Turner v. Chipotle Mexican Grill, Inc.

Filing 87

Memorandum Opinion and Order. Motion for Conditional Collective Action "Certification" 28 is therefore GRANTED, even though the characterization of it as a "certification" is expressly and explicitly rejected. The question of the proper FORM and MECHANISMS for effecting the requested notice is REFERRED back to the parties for resolution. Plaintiffs' Motion to Toll the Statute of Limitations for 90 days once Notice is effected 29 is GRANTED. ORDERED that the parti es shall CONFER regarding the content of this Order and the form of the ordered Notice, and shall file a Status Report along with a proposed form of Notice on or before September 24, 2015. A hearing on the matter will be set if necessary. Entered by Judge John L. Kane on 08/21/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:14-cv-02612-JLK

LEAH TURNER, et al., individually and on behalf of others
similarly situated
Plaintiffs,
v.
CHIPOTLE MEXICAN GRILL, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER
Kane, J.
This wage and fair labor standards case is one of several around the country
brought by employees of Chipotle Mexican Grill on behalf of themselves and those
similarly situated. The gist of the workers’ complaints is that company time keeping
practices result in closing shift employees having to continue working after they are
automatically timed out. The matter is before me on Plaintiffs’ Motion for Conditional
Collective Action Certification and for Judicial Notice to Class (Doc. 28). Specifically,
Plaintiffs move for entry of an Order of “conditional collective action certification” and
for company-wide judicial notice to all current and former non-exempt hourly workers
employed by Chipotle for the three years preceding the filing of this action (excluding

1 

employees who worked at the Crystal, Minnesota Chipotle restaurant who are plaintiffs
in a related action).1 I have considered the Motion carefully.
For the reasons set forth below, I GRANT the Motion, but do so under a liberal
joinder standard rather than any application of Rule 23’s class action “certification”
process. I am persuaded that a proper reading of the FLSA at this stage of collective
action proceedings requires little more than the permissive joinder of putative class
members, and I reject the premise that collective action certification under 29 U.S.C. §
216(b) must hew to the formalities of a two-step “certification” process under Rule 23,
Fed. R. Civ. P.2 Any qualified Chipotle worker who comes forward as a “similarly
situated” employee may join in the action, subject to severance or other motion for
misjoinder as the facts of the case develop. In so ruling, I reject the grudging, store-bystore approach adopted by the district court in Harris, and opt instead to give Plaintiffs all
the rope they request so that their claims may be fully, if potentially not favorably,
resolved.
I.

BACKGROUND
In their First Amended Collective Action Complaint, Plaintiffs Leah Turner,

Araceli Gutierrez, Markeitta Ford, Jolessa Wade, Danya Granado, Brett Charles, and

1

  The related action is Harris v. Chipotle Mexican Grill, Inc., Case No. 13-cv-719, a collective
action filed in the U.S. District Court for the District of Minnesota in which the district judge
rejected plaintiffs’ motion for conditional certification of a nationwide collective action and
limited the collective to a single store in Crystal, MN. The court’s ruling resulted in Colorado
plaintiff Leah Turner being excluded from that action, with leave to return to Colorado and
pursue her claims there.
2
  I applied a two-step “certification” process as recently as 2013, in the still pending case of
Gordineer v. Rocky Mountain Offender Mgmt. Sys., No. 12-cv-1212-JLK, 2013 WL 179327 (D.
Colo. Jan. 17, 2013). Having considered the question directly in this case, I simply observe that
my thinking has evolved.  

2 

Ruby Tsao bring claims, on behalf of themselves and all others similarly situated, against
Defendant Chipotle Mexican Grill, Inc. (“Chipotle”) pursuant to the Fair Labor Standards
Act (FLSA), 29 U.S.C. § 201 et seq., and under the state laws of Arizona, California,
Colorado, and New Jersey. First Am. Collective Action Compl. (Doc. 25). Plaintiffs
assert Chipotle has a company-wide policy of requiring non-exempt hourly paid
employees to work “off the clock” without pay, and they seek to recover allegedly unpaid
overtime compensation and other wages. See id. ¶¶ 2-3.
A.

