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Stephens v. Farmers Restaurant Group

United States District Court, District of Columbia

January 31, 2018

SHAYN STEPHENS et al., Plaintiffs,
v.
FARMERS RESTAURANT GROUP et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY J. KELLY United States District Judge.

         Plaintiffs, eight current and former servers at five restaurants operated by Defendants, claim that Defendants violated federal and state laws concerning the minimum wage, overtime pay, and sick leave. In the instant motion, [1] Plaintiffs seek conditional certification of an opt-in collective action under federal and D.C. law. For reasons set forth below, the Court will grant the motion in part and deny it in part. Conditional certification will be granted, with the following limitations:

         First, the putative class is limited to servers.

         Second, conditional certification is not granted with respect to the following factual allegations: (a) Plaintiffs' “homework” allegations; (b) Plaintiffs' allegations regarding uncompensated time at pre-shift meetings insofar as they relate to the Founding Farmers Tysons restaurant in Virginia; and (c) Plaintiffs' allegation that Defendants failed to aggregate hours worked at different restaurants for overtime purposes.

         Third, the putative class will be divided into three sub-classes, one for each of the three relevant jurisdictions (the District of Columbia, Maryland, and Virginia).

         Fourth, Defendants will be required to produce names, mailing addresses, and email addresses for notice purposes within the next twenty days but, absent a further order of the Court, will not be required to produce telephone numbers or to include notices with paychecks mailed to employees. The opt-in period will last sixty days from when notice is sent.

         Fifth, the Court does not approve Plaintiffs' proposed form of notice (Pls.' Br., Ex. A, ECF No. 14-1). Instead, the Court will order the parties to meet, confer, and submit to the Court a revised form of proposed notice consistent with this Opinion by February 9, 2018.

         I. Background

         A. The Amended Complaint

         Defendant Farmers Restaurant Group operates five restaurants in the D.C. metropolitan area: three in the District of Columbia (Founding Farmers DC, Farmers Fishers Bakers, and Farmers & Distillers), one in Maryland (MoCo's Founding Farmers), and one in Virginia (Founding Farmers Tysons). ECF No. 5 (“Am. Compl.”) ¶ 3. Plaintiffs allege that the two individual Defendants, Daniel Simons and Michael Vucurevich, own Farmers Restaurant Group. Id. ¶ 8.

         Plaintiffs, eight current and former employees at the restaurants, claim that Defendants' conduct violated the minimum wage and overtime provisions of the federal Fair Labor Standards Act of 1938 (“FLSA”), [2] Am. Compl. ¶¶ 45-59, the minimum wage and overtime provisions of the D.C. Minimum Wage Act (“DCMWA”), [3] Am. Compl. ¶¶ 60-74, the sick leave provisions of the D.C. Accrued Sick and Safe Leave Act of 2008 (“Sick Leave Act”), [4] Am. Compl. ¶¶ 75-78, the minimum wage and overtime provisions of the Maryland Wage and Hour Law, [5] Am. Compl. ¶¶ 79-94, and the payment requirements of the Maryland Wage Payment and Collection Law, [6] Am. Compl. ¶¶ 95-101. Plaintiffs have brought their case as a putative opt-in collective action under the FLSA and D.C. law, id. ¶¶ 10-15, and as a putative Rule 23 opt-out class action under D.C. and Maryland law, id. ¶¶ 16-32. The instant motion relates only to Plaintiffs' proposed collective action, and accordingly Plaintiffs' Maryland-law claims are not relevant to the issues presently before the Court.

         Plaintiffs claim that Defendants engaged in the following allegedly improper employment practices:

• Defendants required employees to use their own money “to purchase uniforms including, but not limited to, specific denim chambray shirts, suspenders, black non-slip shoes, aprons, and bow ties, ” id. ¶ 36, and “to clean, starch, and press their uniforms, ” id. ¶ 38.
• Defendants required employees “to purchase equipment for use while at work, including, but not limited to, bottle openers, corkscrews, black lighters, and black click-top pens.” Id. ¶ 37.
• Defendants required employees “to attend pre-shift meetings” before each shift that lasted “on average 15 to 20 minutes, ” and employees were not compensated for time spent at the meetings. Id. ¶ 39.
• Defendants required employees “to engage in close-out duties for 30 minutes to two hours per shift, ” and such duties included without limitation “rolling silverware, resetting tables, polishing silver, and cleaning and setting up the restaurants.” Id. ¶ 40. Similarly, Defendants required employees to spend time “sweeping cleaning, and preparing the restaurants to open before their shifts.” Id. ¶ 49(d).
• Defendants “required plaintiffs to pool their tips and share tip proceeds with staff who do not customarily and regularly receive tips and gratuities, including their managers.” Id. ¶ 44.
• When employees worked at multiple restaurants within Farmers Restaurant Group, Defendants “counted the hours of work at each location separately for purposes of calculating overtime to avoid paying overtime.” Id. ¶ 41. Defendants generally failed to compensate Plaintiffs “for all hours worked over 40 in a workweek at the proper overtime rate.” Id. ¶ 43.
• Defendants failed to provide employees with sick leave. Id. ¶ 42.
• Plaintiffs allege that they were paid using the “tip credit” for purposes of federal and state labor law. See Id. ¶ 35. That is, employees were paid a small cash wage (which under federal law must be at least $2.13), with the remainder of the minimum wage made up by tips. See Id. ¶ 51.

         Defendants allegedly applied these practices to the named Plaintiffs and to similarly situated employees, namely “servers, wait staff, and bartenders.” Id. ¶ 14.

         Since the Amended Complaint was filed, Plaintiffs have submitted opt-in consents from five additional putative class members that seek to participate in the action. See ECF Nos. 9, 25.

         B. Plaintiffs' Declarations

         Seven of the eight named Plaintiffs have submitted declarations in support of the motion.[7]The declarations explain that each Plaintiff either previously worked or still works as a “server” at one (or, in some cases, two) of the restaurants, with each Plaintiffs tenure beginning at some point since March 2015 and lasting for various lengths of time. See Calvillo Decl. ¶ 1; Clark Decl. ¶ 1; Krohn Decl. ¶ 1; Pitt Decl. ¶ 1; Stephens Decl. ¶ 1; Storey Decl. ¶ 1; Willig Decl. ¶ 1. Four named Plaintiffs worked at two restaurants, and each such Plaintiff claims that the same policies applied at both restaurants. See Calvillo Decl. ¶¶ 1-2; Clark Decl. ¶¶ 1-2; Pitt Decl. ¶¶ 1-2; Stephens Decl. ¶¶ 1-2. Only Plaintiff Calvillo worked at the Maryland restaurant, MoCo's Founding Farmers, see Calvillo Decl. ¶ 1, and only Plaintiff Storey worked at the Virginia restaurant, Founding Farmers Tysons, see Storey Decl. ¶ 1.

         The declarations attest to each Plaintiffs knowledge of the allegedly unlawful practices at the restaurants. These declarations track the allegations in the Amended Complaint in most, but not all, respects.

