Torres v. Cache Cache, LTD et al
Filing
22
ORDER granting 12 Plaintiff's Motion for Approval of Hoffman-La Roche Notice. This case is conditionally certified as a collective action, by Judge Lewis T. Babcock on 12/21/2012. (eseam)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 12-cv-00150-LTB-KMT
SANDRO TORRES, on behalf of himself and all similarly situated persons,
Plaintiff,
v.
CACHE CACHE, LTD., a Colorado corporation;
JODI LARNER; and
CHRIS LANTER,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case is before me on Plaintiff’s Motion for Approval of Hoffman-La Roche Notice
[Doc # 12]. After consideration of the motion, all related pleadings, and the case file, I grant
Plaintiff’s motion.
I. Background
Plaintiff, a server at Cache Cache, a high-end Aspen restaurant, has asserted a claim
pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq., (“FLSA”) to recover unpaid
wages. Plaintiff’s FLSA claim is based on allegations that Plaintiff and all other service staff at
Cache Cache were required to participate in a tip pool that was shared with Cache Cache
management and kitchen staff. Because the FLSA only authorizes tip pooling among employees
who customarily and regularly receive tips, Plaintiff argues that Defendants were not entitled to
the tip credit that they claimed against the minimum wage that would otherwise have to be paid
to servers at Cache Cache. See 29 U.S.C. § 203(m).
By the Motion, Plaintiff asks the Court to conditionally certify this case as a collective
action pursuant to 29 U.S. C. § 216(b) consisting of
All current and former employees of any of the Defendants who worked at Cache
Cache restaurant and whose hourly wage was reduced by some percentage of the
applicable tip credit at any time from January 19, 2009 to present.
Plaintiff also asks that Defendants be ordered to provide him with a list of all potential collective
action members and that certain procedures be set with respect to the requested notice to the
potential collective action members.
II. Legal Standard
Section 216(b), 29 U.S.C., provides that an action to recover unpaid minimum wages
under the FLSA may be maintained by an employee on behalf of himself and other employees
similarly situated but that no employee may be a party plaintiff in any such action unless he
gives his consent in writing and such consent is filed with the court in which the action is
brought. The Supreme Court has held that a district court has discretion to facilitate notice to
potential plaintiffs under the ADEA which incorporates the procedures set forth in Section
216(b). Hoffman - La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989).
The Tenth Circuit has recognized a two-step analysis for determining whether employees
are “similarly situated” for purposes of Section 216(b). Thiessen v. General Elec. Capital Corp.,
267 F.3d 1095, 1105 (10th Cir. 2001). First, at the initial “notice stage,” a court must determine
whether there are “substantial allegations that the putative class members were together the
victims of a single decision, policy, or plan.” Id. at 1102 (citations omitted). The standard for
certification at this stage “is a lenient one that typically results in class certification.” Brown v.
Money Tree Mortg. Co., 222 F.R.D. 676, 679 (D. Kan. 2004) (citations omitted).
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Second, at the conclusion of discovery, a stricter standard of “similarly situated” is
applied. Theissen, 267 F.3d at 1102-3. The factors reviewed at this stage of the analysis include
“(1) disparate factual and employment settings of the individual plaintiffs; (2) the various
defenses available to defendant which appear to be individual to each plaintiff; [and] (3) fairness
and procedural considerations.” Id. at 1103 (quotation omitted).
III. Analysis
A. Applicable Standard for Certification
The first issue to be decided is whether I apply the first or second stage standard for
assessing whether the potential collective action members are “similarly situated.” Because the
discovery deadline in this case was November 1, 2012, Defendants argue that the stricter second
stage standard is applicable. Plaintiff counters that since this case has never gone through the
initial notice stage, it would be premature to proceed to the second stage analysis.
I acknowledge that the posture of this case is somewhat different than that typically
associated with the second stage analysis of Section 216(b)’s “similarly situated” requirement.
See Thiessen, 267 F.3d at 1102-3 (second stage analysis is often prompted by a motion to
decertify a collective action that was approved under the first stage analysis). Nonetheless, the
fact that discovery has been completed warrants a more rigorous analysis than that typically
utilized at the initial notice stage. Although there are cases applying the first stage analysis in
cases where substantial discovery has already occurred, see e.g. Smith v. Pizza Hut, Inc., 2012
WL 1414325 at * 4 (D. Colo. April 12, 2012), I am not aware of any case that has done so where
discovery has been completed. Furthermore, once discovery has been completed, the rationale
for applying a lenient standard, ie. that the plaintiff has not been able to marshal the best
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evidence to support a motion for certification, disappears. See Pizza Hut, supra (since discovery
had not yet concluded, plaintiffs did not have full opportunity to discover evidence to satisfy
more demanding second stage analysis).