Defendant’s Business

Chipotle operates a chain of non-franchised, Mexican-style restaurants throughout
the United States. Id. ¶ 84. During the proposed certification period, Chipotle operated
more than 1,800 restaurants nationwide and employed more than 217,000 hourly
employees, known as “Crew Members,” in its U.S. locations. Br. in Opp’n to Mot. to
Certify Class (Doc. No. 80)(“Br. in Opp’n”), 6-7.
Chipotle’s official timekeeping policy explicitly provides “that all hourly
employees must record and be paid for all time worked” and “prohibits any off-the-clock
work.” Decl. of David Gottlieb (Doc. 80-5), ¶ 37. Employees receive information
regarding the timekeeping policy from the Crew Handbook and Restaurant Management
Handbook, as well as during orientation and training. Id. at ¶ 39.
In order to effectively record employees’ hours worked, Chipotle uses a common
food service industry computer program called “Aloha.” Gottlieb Decl. at ¶ 40. Aloha
tracks employee hours and records and processes each store’s customer transactions. It
also creates labor and sales projections, including “overtime alerts,” which “empowers
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management to make day-to-day mission critical decisions.” Decl. of Karen O’Connor
(Doc. 28-2) at 2. In order to compile daily sales and employment information, Aloha
automatically resets every night at 12:30 a.m. in most restaurants.3 Gottlieb Decl. at ¶49.
Important for this case is the fact that any employee working when the system resets is
automatically clocked out. Id.
B.

The Named Plaintiffs and Their Allegations

The named Plaintiffs are each current or former hourly-paid employees at
Defendant’s restaurants in various states throughout the country:
 Plaintiff Leah Turner was employed as a non-exempt hourly employee at
Defendant’s Parker, CO restaurant from March 29, 2010 until May 23,
2011. She worked first as a Crew Member and later as a kitchen, then
service, manager. Turner eventually became general manager of the Castle
Rock, CO restaurant, serving as an exempt salaried employee until March
25, 2015.
 Araceli Gutierrez was a non-exempt hourly employee at Defendant’s Santa
Ana, CA restaurant from April 20, 2012 until July 24, 2014.
 Markeitta Ford and Jolessa Wade were non-exempt hourly employees at
Defendant’s East Hanover, NJ restaurant from December 2013 until
February 2014.

3

 In some restaurants, the reset occurs at a later time, such as 1:00 a.m., 1:30 a.m., or 3:00 a.m.

(See Gottlieb Decl. ¶ 49.)
4 

 Danya Granado was a non-exempt hourly employee at Defendant’s Aurora,
CO restaurant from June 8, 2013 until January 2, 2014.
 Brett Charles was a non-exempt hourly employee at Defendant’s Gilbert,
AZ restaurant from May 31, 2011 until September 30, 2013.
 Ruby Tsao was employed as a non-exempt hourly employee at Defendant’s
Parker, CO restaurant from May 12, 2013 until September 21, 2014.
See Turner Decl. [Doc. No. 28-1] ¶¶ 2-4; Gutierrez Decl. [Doc. No. 28-1] ¶ 2; Ford Decl.
[Doc. No. 28-1] ¶ 2-3; Tsao Decl. [Doc. No. 28-1] ¶ 2; Gottlieb Decl. [Doc. No. 80-5] ¶¶
25, 28, 29.
Together Plaintiffs allege Chipotle “has devised and implemented general policies
and practices to deprive its hourly paid employees of the compensation to which they are
entitled,” and that these policies result in employees being required to “work ‘off-theclock,’ without pay.” Am. Compl. at ¶ 2. Plaintiffs contend Chipotle implements this
policy through “centralized, company-wide labor or payroll budgets that . . . incentivize
[sic] managers to understaff restaurants,” as well as through “timekeeping devices that
automatically punch employees off the clock, even if they are still working.” Id. Plaintiffs
claim that these policies originate at Chipotle’s corporate headquarters in Colorado to be
carried out by general managers nationwide. Pls.’ Mot., at 3. Based on these allegations,
Plaintiffs contend all Chipotle employees who have been required to work off the clock
are “similarly situated” for the purposes of an FLSA collective action. See id. at 27.
C. Procedural History

