Thedford et al v. Drive In of Evansville Inc

Filing 25

MEMORANDUM OPINION, as set out, re 11 Motion for Conditional Certification and Judicial Notice Under § 216(b). Signed by Judge Sharon Lovelace Blackburn on 10/31/14. (CTS, )

FILED
2014 Oct-31 PM 02:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHENNETTA THEDFORD;
BRIANNA KING; DECORELAN
TOMPKINS, a minor, by and through
his parent, Sherry Tompkins;
ALEXANDER DEBOSE; TALESHA
WRENCH; SHANTERRICKA
THEDFORD, a minor, by and through
her parent, Shennetta Thedford;
KRIBBE PERRYMAN,
Plaintiffs,
vs.
DRIVE IN OF EVANSVILLE, INC.,
d/b/a as Sonic Drive-In,
Defendant.

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CASE NO. 2:14-CV-0390-SLB

MEMORANDUM OPINION
This case is presently pending before the court on plaintiffs’ Motion for
Conditional Certification and Judicial Notice Under § 216(b). (Doc. 11.)1 Plaintiffs
Shennetta Thedford, Brianna King, Decorelan Tompkins, Alexander Dubose, Talesha
Wrench, Shanterricka Thedford, and Kribbe Perryman have sued their former employer,
defendant Drive-In of Evansville, Inc., alleging violations of the Fair Labor Standards
Act. They have filed a Motion for Conditional Certification, in which they ask the court to
allow them to proceed with a collective action and to issue notice to similarly-situated

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

current and former employees of defendant. Upon consideration of the record, the
submissions of the parties, the arguments of counsel, and the relevant law, the court is of
the opinion that plaintiffs’ Motion for Conditional Certification and Judicial Notice
Under § 216(b), (Doc. 11), is due to be denied.
I. STANDARD FOR CERTIFICATION OF A COLLECTIVE ACTION
The FLSA authorizes a collective action under the following conditions:
An action . . . may be maintained against any employer . . . by any one or
more employees for and in behalf of himself or themselves and other
employees similarly situated. No employee shall be a party plaintiff to any
such action unless he gives his consent in writing to become such a party
and such consent is filed in the court in which such action is brought.
29 U.S.C. § 216(b).2 A district court, in its discretion, may conditionally certify a
collective action when to do so would permit the “efficient resolution in one proceeding
of common issues of law and fact arising from the same alleged . . . activity.” Hoffman-La
Roche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989). “A plaintiff has the burden of
showing a ‘reasonable basis’ for his claim that there are other similarly[-]situated
employees.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008)
(citations omitted). “The FLSA itself does not define how similar the employees must be
before the case may proceed as a collective action. And [the Eleventh Circuit has] not
2

A collective action under § 216(b) differs from a Rule 23 class action in that an
individual does not become a party to the § 216(b) case unless and until he gives his consent in
writing to become a party, i.e. “opts-in” to the action, whereas a party must affirmatively “optout” of a case proceeding as a Rule 23 class action. See Haynes v. Singer Co., 696 F.2d 884, 885
(11th Cir. 1983); see also Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1102 (10th Cir.
2001).
2

adopted a precise definition of the term.” Id. at 1259. The Eleventh Circuit, however, has
stated that “a unified policy, plan, or scheme of discrimination may not be required to
satisfy the more liberal ‘similarly-situated’ requirement of § 216(b). Hipp v. Liberty Nat.
Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001) (quoting Grayson v. K Mart Corp., 79
F.3d 1086, 1095 (11th Cir.1996)). Nevertheless, a plaintiff “must make some rudimentary
showing of commonality between the basis for his claims and that of the potential claims
of the proposed class, beyond the mere facts of job duties and pay provisions . . . .”
Marsh v. Butler Cnty. Sch. Sys., 242 F. Supp. 2d 1086, 1093 (M.D. Ala. 2003); see also
Fox v. Tyson Foods, Inc., No. 4:99-CV-1612-VEH, 2006 WL 6012784, at *4 (N.D. Ala
Nov. 15, 2006); Williams v. Accredited Home Lenders, Inc., No. 1:05-CV-1681-TWT,
2006 WL 2085312, at *3 (N.D. Ga. July 25, 2006); Holt v. Rite Aid Corp., 333 F. Supp.
2d 1265, 1270 (M.D. Ala 2004).
The Eleventh Circuit has held that “before facilitating notice, a district court
should satisfy itself that there are other employees who desire to ‘opt-in’ and who are
‘similarly situated’ with respect to their job requirements and with regard to their pay
provisions.” Morgan, 551 F.3d at 1259 (internal quotations and citation omitted).
The initial issue is whether Plaintiffs have made the requisite
showing to justify conditional certification of a nationwide collective action
and court[-]authorized notice. In Hipp v. Liberty National Life Insurance
Co., 252 F.3d 1208 (11th Cir. 2001), the Eleventh Circuit “suggest[ed]” a
“two-tiered approach to certification of § 216(b) opt-in classes” to assist
district courts in resolving the similarly situated inquiry. Id. at 1219. Under
the first tier, which is labeled the “notice stage,” the district court must
decide, “usually based only on the pleadings and any affidavits which have
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been submitted[,] ... whether notice of the action should be given to
potential class members.” Id. at 1218 (quoting Mooney v. Aramco Servs.
Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)). Before notice is given, a
“district court should satisfy itself that there are other employees of the
[defendant-] employer who desire to ‘opt-in’ and are ‘similarly situated’. . .
.” Dybach v. State of Fla. Dep’t of Corrs., 942 F.2d 1562, 1567-68 (11th
Cir. 1991).
Devries v. Morgan Stanley & Co., No. 12-81223-CIV, 2014 WL 505157, *2 (S.D. Fla.
Feb. 7, 2014).
In this case, the parties were allowed ample time to conduct discovery on the
issues for conditional certification and notice.3 In Robinson v. Ryla Teleservices, Inc., No.
CA 11-131-KD-C, 2011 WL 6667338, at * 1-2 (S.D. Ala. Dec. 21, 2011), the court
allowed the defendant but not the plaintiffs time to conduct limited discovery before the
plaintiffs filed a motion for conditional certification, and therefore, the court applied a
lenient standard to assess the certification motion. Unlike in Robinson, where the
plaintiffs had not been allowed time to conduct discovery, in this case, plaintiffs had the
opportunity to conduct discovery, despite their choice not to avail themselves of it. (Doc.
17 at 37.) “The rationale [for the lenient standard] disappears . . . once plaintiffs have had
an opportunity to conduct discovery with respect to defendant’s policies and procedures.”
Davis v. Charoen Pokphand (USA), Inc., 303 F. Supp. 2d 1272, 1276 (M.D. Ala. 2004)
(citing White v. Osmose, Inc., 204 F. Supp. 2d 1309, 1313 n.2 (M.D. Ala. 2002); Brooks
3

