Alli v. Boston Market Corp
RULING granting in part and denying in part 69 Motion to Certify Class. Signed by Judge Janet C. Hall on 9/8/2011. (Oliver, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
BEBI ALLI, et al.
BOSTON MARKET CO.,
CIVIL CASE NO.
SEPTEMBER 8, 2011
RULING RE: PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
(DOC. NO. 69)
Plaintiffs have brought a claim for violation of the overtime provisions of the Fair
Labor Standards Act (“FLSA”) and related claims under state law. This Ruling
addresses plaintiffs’ Motion for Conditional Certification and Court-Authorized Notice
Pursuant to Section 216(b) of the FLSA (Doc. No. 69). At the time that Motion was filed,
the plaintiffs were Bebi Alli, Eric Kehou, and Patricia Fernandez, three former
employees of Boston Market. Since that time, plaintiffs were permitted to amend their
Complaint to add two more former employees, Sherrie Ward and Raheim Taylor, as
plaintiffs, see Fourth Amended Complaint (Doc. No. 132), and the court granted Boston
Market’s Motion to Dismiss the claims of plaintiff Alli, see Doc. No. 140. Declarations of
the two new plaintiffs were submitted with the briefing on the pending Motion.
Plaintiffs each held the position of Assistant General Manager (AGM), Culinary
Manager, or Hospitality Manager at one or more Boston Market restaurants in New York
and Connecticut. Boston Market eliminated the positions of Culinary Manager and
Hospitality Manager, but continues to employ AGMs at its restaurants across the
country. Plaintiffs contend that they were denied legally-mandated overtime pay
because Boston Market erroneously categorized all such positions (outside of
California) as exempt from the overtime provisions of the FLSA. Plaintiffs seek
conditional certification of a collective action and court-authorization to send notice to
current and former AGMs to permit them with an opportunity to join this action. For the
following reasons, plaintiffs’ Motion is granted, except with regard to their request for
certain information regarding potential opt-in plaintiffs and except with regard to
authorization of their proposed notice.
The FLSA permits employees to file an action on behalf of themselves and “other
employees similarly situated” for violations of minimum wage and overtime provisions of
the FLSA. 29 U.S.C. § 216(b). “[S]uch a joint, or collective, action requires potential
plaintiffs to opt in to the suit in order to benefit from any judgment.” Aros v. United
Rentals, Inc., 269 F.R.D. 176, 179 (D. Conn. 2010) (quoting Neary v. Metro. Prop. &
Cas. Ins. Co., 517 F. Supp. 2d 606, 618 (D. Conn. 2007)). “Although they are not
required to do so by FLSA, district courts ‘have discretion, in appropriate cases, to
implement [§ 216(b)] . . . by facilitating notice to potential plaintiffs’ of the pendency of
the action and of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz
Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffman-La Roche Inc. v. Sperling,
493 U.S. 165, 169 (1989)) (alterations in Myers).
District courts in this Circuit have generally employed a two-stage process in
deciding whether such an FLSA action should proceed as a collective action. See, e.g.,
Aros, 269 F.R.D. at 179; Marcus v. American Contract Bridge League, 254 F.R.D. 44,
47 (D. Conn. 2008); Neary, 517 F. Supp. 2d at 618. The Second Circuit recently
approved of this two-step process, see Hertz, 624 F.3d at 554-55, explaining it as
The first step involves the court making an initial
determination to send notice to potential opt-in plaintiffs who
may be “similarly situated” to the named plaintiffs with
respect to whether a FLSA violation has occurred. The court
may send this notice after plaintiffs make a modest factual
showing that they and potential opt-in plaintiffs together were
victims of a common policy or plan that violated the law. In a
FLSA exemption case, plaintiffs accomplish this by making
some showing that there are other employees who are
similarly situated with respect to their job requirements and
with regard to their pay provisions, on which the criteria for
many FLSA exemptions are based, who are classified as
exempt pursuant to a common policy or scheme. The
modest factual showing cannot be satisfied simply by
unsupported assertions, but it should remain a low standard
of proof because the purpose of this first stage is merely to
determine whether “similarly situated” plaintiffs do in fact
exist. At the second stage, the district court will, on a fuller
record, determine whether a so-called “collective action” may
go forward by determining whether the plaintiffs who have
opted in are in fact “similarly situated” to the named plaintiffs.
