and former Consumer Solutions Specialists, Logistics Liaisons, and other non-exempt employees if the employee was scheduled to work shifts totaling forty hours per workweek but during said workweek(s) did not use a time clock to track actual hours worked. Rogers also moves the Court to approve notice to advise putative plaintiffs of their rights under the FLSA, and to furnish them an opportunity to opt-in to this action. Webstaurant opposes the conditional certification and certain aspects of Roger's proposed notice (Def.'s Resp. in Opp'n to Pl.'s Mot. for Conditional Class Certification [DN 36]).

         During the pendency of this motion, Rogers filed a Motion for a Temporary Restraining Order to prohibit Webstaurant from communicating with putative class members about the instant litigation and attempting to settle such claims [DN 9]. Two emails from Webstaurant's President Dave Groff and the distribution of a “Waiver and Release” form to specific employees prompted this motion [DN 9-3, 9-6, 9-7]. One email was sent on May 25, 2018 and informed the recipients of Rogers' lawsuit [DN 9-3]. The second email, sent July 11, 2018, told the recipients that Webstaurant wanted to guarantee that no employee was missing owed overtime pay and so the company would be paying those employees a specified amount of overtime pay [DN 9-6]. The final communication came the following day, June 12, 2018, in th e form of a “Waiver and Release” document, purporting to release Webstaurant from any potential FLSA liability [DN 9-7]. On June 20, 2018, this Court issued an Order finding that Webstaurant's communications with its employees were misleading and ordering Webstaurant's President to send a clarifying email to the same recipients [DN 15].

         II. Standard of Review

         The Fair Labor Standards Act (“FLSA”) mandates that “‘employers pay a federally-established minimum wage, as well as overtime, to certain types of employees.'” Tassy v. Lindsay Entertainment Enterprises, Inc., 2017 WL 938326, at *2 (W.D. Ky. Mar. 9, 2017) (quoting Boaz v. FedEx Customer Info. Servs., Inc., 725 F.3d 603, 605 (6th Cir. 2013) (citing 29 U.S.C. §§ 206(a), 207(a)). To enforce that mandate, the FLSA provides that an employee may bring a claim “for and in behalf of himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). A collective action under the FLSA permits similarly situated employees to “opt-in” to the action, unlike the opt-out approach typically utilized under Federal Rule of Civil Procedure 23. “An opt-in action under § 216(b) prohibits any person from becoming a party plaintiff in the collective action unless he or she files a written consent with the Court; therefore, these similarly situated employees must be notified of the lawsuit.” Ross v. Jack Rabbit Servs., LLC, 2014 WL 2219236, at *2 (W.D. Ky. May 29, 2014) (citing Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)).

         The FLSA does not itself define “similarly situated, ” but courts in this Circuit generally apply a two-stage process “to determine whether employees are ‘similarly situated' for purposes of maintaining a collective action against their employer.” Tassy, 2017 WL 938326, at *2. In the first stage, “which takes place at the beginning of discovery, the Court must determine whether to conditionally certify the collective action and authorize the distribution of notice to putative class members.” Id. (citing Comer, 454 F.3d at 546-47). Because conditional certification decisions generally are made prior to discovery, “a plaintiff's evidentiary burden is not a heavy one.” Ross, 2014 WL 2219236, at *2. “Conditional certification requires only a modest factual showing that the putative opt-plaintiffs are ‘similarly situated' to the named plaintiff.” Tassy, 2017 WL 938326, at *2 (citing White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012)). The similarly situated standard does not require that the plaintiff's position be identical to the positions held by the putative class members. Green v. Platinum Restaurants Mid-America, LLC, 2015 WL 6454856, at *1 (W.D. Ky. Oct. 26, 2015) (citing Hathaway v. Masonry, 2012 WL 1252569, at *2 (W.D. Ky. Apr. 13, 2012)). “At this stage, courts generally consider the pleadings and any affidavits which have been submitted.” Id. The determination of conditional certification “is made using a fairly lenient standard, and typically results in conditional certification of a representative class.” Comer, 454 F.3d at 547 (quoting Morisky v. Public Serv. Elec. & Gas Co., 111 F.Supp.2d 493, 497 (D.N.J. 2000) (internal quotation omitted)). However, the initial certification is “conditional and by no means final.” Id. at 546.