The court entered a bifurcated scheduling order allowing the parties two and a half
months to engage in discovery pertaining to conditional certification of a collective action before
the deadline for plaintiffs to file a Motion for Conditional Certification. (Doc. 10.)
4

v. BellSouth Telecomms., Inc., 164 F.R.D. 561, 566 (N.D. Ala. 1995)) (emphasis added).
Therefore, “[t]his case is in a slightly different posture than that envisioned in Hipp as
the first stage, or ‘notice stage,’ and thus a more searching standard of review is
appropriate.” Davis, 303 F. Supp. 2d at 1276 (internal citation omitted).
This court takes seriously its “responsibility to avoid the ‘stirring up’ of litigation
through unwarranted solicitation.” Brooks, 164 F.R.D. at 567. Plaintiffs “will not be
permitted to rely on the allegations in [their] Complaint. Rather, [they] must rely on the
evidence, and all the evidence will be considered, not just [plaintiffs’ evidence].”
Pickering v. Lorillard Tobacco Co., 10-CV-633-WKW, 2012 WL 314691, at *9 (M.D.
Ala. Jan. 30, 2012).
II. STATEMENT OF FACTS
Defendant, Drive-In of Evansville, Inc., owns and operates twenty-six Sonic
Drive-In restaurants in four states: Alabama, Indiana, Kentucky, and Ohio. (Doc. 17 ¶ 6.)
Plaintiffs’ proposed class consists of over 3,000 hourly employees who worked for
defendant during the past three years. (Doc. 17 ¶ 10; Doc. 1 ¶ 5.)
The seven plaintiffs in this case all worked for defendant at the Adamsville,
Alabama Sonic restaurant. (Doc. 17 at 39; Doc. 18-1 ¶ 2.) Six former employees, who
also worked at the Adamsville restaurant, filed opt-in consent forms. (Id.; Doc. 13-3 at 14, 9-10.) Only one of the thirteen plaintiffs and opt-in plaintiffs worked at another
location—Jasmane Hayes worked at the Bessemer, Alabama Sonic restaurant until

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October 2012. (Doc.17 at 39; Doc. 18-1 ¶¶ 2, 11.) Mike Godwin is the district manager
responsible for the Adamsville, Cullman, Fayette, Hamilton, Jasper, and Sumiton
restaurants. (Doc. 17 ¶ 9; Doc. 20 ¶ 2.)
In their Motion, plaintiffs contend that defendant has four illegal policies that
violate the FLSA: (1) defendant requires employees to work “off the clock” while
refusing to pay them for that time; (2) defendant refuses to pay overtime compensation;
(3) defendant shaves time off employee time records; and (4) defendant “falsif[ies] tip
records to avoid paying the carhop employees minimum wage.” (Doc. 11 at 2.) Plaintiffs
allege that these policies all stem from two overarching company-wide policies: “the
policy requiring that labor costs at each location not exceed a certain percentage of daily
sales and the policy forbidding the compensation of ‘off the clock’ work.” (Doc. 12 at
24.) Plaintiffs request that, should the court deny certification as to defendant’s twenty-six
locations, the court certify a class of employees at the restaurants which Mike Godwin
oversees, or at the very least, a class of employees at the Adamsville and Bessemer
locations. (Doc. 12 at 44 n. 4.)
A. Requiring Employees to Work “Off the Clock” Without Pay