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The procedural history of this case is tortuous, and uniquely so. It is the second
action initiated by Plaintiff Leah Turner in this Court, succeeding her original action,
Turner v. Chipotle Mexican Grill of Colorado, LLC, filed on March 27, 2013 and
assigned to a different district judge. See Civil Action No. 13-cv-00794 (“Turner I”).
Turner voluntarily dismissed the Turner I lawsuit in October 2013, after consenting to
join the Harris action then pending in the District of Minnesota. Ms. Turner filed her
Stipulation of Dismissal in Turner I after advising defense counsel that she would refile
the Colorado case if the Minnesota court failed to recognize a company-wide collective.
As appears de rigeur in federal trial courts everywhere, the presiding judge in
Harris referred plaintiffs’ motion for collective action certification to a magistrate judge,
who made findings and recommended certification of a company-wide collective. The
district judge rejected the magistrate’s recommendation, and on September 9, 2014,
issued a Memorandum Opinion and Order limiting the collective action certification in
Harris to a single Minnesota store. As a result of this Order, Turner was excluded from
the Harris lawsuit and nearly one year from the date she voluntarily dismissed Turner I
and re-filed her collective action Complaint here (“Turner II).
Ms. Turner’s renewed lawsuit has been stymied by procedural hurdles, including
an initial assignment to a magistrate judge under this Court’s pilot program regarding
consent jurisdiction and reassignment to an article III judge almost four months later
when consent was not achieved. (Doc. 19.) In addition, Chipotle moved immediately to
dismiss Turner II on claim preclusion/res judicata grounds, arguing Turner had had her

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chance to seek national collective certification in Harris and should be limited in this
case to an individual action only.
On January 21, 2015, Turner sought, and obtained leave, to file an Amended
Complaint. (Doc. 25.) On February 2, she filed the instant Motion for Conditional
Collective Action Certification and for Judicial Notice, together with a Motion to Toll
Statute of Limitations during the notice period. (Docs. 28 & 29.) As part of these filings
Turner included a proposed form of Notice, a proposed “Consent to Join” form, three
complaints filed with the Minnesota Department of Labor and Industry by Chipotle
employees alleging new overtime violations, a copy of Defendant’s “Crew Handbook,”
declarations from four former Chipotle employees supporting the allegations in the
Amended Complaint, other collective action complaints brought against Defendant
alleging overtime violations, and multiple postings on internet forums by former Chipotle
employees alleging overtime violations. See id. (and attachments thereto).
Chipotle again moved to dismiss, arguing the question of a company-wide
collective had been resolved in Harris and that Turner should be limited to an individual
or Colorado-only claim. In the alternative, Chipotle asked that I transfer Turner II to
Minnesota where it could be resolved together with Harris. (Doc. 32.) Chipotle also
moved to stay all proceedings in the renewed Colorado action until the Motion to Dismiss
had been resolved. (Doc. 34.)
As soon as briefing was complete, I denied Chipotle’s Motions. See Order dated
March 19, 2015 (Doc. 55, text entry only). In substantive but summary fashion, I
rejected Chipotle’s invocations of the first-to-file rule and “doctrine of claim splitting,”
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observing that a motion for conditional collective certification was not a “claim” and that
Ms. Turner was not bound by the Minnesota court’s denial of that motion here. See id. I
also ordered this case set for a status conference to set a briefing schedule for Plaintiffs’
Conditional Collective and Equitable Tolling motions. Id. My intent was to put a stop to
the procedural folderol and get this case on track. Plaintiffs’ wage claims by then had
been for more than two years without ever getting out of the gate.
The status conference was held on April 7, 2015. Throughout the time leading up
to the conference, Ms. Turner had continued to file declarations and “consent to join”
forms from Chipotle employees claiming to be similarly situated and seeking relief. See
Pls.’ Req. for Judicial Notice (Doc. 69), Notice of Filing of Consent to Join Forms (Doc.
Nos. 35-40, 44-46, 53, 67, 70). Chipotle urged me to strike these forms and to prohibit
any additional filings, which I declined. Plaintiffs’ Motions were fully briefed on June
17, 2015, and are ripe for determination.
II.