• Plaintiffs declare that they were required to purchase “uniforms” generally similar to those described in the Amended Complaint, and that they were required to launder the uniforms. See Calvillo Decl. ¶¶ 4-5; Clark Decl. ¶¶ 4-5; Krohn Decl. ¶¶ 3-4; Pitt Decl. ¶¶ 4-5; Stephens Decl. ¶¶ 4-5; Storey Decl. ¶¶ 3-4; Willig Decl. ¶¶ 3-4. The descriptions of the uniforms vary somewhat from plaintiff to plaintiff. For example, while most Plaintiffs include “denim chambray shirts” when describing the uniform, e.g., Calvillo Decl. ¶ 4, Plaintiff Pitt includes “white oxford shirts with non-French cuffs” instead, Pitt Decl. ¶ 4. Similarly, only two of the seven Plaintiffs mention suspenders in their descriptions, Calvillo Decl. ¶ 4; Stephens Decl. ¶ 4, and the word “suspenders” appears to have been whited out in Plaintiff Pitt's declaration, see Pitt Decl. ¶ 4.
• Plaintiffs declare that they were required to purchase equipment including “bottle openers, corkscrews, black lighters, and click-top black ink pens” for work. Calvillo Decl. ¶ 6; Clark Decl. ¶ 6; Krohn Decl. ¶ 5; Pitt Decl. ¶ 6; Stephens Decl. ¶ 6; Storey Decl. ¶ 5; Willig Decl. ¶ 5.
• With two notable exceptions, Plaintiffs uniformly report that they were required to attend pre-shift meetings lasting, “on average, 15 to 20 minutes each” and were prohibited from “clocking in” until the meetings were over. Calvillo Decl. ¶ 7; Krohn Decl. ¶ 6; Pitt Decl. ¶ 7; Stephens Decl. ¶ 7; Willig Decl. ¶ 6. However, Plaintiff Clark, who worked at both Farmers & Distillers and Founding Farmers DC, mentions only Farmers & Distillers when stating that servers could not “clock in” before the meetings (remaining silent on whether this was the case at Founding Farmers DC). See Clark Decl. ¶ 7. And Plaintiff Storey explains that employees are prohibited from “clocking in” at Founding Farmers Tysons only if they do not “come in at least 10 minutes early.” Storey Decl. ¶ 6.
• Plaintiffs also claim that they lacked the opportunity to earn tips during the pre-shift meetings. Calvillo Decl. ¶ 7; Clark Decl. ¶ 7; Krohn Decl. ¶ 6; Pitt Decl. ¶ 7; Stephens Decl. ¶ 7; Storey Decl. ¶ 6; Willig Decl. ¶ 6. Plaintiffs similarly describe having performed “30 minutes to two hours” after each shift of non-tipped close-out duties, such as “folding linens, polishing silverware, bullets, and ramekins, cleaning the wait stations, removing trash, restocking the takeout and to go boxes, restocking condiments, cleaning and restocking beverage stations, polishing wine glasses, and preparing tables.” Calvillo Decl. ¶ 8; see Clark Decl. ¶ 8; Krohn Decl. ¶ 7; Pitt Decl. ¶ 8; Stephens Decl. ¶ 8; Storey Decl. ¶ 7; Willig Decl. ¶ 7. Once again, there are some variations among the duties described. For example, Plaintiff Clark does not report having polished silverware, and Plaintiffs Clark and Storey do not say that they polished ramekins. See Clark Decl. ¶ 8; Storey Decl. ¶ 7.
• All Plaintiffs report having pooled their tips with other employees, in most cases with “bartenders, bussers, runners, and stockers.” Calvillo Decl. ¶ 9; Clark Decl. ¶ 9; Krohn Decl. ¶ 8; Pitt Decl. ¶ 9; Stephens Decl. ¶ 9; Storey Decl. ¶ 8. Plaintiff Willig says that the tip pool includes “bussers, runners, pastry workers, and stockers” Willig Decl. ¶ 8.
• Only Plaintiff Stephens, who worked at Farmers & Distillers and Farmers Fishers Bakers, reports that Defendants would “count the hours worked at each restaurant separately in order to avoid” paying overtime. Stephens Decl. ¶ 11.
• Six Plaintiffs state that they were denied sick leave. Calvillo Decl. ¶ 12; Clark Decl. ¶ 10; Krohn Decl. ¶ 9; Pitt Decl. ¶ 11; Stephens Decl. ¶ 13; Willig Decl. ¶ 10. Three Plaintiffs further specify that, when they requested sick leave, they were ordered to come in to work. Clark Decl. ¶ 10; Pitt Decl. ¶ 11; Stephens Decl. ¶ 13. Plaintiff Storey does not declare that she was denied sick leave. See Storey Decl.
• Six Plaintiffs' declarations also include the allegation, absent from the Amended Complaint, that their first two weeks of work involved a “training” period during which they were required to perform homework for “one to two hours” each workday. Calvillo Decl. ¶ 11; Krohn Decl. ¶ 10; Pitt Decl. ¶ 10; Stephens Decl. ¶ 12; Storey Decl. ¶ 10; Willig Decl. ¶ 9. Plaintiff Clark's declaration does not mention any such homework. See Clark Decl.
• The cash wage that Plaintiffs earned varied by jurisdiction: $2.77 in D.C., $3.63 in Maryland, and $2.13 in Virginia. See, e.g., Calvillo Decl. ¶ 3; Storey Decl. ¶ 2.