Plaintiffs contend:
Though hourly employees are required to be at work for their scheduled shifts, the
defendant instructs the hourly employees that they are not allowed to clock into the
time-keeping system (the time clock) until they are instructed to do so by a
manager. [(Doc. 1 ¶ 16.)] The [d]efendant requires the managers to prohibit the
hourly employees from clocking in when they begin work in order to keep labor
costs down; instead, the hourly employees must work off the clock. [(Doc. 1 ¶¶ 16,
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24, 33.)] Additionally, hourly employees are required to work off the clock at the
end of their scheduled shifts. [(Doc. 1 ¶¶ 22, 33, 36.)]
. . . The [d]efendant’s policy for all its locations is that hourly employees are not
compensated for time worked “off the clock,” [(Doc. 1 ¶13), and] [t]he
[d]efendant’s policy for all its locations is that labor costs must not exceed 22
percent on a daily or weekly basis. [(Doc. 13-4 ¶ 6; Doc. 13-6 ¶ 14.)] The general
and assistant managers are required to keep constant track of the labor percentage
throughout each day to make sure it does not reach 22 percent . . . [(Doc. 13-6
¶ 14), and the] district manager instructs the general managers and assistant
managers that in order to keep labor costs at or below 22 percent, the hourly
employees, which includes the assistant managers, are prohibited from working on
the clock when the labor percentage gets close to or reaches 22 percent of the daily
sales. [(Doc. 13-4 ¶¶ 25-26; Doc. 13-6 ¶ 9; Doc. 13-5 ¶ 16; Doc. 13-7 ¶ 6.)]
. . . If the assistant managers and/or general managers allow the hourly employees
to work on the clock for the entire time that they work regardless of how high the
labor percentage gets, then they [the assistant and general managers] will be
terminated by the district manager. [(Doc. 13-4 ¶ 9; Doc. 13-6 ¶ 8.)]
(Doc. 12 at 4-7.)
Shennetta Thedford began working for defendant in September 2010. (Doc. 13-4
¶ 2.) Thedford testified that “[t]throughout the time that [defendant] has owned Sonic, I
was required to work off the clock for multiple hours on a daily basis. I was not
compensated for the hours I worked off the clock.” (Doc. 13-4 ¶ 3.) She states that
defendant assigned her eight-hour shifts, but she “worked well over [eight] hours per
day.” (Id. ¶ 11.) Thedford also testified that defendant forbade her “from clocking in until
the store made a certain amount of money for the day (approximately $40 in sales).” (Id.
¶ 19.) As a crew member and later as an assistant manager, Thedford alleges she was
required to arrive and begin working at 5:30 a.m. but could not “clock in until enough

7

business came through the door.” (Id. ¶ 25.) Thedford further testified that general
manager David McGee and his predecessor, Kathy, required her and other employees to
work off the clock until labor costs dropped below 22% of sales. (Id. ¶ 26.) In addition to
testifying that she was required to work for over an hour off the clock at the end of her
shift “on a daily basis,” Thedford testified that “some days [she] was not able to clock in
at all [and] . . . was not compensated at all for the days [she] worked but was not able to
clock in.” (Id. ¶¶ 27, 29.) Thedford also testified that “Scott (last name unknown), . . . a
co-owner of Drive-In of Evansville, Inc., reviews the weekly reports from each location
and makes comments on the reports regarding labor. Labor that exceeds 22 percent is
considered too high and the general managers and assistant managers for those locations
with labor exceeding 22 percent are disciplined and will be terminated if labor is higher
than 22 percent.” (Id. ¶ 21.)
Thedford points to Mike Godwin as the main decisional source requiring
employees to work off the clock, stating that during her time as general manager, Godwin
threatened to terminate her if she did not reduce labor costs below 22% of sales for the
week. (Id. ¶ 33.) Additionally, she states that Godwin required her to fire Alexander
Dubose because Dubose allowed employees to work on the clock “for too long and his
labor percentage was too high.” (Id. ¶ 34.) Thedford contends that Godwin terminated her
on November 11, 2013 because he “didn’t ‘see any progress’ with [her], which meant
[she] wasn’t keeping labor low enough.” (Id.) Defendant contends, to the contrary, that

8

defendant did not terminate Thedford, but rather, she “voluntarily resigned her
employment . . . after declining a demotion to an Assistant Manager position.” (Doc. 18-1
¶ 3.)
The remaining plaintiffs and the six opt-in plaintiffs make substantially similar
allegations that defendant required them to work “multiple hours” off the clock before
their shifts began, throughout the day, and after their shifts ended. (Doc. 13-5 ¶¶ 11, 13,
24; Doc. 13-6 ¶¶ 4, 6, 7, 9, 10; Doc. 13-7 ¶ 5; Doc. 13-8 ¶¶ 5, 6; Doc. 13-9 ¶¶ 5, 6; Doc.
13-10 ¶ 5; Doc. 13-11 ¶ 4; Doc. 13-12 ¶¶ 4, 5; Doc. 13-13 ¶ 7; Doc. 13-14 ¶¶ 8, 11; Doc.
13-15 ¶ 5; Doc. 13-16 ¶¶ 4, 7.) A couple of plaintiffs echo Thedford in stating that they
were not permitted to clock in when they arrived at work until the store made a certain
amount of money. (Doc. 13-6 ¶¶ 4, 13; Doc. 13-12 ¶ 4.) Like Thedford, plaintiffs allege
that they received no compensation for any work performed off the clock. (Doc. 13-5
¶ 23; Doc. 13-6 ¶ 12; Doc. 13-7 ¶ 5; Doc. 13-8 ¶ 7; Doc. 13-9 ¶ 10; Doc. 13-10 ¶ 6; Doc.
13-11 ¶ 4; Doc. 13-12 ¶ 6; Doc. 13-14 ¶ 9; Doc. 13-15 ¶ 5; Doc. 13-16 ¶ 8.) Hayes
testified that she “was informed by one of the owners of Drive-In of Evansville, Inc.,
Scott (last name unknown)[,] that the corporate policy for all the Sonic Drive-In locations
is that employees are not compensated for work performed off the clock.” (Doc. 13-5
¶ 10.) Hayes does not provide any context for this statement, and plaintiffs provide no
dates or specific examples of FLSA violations to support their generalized allegations.