DISCUSSION
The FLSA provides employees with a private right of action against their

employers for unpaid wages and overtime compensation, as well as for liquidated
damages. The operative enforcement provision of the Act is found in § 16:
An action to recover the liability prescribed [under the FLSA]
may be maintained against any employer…by any one or
more employees for and in [sic] 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.
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29 U.S.C.A. § 216(b). A threshold issue in this case is the proper procedural mechanism
for pursuing a representative action “on behalf of” employees similarly situated. Both
sides articulate this procedure in Rule 23 class “certification” rubric. Plaintiffs argue for
“conditional certification” under a “lenient, notice stage” standard that favors
certification as long as there are “substantial allegations that the putative class members
were together the victims of a single decision, policy, or plan.” Pls.’ Mot. (Doc. 28) at
17-18. Chipotle argues for a stricter standard, stating that Plaintiffs have already had the
benefit of discovery in the Harris case so that “certification” is warranted only as to store
locations where a plaintiff has “substantial evidence” of a common decision, policy, or
plan. Opposition (Doc. 80) at pp. 20-21.
Concerned that the “class certification” nomenclature has skewed proper analysis
of collective actions under the FLSA, I pause first to articulate a standard that sets it
straight. I will then apply that standard to determine the scope of the collective that will
be permitted to proceed in this case, and address the notice and equitable tolling issues.
A. Legal Standard for Collective Action under the FLSA.
On the question of how a collective action under Section 16 of the FLSA should
be commenced, I am persuaded that the “certification” rubric borrowed from Rule 23 has
no place in wage claim litigation under the FLSA. It mires cases in procedural
prerequisites that thwart wage-earners’ rights to discovery and redress. Instead, I agree
with legal scholars and practitioners who have recently critiqued courts’ reliance on class
“certification” concepts in FLSA cases, finding them the result of a confluence of factors,
including haphazard terminology, a misunderstanding of precedent and legislative intent,
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and excessive path dependence in the application of stare decisis. See Scott A. Moss,
Nantiya Ruan, The Second-Class Class Action: How Courts Thwart Wage Rights by
Misapplying Class Action Rules, 61 Am. U. L. Rev. 523 (2012); Allan G. King, Camille
C. Ozumba, Strange Fiction: The "Class Certification" Decision in FLSA Collective
Actions, 24 Lab. Law. 267 (2009).
In their well-crafted critique, Professors Moss and Ruan explain that the use of a
two-stage “class certification” approach to FLSA collective actions under the FLSA is a
relatively recent jurisprudential development triggered by imprecise pleading and “stare
decisis yield[ing] path-dependence and lock-in.” Moss, supra fn. 303 and accompanying
text. The professors analyze the evolution of FLSA jurisprudence from the passage of
the Fair Labor Standards Act in 1938 to the present, observing that for the first 50 years,
§ 16 was uniformly interpreted as allowing liberalized permissive joinder of any party
plaintiff “similarly situated.” The only requirement, per the statute, was that each plaintiff
“gives his consent in writing to become such a party and such consent is filed in the court
in which such action is brought.” § 216(b). Moss, supra at 542-43 (noting joinder was the
primary interpretation of § 216(b) for decades, and citing representative cases from the
1940s through the 1970s); Fink v. Oliver Iron Min. Co., 65 F.Supp. 316, 318 (D. Minn.
1941) (“It seems clear, therefore, that all Congress intended under Section 16 of the Fair
Labor Standards Act [codified as 29 U.S.C. § 216(b)] was a permissive joinder in any suit
brought by an employee for the benefit of others similarly situated.”)
Joinder under § 216(b) is thus even more lenient than joinder or intervention under
Federal Rules of Civil Procedure 19, 20, and 24, which require that either “the current
10 