I therefore analyze Plaintiff’s motion under the more rigorous second stage analysis of
Section 216(b)’s “similarly situated” requirement.
B. The “Similarly Situated” requirement of Section 216(b)
Turning to the evidence before me, Plaintiff argues that Alex Harvier, a manager and
head sommelier, improperly participated in a tip pool with other Cache Cache employees
including servers, food runners, back waiters, and door hosts. Defendants do not dispute Mr.
Harvier’s status as a manager but argue that his participation in the tip pool was proper because,
as head sommelier, he provided a customer service that contributed to the amount of tips earned.
Defendant, however, cite no case law to support their argument that a manager can participate in
a tip pool based on customer service responsibilities. Conversely, there is case law supporting a
contrary conclusion. See e.g. Shahriar v. Smith & Wollensky Rest. Group, Inc., 659 F.3d 234,
240 (2d Cir. 2011) (employer loses its entitlement to the tip credit where it requires tipped
employees to share tips with (1) employees who do not provide direct customer service or (2)
managers); Chung v. New Silver Rest., Inc., 246 F. Supp.2d 220, 229 (S.D.N.Y. 2002) (“...
forced sharing of tips with management is ... illegal practice, regardless whether or not the
members of management were engaged in restaurant services that could be the subject of
tipping.”).
In any event, there is nothing to suggest that other employees of Cache Cache who
received tips did not contribute to the tip pool that was shared with Mr. Harvier or that
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Defendants’ argument that tip sharing with Mr. Harvier was proper would not apply to all of
these employees. The relevant factors under a Section 216(b) second stage analysis therefore
support a finding that the proposed collective action members were “similarly situated” with
respect to Mr. Harvier’s participation in the tip pool. See Theissen, supra.
Next, Plaintiff argues that kitchen staff at Cache Cache also improperly participated in
the tip pool. Defendants concede that tips were shared with the kitchen staff but argue that this
tip sharing was strictly voluntary. In support of this argument, Defendants provide an affidavit
from a single back waiter at Cache Cache. Plaintiff counters that tip sharing with Cache Cache’s
kitchen was not voluntary and provides evidence that at the end of each night the head waiter
collected all tips received and distributed them amongst the staff including kitchen staff
according to a point or percentage system. Part of the evidence Plaintiff relies on is Defendant
Jodi Larner’s deposition testimony.
It is difficult to reconcile Ms. Larner’s own explanation of how the tip pool is generated
and distributed with the affidavit Defendants have provided in opposition to Plaintiff’s motion.
In any event, the weight of the evidence suggests that all tipped employees of Cache Cache
contributed to the tip pool in the described manner and that the distribution received from the
pool by the kitchen staff was therefore not truly voluntary. Furthermore, there is nothing to
suggest that Defendants’ argument that tip sharing with the kitchen staff was strictly voluntary
would not apply to all Cache Cache employees who receive tips. Again then, the relevant factors
under a Section 216(b) second stage analysis support a finding that the proposed collective
action members were “similarly situated” with respect to the participation of Cache Cache’s
kitchen staff in the tip pool. See Theissen, supra.
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Finally, in an apparent attempt to distinguish Plaintiff from other proposed collective
action members, Defendants note his status as an illegal immigrant and involvement in other
similar FLSA lawsuits. Neither of these issues, however, is likely to provide Defendants with a
valid defense that is unique to Plaintiff. First, there are a number of cases finding that evidence
of immigration status has no relevance in an FLSA action. See e.g. Reyes v. Snowcap Creamery,
Inc., 2012 WL 4888476 at *2 (D. Colo. Oct. 15, 2012) (recognizing that “weight of authority
clearly holds that a plaintiff’s immigration status is irrelevant in an FLSA action” and citing
supporting authority). It is also questionable whether Defendants will be able to introduce
evidence of other lawsuits involving Plaintiff. See Van Deelen v. Johnson, 2008 WL 4683022 at
*2 (D. Kan. Oct. 22, 2008) (evidence of plaintiff’s prior lawsuits cannot be admitted for purpose
of proving that plaintiff is litigious but may be admissible for other purposes).
Based on the evidence presently before me then, I conclude that there are no unique facts
or defenses to preclude a finding that Plaintiff is “similarly situated” to other potential collective
action members with respect to the unlawful wage practices alleged.
C. Other Issues
1. Identification of Other Proposed Collective Action Members
Defendants argue that Plaintiff’s failure to submit affidavits from other Cache Cache
employees demonstrating interest in joining this case or that they are similarly situated to
Plaintiff is fatal to Plaintiff’s request for certification. I disagree.
In support of their argument that Plaintiff must identify other Cache Cache employees
who wish to opt-in to this proposed collective action, Defendants cites dicta from Dybach v.