9

While neither party offered any written policies into evidence, the current Vice
President of Operations and four district managers state that defendant requires
employees to report all hours worked by clocking in and out when they begin work, take a
break or meal period of 30 minutes or more, and finish work. (Doc. 17 ¶ 18; Doc. 18-30
¶ 9; Doc. 18-3 ¶ 6; Doc. 18-17 ¶ 6; Doc. 18-20 ¶ 6; Doc. 18-27 ¶ 6.) Defendant’s
timekeeping system, which employees use to clock in and out, generates daily receipts
stating the employees’ clock in and out times and the number of hours worked. (Doc. 17
¶ 19; Doc. 18-30 ¶ 10; Doc. 18-3 ¶ 8; Doc. 18-17 ¶ 8; Doc. 18-20 ¶ 8; Doc. 18-27 ¶ 8.)
Defendant does not retain these receipts or otherwise use them; their only purpose is for
employees to track their daily work hours and compare them with the employees’ hours as
they are recorded on the employees’ paychecks. (Id.)
Defendant also states that it has a policy requiring employees to be properly paid
for all time worked, and managers are responsible for complying with this policy. (Doc.
17 ¶ 17; Doc. 18-30 ¶ 8; Doc. 18-3 ¶ 5; Doc. 18-17 ¶ 5; Doc. 18-20 ¶ 5; Doc. 18-27 ¶ 5.)
In evaluating general managers’ job performance, defendant considers several factors,
including labor, sales, cost of food, speed of service, customer complaints, and
cleanliness. (Doc. 17 ¶ 22; Doc. 18-30 ¶ 13; Doc. 18-3 ¶11; Doc. 18-17 ¶ 11; Doc. 18-20
¶ 11; Doc. 18-27 ¶ 11.) Defendant contends that a general manager’s ability to keep labor
costs below 22% is “merely one factor among many.” (Id.) Defendant offered testimony
that the combined Drive-In of Evansville restaurants incurred weekly labor costs

10

exceeding 22% in 47% of the work weeks between August 9, 2011 and December 31,
2013. (Doc. 17 ¶ 38; Doc. 18-30 ¶ 13.)
B. Overtime Compensation
Plaintiffs contend, “In order to keep labor costs down to the required percentage,
the [d]efendant does not pay its hourly employees overtime compensation for hours
worked in excess of 40 hours per week.” (Doc. 12 ¶ 31; Doc. 1 ¶¶ 19, 38.) Shennetta
Thedford, Shanterricka Thedford, Jaquinten Thedford, Dubose, Wrench, King, Hayes,
Dickerson, and Rogers all testified that they worked over forty hours without receiving
overtime compensation. (Doc. 13-4 ¶ 4; Doc. 13-12 ¶ 14; Doc. 13-16 ¶ 9; Doc. 13-6 ¶ 12;
Doc. 13-13 ¶ 11; Doc. 13-15 ¶ 7; Doc. 13-5 ¶¶ 9, 12; Doc. 13-8 ¶ 4; Doc. 13-11 ¶ 6.)
Some of plaintiffs’ Declarations state that they worked overtime “on a weekly basis,”
(Doc. 13-4 ¶ 4; Doc. 13-11 ¶ 6), or “per week,” (Doc. 13-5 ¶¶ 9, 12; Doc. 13-12 ¶ 14;
Doc. 13-13 ¶ 11), but plaintiffs provide no relevant dates or examples of instances where
they worked overtime without receiving compensation.
Declarants for the defendant state that between August 9, 2011 and December 31,
2013, defendant paid hourly, non-exempt employees more than $500,000 in overtime
compensation, (Doc. 17 ¶ 55; Doc. 18-30 ¶ 5), and during that time, the Bessemer
location, alone, paid employees more than $25,000 in overtime compensation, (Doc. 17
¶ 56; Doc. 18-30 ¶ 5). Defendant further contends that Alexander Dubose received
overtime compensation in over twenty-eight weeks in 2013, including four weeks where

11

defendant paid him for more than fifty hours per week. (Doc. 17 ¶ 57; Doc. 18-1 ¶ 18.)
C. Shaving Time Off Employee Time Records
Other than their allegation in the Motion, plaintiffs do not make any assertions in
their brief to support a claim that defendant permitted managers to shave time off
employee time records. Two opt-in plaintiffs, Hayes and Dickerson, testified that general
managers reduced their hours in the time-keeping system to decrease labor costs for the
store. (Doc. 13-5 ¶ 17; Doc. 13-8 ¶ 8.) Specifically, Hayes testified that the general
manager, Rhonda Swain, altered employees’ hours every morning if labor percentages for
the previous day were above 21%. (Doc. 13-5 ¶ 17.) Hayes contends that Swain
terminated her after she complained to Swain about time shaving, (Doc. 13-5 ¶ 17), and
Dickerson states that he complained to Dave, his general manager, about time shaving,
and Dave agreed that Dickerson’s scheduled shift and pay stub reflected a different
number of hours worked, but did not correct the discrepancy, (Doc. 13-8 ¶ 9).
Defendant presented testimony that it trains managers that shaving time off
employee time records and failing to pay employees for all hours worked are strictly
prohibited. (Doc. 17 ¶ 17; Doc. 18-30 ¶ 8; Doc. 18-3 ¶ 5; Doc. 18-17 ¶ 5; Doc. 18-20 ¶ 5;
Doc. 18-27 ¶ 5.) In fact, defendant offered evidence that it terminated two general
managers in Indiana for intentionally shaving time off employee time records. (Doc. 17
¶ 17; Doc. 18-30 ¶ 8.)
D. Falsifying Tip Records to Avoid Paying Minimum Wage