plaintiffs move to amend the complaint to add…additional plaintiffs, the additional
plaintiffs move to intervene in the litigation, or the defendant moves to add these
individuals as ‘necessary parties,’ and the court rules favorably on these motions.” King,
supra at 274 (original citations and ordinals omitted).
In contrast, no court action is required to add any number of
“opt-ins” to an FLSA collective action, and whether anyone
joins the litigation is solely at his or her election. In fact,
anyone whosoever may “consent” to join the action merely by
filing an appropriate form, and it then becomes the
responsibility of other parties to move the court to dismiss or
sever the claims of those who allegedly are improperly
joined…[A]ll those who opt in are party-plaintiffs and remain
in the lawsuit unless they are dismissed from the action.”
Id.
During the half-century between 1938 and 1987 collective actions under § 216(b)
were often analogized to one particular type of class action under the then Rule 23(a)(3),
which were known as “spurious class actions,” but not to either of the other types of class
actions. Moss, supra at 547. This analogy was precise given that collective actions under
§ 216(b) and spurious class actions under then Rule 23(a)(3) were “both aggregated
damages claims for only those who opted in and both were joinder liberalizations.” Id.
Whether analogized to spurious class actions or not, for fifty years district court
interpretations of § 216(b) were in accord with sound interpretation of the statutory text
and the legislative intent.
Wrongly requiring “certification” in § 216(b) collective actions had its genesis in
the 1966 enactment of the modern Rule 23, which did away with the spurious class action
and imposed rigorous certification requirements and procedural hurdles for individuals
11 

seeking to join together as a class. The purpose of the Rule 23 class action device is to
provide access to justice for negative value lawsuits, but at the cost of binding in the
judgment parties absent from the litigation process. See Lucas v. Pioneer, Inc., 256
N.W.2d 167, 172, 177 (Iowa 1977) (in the context of a state version of a liberalized
joinder provision, stating that the “[r]ights of those not present are not bindingly
adjudicated” as they would be under the modern Rule 23). Protecting the right to due
process for absent parties is the rationale for Rule 23’s procedural hurdles -- certification,
notice, and the opportunity for potential class members to opt out and preserve the right
to litigate on their own -- and a major rationale for the 1966 amendments to Rule 23. See
Hansberry v. Lee, 311 U.S. 32 (1940) (discussing the constitutional requirements of due
process created in the context of Rule 23’s binding of absent parties).
While Section 216(b) collective actions, like Rule 23 class actions, are often
aggregated negative value lawsuits where the ability to aggregate claims gives plaintiffs
access to justice they would not otherwise have, they differ fundamentally from Rule 23
class actions in the manner in which putative plaintiffs elect to participate and are bound
by the result. In Rule 23 class actions, similarly situated individuals are represented by
the representatives of the class and are bound by the result unless they opt out of class
membership. In FLSA collective actions, by contrast, only those who opt in have a stake
in the litigation, and those who fail to do so neither participate nor benefit from any
favorable ruling. This difference removes any rationale for subjecting individual party
plaintiffs in collective actions to the rigorous procedural requirements of class actions.
Nonetheless, attorneys and courts conflate collective actions with modern Rule 23 class
12 

actions, especially when plaintiffs plead both a § 216(b) collective action and a Rule 23
class action, or when plaintiffs erroneously plead Rule 23 on a cause of action where the
requisite enforcement mechanism is § 216(b). Moss, supra at 549.
The case of Lusardi v. Xerox Corp., 118 F.R.D. 351 (D. N.J. 1987), is credited
with originating the modern trend of conflating the certification requirements of Rule 23
class actions with the liberalized joinder device of collective actions. Lusardi involved a
collective action brought under the Age Discrimination Employment in Act (“ADEA”),
civil rights era anti-discrimination legislation that expressly borrows § 216(b) as its
collective action enforcement mechanism. See 29 U.S.C. § 626(b)(incorporating by
reference the FSLA’s enforcement mechanism at 29 U.S.C. § 216(b)). In marshaling their
age discrimination claims, the Lusardi plaintiffs, like Plaintiffs here, moved as “similarly
situated” individuals for certification as a Rule 23 class action. The district court found
that § 216(b) provided exclusively for collective actions, and not Rule 23 class actions,
and granted plaintiffs leave to proceed as a collective action under § 216(b). Inconsistent
with this ruling, however, the Lusardi court used language indicating it was granting the
plaintiffs’ request for “certification” as a “class action.” 118 F.R.D. at 93. Doing so
formalized the error in plaintiffs’ pleadings, and conflated the Rule 23 nomenclature with
what is more precisely a § 216(b) collective action, for which certification is not required.
After discovery was complete the defendant moved to “decertify the conditional class,”
following the court’s lead and further perpetuating the conflated nomenclature. Lusardi v.
Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).

