Plummer et al v. PJCF, LLC

Filing 25

ORDER granting 18 Plaintiffs Paul Plummer and Nicholas White's Unopposed Motion to Conditionally Certify FLSA Collective Action and Facilitate Notice to Potential Class Members. The Court conditionally certificates a class of current and former bartenders who worked at PJCF, LLC d/b/a Salado Pedros from July 1, 2013, to January 22, 2015. The parties are DIRECTED to jointly file an amended proposed Court-authorized Class Notice for the Court's approval on or before May 14, 2015 . Defendant PJCF, LLC is DIRECTED to produce to Plaintiff a list containing the names, last known addresses, telephone numbers, and e-mail addresses of putative class members as described above on or before May 14, 2015. All individuals whose names appear on the list produced by Defendant shall have forty-five (45) days from the date the notices are initially mailed to file a Consent to Become Opt-In Plaintiffs. Signed by Judge Sheri Polster Chappell on 4/30/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

PAUL PLUMMER and NICHOLAS
WHITE, on behalf of themselves
and those similarly situated
Plaintiffs,
v.

Case No: 2:15-cv-37-FtM-38CM

PJCF, LLC,
Defendant.
/
ORDER1
This matter comes before the Court on Plaintiffs Paul Plummer and Nicholas
White's Unopposed Motion to Conditionally Certify FLSA Collective Action and Facilitate
Notice to Potential Class Members (Doc. #18) filed on April 6, 2015. Defendant PJCF,
LLC d/b/a Salado Pedros neither opposes the conditional certification of the putative class
nor the proposed "Class Notice" letter to be sent to all similarly situated employees. (Doc.
#18 at 1 n.1). Thus, this matter is ripe for review.
BACKGROUND
This action arises from Plaintiffs Paul Plummer's and Nicholas White's former
employment as bartenders at Defendant's restaurant located at 9903 Gulf Coast Main

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Street, Fort Myers, Florida.

(Doc. #1 at ¶¶ 10, 21-22).

Plummer worked from

approximately February 2014 to June 2014, and White worked intermittently from July
2013 to October 2014. (Doc. #1 at ¶¶ 21-22). Defendant paid Plaintiffs the "tip credit"
hourly wage rate under the Fair Labor Standards Act ("FLSA").2 (Doc. #1 at ¶¶ 8, 23, 47);
see also 29 U.S.C. § 203(m). Because of the tip credit, Plaintiffs received an hourly wage
below minimum wage plus any tips earned.
On January 22, 2015, Plaintiffs initiated this FLSA action to recover unpaid
minimum wage. (Doc. #1; Doc. #18 at 3). Plaintiffs claim Defendant unlawfully applied
the tip credit. They also assert that Defendant required its bartenders to share tips with
managers as part of an invalid tip pool arrangement and to pay the bills of customers who
leave the restaurant without paying. (Doc. #1 at ¶¶ 48-49; Doc. #18 at 3 n.4). Because
of these allegedly improper pay practices and policies, Plaintiffs contend they received
less than minimum wage. (Doc. #1 at ¶ 24). Since Plaintiffs initiated this case, four optin plaintiffs, Carlos Garcia, Cristi Hamlin, Philipp Zingraff, and Alicia Weber, have filed
consent documents to join in this action. (Doc. #2; Doc. #17; Doc. #23).
Plaintiffs now seek an order conditionally certifying this case as a collective action
consisting of former and current bartenders who worked at Defendant's restaurant located
at 9903 Gulf Coast Main Street, Fort Myers, Florida, between July 1, 2013, and January
22, 2015, and who were paid a tipped minimum wage. (Doc. #18 at 4, 17-18). As stated,
Defendant does not oppose conditional certification.

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The FLSA requires an employer to pays its employees a minimum wage. See 29 U.S.C. § 206(a). As an
exception to the minimum wage requirement, "an employer may pay an employee a cash wage below the
minimum wage . . . so long as the employer supplements the difference with the employee's tips; this is
known as an employer taking a 'tip credit.'" Rubio v. Fuji Sushi & Teppani, Inc., No. 6:11-cv-1753, 2013
WL 230216, at *2 (M.D. Fla. Jan. 22, 2013) (citing 29 U.S.C. § 203(m)).

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DISCUSSION
A. Conditional certification
The FLSA permits employees to bring collective actions against employers
accused of violating the statute's mandatory minimum wage provisions. See 29 U.S.C.
§ 216(b) ("An action . . . may be maintained against any employer . . . by one or more
employees for and in behalf of himself or themselves and other employees similarly
situated."). Participants in FLSA collective actions must affirmatively "opt-in" to the suit
by filing "consent in writing to become such a party" with the court where the suit is
pending. Id. "That is, once a plaintiff files a complaint against an employer, any other
similarly situated employees who want to join must affirmatively consent to be a party and
file written consent with the court." Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233,
1259 (11th Cir. 2008) (citation omitted).
The Eleventh Circuit recommends a two-tiered procedure for district courts to
follow in determining whether to certify a collective action under § 216(b). See CameronGrant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 n.2 (11th Cir. 2003) (citing
Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)). The first tier,
known as the notice stage, is relevant here.