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“Carhops” are employees “whose primary responsibility is to take customer orders
and deliver the orders to the customer’s vehicle.” (Doc. 17 ¶ 20; Doc. 18-30 ¶ 11; Doc.
18-3 ¶ 9; Doc. 18-17 ¶ 9; Doc. 18-20 ¶ 9; Doc. 18-27 ¶ 9.) They earn an hourly rate less
than minimum wage and keep any tips they receive from customers. (Id.) Defendant’s
policy is to supplement a carhop’s hourly income if the carhop does not earn enough in
tips, when combined with his income, to equal minimum wage. (Id.)
Shennetta Thedford, Shanterricka Thedford, Tompkins, King, Hayes, Melvin, and
Rogers testified that, while working as carhops, they all received somewhere between $510 on average in daily tips, yet their paychecks reflected that they earned higher tips.
(Doc. 13-4 ¶¶ 15-16; Doc. 13-12 ¶¶ 10-11; Doc. 13-14 ¶¶ 12, 15; Doc. 13-15 ¶¶ 9, 11;
Doc. 13-5 ¶¶ 5-6; Doc. Doc. 13-7 ¶¶ 7, 9; Doc. 13-11 ¶¶ 7, 9.) Wrench testified that
defendant recorded tips on her paycheck that she had not received in order for defendant
to avoid paying minimum wage. (Doc. 13-13 ¶ 10.) Most of these plaintiffs and opt-in
plaintiffs testified that they did not receive enough tips, when combined with their hourly
income, to equal minimum wage and that defendant falsely reported higher tips on
plaintiffs’ paychecks to avoid paying them minimum wage, thereby, cutting labor costs.
(Doc. 13-4 ¶¶ 16, 18; Doc. 13-12 ¶¶ 11-12; Doc. 13-14 ¶ 15; Doc. 13-15 ¶¶ 10-11; Doc.
13-5 ¶¶ 6-7; Doc. Doc. 13-7 ¶¶ 8-9; Doc. 13-11 ¶¶ 8-9.)
Defendant presented pay records for Shanterricka Thedford, Tompkins, and King
showing they received supplemental tip income during multiple weeks. (Doc. 18-1 at 21-

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42.) Defendant also presented testimony that payroll records show that (1) Shanterricka
Thedford received $10 or less in tips for 99.2% of workdays in 2013, (2) Tompkins
received $10 or less in tips for 94% of workdays in 2013, and (3) King received $10 or
less in tips for 98% of workdays in 2013. (Doc. 17 ¶ 61; Doc. 18-1 ¶ 16.) Additionally,
defendant offered testimony that it recorded $10 or less in tips on Roger’s payroll records
on 93% of workdays in 2013. (Id.)
III. DISCUSSION
In their Motion, plaintiffs allege defendant “has a pattern and practice” of (1)
requiring employees to work “off the clock” without compensation; (2) refusing to pay
overtime compensation; (3) shaving time off employee time records; and (4) “falsifying
tips records to avoid paying the carhop employees minimum wage.” (Doc. 11 at 2.)
“Before determining to exercise [its power to conditionally certify this collective action
and to facilitate notice to the class] on application by [plaintiffs] . . . , the district court
should satisfy itself that there are other employees of [defendant] who desire to ‘opt-in’
and who are ‘similarly situated’ with respect to their job requirements and with regard to
their pay provisions.” Dybach v. State of Fla. Dept. of Corrs., 942 F.2d 1562, 1567-68
(11th Cir. 1991).
A. OTHER EMPLOYEES DESIRE TO OPT IN
Six current and former employees of defendant have filed opt-in notices. (Doc. 133 at 1-4, 9-10.) All of these opt-in plaintiffs have filed Declarations. (Docs. 13-5; 13-7;

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13-8; 13-10; 13-11; 13-16.) “Where consents to participate in the suit have already been
filed[,] district courts in the Eleventh Circuit have found that, for purposes of deciding a
motion for conditional collective action certification, the already-filed consents to opt-in
established that there were persons who would join in the suit if they had notice of the
suit.” Billingsley v. Citi Trends, Inc., No. 4:12-CV-0627-KOB, 2013 WL 246115, at *2
(N.D. Ala. Jan. 23, 2013) (quoting Barron v. Henry Cnty. Sch. Sys., 242 F. Supp. 2d
1096, 1101 (M.D. Ala. 2003)) (internal quotations and alterations omitted).
For purposes of deciding plaintiffs’ Motion, the court finds that there are other
employees who desire to opt-in. However, because all the consents to opt-in were filed
by employees from the Adamsville restaurant and one consent was filed by an employee
who also worked at the Bessemer restaurant, the court makes no assumption that
employees outside those two restaurants desire to participate in this case.
B. SIMILARLY-SITUATED EMPLOYEES
Before the court certifies a collective action and facilitates notice, it must be
satisfied that other employees are “‘similarly situated’ with respect to their job
requirements and with regard to their pay provisions.” Dybach, 942 F.2d at 1568.
In the absence of a concrete definition of “similarly situated,” see
Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259-60 (11th Cir.
2008) (“[W]e have not adopted a precise definition of [‘similarly situated’].
. . . [W]e [have] explained what the term does not mean – not what it
does.”), courts have looked to a variety of factors, including [1] job title; [2]
geographic location; [3] the temporal proximity of the FLSA violations
alleged; [4] the nature and decisional source of any contested policies and
practices; and [5] the similarity of treatment given to the various plaintiffs
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and potential opt-in plaintiffs by the defendant. See Smith [v. Tradesmen
Intern., Inc.], 289 F. Supp. 2d [1369,] 1372 [(S.D. Fla. 2003)]. However,
such general factors provide little concrete guidance; the court’s decision
must be the result of a fact-intensive inquiry. See Thiessen v. Gen. Elec.
Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001) (referring to the
Eleventh Circuit’s approach to similarly situated determinations as “ad
hoc”).
Hogan v. Allstate Beverage Co., Inc., Civil Action No. 2:10cv390-MHT, 2012 WL
6027748, at *4 (M.D. Ala. Dec. 4, 2012). Nevertheless, the point of this exercise is to
determine whether plaintiffs have “demonstrate[d] a reasonable basis for their claim of
class[-]wide discrimination.” Maudlin v. Johnny Kynard Logging, Inc., Civil Action No.
08-0307-KD-C, 2009 WL 455479, at *2 (S.D. Ala. Feb. 20, 2009) (quoting Hipp v.
Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001)) (internal quotations
omitted). However –
the mere fact that violations occurred cannot be enough to establish
similarity, as that would not ultimately be sufficient to establish a pattern
and practice without a showing that the violations were more than sporadic
occurrences. To conclude otherwise, that is, to conclude that it is enough to
demonstrate that employees are similarly situated simply to say that they
claim violations of the law by the same employer, is to conclude that any
time an employer had two or more employees who allegedly were not being
paid the overtime they claimed they were due, the employees would be
similarly situated and be allowed to proceed with a collective action. While
plaintiffs certainly are not required to prove by a preponderance of the
evidence a pattern and practice at the notice stage, because there is no
requirement of a motivating discriminatory animus in an FLSA case a
pattern in such a case must stem from some other formal or informal
policy.
Marsh v. Butler Cnty. Sch. Sys., 242 F. Supp. 2d 1086, 1094 (M.D. Ala. 2003) (footnote
omitted) (emphasis added). “The burden is on the plaintiffs to make an evidentiary
16