         The second stage occurs “after ‘all of the opt-in forms have been received and discovery has concluded.'” Id. (citation omitted). “In making its final-certification decision, the Court scrutinizes a No. of factors, such as ‘the factual and employment settings of the individual[ ] plaintiffs, the different defenses to which the plaintiffs may be subject on an individual basis, [and] the degree of fairness and procedural impact of certifying the action as a collective action.'” Tassy, 2017 WL 938326, at *2 (quoting O'Brien v. Ed Donnelly Enterprises, 575 F.3d 567, 584 (6th Cir. 2009) (alterations in original) (internal quotations omitted)). “Regardless of the stage, the lead plaintiff bears the burden of ‘showing that the opt-in plaintiffs are similarly situated.'” Tassy, 2017 WL 938326, at *2 (citing Wright et al., supra, § 1807, at 476 n.21).

         III. Discussion

         A. Conditional Certification

         Plaintiff seeks to certify a class of “all current and former employees of the WEBstaurant Store, Inc. who were employed as . . . (A) a Customer Solutions Specialist or (B) a Logistics Liaison or (C) in any other non-exempt position, if in such non-exempt position such employee was scheduled to work shifts totaling forty hours per workweek but during said workweek(s) did not use a time clock to track actual hours worked.” [DN 8 at 1]. The Court finds that Rogers provided sufficient factual support to merit conditional certification of a collective action for current and former employees of Webstaurant who were employed as Customer Solutions Specialists and Logistics Liaisons. The Court also finds that Rogers provided sufficient factual support to merit conditional certification of a collective action regarding employees in any other non-exempt position who received the June 11 email or the “Waiver and Release” form from Webstaurant. Regarding other employees in “any other non-exempt position, ” the Court finds that Rogers has provided insufficient factual support to merit conditional certification for such a catch-all class.

         1. Customer Solutions Specialists

         Rogers seeks to conditionally certify a class of all Customer Solutions Specialists at Webstaurant's facilities. To do so, Rogers and four others submitted declarations stating that Webstaurant's Consumer Solutions Specialists did the same type of work and were, for wage and hour purposes, treated similarly. (Rogers Decl. ¶¶ 4, 6, 13-14, 17); (Aguilera Decl. ¶¶ 3, 5-6, 15- 16); (Smart Decl. ¶¶ 6-7, 16-17); (Timm Decl. ¶¶ 6, 8-9, 18-19); (Gibson Decl. ¶¶ 6, 8-9, 18- 19). According to the declarations, the five Customer Solutions Specialists regularly worked additional time in excess of the forty-hour workweek, either before or after their shifts, or both and were not paid for their overtime work in violation of FLSA. (Rogers Decl. ¶¶ 7, 9-10, 13); (Aguilera Decl. ¶¶ 9, 11-12, 15); (Smart Decl. ¶¶ 10, 12-13, 16); (Timm Decl. ¶¶ 12, 14-15, 18); (Gibson Decl. ¶¶ 12, 14-15, 18).

         Webstaurant claims Rogers failed to prove that she is similarly situated to Customer Solutions Specialists in Webstaurant's other facilities. However, Rogers provided her own declaration along with declarations from four other Customer Solutions Specialists employed in each of Webstaurant's facilities-located in Kentucky, Nevada, Georgia, and Pennsylvania. (Rogers Decl. ¶ 3); (Gibson Decl. ¶ 3); (Aguilera Decl. ¶ 2); (Smart Decl. ¶ 2); (Timm Decl. ¶ 3). The declarations assert that Customer Solutions Specialists at each facility were treated the same for scheduling and wage purposes, worked in excess of the scheduled forty-hour workweek, and were not paid overtime wages. (Rogers Decl. ¶¶ 6-7, 9, 13-15); (Aguilera Decl. ¶¶ 5, 9, 11-12, 15-17, 21); (Smart Decl. ¶¶ 6, 10, 12-13, 16-18); (Timm Decl. ¶¶ 8, 12, 14-15, 18-20); (Gibson Decl. ¶¶ 8, 12, 14-15, 18-20). Webstaurant claims that Rogers is required to offer “individualized proof as to the pattern of practice in effect at each respective facility” [DN 36 at 9]. However, that degree of proof is not necessary at the initial stage. Rather, “[b]ecause conditional certification decisions generally are made prior to discovery, ‘a plaintiff's evidentiary burden is not a heavy one.'” Johnston v. J&B Mechanical, LLC, 2017 WL 3841654, at *2 (W.D. Ky. Sept. 1, 2017) (quoting Ross v. Jack Rabbit Servs., LLC, 2014 WL 2219236, at *2 (W.D. Ky. May 29, 2014)). Rogers has offered sufficient evidence by way of the submitted declarations to satisfy her burden that Customer Solutions Specialists in each of Webstaurant's facilities are similarly situated and were the victims of a commonly-applied, unlawful policy.

