Virginia Castro v. M and B Restaurant Group et al

Filing 34

ORDER GRANTING PLAINTIFFS MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION AND TO FACILITATE NOTICE PURSUANT TO 29 U.S.C. § 216(b) 17 by Judge Otis D. Wright, II: Parties are instructed to jointly develop a proposed notice and consen t form,2 which shall then be filed with the Court for final approval no later than August 19, 2013. The parties shall also propose a timeline for giving notice and collecting forms from those who choose to opt in. If the Court approves the notice, it will issue a minute order giving deadlines for sending it to and collecting it from potential class members . (lc). Modified on 8/1/2013. (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VIRGINIA CASTRO,

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v.

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Case No. CV13-00926 ODW (MANx)

Plaintiff,

M & B RESTAURANT GROUP, BUCK
GRIBBLE, and DOES 1–100, inclusive,
Defendants.

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ORDER GRANTING PLAINTIFF’S
MOTION FOR CONDITIONAL
CERTIFICATION OF
COLLECTIVE ACTION AND TO
FACILITATE NOTICE PURSUANT
TO 29 U.S.C. § 216(b) [17]

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I.

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INTRODUCTION

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Plaintiff Virginia Castro alleges1 Defendants M&B Restaurant Group and Buck

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Gribble (collectively “M&B”) violated several provisions of California’s Labor Code

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and the Fair Labor Standards Act (“FLSA”) when they failed to pay her minimum

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wages and overtime for hours in which she worked through breaks. Castro now

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moves the Court to conditionally certify a collective action under 29 U.S.C. § 216(b)

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with respect to her sole FLSA claim.

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GRANTS Castro’s motion.

For reasons discussed below, the Court

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Immediately after filing this Motion for Conditional Certification of a Collective Action, Plaintiff
moved this Court to grant leave to file a First Amended Complaint. Defendants did not oppose the
motion, and this Court granted leave to amend. The Court therefore evaluates Plaintiff’s Motion for
Conditional Certification of a Collective Action using her First Amended Complaint.

II.

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BACKGROUND

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From about May 2006 to September 2012, Castro worked as a cook at M&B’s

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Jack in the Box restaurant in Covina, California. (Castro Decl. ¶ 1, ECF No. 21.)

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M&B’s cooks are compensated by the hour. (Castro Decl. ¶ 4, ECF No. 21.) Castro

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was subject to the M&B’s policies and practices, which required employees to “punch

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out” during meal breaks. (Castro Decl. ¶ 6, ECF No. 21; G. Gribble Decl. ¶ 6, ECF

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No. 23-2.) Occasionally Castro worked shifts (apparently often graveyard shifts)

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where she was one of only two employees in the restaurant: a cook and a cashier.

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(Castro Decl. ¶ 4, ECF No. 24.) Castro alleges that during these two-person shifts,

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she was required to work through her meal breaks (or at least remain physically

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present should her services be required) despite having punched out. (Castro Decl.

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¶ 6, ECF No. 21; FAC ¶ 10.)

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Castro believes there are other individuals employed by Defendants who also

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had to work through their meal breaks in violation of FLSA. (Castro Decl. ¶ 13, ECF

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No. 21.) On May 9, 2013, Castro moved to include these employees in a collective

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action only with respect to her seventh claim for violation of the FLSA. (ECF

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No. 19.)
III.

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LEGAL STANDARD

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An action against an employer for violations of the Fair Labor Standards Act

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may be brought by an employee on behalf of herself and “other employees similarly

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situated.” 29 U.S.C. § 216(b).

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A.

Collective Actions vs. Class Actions

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A suit under the FLSA brought on behalf of similarly situated employees is

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called a “collective action,” which is “fundamentally different” from a class action

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under Federal Rule of Civil Procedure 23. Genesis Healthcare Corp. v. Symczyk, 133

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S. Ct. 1523, 1527 (2013). For example, a putative member in a class action must

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request exclusion to avoid the binding effects of the class judgment, Fed. Rule Civ.

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P. 23(c)(2)(B)(v), but a person desiring membership in a collective action must opt in.

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29 U.S.C. § 216(b) (2012); see also McElmurry v. U.S. Bank Nat. Ass’n, 495

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F.3d 1136, 1139 (9th Cir. 2007). Also, a class certified under Rule 23 acquires an

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independent legal status, whereas “[t]he sole consequence of conditional certification

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is the sending of court-approved written notice to employees.” Genesis Healthcare

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Corp., 133 S. Ct. at 1530 (citing Hoffman-La Roche Inc., 493 U.S. 165, 171–72

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(1989)). Accordingly, the strict certification requirements of Rule 23 class actions do

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not apply to the more lenient certification requirements of FLSA collective actions.