         Plaintiffs report that these practices applied to “other servers” as well, with one exception: no Plaintiff states that Defendants' alleged sick-leave policies applied to employees other than the named Plaintiffs. See Calvillo Decl. ¶ 13; Clark Decl. ¶ 11; Krohn Decl. ¶ 11; Pitt Decl. ¶ 12; Stephens Decl. ¶ 14; Storey Decl. ¶ 11; Willig Decl. ¶ 11. In addition, only Plaintiffs Calvillo, Stephens, and Storey say that they worked overtime, and each reports having worked overtime either a quarter or a third of the time. See Calvillo Decl. ¶ 10; Stephens Decl. ¶ 10; Storey Decl. ¶ 9.

         C. Defendants' Declarations

         Defendants filed four declarations, which accompanied their opposition brief[8] The declarations were filed by (1) Defendant Simons, see Simons Decl., (2) the Director of Accounting Operations at Founding Farmers Group, see Guilford Decl. ¶ 1, (3) a former General Manager at MoCo's Founding Farmers, see Smith Decl. ¶ 1, and (4) a Service Manager at Farmers Fishers Bakers, see Garcia Decl. ¶ 1.

         Defendants' declarations describe several differences among the restaurants that they assert assist them in defeating conditional certification. They explain that each restaurant is owned by a separate limited liability company with a different ownership structure, although Defendants do not appear to deny that Founding Farmers Group operates the restaurants (presumably through those other entities). See Simons Decl. ¶ 3. Defendants also explain that the restaurants have “operational differences” that affect their wage and hour policies. See Id. ¶ 4. For example, Defendants state that the restaurants have varying volumes of work at different times of the year and different hours of the day, resulting in different policies with respect to shifts, pre-shift meetings, and side work. See Id. ¶¶ 5-7, 11. Defendants also state that the restaurants offer different types of food and service (for example, some offer brunch buffets while others do not). See Id. ¶¶ 8-12. Defendants state that their clothing policies (which they describe as “style guides” rather than “uniforms”) vary among the restaurants. See Id. ¶ 13. They further state that there are variations in their policies regarding the tip credit and tip pooling, see Id. ¶¶ 14, 17-18, and whether employees are required to roll and polish silverware, see Id. ¶¶ 15-16.

         Defendants' declarations also deny several of Plaintiffs' substantive allegations. The declarations state that employees are not required to do homework, see Id. ¶ 19; that Defendants have paid employees straight-time and overtime pay as required, see Id. ¶¶ 20-21; Guilford Decl. ¶¶ 3-4; that Defendants gave employees paid time off to use as sick leave (and in some cases, paid employees for unused sick leave at the end of their employment), see Guilford Decl. ¶¶ 5-12; that pre-shift meetings were not held at MoCo's Founding Farmers, see Smith Decl. ¶ 6; and that such meetings varied in length and frequency at Farmers Fishers Bakers, see Garcia Decl. ¶¶ 6-9. Defendants' declarations further state that employees are not eligible to begin taking sick leave until 90 days after they start their jobs, and that some employees work for fewer than 90 days or for not much longer than that. See Guilford Decl. ¶¶ 6-9. Finally, the declarations state that at least two individual managers, and some vendors, gave employees access to many of the tools that Plaintiffs claim they had to purchase (such as pens, “wine tools, ” and lighters). See Smith Decl. ¶¶ 3-5; Garcia Decl. ¶¶ 3-5.

         II. Legal Standard

         A. Conditional Certification Under the FLSA

         The FLSA affords employees a private right of action for violations of the statute's minimum wage and overtime provisions. See 29 U.S.C. § 216(b); Coffen v. Wash. Conv. & Sports Auth., No. 16-cv-1064 (RJL), 2017 WL 4279320, at *2 (D.D.C. Sept. 25, 2017). Employees may prosecute such actions “for and in behalf of . . . themselves and other employees similarly situated, ” but unlike in a Rule 23 opt-out class action, any other employee seeking to join the action must affirmatively opt in by filing “consent in writing to become such a party.” 29 U.S.C. § 216(b). Once such a “collective action” is filed, “the court has a managerial responsibility to oversee the joinder of additional parties to assure that the task is accomplished in an efficient and proper way.” Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170-71 (1989). This responsibility includes ensuring that notice to putative class members “is timely, accurate, and informative.” Id. at 172. “District courts enjoy ‘considerable discretion' to decide whether and how collective actions should proceed and to fashion procedures for ‘joining similarly situated employees in a manner that is both orderly and sensible.'” Galloway v. Chugach Gov't Servs., Inc., 263 F.Supp.3d 151, 155 (D.D.C. 2017) (quoting Dinkel v. MedStar Health, Inc., 880 F.Supp.2d 49, 52 (D.D.C. 2012)).