Florida Dept. of Corrs., 942 F.2d 1562, 1567 (11th Cir. 1991), that in ruling on a request for
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Section 216(b) collective action certification a court “should satisfy itself that there are other
employees ... who desire to “opt-in.” I have previously ruled that this dicta does not equate to a
requirement that other proposed collective action members be identified, Reab v. Elec. Arts, Inc.,
214 F.R.D. 623, 629 (D. Colo. 2002), and Defendants cite no other authority to support such a
requirement.
Plaintiff has presented ample evidence including deposition testimony from Defendants
Larner and Lanter demonstrating that the procedures for collecting and distributing tips were
universally applied to all Cache Cache service staff. This evidence is sufficient to establish that
there are other similarly situated Cache Cache employees who may wish to opt in to the
proposed collective action, and nothing more is required to support Plaintiff’s motion for
conditional certification.
2. Defining the Members of the Proposed Collective Action
Relying on 29 U.S.C. § 255, Defendants argue that the members of the proposed
collective action must be limited to servers who worked at Cache Cache in the two years prior to
the filing of Plaintiff’s Complaint on January 19, 2012 rather than the three year period requested
by Plaintiff. I disagree.
Section 255(a) establishes a two-year limitations period for FLSA actions “except that a
cause of action arising out of a willful violation may be commenced within three years after the
cause of action accrued.” To fall under the three-year limitations period of Section 255(a), a
plaintiff must show that “the employer either knew or showed reckless disregard for the matter
of whether its conduct violated the statute.” Mumby v. Pure Energy Servs. (USA), Inc., 636 F.3d
1266, 1270 (10th Cir. 2011) (quoting McGlaughlin v. Richland Shoe Co., 486 U.S. 128, 133
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(1988)). “Reckless disregard can be shown through ‘action entailing an unjustifiably high risk of
harm that is either known or so obvious that it should be known.’” Id. (quoting Safeco Ins. Co.
of Amer. v. Burr, 551 U.S. 47, 68 (2007)). “The ... operative inquiry focuses on the employer’s
diligence in the face of a statutory obligation, not on the employer’s mere knowledge of relevant
law.” Id.
In support of applying a three-year limitations period in this case, Plaintiff cites the
deposition testimony of Defendant Chris Lanter as Cache Cache’s Rule 30 (b)(6) designee
wherein Mr. Larner acknowledges that no attempt was ever made to determine if Cache Cache’s
procedures governing tips were in compliance with the law. This evidence is sufficient to
demonstrate “reckless disregard”by Defendants to support a three-year limitations period in
defining the members of the proposed collective action. This is not to say, however, that
Defendants are precluded from raising this issue again once specific class members are identified
or otherwise. Among other things, I note that Plaintiff first cited Mr. Lanter’s deposition
testimony in its reply to the motion, and Defendants therefore have not had an opportunity to
refute this evidence. Nonetheless, for present purposes, I conclude that the three-year limitations
period relied on by Plaintiff in defining the potential members of the proposed collective action
is appropriate.
3. Form of Notice
Defendants’ objection based on Plaintiff’s failure to provide a from of notice does not
warrant denying the relief requested. As proposed by Plaintiff, the parties shall confer on an
appropriate form of notice and submit the proposed notice to the Court for approval.
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IV. Conclusion
For the reasons set forth above, IT IS HEREBY ORDERED as follows:
1. Plaintiff’s Motion for Approval of Hoffman-La Roche Notice [Doc # 12] is
GRANTED;
2. This case is conditionally certified as a collective action pursuant to 29 U.S.C. §
216(b) consisting of
All current and former employees of any of the Defendants who worked at Cache
Cache restaurant and whose hourly wage was reduced by some percentage of the
applicable tip credit at any time from January 19, 2009 to present;
3. The parties shall confer and submit a proposed form of notice of this collective action
within 14 days from the date of this Order;
4. Defendants’ counsel shall provide Plaintiff’s counsel with a list of all potential
collective action members within 14 days of the date of this Order. The list shall include each
such employee’s name, position, dates or employment, last known address, telephone number,
and hourly wage (excluding tips);
5. Within 5 days of the Court’s approval of the proposed notice, Plaintiff shall send the
notice by First Class U.S. Mail to the last known address of each of the individuals on the abovereferenced list. The return address for these mailings shall be that of Plaintiff’s counsel;
6. Any individual to whom notice is sent may “opt-in” to this collective action through
the filing of a written consent with this Court within 45 days from the postmark date of the
notice; and
7. Defendants, including any of their agents, owners, employees, attorneys,
representatives, affiliates, agents, and/or any other person acting or purporting to act on their
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behalf, shall take no action that could in any way influence any of the noticed individuals in
making their decision as to whether to “opt-in” to this collective action and shall not retaliate in
any way against any individual who elects to “opt-in” to this collective action.
Dated: December
21
, 2012 in Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE
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