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Mitchell v. Acosta Sales, LLC, 841 F. Supp. 2d 1105, 1116 (C.D. Cal. 2011).

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B.

Requirements for Certification of Collective Actions under FLSA

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The only requirement for certification of FLSA collective actions is that

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putative class members be “similarly situated.” 29 U.S.C. § 216(b). The statute does

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not further define the phrase, and so far as this Court is able to discern, neither the

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Supreme Court nor the Ninth Circuit has offered interpretative instruction. A majority

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of district courts analyze whether a class is “similarly situated” at two separate stages

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of the litigation process: first when plaintiffs initially seek to certify the class, and

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later following discovery. E.g., Mitchell v. Acosta Sales, LLC, 841 F. Supp. 2d 1105,

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1116 (C.D. Cal. 2011).

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The purpose of the first stage is simply to notify putative class members of a

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plaintiff’s FLSA action. Mitchell, 841 F. Supp. 2d at 1115. Because plaintiffs often

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seek conditional certification before discovery, courts have limited evidence available

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with which to decide whether the parties are “similarly situated.” Id. Therefore,

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during the first stage courts decide “based primarily on the pleadings and any

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affidavits submitted by the parties” whether putative class members are similarly

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situated such that they should be given notice of the action. Leuthold v. Destination

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America, Inc., 224 F.R.D. 462, 466 (N.D. Cal. 2004). The factual showing required of

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plaintiffs at this stage is generally described by courts as “modest.” Mitchell, 841 F.

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Supp. 2d at 1115 (citing Misra v. Decision One Mortg. Co., LLC, 673 F. Supp. 2d

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987, 993 (C.D. Cal. 2008)). If the plaintiff satisfies this showing requirement, then

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the court may certify the class on condition the members are still similarly situated

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following discovery. Mitchell, 841 F. Supp. 2d at 1115–16.

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The second step occurs after discovery is complete and putative class members

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have had opportunity to opt in, at which time the opposing party may move to

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decertify the collective class. Id. Here, a court may undertake a second, more

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rigorous evaluation of whether the employees are indeed similarly situated. Id. The

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determination is based on three factors: “(1) the disparate factual and employment

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settings of the individual plaintiffs; (2) the various defenses available to the

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defendants with respect to the individual plaintiffs; and (3) fairness and procedural

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considerations.” Edwards v. City of Long Beach, 467 F. Supp. 2d 986, 990 n.1 (C.D.

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Cal. 2006) (citing Leuthold v. Destination America, Inc., 224 F.R.D. 462, 466 (N.D.

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Cal. 2004)). A court may decertify a collective class and dismiss the opt-in plaintiffs

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without prejudice if it finds the employees are not similarly situated. Mitchell, 841 F.

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Supp. 2d at 1115.
IV.

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DISCUSSION

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Plaintiff seeks conditional certification of her FLSA claim for the following

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proposed class: “All individuals employed by Defendant at its Jack in the Box

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restaurant in Covina, California between March 9, 2010 and May 9, 2013, and who

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took a meal break as one of the only two employees in the restaurant.” (Mot. 2.) The

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Court decides whether to conditionally certify the class using step one of the standard

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set forth above.
Based on the factual showings of the affidavits and pleadings submitted by the

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Parties, the Court is satisfied that conditional certification is appropriate.

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Castro’s claim can be a collective action because the claim properly arises under the

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FLSA. A claim is proper under the FLSA if it pleads violation of minimum wage or

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maximum hours. 29 U.S.C. §§ 206, 207. Castro claims she received no pay for

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missed meal breaks, and also claims she should have received compensation at

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First,

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overtime rates for those weeks in which she worked over 40 hours. Thus, Castro’s

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seventh claim is fully within the bounds of the FLSA.

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Second, Castro has satisfied her modest burden to show that Defendants’

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policies and practices might violate the FLSA. Castro alleges that the restaurant must

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always have both a cashier and a cook, so an employee working a two-person shift

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cannot leave the restaurant without a third employee relieving his or her post.

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Assuming Castro’s allegations are true, Defendants’ retort that the restaurant follows

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lawful “punch-out” policies is unavailing, for such policies do not automatically

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establish the legality of the practice of two-person shifts. In other words, Defendants’

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practice of operating with two-person shifts may have obligated Castro to remain on

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duty through her breaks, regardless of whether she punched out.

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Defendants’ arguments go more to the merits of Plaintiff’s claims, which are only

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modestly examined at the first stage of the certification process. Castro thus presents

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sufficient evidence to show the existence of a legitimate factual dispute.