         2. Logistics Liaisons

         Rogers, through the declaration of Sarah Koch, offers evidence that Logistics Liaison employees should also be conditionally certified. Sarah Koch is a currently employed Logistics Liaison at Webstaurant's Pennsylvania facility. (Koch Decl. ¶ 7). Her declaration asserts that the work of Logistics Liaisons is very similar to that of Customer Solutions Specialists. (Koch Decl. ¶ 2). Koch bases this contention on her prior employment as a Customer Solutions Specialist, her conversations with Customer Solutions Specialists, and her husband's prior employment as a Customer Solutions Specialist. (Koch Decl. ¶¶ 2, 8-9, 11-12). Specifically, the declaration states that Customer Solutions Specialists and Logistics Liaisons perform similar job duties-the former engages with customers while the latter engages with suppliers as well as customers. (Koch Decl. ¶ 12). Further, Koch states that Webstaurant treated both Logistic Liaisons and Customer Solutions Specialists as non-exempt from the requirements of the FLSA. (Koch Decl. ¶ 16). The declaration asserts that Customer Solutions Specialists and Logistics Liaisons were treated the same for purposes of pay practices and hours-specifically, both are treated as “office personnel” pursuant to the Employee Handbook. (Koch Decl. ¶¶ 14-15, 17-18). Further, Koch claims that she and other Logistics Liaisons frequently worked in excess of forty hours per week but that Webstaurant knowingly failed to pay the correct amount of overtime wages. (Koch Decl. ¶¶ 19- 21, 23, 26-27).

         As stated above, “[a]uthorization 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.” Green, 2015 WL 6454856, at *1 (citing Hathaway, 2012 WL 1252569, at *2). Through the Koch declaration, Rogers has made the requisite “modest factual showing” that her position is similar to that of Logistics Liaisons. Green, 2015 WL 6454856, at *1 (citing Hathaway, 2012 WL 1252569, at *2).

         3. Any Other Non-Exempt Employee

         Concerning proposed class (C), Rogers claims that communications by Webstaurant, concerning the instant litigation, “constitute admissions by Defendant . . . that there is a class of persons similarly-situated to Plaintiff, and thus support granting the motion” (Supp. To Pl.'s Mot. For Conditional Certification [DN 21 at 1]). Rogers refers to the June 11 email as well as the “Waiver and Release” document provided to many Webstaurant employees [DN 21]. Rogers points to evidence, albeit actions taken by Webstaurant, which persuades the Court that she has also satisfied her burden with respect to a specific subset of employees-those individuals who received communication(s) directly from Webstaurant concerning the instant litigation.

         In the June 11 communication, Webstaurant's President stated that the recipients previously “were paid for 40 hours per week” and proceeded to detail a plan to pay employees for any previously unpaid overtime hours. Shortly thereafter, a “Waiver and Release” form was distributed. Rogers claims that this “form implicitly acknowledges that the recipients are entitled to participate in this action, as it requests employees ‘waive [their] right to participate in an FLSA collective action'” [DN 21, DN 9-7]. Webstaurant appears to claim that the June 11 communication was part of an effort to prevent employees from being blindsided by potential outreach from Roger's counsel (Def.'s Resp. in Opp'n to Pl.'s Mot. for Conditional Certification [DN 36]). Webstaurant does not address Roger's contention about the “Waiver and Release” document. Rogers offers no other evidence concerning category (C) employees. At this initial stage of certification, the Court is persuaded that Rogers meets her burden as to employees who received the June 11, 2018 email from Webstaurant's ...


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