At the notice stage, the district court

"conditionally certifies" a class and authorizes notice to be sent to potential class
members. See Hipp, 252 F.3d at 1218-19. The court usually bases its decision on the
pleadings and any affidavits submitted in support of conditional certification.

See

Cameron-Grant, 347 F.3d at 1243. "The court must also determine whether there are
other employees who desire to opt-in and whether those employees are similarly
situated." Ciani v. Talk of The Town Restaurants, Inc., No. 8:14-cv-2197, 2015 WL

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226013, at *2 (M.D. Fla. Jan. 16, 2015) (citations omitted)). This determination is made
using a "fairly lenient standard." Hipp, 252 F.3d at 1218. Once additional class members
have joined, the court proceeds to the second tier where it makes a fact specific
determination whether the original and opt-in plaintiffs are truly similarly situated. See id.
at 1218-19.
With these principals in mind, the Court turns to Plaintiff's unopposed request for
conditional certification.
B. Conditional certification analysis
1. Other individuals seek to join the suit
The record reflects two named plaintiffs, Paul Plummer and Nicholas White, and
four opt-in plaintiffs, Carlos Garcia, Cristi Hamlin, Philipp Zingraff, and Alicia Weber, who
have filed consent documents to join in this action. (Doc. #2; Doc. #17; Doc. #23).
Although there is no magic number requirement for the notice stage, the presence of
three opt-in plaintiffs, each having filed a declaration describing Defendant's applicable
wage and hour policies and their desire to join in this suit, satisfies the Court that others
desire to join in the action. (Doc. #2-1; Doc. #17; Doc. #18-2); see also Ciani, 2015 WL
226013, at *2-3 (granting FLSA conditional certification upon considering affidavits from
two servers who also complained of the defendant improperly applying the tip credit);
Robbins-Pagel v. WM. F. Puckett, Inc., No. 6:05-cv-1582, 2006 WL 3393706, at *2 (M.D.
Fla. Nov. 22, 2006) (finding three affidavits alleging claims of unpaid overtime was
sufficient to establish that other individuals were interested in joining the action). Under
the "fairly lenient standard" appropriate at this stage of the proceedings, the Court is

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satisfied that Plaintiffs have met their burden of showing that other employees seek to
join the action.
2. Employees are similarly situated
Before providing notice, the named-plaintiff need only show a "reasonable basis"
for the claim that "similarly situated" employees seek to join the action. See Simpkins v.
Pulte Home Corp., No. 6:08-cv-130, 2008 WL 3927275, at *5 (M.D. Fla. Aug. 21, 2008)
("[T]he plaintiffs bear the burden at all times to demonstrate that the class is similarly
situated." (citation omitted)). The plaintiffs' burden is "not particularly stringent, fairly
lenient, flexible, not heavy, and less stringent than that for joinder under Rule 20(a) or for
separate trials under 42(b)." Morgan, 551 F.3d at 1260 (citations omitted). Although this
burden is not heavy, the court needs more than unsupported assertions of FLSA
violations. See Simpkins, 2008 WL 3927275, at *2; Brooks v. Rainaldi Plumbing Inc., No.
6:06-cv-631, 2006 WL 3544737, at *2 (M.D. Fla. Dec. 8, 2006). "Evidence of similarly
situated employees who desire to opt in may be based on affidavits of other employees,
consents to join the lawsuit filed by other employees, or expert evidence on the existence
of other similarly situated employees." Hart v. JPMorgan Chase Bank, N.A., No. 12-cv00470, 2012 WL 6196035, at *4 (M.D. Fla. Dec. 12, 2012) (citations omitted). But
"plaintiff's or counsel's belief in the existence of other employees who desire to opt in and
unsupported expectations that additional plaintiffs will subsequently come forward are
insufficient to justify certification of a collective action and notice to a potential class." Id.
(citations omitted).
For purposes of defining the "similarly situated class" under § 216(b), the plaintiffs
need only show that the defined class is comprised of representatives who are similarly

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situated to the plaintiffs as to their "job requirements and pay provisions." Dybach v. State
of Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991); see also Grayson v. K
Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (stating, at the notice stage, "[p]laintiffs
need only show 'that their positions are similar, not identical,' to the positions held by the
putative class members" (citations omitted)).
In support of Plaintiffs' assertion that there are additional similarly situated
individuals who wish to opt-in, they offer the following evidence: (1) Plummer's declaration
that he has "personal knowledge that all of the other bartenders [he] worked with were
subject to the same policies and practices because they were also paid the tipped credit
wage and required to pay for walkouts and to share tips with a manager who was not part
of a valid tip pool arrangement" (Doc. #18-2 at ¶ 10); (2) Plummer's declaration that
"[s]ince this lawsuit began, [he] talked to other bartenders who would like to become a
part of the lawsuit” (Id. at ¶ 11); and (3) the declarations of Carlos Garcia, Christi Hamlin,
Nicholas White that they worked as bartenders at Defendant's restaurant in question and
were subjected to allegedly violative wage and hour policies on the tip credit, tip pool and
customer walkouts. (Id. at 5-10). Under the "fairly lenient standard" appropriate at this
stage of the proceedings, the Court is satisfied that Plaintiffs have provided a reasonable
basis for their assertion that there are additional similarly situated individuals who wish to
opt-in. Indeed, Defendant does not object that Plaintiffs have sufficiently shown that its
tip credit, customer walkout, and tip pool policies are common to all bartenders in the
proposed class to warrant conditional certification. (Doc. #18 at 3-5; Doc. #18-2).3