Moreover,

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Third, Castro satisfies her modest burden of showing that other employees may

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be similarly situated. Castro worked in two-person shifts at Defendants’ Covina

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restaurant. Defendants’ policies and practices, whether legal or not, unquestionably

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affected Castro during such shifts. It is reasonable to infer that other employees

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working in two-person shifts at the same restaurant would also be affected by the

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policies and practices at issue here. Thus, other employees may be within Castro’s

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class definition, and Castro may invite those employees to join her FLSA claim.

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M&B raises additional challenges to this Motion. Most significantly, M&B

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argues that neither Castro nor any other employee informed it of this working-

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through-meal-breaks problem.

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employee’s uncompensated hours, the employer’s failure to pay is not a violation of

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29 U.S.C. § 207. Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th

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Cir. 1981).

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uncompensated work is a case-by-case question that shares no common answer.

Where an employer has no knowledge of an

Therefore, M&B argues, whether M&B knew of each employee’s

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M&B contends that because no common proof exists which will generate answers

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common to the putative class, certification should be denied for failing Federal Rule

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of Civil Procedure 23’s “commonality” requirement.

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(plaintiff may sue on behalf of all members of class only if “there are questions of law

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or fact common to the class”); see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct.

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2541, 2551 (2011) (“What matters to class certification . . . is not the raising of

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common ‘questions’—even in droves—but, rather the capacity of a classwide

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proceeding to generate common answers apt to drive the resolution of the litigation.”).

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As explained above, certification requirements for FLSA collective actions are

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more lenient than those required for class actions under Rule 23. But even under a

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“commonality” approach, certification would be appropriate.

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affidavits show M&B may have had constructive knowledge of employees’

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uncompensated work. Where an employer should have known of an employee’s

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uncompensated work, it must comply with the FLSA. Forrester, 646 F.2d at 414.

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Thus, if Castro can prove Defendants knowingly prevented her from taking breaks,

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such proof may also answer the claims of other employees in the class.

Fed. R. Civ. P. 23(a)(2)

The pleadings and

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Defendants also cite Sarviss v. General Dynamics Information Technologies,

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Inc. for the proposition Plaintiff should be estopped from any lenient certification

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standard because of her failure to conduct discovery. (Opp’n 14 (citing 663 F. Supp.

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2d 883, 904 (C.D. Cal. 2009)).) Sarviss is distinguishable because the party seeking

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certification there had failed to conduct sufficient discovery despite having had

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months to do so, whereas the discovery plan here was only recently submitted on

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April 22, 2013, and the discovery cut-off date is March 3, 2014. (Joint Report 8.)

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Plaintiff is not required to wait until discovery is complete before moving to certify a

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collective action; indeed, doing so would cause unnecessary and problematic delay.

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See Sarviss, 663 F. Supp. 2d at 903 (“The second stage [of certification] often occurs

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at the conclusion of discovery.”).

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Finally, Defendants argue the Court should consider Castro’s lack of support

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from other employees. But at this “notice” stage, Plaintiff is not required to show that

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other individuals are interested in the litigation. Delgado v. Ortho-McNeil, Inc., No.

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SACV07-263CJCMLGX, 2007 WL 2847238, at *2 (C.D. Cal 2007).

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otherwise would thwart the very purpose of conditional certification, which is to

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notify putative members of Plaintiff’s suit. Giving similarly situated employees the

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opportunity to opt-in also promotes judicial efficiency by resolving in one action the

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common claims of multiple plaintiffs. Hoffman-La Roche v. Sperling, 493 U.S. 165,

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170 (1989). If Defendants are correct and Plaintiff truly lacks support from any other

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employees, then none will opt-in.

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V.

To hold

CONCLUSION

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Plaintiff satisfies the “similarly situated” standard needed to approve a

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collective action. Accordingly, Plaintiff’s Motion for Conditional Class Certification

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and to Facilitate Notice Pursuant to 29 U.S.C. § 216(b) is GRANTED.

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Additionally, the parties are instructed to jointly develop a proposed notice and

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consent form,2 which shall then be filed with the Court for final approval no later than

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August 19, 2013. The parties shall also propose a timeline for giving notice and

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collecting forms from those who choose to opt in. If the Court approves the notice, it

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See Adams v. Inter-Con Sec. Systems, Inc., 242 F.R.D. 530, 541 (N.D. Cal. 2007) (providing
guidance regarding what to include in an FLSA opt-in notice).

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will issue a minute order giving deadlines for sending it to and collecting it from

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potential class members.

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IT IS SO ORDERED.

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August 1, 2013

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____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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