Love et al v. Retzer Resources Inc et al

Filing 50

ORDER granting as modified 28 Motion. The Court conditionally certifies a collective action comprised of all hourly employees in Thornton-territory restaurants, and at the Monticello and West Helena restaurants, during the three years before the d ate notice is mailed. The Court directs the parties to confer further on notice and submit a final draft to the Court by 26 November 2014. The look-back period will be three years - without prejudice to Defendants arguing later that no willful violat ion occurred. Defendants must provide Plaintiffs a list of potential collective-action members in a usable electronic format by 1 December 2014 including each person's name, last known address, dates ofemployment, and employee ID number. The opt-in period will close 13 February 2015. The Court requires Defendants to post notice in each covered restaurant during the opt-in period. The 25 Final Scheduling Order is suspended. Trial rescheduled for 21 September 2015 at 9:30 a.m.; Joint Report due by 27 February 2015 on what additional discovery is needed and what motions are planned. Signed by Judge D. P. Marshall Jr. on 11/18/2014. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
JONATHAN LOVE, SHERI McWILLIAMS,
TRACY KEEN, JEREMY POPE, and ROBIN LOVE,
All Individually and on Behalf of
Others Similarly Situated

v.

PLAINTIFFS

No. 5:13-cv-292-DPM

RETZER, LLC; RETZER RESOURCES, INC.; THE RETZER
GROUP, INC.; and MICHAEL L. RETZER,
Individually and in His Capacity as an Owner, Officer,
and Manager of Retzer Resources, Inc., the
Retzer Group, Inc., and Retzer, LLC
DEFENDANTS
ORDER
1. Plaintiffs move for conditional certification of a collective action
under the Fair Labor Standards Act. N2 28. They are all hourly employees who
prepare food, clean, and perform routine maintenance at Retzer-owned
McDonald's restaurants. Each alleges that Defendants violated the FLSA by
shaving hours off time sheets, not paying for mandatory training, requiring
work through unpaid meal breaks, and requiring unpaid work before or after
scheduled shifts. Plaintiffs say other employees were affected too. Defendants
don't contest that the named Plaintiffs are hourly employees who perform
similar duties. They do, however, contest that the Plaintiffs are similarly
situated to all of the 2,500 hourly employees who work at Defendants' forty-

four restaurants in three states.
2. Plaintiffs have made the modest factual showing that an affected
group exists here. In re Pilgrim's Pride Fair Labor Standards Act Litigation, 2008
WL 4877239 at *3 (W.D. Ark. 13 March 2008). But it's not the all-encompassing
group that Plaintiffs propose. The Court has considered all the usual
circumstances in making its preliminary call on similarity. See, e.g., Smith v.

Frac Tech Services, Ltd., 2009 WL 4251017 (E.D. Ark. 24 November 2009). The
parties have made commendable progress in discovery. The Court therefore
has looked more closely than usual in making its tentative decision on
similarity. Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 894-95 (N.D.
Iowa 2008).
Fourteen of the sixteen opt-in plaintiffs work at a store in Operation
Manager Donna Thornton's territory. See NQ 29-12. Three area supervisors
work under Thornton, and an employee working under each of those
supervisors has consented to join this suit. Without judging their truth, the
allegations from the south-central Arkansas plaintiffs implicate Thornton, and
the managers (store and area) who work for her, as the source of a common
decision, plan, or policy that has deprived employees of a minimum wage.

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In re Pilgrims Pride, supra. The potential problem may not be confined to
Thornton-territory restaurants. Hourly employees at the Monticello and West
Helena restaurants have joined the case too. Plaintiffs have not shown,
however, that potential violations transcend those restaurants and the onsite
managers.

Beyond

the

covered restaurants,

Plaintiffs

offer

only

unsubstantiated allegations that Defendants have violated the FLSA. Freeman

v. Wal-Mart Stores, Inc., 256 F. Supp. 2d 941, 945 (W.D. Ark. 2003). The Retzer
companies have centralized much of their management. But the role of store
managers, and those they work for directly, is critical in the circumstances
presented. The Court is unconvinced that a company-wide problem is
presented. The Court therefore conditionally certifies a collective action
comprised of all hourly employees in Thornton-territory restaurants, and at
the Monticello and West Helena restaurants, during the three years before the
date notice is mailed.
3. The Court directs the parties to confer further on notice and submit
a final draft to the Court by 26 November 2014. Plaintiffs' proposed notice is
approved with changes conforming to this Order. The look-back period will
be three years -without prejudice to Defendants arguing later that no wilfull

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violation occurred. Defendants must provide Plaintiffs with a list of potential
collective-action members in a usable electronic format by 1December2014.
The list must include each person's name, last known address, dates of
employment, and employee ID number. The Court declines to order
disclosure of telephone numbers or Social Security Numbers. The opt-in
period will close 13 February 2015. The Court requires Defendants to post
notice in each covered restaurant during the opt-in period. Paycheck notice
is not ordered.
4. We can't keep the 9 February 2015 trial date. The Final Scheduling
Order, NQ 25, is therefore suspended. The Court reschedules trial for
21 September 2015 at 9:30 a.m. Joint report due by 27 February 2015 on what
additional discovery (if any) is needed and what motions (if any) are planned.
The Court will set new pre-trial deadlines thereafter.
So Ordered.

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