showing that they and the proposed class are similarly situated, not on the defendants to
disprove such similarity.” Saxon v. Title Max of Ala., Inc., 431 F. Supp. 2d 1185, 1188
(N.D. Ala. 2006) (quoting Reed v. Mobile Cnty. Sch. Sys., 246 F. Supp. 2d 1227, 1232
(S.D. Ala. 2003)).
1. Job Title
Plaintiffs seek to join the claims of all current and former hourly employees
working for defendant between 2011 and the present. Hourly job positions include crew
members, cooks, carhops, and assistant managers. Some job positions are associated with
certain alleged FLSA violations, while others are not. For example, only carhops allege
that defendant falsified tip records to reflect that the carhops received more tips than they
actually did. However, because the court may create subclasses of plaintiffs, if necessary,
once the parties have conducted discovery, differing job titles do not preclude
certification. See Pena v. Handy Wash, Inc., Case No. 14-20352-CIV, 2014 WL 2884559,
at *12 (June 18, 2014).
Therefore, this factor does not heavily weigh against certifying a class.
2. Geographic Location
Plaintiffs and the six opt-in plaintiffs who have filed Declarations all worked only
in the Adamsville restaurant, except Hayes, who also worked in the Bessemer restaurant
until October 2012. Plaintiffs propose a collective action covering all Drive-In of
Evansville hourly employees currently or formerly working in its twenty-six restaurants in

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Alabama and three other states. The court finds that the vast majority of potential
collective action members do not share a geographic location with plaintiffs.
Therefore, the court finds this factor weighs against certifying the proposed multistate collective action.
3. Temporal Proximity
The members of the proposed collective action worked during the same time
period as plaintiffs. Plaintiffs began work at various times between September 2010 and
June 2013, and all of them either quit or were terminated between July and November of
2013. Plaintiffs seek to certify a class of hourly employees working for defendant within
the last three years.
Therefore, the court finds that this factor weighs in favor of certifying the class.
4. The Nature and Decisional Source of Contested Policies and Practices
Plaintiffs allege that defendant has “corporate polic[ies] dictat[ing] that labor costs
cannot exceed 22 percent at each of its locations . . . [and forbidding] the compensation of
off-the-clock work performed by employees at any of its locations” and that these
overarching policies result in the four policies plaintiffs challenge. (Doc. 12 at 35.)
Thedford states in her Declaration that the policies at issue are “utilized at all the
locations owned by Drive-In of Evansville, [so] there are numerous individuals who have
been forced to work off the clock for which they were not compensated, who have not
received overtime compensation for their work in excess of 40 hours per week, and those

18

who have been paid under minimum wage.” (Doc. 13-4 ¶ 42.) However, plaintiffs have
not presented any evidence, other than conclusory allegations, that defendant maintains a
company-wide policy of keeping labor costs below 22% of sales, or of the other policies
at issue. In fact, defendant presented evidence that substantially discredits plaintiffs’
claim that defendant has such a policy. In addition to testifying that labor costs is only one
among many factors for evaluating general managers’ job performance, defendant alleges
that, between August 9, 2011 and December 31, 2013, weekly labor costs for Drive-In of
Evansville restaurants exceeded 22% of revenue in 47% of the work weeks.
Defendant also contends that it has strict policies prohibiting shaving time from
employee records or failing to pay employees for all hours worked. The fact that
defendant states that it terminated two general managers in Indiana for shaving time from
employee time records does not support plaintiffs’ claim that defendant “sits back idly,
reaping the benefits of free labor.” (Id.; Doc. 12 at 37.) Cf. Reich v. Dep’t of Conservation
and Natural Res., 28 F.3d 1076, 1083 (11th Cir. 1994) (noting that record contained no
evidence that defendant/employer had taken any action to “discourage the overtime
required by the vast majority of its officers,” based, in part, on the fact that “no officer
was ever disciplined for violating the forty-hour rule”).
Plaintiffs allege that Mike Godwin, the district manager responsible for the
Adamsville restaurant and five other restaurants in Alabama, is the decisional source for
the alleged illegal policies. In her Declaration, Thedford testified that Godwin required