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After discovery, Defendant may move for decertification of the conditionally certified class and argue that
Plaintiffs and the putative class members are not similarly situated to proceed collectively to trial. See
Vondriska v. Premier Mortg. Funding, Inc., 564 F. Supp. 2d 1330 (M.D. Fla. 2007) (suggesting that waiting
until the decertification stage to consider these issues is the general practice in the Eleventh Circuit).

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Accordingly, the Court finds that conditional certification is warranted. Thus, the
Court turns to the content and dissemination of the proposed class notice. See Hipp, 252
F.3d at 1218 (providing if conditional certification is granted, putative class members are
given notice of the pending action and the opportunity to opt-in the pending action).
C. Content and dissemination of the proposed class notice
Plaintiffs' unopposed class notice (Doc. #18-4) is also before the Court. Courtauthorized notice in a class action context helps to prevent "misleading communications"
and ensures the notice is "timely, accurate, and informative." Hoffmann-La Roche, Inc.
v. Sperling, 493 U.S. 165, 171 (1989). In general, notices to potential class members in
FLSA cases should contain certain information. For example, notices should include
language regarding potential liability for costs and attorney's fees and appropriate
definitions of the potential class. Teahl, 2015 WL 179367, at *7 (citations omitted)).
Upon reviewing Plaintiff's proposed Class Notice (Doc. #18-4), the Court is
concerned that it does not fully advise potential class members that Defendant may
attempt to recover its attorneys' fees and costs from the potential class members if
Plaintiffs are unsuccessful. See Teahl, 2015 WL 179367, at *7 (rejecting a proposed
class notice that did not warn potential class members of their responsibility of paying
attorney fees if they were unsuccessful); Smith v. Cable Wiring Specialist, Inc., No. 2:14cv-277, 2014 WL 4795160, at *3 (M.D. Fla. Sept. 25, 2014) (concluding "the notice should
warn potential class members that, should [the defendant] prevail, all class members may
be held responsible for [the defendant's] defense costs” (citation omitted)); Robbins-Pagel
v. Puckett, No. 6:05-cv-1582-Orl-31DAB, 2006 WL 3393706, at *3 (M.D. Fla. Nov. 22,
2006) (finding plaintiff's proposed notification and opt-in form inadequate "because it

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fail[ed] to inform potential plaintiffs that, if they do opt-in and are unsuccessful on the
merits of their claim, they may be responsible for the defendant's costs in this matter. Any
notice, to be approved by this Court, must include a full disclosure of the individuals' rights
and responsibilities should they decide to opt-in to the suit. Therefore, Plaintiff must
amend the notice form to include such information."). The Court, therefore, directs the
parties to file a revised class notice to reflect more adequately the consequences for optin Plaintiffs.
Next, Plaintiffs request the Court permit their class notice to be sent to all
bartenders within the defined class via first-class mail and electronic mail and posted at
Defendant's restaurant. (Doc. #18 at 15). As the parties agree to this form of distribution,
the Court will grant it. See Palma v. Metropcs Wireless, Inc., No. 8:13-cv-698, 2014 WL
235478, at *2 (M.D. Fla. Jan. 22, 2014) (determining "that it is appropriate to send notice
to the class via first class mail as well as via email. A number of courts have determined
that email is an inexpensive and appropriate means of delivering notice of an action to a
class (citations omitted)).
Accordingly, it is now
ORDERED:
(1) Plaintiffs Paul Plummer and Nicholas White's Unopposed Motion to
Conditionally Certify FLSA Collective Action and Facilitate Notice to Potential
Class Members (Doc. #18) is GRANTED. The Court conditionally certificates
a class of current and former bartenders who worked at PJCF, LLC d/b/a
Salado Pedros from July 1, 2013, to January 22, 2015.

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(2) The parties are DIRECTED to jointly file an amended proposed Courtauthorized Class Notice for the Court's approval on or before May 14, 2015.
(3) Defendant PJCF, LLC is DIRECTED to produce to Plaintiff a list containing the
names, last known addresses, telephone numbers, and e-mail addresses of
putative class members as described above on or before May 14, 2015.
(4) All individuals whose names appear on the list produced by Defendant shall
have forty-five (45) days from the date the notices are initially mailed to file a
Consent to Become Opt-In Plaintiffs.
DONE and ORDERED in Fort Myers, Florida this 30th day of April, 2015.

Copies: All Parties of Record

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