The action may be “de-certified” if the record reveals that
they are not, and the opt-in plaintiffs’ claims may be
dismissed without prejudice.
Id. at 555 (quotations and citations omitted; emphasis in original); accord Aros, 269
F.R.D. at 179; Marcus, 254 F.R.D. at 47.
The merits of the plaintiffs’ FLSA claim are not directly relevant to the decision
whether to certify a collective action. See Aros, 269 F.R.D. at 179. A ruling on a motion
for conditional certification “is confined to an analysis of whether [plaintiffs have] shown
that the putative collective action members in this case are sufficiently ‘similarly situated’
as to warrant the case conditionally proceeding as a collective action.” Id. “The
plaintiffs need not be identically situated to potential class members.” Id. at 180
(quoting Heagney v. European American Bank, 122 F.R.D. 125, 127 (E.D.N.Y. 1988)).
Plaintiffs need only present evidence that “demonstrate[s] similarity among the
individual situations . . . some identifiable factual nexus which binds the named plaintiffs
and the potential class members together as victims” of a common policy or scheme.
Aros, 269 F.R.D. at 180 (quoting Heagney, 122 F.R.D. at 127).
Evidence of Common Job Functions and Common Classification
The evidence indicates that there is no relevant difference between the three
positions at issue here: the AGM, the Culinary Manager, and the Hospitality Manager.
Boston Market’s Director of Operations, Robert Gerard, testified that Culinary Manager
and Hospitality Manager were two job titles that Boston Market has eliminated and that
these positions are the same as the current AGM position. Gerard Dep. (Pl. Ex. A) at
36-37 (Q. “What is a culinary manager?” A. “That was an assistant general manager in
the structure that I referred to . . . .” Q. “What is a hospitality manager?” A. “That would
be the same thing.”); see Alli Dep. (Pl. Ex. B) at 138 (testifying that all three job titles
had the same responsibilities); Kehou Dep. (Pl. Ex. C) at 40 (testifying that there was no
difference between his responsibilities as a culinary manager and as an AGM).
The testimony and declarations of the plaintiffs—some of whom worked at
multiple Boston Market restaurants—indicate that they had consistent responsibilities in
each of these positions in various Boston Market restaurants in Connecticut and New
York. See Ward Decl. (Pl. Ex. R) ¶ 10 (“In every store that I worked in as an AGM or
Hospitality Manager at Boston Market, I spent 90-95% of my work time performing
manual labor and customer-service tasks. These duties included . . . cleaning ovens,
cleaning water baths, mopping floors, cooking food, making sandwiches, taking orders
for guests, cashiering, serving food, cleaning the dining room . . . . This was consistent
at each store where I worked.”); Taylor Decl. (Pl. Ex. S) ¶¶ 7-8 (“I spent about 90% of
my work time performing manual labor and customer-service duties such as: cooking
chicken, . . . making sandwiches, . . . working the cash register, serving customers,
mopping the dining room . . . . My job duties were basically the same in each store
where I worked, even though some stores were larger or busier than others.”); Alli Dep.
(Pl. Ex. B) at 93-94, 137-38 (testifying that, across the various restaurants, zero to ten
percent of her responsibilities were managerial and the majority was “[t]he same grunt
work, filling in all the positions, cooking, cleaning, washing the walls . . . cashiering,
cleaning . . . .”); Kehou Dep. (Pl. Ex. C) at 169-70, 172 (testifying that his responsibilities
included preparing food, cleaning equipment, and sweeping and mopping floors).
Boston Market scripted a checklist, entitled the “Simple Disciplines Travel Path,”
which outlines a routine that AGMs are expected to perform repeatedly throughout the
day. Pl. Ex. T; see Gerard Dep. (Pl. Ex. A) at 114-15. The document contains a
detailed list of nearly 80 items or tasks to perform throughout the restaurant, such as
checking that the parking lot is free of trash and that bathroom air fresheners are in
place, and to correct any item found to be out of place. See Pl. Ex. T. This Travel Path
provides strong evidence that, from restaurant to restaurant, the AGM position involves
similar responsibilities, dictated by uniform corporate policy. Boston Market’s Director of
Operations testified that the Simple Disciplines Travel Path is
the routine that we expect our managers to follow within the
restaurant. So, if the travel path would start from the
outside, work their way into the dining room, look at your
dining room, make sure that its clean, work your way into the
restroom, work your way down the front and back line
throughout the entire restaurant, so you can see what is
exactly happening in your restaurant. A travel path should
happen at least minimally once every 30 minutes.