         In the absence of guidance from our Court of Appeals, courts in this Circuit have followed the lead of other federal courts in adopting a “two-stage inquiry for determining when a collective action is appropriate.” E.g., Ayala v. Tito Contractors, 12 F.Supp.3d 167, 170 (D.D.C. 2014) (quoting Dinkel, 880 F.Supp.2d at 52). At the first stage, the Court determines whether and how to notify putative class members. See Id. While this stage is typically referred to as “conditional class certification, ” no class is actually created, and the “procedural safeguards” that govern certification of Rule 23 opt-out class actions do not apply. Galloway, 263 F.Supp.3d at 154-55. Rather, plaintiffs must merely propose a class of “potential opt-in plaintiffs who may be ‘similarly situated' to the named plaintiffs with respect to whether a FLSA violation has occurred.” Ayala, 12 F.Supp.3d at 170 (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010) (emphasis added)). If conditional certification is granted, then the matter proceeds as a collective action through the close of discovery, at which time the defendant may move for “decertification, ” prompting a “more searching” inquiry into whether putative class members are in fact “similarly situated.” Id.; see Galloway, 263 F.Supp.3d at 155-56.

         Given the nature of conditional certification, the “bar for a plaintiff . . . is not high.” Ayala, 12 F.Supp.3d at 170. Plaintiffs need only make a “modest factual showing sufficient to demonstrate that [named] and potential plaintiffs together were victims of a common policy or plan that violated the law.” Id. (alteration in original) (quoting Castillo v. P&R Enters., Inc., 517 F.Supp.2d 440, 445 (D.D.C. 2007)). This burden “may be satisfied based on pleadings and affidavits.” Blount v. U.S. Sec. Assocs., 945 F.Supp.2d 88, 93 (D.D.C. 2013). But “pure speculation” is not sufficient. Ayala, 12 F.Supp.3d at 170 (quoting Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 193 (3d Cir. 2011), rev'd on other grounds, 569 U.S. 66 (2013)). Courts have denied conditional certification, or certified a class narrower than the one proposed, where plaintiffs have failed “to produce any evidence that there was a common practice” covering the entire proposed class. Dinkel, 880 F.Supp.2d at 55.

         Once plaintiffs have met their burden, defendants may not thwart conditional certification merely by contradicting plaintiffs' claims, even if defendants provide “voluminous documentation” purporting to show that no violations occurred. Bhumithanarn v. 22 Noodle Mkt. Corp., No. 14-cv-2625 (RJS), 2015 WL 4240985, at *4 (S.D.N.Y. July 13, 2015). Rather, “district courts should ordinarily refrain from resolving factual disputes and deciding matters going to the merits.” Dinkel, 880 F.Supp.2d at 53. Moreover, “[p]laintiffs need only show that their positions are similar, not identical, to the positions held by the putative class members.” Ayala, 12 F.Supp.3d at 170 (quoting Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)). Accordingly, defendants cannot defeat conditional certification by pointing to immaterial variations in how the improper policies alleged by the plaintiff were applied. See, e.g., Blount, 945 F.Supp.2d at 94-95. Conditional certification is also often appropriate despite differences among putative class members that go to damages, because a trial on liability may be followed by “individualized damages calculations.” Id. at 96. Nonetheless, conditional certification may be inappropriate where defendants' liability to each putative class member turns on individualized questions. See, e.g., Dinkel, 880 F.Supp.2d at 54-55.

         B. Conditional Certification Under the DCMWA and the Sick Leave Act

         D.C. law permits DCMWA and Sick Leave Act claims to be brought “[c]onsistent with the collective action procedures of the Fair Labor Standards Act, ” in an opt-out class action, or in a collective action that is subsequently converted into a class action. D.C. Code § 32-1308(a)(1)(C)(iii)-(v).[9] While D.C. law thus incorporates the FLSA's procedural provisions, D.C. law differs from the FLSA in that it provides a definition of “similarly situated”:

(2) For the purposes of this subsection, 2 or more employees are similarly situated if they:
(A) Are or were employed by the same employer or employers, whether concurrently or otherwise, at some point during the ...

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