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Citing Lusardi, several district courts employed a two-stage “certification”
process to manage an FLSA collective action. See Moss & Ruan, supra at 551
(collecting cases). When the first circuit court recognized the process in 1995, a star was
born. See Mooney v. Aramco Services Co., 54 F.3d 1207 (5th Cir. 1995)(holding district
court did not abuse its discretion in FLSA collective action litigation in applying class
certification approach). The Tenth and Eleventh Circuits have since followed suit -- see
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095 (10th Cir. 2001) and Hipp v. Liberty
Nat. Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001) -- and now district courts in nearly
every circuit “cite Mooney, and sometimes Hipp and Thiessen too” as binding authority
for subjecting plaintiffs in FLSA collective actions to a Rule 23-like class certification
process. Moss & Ruan, supra at 551.
Further complicating matters is the conflation of straightforward “my employer
owes me money” wage claims under the FLSA with more complex and nuanced
employment discrimination rubric. In their “Strange Fiction” article (cited supra at p. 10)
King and Ozumba discuss in illuminating fashion the genesis of this enmeshment, and its
fallout for wage act claimants.
Congress passed the ADEA in 1967, authorizing similarly situated plaintiffs to
aggregate their claims and incorporating § 16 of the FLSA as its enforcement mechanism.
For the next thirty-five years, age-discrimination cases accounted for the vast majority of
collective actions under section 216(b) of the FLSA. King & Ozumba, supra at 286-87.
As a result, the leading cases that address collective action proceedings under section
216(b) were ADEA actions, rather than actions brought under the FLSA. Id. The result
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was far-reaching, because now FLSA wage-claim actions are not only subjected to
unwarranted class certification requirements, they are also often wrongly subjected to the
more rigorous invidious animus standards of discrimination claims.
Under the ADEA, an individual employee may obtain relief by demonstrating that
his employer “has engaged in a ‘pattern or practice’ of discrimination” against similarly
situated, i.e., older, employees. These “pattern or practice” allegations give rise to an
inference of invidious intent, a necessary element for a claim of age (or any other
actionable employment-based) discrimination. King & Ozumba, supra at 287-88. The
FLSA, with limited exceptions, is a strict-liability statute. Plaintiffs are not required to
demonstrate invidious intent or any other type of culpable mind. “If an individual who is
entitled to hourly compensation works unpaid hours, the employer is liable irrespective of
whether it intended to deprive the employee of his or her pay.” Id. at 288.
As a result, rules that are helpful in certifying ADEA class
actions may mislead in deciding whether to certify an FLSA
class action. For example, the suggestion that plaintiffs need
only make “substantial allegations that the putative class
members were together the victims of a single decision,
policy or plan infected by discrimination” to merit conditional
certification in an age discrimination case is unhelpful in an
FLSA case, given that this is a legal standard particular to
proving some form of requisite intent.
Id. at 289. This is so because the rights at issue in discrimination cases derive from
membership in a protected group. The rights protected by the FLSA – including the
subject right to be paid for hours one has actually worked – are actionable without
reference to any membership in a protected class. Wage rights are individual rights, and