Gerard Dep. (Pl. Ex. A) at 114-15. Plaintiffs assert that they were expected to perform
the tasks on the Travel Path on a routine basis at each of the different restaurants
where they worked. See Ward Decl. (Pl. Ex. T) ¶ 12; Taylor Decl. (Pl. Ex. S) ¶ 10.
Boston Market’s training and orientation policies provide further indication that
the positions at issue are highly consistent, if not uniform, from restaurant to restaurant.
First, Boston Market ensures that all restaurant employees receive a uniform
orientation, because it “wouldn’t want the general managers going off and creating their
own orientation . . . .” Gerard Dep. (Pl. Ex. A) at 82. At orientation, each employee is
given the “employee guidelines,” which includes information on company expectations
and policies for employees. See id. at 75-77. Gerard testified that the purpose of these
guidelines are to “make sure that we are consistent from restaurant to restaurant in the
standards that are in here.” Id. at 80-81. Second, Boston Market utilizes a
standardized eight week training program for new AGMs, promulgated at the corporate
level, and conducted only by certified trainers at specific, certified training restaurants.
Id. at 103-06. Significantly, after this initial training, AGMs can move from one Boston
Market restaurant to another without any retraining. See id. at 180-81; Ward Decl. (Pl.
Ex. R) ¶ 20 (“I did not need any additional training for any of the seven times that I
moved to a new store.”); Taylor Decl. (Pl. Ex. S) (no retraining needed for work at four
different stores) ¶ 17.
Finally, the foregoing evidence that AGMs have similar responsibilities from one
restaurant to another is supported by evidence that, as a general matter, Boston Market
restaurants across the country are managed according to uniform policies. Boston
Market’s Director of Operations testified that the company maintains uniform guidelines
for its restaurants because “[i]t is important that we have the same food quality and
guest experience from restaurant to restaurant. . . . [T]he guests wouldn’t know what to
expect if they went from the one in California to the one in New York, if it were different.”
Gerard Dep. (Pl. Ex. A) at 85. These policies control food safety, food handling and
food preparation at all Boston Market restaurants. See id. at 82-84; Pl. Ex. H (Boston
Market “Daily Food Safety Checklist”); Pl. Ex. I (Boston Market “Daily Prep Sheet”); Pl.
Ex. J (Boston Market “Daily Prep Sheet Explained”); Pl Ex. K (Boston Market “Standard
Operating Procedures: Proteins”). Boston Market also imposes uniform, step-by-step
procedures for opening and closing of stores and for handling of cash. See Pl. Ex. M
(Boston Market guidelines for “Security at Opening” and “Security at Closing”); Gerard
Dep. at 100-01 (testifying that the opening and closing procedures apply at all
restaurants). Neither AGMs, nor even general managers, have authority to deviate from
these standard procedures. See Gerard Dep. at 93-94,185-86; see also Pl. Ex. N (May
11, 2007 Memorandum to hospitality and culinary managers). Boston Market also
utilizes a “Manager’s Travel Path”—similar to the “Simple Disciplines Travel Path”—
which contains both a checklist of tasks and a timeline, entitled “A Day in the Life of
Boston Market,” which proscribes a list of tasks to be performed at specified time
intervals during the day. Pl. Ex. U. All of these standard policies and protocols support
the general conclusion that Boston Market restaurants are run in a uniform fashion
dictated by corporate headquarters. This is consistent with the more specific evidence
that the job responsibilities of AGMs, Culinary Managers, and Hospitality Managers, are
substantially similar from one Boston Market restaurant to another.