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general and assistant managers, including her, to keep labor costs below 22% of revenue
and that he threatened to terminate Thedford if she did not decrease labor costs to 22% of
revenue or less for the week. In their Declarations, plaintiffs allege that various general
managers at the Adamsville location, including David McGee and Rhonda Swain,
enforced the policies because defendant threatened to terminate general managers if labor
costs exceeded 22% of revenue. Plaintiffs make no allegations about the relevant
decisional sources at the Bessemer location.
Even assuming defendant maintains a policy requiring labor costs not to exceed
22% of revenue, such a policy does not violate the FLSA. The fact that a particular
district or general manager may have been motivated to violate the FLSA to comply with
the policy of keeping labor costs below 22% of revenue does not necessarily create a
policy or practice of that manager’s employer. See Babineau v. Federal Exp. Corp., 576
F.3d 1183, 1193-94 (11th Cir. 2009) (“[P]roving that [defendant] had a policy of holding
its employees to efficiency standards that were difficult to meet would not prove that [it]
required any individual class member to work without pay.”).
The court finds that the nature of the policy violations is isolated at best. Plaintiffs
have not shown class-wide FLSA violations, as “there is a total dearth of factual support
for [p]laintiffs’ allegations of widespread wrongdoing at [d]efendant’s . . . restaurants”
other than Adamsville. Harper v. Lovett’s Buffet, Inc., 185 F.R.D. 358, 363 (M.D. Ala.
1999). A conclusory statement, without supporting evidence, does not provide support for

20

certification. See Bacon v. Eaton Aeroquip, L.L.C., 2012 WL 431712, at *2 (E.D. Mich.
Sept. 20, 2012) (finding that the plaintiffs conclusory statement that “[i]t is my personal
knowledge that [Defendant’s] . . . policy of misclassification was intentionally and
uniformly enforced against all low-level supervisors at my location, which I [] understood
was the same company-wide. . .” provided no support for certification because the
plaintiffs provided no “relevant facts or assertions to support such an understanding, nor
do they indicate how or why they came to have such an understanding”).
The court also finds that plaintiffs’ allegations regarding Godwin do not establish a
similarity with employees at the other five restaurants he manages. Plaintiffs present no
evidence that Godwin imposed the alleged policies at any other restaurants. In fact,
defendant presented 35 affidavits from employees working at all six restaurants that
Godwin manages either stating that they have never been required to work off the clock
or that they have no knowledge of a district manager or company employee requiring
anyone to work off the clock. Plaintiffs presented no evidence of a company-wide or
district-wide decision maker that has systematically enforced the alleged illegal policies.
Therefore, the court finds that this factor weighs against certifying the proposed
collective action.
5. Similarity of Actions that Constitute Violations
Plaintiffs have alleged four types of FLSA violations: (1) requiring employees to
work “off the clock” without compensation; (2) refusing to pay overtime compensation;

21

(3) shaving time off employee time records; and (4) “falsifying tips records to avoid
paying the carhop employees minimum wage.” (Doc. 11 at 2.) Plaintiffs contend that
these illegal policies result from defendant’s corporate policies prohibiting labor costs at
all Drive-In of Evansville locations from exceeding 22% of revenue and prohibiting the
compensation of work performed off the clock.
“[T]he mere fact that violations occurred cannot be enough to establish similarity,
as that would not ultimately be sufficient to establish a pattern and practice without a
showing that the violations were more than sporadic occurrences.” Marsh, 242 F. Supp.
2d at 1094. Plaintiff must demonstrate a “pattern” of FLSA violations that “stem from
[defendant’s] formal or informal policy.” Id.; see also Morgan v. Family Dollar Stores,
Inc., 551 F.3d 1233, 1264 (11th Cir. 2008) (“There is nothing unfair about litigating a
single corporate decision in a single collective action, especially where there is robust
evidence that store managers perform uniform, cookie-cutter tasks mandated by a onesize-fits-all corporate manual.”).
Plaintiffs allege that defendant required all employees to work off the clock
without pay for multiple hours every day to cut labor costs. All thirteen plaintiffs and optin plaintiffs make similar declarations that they worked numerous hours off the clock to
avoid termination. Shennetta Thedford testified that “[s]ome days I wasn’t able to clock
in at all. I was not compensated at all for the days that I worked but was not able to clock
in despite the fact that I was scheduled to work these days and did in fact work them.”

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(Doc. 13-4 ¶ 29.) Plaintiffs do not include among their broad allegations any specific
incidents of defendant requiring them to work off the clock. Despite plaintiffs claiming
that “violations alleged by the plaintiffs are wide-spread, systematic violations that affect
all the defendant’s hourly employees,” (Doc. 12 at 39), plaintiffs have not presented
specific evidence of violations in the Adamsville or Bessemer restaurants, much less in
any other restaurant. Defendant produced Declarations from thirty-seven employees
stating that defendant paid them for all the time they worked, which further detracts from
plaintiffs’ claim that they are similarly situated to the proposed class.
The court finds that plaintiffs are not similarly situated to the proposed class with
regard to the alleged violation of requiring employees to work off the clock.
Plaintiffs next allege that defendant refuses to pay employees working more than
forty hours per week overtime compensation. Five plaintiffs and four opt-in plaintiffs,
including Hayes, state that they worked more than forty hours per week, but defendant did
not pay them overtime compensation. Hayes testified that she worked more than forty
hours per week without receiving overtime compensation at both the Bessemer and
Adamsville locations. Defendant contends that, between August 9, 2011 and December
31, 2013, all restaurants combined paid employees more than $500,000 in overtime
compensation and that the Bessemer restaurant, alone, paid hourly employees more than
$25,000 in overtime compensation. Defendant also contends that Alexander Dubose, who
testified that defendant did not pay him overtime compensation for “overtime hours