15 

a collective action is the device that enables co-workers holding these individual rights to
aggregate and enforce them, collectively.
For these reasons, there can be no requirement that wage claimants prove a “single
decision, policy, or plan” to deprive them of pay in order to prevail on a claim for
payment. Any such requirement diminishes the individual’s rights under the FLSA, and
blunts the statute’s effect by disenabling individuals from enforcing their rights
collectively. In short, discrimination and wage claims are two entirely distinct bodies of
law, and there are important rationales for keeping them so.
The deleterious effects of imposing a “certification” requirement on individuals
who would aggregate to pursue wage claims under the FLSA, and as part of that require
them to allege a “pattern or practice” of misdeeds to justify their aggregation, are
obvious. Claimants are forced to answer evidence-based challenges to their lawsuit
before it is off the ground, when all of the evidence to support their claims is in the hands
of their employer. As Professors Moss and Ruan observe, “[v]irtually all collective
actions that courts reject because of differing job duties or supervisors would amply meet
the proper joinder standard, so long as plaintiffs share a single common issue of law or
fact.” Moss, supra at 575. Prohibiting potential FLSA wage-claim party plaintiffs from
joining as a collective because they do not meet the legal standards for discrimination
claims, in my view, would be a profound miscarriage of justice.
The proper approach, and the one I apply, is to presumptively allow workers
bringing the same statutory claim against the same employer to join as a collective, with
the understanding that individuals may be challenged and severed from the collective if
16 

the basis for their joinder proves erroneous. See Moss and Ruan, supra at 570. Some §
216(b) claimants may prove too different for collective treatment. Rather than subject
them to heightened pleading standards or evidentiary burdens of proving commonality,
however, the letter and spirit of § 216(b) suggests handling them as any other challenge
to a Rule 20 joinder in an existing plaintiff’s claims. Rule 21 (misjoinder) and Rule 42
(severance) are the proper vehicles for challenging individual plaintiffs in an FLSA
collective action, and that is the process to be followed here.
B. Notice and Equitable Tolling.
Because I am recognizing a permissive joinder standard for Chipotle crew
members to collectivize in this case, I must address the related questions of notice (i.e.,
whether an additional public notice period is necessary given the procedural history of
this action and if so, what form and duration that notice period should take) and whether
it is appropriate to toll the statute of limitations so that additional joinders received during
any future notice period won’t have to worry about being time-barred. Having become
intensely familiar with this litigation and the “off-clock” wage claims pending against
Chipotle in Minnesota, Colorado and elsewhere, I would like to see Plaintiffs’ allegations
rise or fall on their merits, rather than as a result of procedural maneuvering, piecemeal
litigation, or attrition. As a result, I answer both questions in the affirmative.
With regard to Notice, Plaintiffs ask that I enter an Order requiring Chipotle to
provide Plaintiffs with a “searchable and importable electronic list” of names, addresses,
and last known email addresses of “all putative Class [sic] members,” so that they may be
informed of their right to join in this litigation. Plaintiffs also ask to “toll” applicable
17 

statutes of limitations for a period of 90 days after potential collective members “receive
notice of the instant lawsuit,” so that no potential plaintiff’s claim will become timebarred in the interim. Based on all of the foregoing, it is ORDERED that the currently
joined Plaintiffs to this FLSA action are permitted to proceed against Chipotle as a
collective, and that Plaintiffs’ request for judicial notice so that similarly situated
individuals may JOIN in the lawsuit is GRANTED. Plaintiffs’ Motion for Conditional
Collective Action “Certification” (Doc. 28) is therefore GRANTED, even though the
characterization of it as a “certification” is expressly and explicitly rejected. The
question of the proper FORM and MECHANISMS for effecting the requested notice is
REFERRED back to the parties for resolution. Plaintiffs’ Motion to Toll the Statute of
Limitations for 90 days once Notice is effected (Doc. 29) is GRANTED.
FURTHER ORDERED that the parties shall CONFER regarding the content of
this Order and the form of the ordered Notice, and shall file a Status Report along with a
proposed form of Notice on or before September 24, 2015. A hearing on the matter will
be set if necessary.

Dated August 21, 2015.

s/John L. Kane
SENIOR U.S. DISTRICT JUDGE

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