In response, Boston Market argues that the plaintiffs’ experience is limited to
Boston Market restaurants located in New York and Connecticut, and that it is
inappropriate to infer that AGMs in other states have similar responsibilities. Boston
Market cites Vasquez v. Vitamin Shoppe Indus., where a court rejected certification
because the “only evidence” of a uniform, nationwide misclassification was plaintiff’s
“observations of and conversations with six [store managers], all of whom work at store
locations in Brooklyn or Manhattan.” No. 10-cv-8820 (LTS), 2011 WL 2693712, *3
(S.D.N.Y. July 11, 2011). Here, however, plaintiffs’ evidence of uniform corporate
policies, standardized training and orientation, and corporate job routines for AGMs,
such as the opening and closing protocol and the Travel Path checklists, all pertains to
Boston Market restaurants across the country. These documents support a conclusion
that the similarities observed by plaintiffs in New York and Connecticut restaurants are
likely to exist in other restaurants throughout the Boston Market chain. This is sufficient
at the conditional certification stage.
Boston Market also submits declarations from current AGMs, who indicate that
they perform tasks and responsibilities that differ from those performed by the plaintiffs.
This court has refused to consider such evidence at the conditional certification stage,
holding that it is more appropriately considered at the second stage of the certification
process. See Aros, 269 F.R.D. at 180 (“[I]t is inappropriate to consider the declarations
of other United Rentals employees, which have been submitted to the court by United
Rentals in an effort to prove that the potential collective action members are not
similarly situated.”); Neary, 517 F. Supp. 2d at 620 (“Several courts have stated . . . that
disparate factual and employment settings of the individual plaintiffs should be
considered at the second stage of analysis.” (quotation omitted)). “[C]onditional
certification depends not on whether the potential collective action members are in fact
‘similarly situated,’ but on whether [plaintiffs have] made ‘a modest factual showing
sufficient to demonstrate that [they] and potential plaintiffs together were victims of a
common policy or plan that violated the law.’” Aros, 269 F.R.D. at 180 (quoting Neary,
517 F. Supp. 2d at 618).
Here, plaintiffs have met their modest burden of submitting evidence that AGMs,
Hospitality Managers, and Culinary Managers perform similar work at each of Boston
Market’s restaurants.1 As for the showing of a common policy, Boston Market does not
dispute that it has uniformly categorized all AGMs, Hospitality Managers, and Culinary
Managers outside of California as “exempt” from the overtime provisions of the FLSA.2
See Boston Market Opp. at 30-31 (arguing that Boston Market’s uniform exemption of
all AGMs is insufficient to support certification). Notably, although Boston Market
argues that there is evidence of differences between the jobs performed by AGMs,
Because the court finds that the evidence discussed above to be sufficient, the court does not
address the parties’ dispute over the relevance of Boston Market’s uniform job description for AGMs. See
Gerard Dep. (Pl. Ex. A) at 35-36 (testifying that Boston Market prepared a uniform description of the core
responsibilities of AGMs); see also Pl. Ex. Q (12 internet job announcements for AGM positions at Boston
Market restaurants in various states and cities describing the job in the same terms). Although plaintiffs
apparently intended to do so, they have not submitted a copy of the uniform job description described in
Gerard’s testimony. Plaintiffs describe their Exhibit P as a copy of that job description, but as filed, that
exhibit consists of four pages with nothing other than the Boston Market logo and a truncated sentence of
no import. See Pl. Ex. P (Doc. No. 71-16).
As proof of this classification, plaintiffs cite their misfiled Exhibit P. See supra at 9, n.1. The
court therefore relies on Boston Market’s failure to contest that AGMs were classified as exempt as a
matter of general policy, regardless of any case by case assessment of the work done by individual
Boston Market does not contend that it considers those differences or makes any caseby-case determination of whether to classify particular AGMs as exempt. The evidence
is sufficient to satisfy plaintiffs’ modest initial burden of submitting evidence that there
are other similarly situated plaintiffs who have been subject to the same common
Therefore, pursuant to Section 216(b) of the FLSA, the court conditionally
certifies a collective action on behalf of AGMs, Culinary Managers, and Hospital
Managers who worked at a Boston Market restaurant, outside of California, between
January 4, 2007 and the present. The court finds that it is appropriate that notice be
sent to these potential opt-in plaintiffs.