23

performed off the clock,” (Doc. 13-6 ¶ 12), received overtime compensation in over
twenty-eight weeks during 2013, including four weeks in which defendant paid him
overtime compensation for more than fifty hours.
The court finds that plaintiffs’ conclusory allegations fail to show any similarity
between plaintiffs and the proposed class. Additionally, defendant’s allegations regarding
the Bessemer location’s pay practices and Dubose’s overtime compensation strongly
suggest that individualized inquiries into each plaintiff’s claim would be necessary.
Plaintiffs’ third contention is that defendant permits managers to shave time off
employee time records to reduce labor costs. Two opt-in plaintiffs stated in their
Declarations that general managers shaved time off their time records, but when the
employees complained to the managers about the reduction in their hours, the managers
took no action. Plaintiffs do not refer to a specific instance of time shaving, and they do
not state by how much the managers illegally reduced their hours. These allegations
provide no evidence of a wide-spread practice of time shaving, nor do they support a
claim that the two opt-in plaintiffs are similarly situated to other Adamsville and
Bessemer employees.
Lastly, plaintiffs allege that defendant falsified tip records by inflating the amount
of tips plaintiffs received on their paychecks, so defendant would not have to pay the
employees minimum wage. Eight of the plaintiffs and opt-in plaintiffs state that, while
working as carhops, they made somewhere between $5-10 in tips on average per day. If

24

employees tips are not enough when combined with carhops’ hourly pay rate to equal
minimum wage, defendant’s policy is to pay those employees supplemental tip income so
the employees receive at least minimum wage for every hour worked. Plaintiffs contend
that their paychecks reflected that they received sometimes double or triple the amount
they actually received in tips, so defendant would not have to pay those employees
supplemental tip income. Plaintiffs do not state any specific dates or documented
evidence showing where their actual tips and the tips reflected on their paychecks failed
to match.
Defendant submitted pay records for three employees—Shanterricka Thedford,
Tompkins, and King—showing that the employees received supplemental tip income on
multiple occasions. Additionally, defendant states that its payroll records reflect that $10
or less in tips was received: (1) by Shanterricka Thedford for 99.2% of workdays in 2013,
(2) by Tompkins for 94% of workdays in 2013, (3) by King for 98% of workdays in 2013,
and (4) by Rogers for 93% of workdays in 2013. Because all four employees stated that
they received an average of $5-10 in tips per day and that their paychecks showed double
and sometimes triple the amount of actual tips received, the discrepancy in the evidence
shows that fact-intensive, individualized inquiries would be necessary to evaluate
defendant’s alleged practice of falsifying tip records.
The court finds that plaintiffs have not provided sufficient evidence of similarity to
the proposed class regarding the claim of falsifying tip records.

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Plaintiffs have not shown that common issues of law or fact connect them to the
proposed class because they have not provided any evidence of the alleged FLSA
violations outside of the Adamsville and Bessemer restaurants. Additionally, after
considering plaintiffs’ allegations and Declarations, the court finds that plaintiffs have not
established that they are similarly situated to employees from the Bessemer or Adamsville
restaurants. Only one opt-in plaintiff worked at the Bessemer restaurant, and her
Declaration provides only conclusory allegations without supporting evidence of FLSA
violations or of facts stating the decisional sources of the alleged FLSA violations. As to
the Adamsville location, plaintiffs have not established similarity with other employees.
Unlike in Harper, where the plaintiffs “made substantial, detailed allegations of FLSA
violations and provided evidentiary support that they” were similarly situated to other
employees at the defendant’s Dothan restaurant, 185, F.R.D. at 365, plaintiffs have not
provided sufficient, detailed evidence to allow the court to conclude that, under the “more
searching standard of review” applied in this case, plaintiffs and the opt-in plaintiffs are
similarly situated to one another or to other Adamsville employees.
Therefore, the court finds that there are no “common issues of law or fact arising
from the same alleged [unlawful] activity” such as can be resolved efficiently in one
proceeding. Hoffman-LaRoche, 493 U.S. at 170. Without common issues of law or fact
tying plaintiffs to the proposed class, class certification would not only fail to serve
judicial efficiency but would constitute “the ‘stirring up’ of litigation through

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unwarranted solicitation” that this court cannot permit. Brooks, 164 F.R.D. at 567.
Certification of this collective action is improper as to the proposed class. Plaintiffs’
Motion for Conditional Certification and Judicial Notice Under § 216(b), (Doc. 11), is
due to be denied. The opt-in claimants will be dismissed without prejudice.4
CONCLUSION
For the reasons set forth above, plaintiffs’ Motion for Conditional Certification
and Judicial Notice Under § 216(b), (Doc. 11), is due to be denied. An Order denying the
Motion for Conditional Certification will be entered contemporaneously with this
Memorandum Opinion.
DONE this 31st day of October, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

4

“[T]he statute of limitations has been tolled for these potential opt in plaintiffs as of the

dates they filed their consents to opt in.” Chapman v. Fred’s Stores, No. 2:08-cv-01247-HGD,
2013 WL 1767791, *12 n.1 (N.D. Ala. Mar. 15, 2013) (citing Armstrong v. Martin Marietta
Corp., 138 F.3d 1374, 1380 (11th Cir. 1998)).
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