Boston Market’s Objection to Disclosure of Phone Numbers and
Social Security Numbers
Plaintiffs have requested that, for purposes of providing notice, Boston Market be
ordered to produce the names, mailing addresses, telephone numbers, social security
numbers, work locations, and dates of employment of potential opt-in plaintiffs. Boston
Market objects to the request for phone numbers and social security numbers.
Notice by mail is appropriate, and courts routinely order production of names and
mailing addresses for potential opt-in plaintiffs. See Gayle v. Harry’s Nurses Registry,
Boston Market submitted a Notice of Supplemental Authority which seeks to draw some support
from two cases decided under the standard for certification of a class action under Fed. R. Civ. P. 23: the
Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S. Ct. 2541 (June 20,
2011), and a district court decision, Cruz v. Dollar Tree Stores, No. 07-2050 SC, 2011 WL 2682967 (N.D.
Cal. July 8, 2011). In doing so, Boston Market disregards the fact that the issue raised by the pending
Motion for Conditional Certification “is quite distinct from the question whether the plaintiffs have satisfied
the much higher threshold of demonstrating that common questions of law and fact will ‘predominate’ for
Rule 23 purposes . . . .” Myers, 624 F.3d at 556 (emphasis added). Assuming for the sake of argument
that these Rule 23 cases might provide some guidance in FLSA collective action cases, they do not alter
the standard applicable at the initial, conditional certification stage. See id. Until the potential plaintiffs
receive notice and decide whether to opt-in, the court should not and will not decide whether the case
actually ought to be resolved as a collective action. See id. at 555.
Inc., 07-cv-4672(CPS), 2009 WL 605790, *11 (E.D.N.Y. March 9, 2009) (citing cases).
Plaintiffs have shown no need for the disclosure of telephone numbers and, especially,
social security numbers. See, e.g., id. at *11 (“[P]laintiff has not made a showing that
disclosure of confidential social security numbers is necessary in order to facilitate the
delivery of notices.”); Delgado v. Ortho-McNeil, Inc., No. 8:07-cv-263, 2007 WL
2847238, *3 (C.D. Cal. Aug. 7, 2007) (“[P]roduction of telephone numbers, email
addresses, and social security numbers is inappropriate.”). Therefore, Boston Market
shall produce the requested information, except for the social security numbers and
telephone numbers. Plaintiffs may renew their request for telephone numbers if further
information indicates that the addresses are inadequate. See Houston v. URS Corp.,
591 F. Supp. 2d 827, 836 n.9 (E.D. Va. 2008) (denying request for telephone numbers
except to “the extent the notice mailed to putative collective action members is returned
Boston Market’s Objection to the Proposed Notice
Boston Market makes a general objection to the proposed notice submitted with
plaintiffs’ Motion (Doc. No. 69-1). However, Boston Market does not identify any specific
problems with that notice. Boston Market shall have 14 days to confer with plaintiffs’
counsel and submit a mutually agreed upon notice or, failing that, to submit
simultaneous briefing, within 21 days of the date of this Ruling, as to its specific
objections together with its own proposed notice. See Aros, 269 F.R.D. at 186.
However, the court notes that the plaintiffs’ proposed notice provides that the cutoff date for class membership (i.e., the date at which a potential class member must
have been working at Boston Market) is to be determined by the court. In their
Memorandum, plaintiffs requested a date of January 4, 2007. Pl. Mem. at 25. The
court has adopted this proposed date based on the absence of objection. Thus,
although the court is providing an opportunity for objection to the proposed notice, the
court does not intend to entertain any objection, such as an objection to this date, that
would involve relitigating the scope of the conditionally-certified class.
For the foregoing reasons, plaintiffs’ Motion for Conditional Certification and
Court-Authorized Notice Pursuant to Section 216(b) of the FLSA (Doc. No. 69) is
granted in part. The court conditionally certifies the collective action class. The court
orders the defendants to produce the requested information regarding potential opt-in
plaintiffs, except for telephone numbers and social security numbers. The court
approves the sending of notice to the potential opt-in plaintiffs. However, pending
further agreement within 14 days, or further objection within 21 days, the court does not
authorize the mailing of plaintiffs’ proposed notice in its present form.
Dated at Bridgeport, Connecticut, this 8th day of September, 2011.
/s/ Janet C. Hall
Janet C. Hall
United States District Judge
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