Ramos et al v. Burger King Corporation
Filing
71
ORDER: Plaintiffs' Motion to Conditionally Certify Collective Action and Facilitate Notice to Potential Class Members 18 is DENIED. The parties shall file an Amended Case Management Report within 14 days of this Order. Signed by Judge James S. Moody, Jr on 10/6/2011. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SALOMON RAMOS, JORGE RAMOS,
and MIGUEL RAMOS,
Plaintiffs,
v.
Case No. 8:11-cv-642-T-30MAP
BURGER KING CORPORATION,
Defendant.
_____________________________________/
ORDER
THIS CAUSE comes before the Court upon Plaintiffs’ Motion to Conditionally
Certify Collective Action and Facilitate Notice to Potential Class Members (Dkt. 18) and
Defendant’s Amended Response in opposition (Dkt. 68). The Court, having reviewed the
motion, response, and being otherwise advised in the premises, concludes that Plaintiffs’
motion should be denied.
BACKGROUND
Plaintiffs Salomon Ramos, Jorge Ramos, and Miguel Ramos (collectively “Plaintiffs”)
are seeking conditional certification of a nation-wide collective action claiming that
Defendant Burger King Corporation (“BKC”) misclassified them and all “similarly situated”
restaurant general managers and assistant managers as exempt, thereby denying them
overtime compensation in violation of the Fair Labor Standards Act, 29 U.S.C. §206, et seq.
(“FLSA”).
BKC currently owns and operates 866 restaurants located in 18 states, including 255
restaurants in Florida. From April 1, 2008, through August 30, 2011, BKC employed
approximately 1,400 individuals in the positions of restaurant general manager and assistant
restaurant manager.
At this early stage, “the notice stage,” Plaintiffs must show that there are other
similarly situated employees who desire to opt-in to the action. The Court finds that
Plaintiffs do not meet their burden and, therefore, the Court will not certify the class.
DISCUSSION
Pursuant to the FLSA,
[a]n action to recover [unpaid minimum wage or overtime compensation] may
be maintained against any employer (including a public agency) in any Federal
or State court of competent jurisdiction by any one or more employees for and
in 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.
29 U.S.C. §216(b).
The Eleventh Circuit has recommended a two-tiered procedure for district courts to
follow in determining whether to certify a collective action under §216(b). Cameron-Grant
v. Maxim Healthcare Systems, 347 F.3d 1240, 1242 (11th Cir. 2003) (citing Hipp v. Liberty
National Life Insurance Co., 252 F.3d 1208, 1216 (11th Cir. 2001)). The first tier, known
as the notice stage, is relevant here. “At the notice stage, the district court makes a decision
-- usually based only on the pleadings and any affidavits which have been submitted --
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whether notice of the action should be given to potential class members.” Id. at 1243. The
Court must determine whether there are other employees who desire to opt-in and whether
those employees are similarly situated. Dybach v. State of Fla. Dep’t of Corrs., 942 F.2d
1562, 1567-68 (11th Cir. 1991).
The onus is on Plaintiffs to demonstrate a reasonable basis for the assertion that there
are other employees who desire to opt-in. Rodgers v. CVS Pharmacy, Inc., 2006 WL 752831
at *3 (M.D. Fla 2006) (quoting Haynes v. Singer Co., Inc., 696 F. 2d 884, 887 (11th Cir.
1983)). Mere belief or unsupported expectations that additional plaintiffs will come forward
are insufficient to justify certification. Id.; see also David v. Associated Out-Door Clubs,
Inc., 2010 WL 1730702 (M.D. Fla. April 27, 2010).
Here, there are three named Plaintiffs and eight individuals who have filed consents
to join. Plaintiffs’ affidavits, however, fail to identify any other individuals who would be
interested in opting into this action. And BKC offers declarations from numerous managers
stating they have no interest in joining this action. The Court, however, need not decide the
issue of whether Plaintiffs provided sufficient evidence that other employees want to opt-in
this action because Plaintiffs fail to establish that the employees are similarly situated.
Specifically, Plaintiffs’ affidavits are not probative of the similarly situated question because
they merely offer conclusory allegations and provide no real evidence, beyond their
speculative beliefs, that all BKC managers across the nation, regardless of location or
experience, receive the same compensation and are required to work in the same manner.
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Importantly, BKC’s restaurants are categorized as either high, mid, or low volume
restaurants based on their amount of annual sales. In the lower sales volume restaurants,
general managers are usually less experienced, often have fewer assistant managers assigned
to them, and have lower traffic in and out on a daily basis. In contrast, general managers in
higher sales volume restaurants are typically more experienced, have more assistant
managers assigned to them, and have a higher amount of traffic in and out on a daily basis.
The managers in high volume restaurants also directly supervise more employees and have
to manage larger budgets.
The declarations offered from BKC from ten assistant and general managers from
other BKC restaurants in the Tampa area, as well as two district managers and two area
directors, demonstrate that assistant managers and general managers perform significant
managerial duties as their primary job function, and that the managers’ roles vary depending
upon the size of the restaurant, volume of sales, discretion and experience level of the
managers, and the restaurant’s hours of operation.
In sum, Plaintiffs’ affidavits fall woefully short of meeting the similarly situated
standard. Plaintiffs rely almost exclusively on purported common job titles to request
certification. Plaintiffs ask this Court to approve notice to all general and assistant managers
nationwide, yet do not provide any facts based on personal knowledge substantiating the
conclusory assertion that all general and assistant managers are similarly situated. “[F]ederal
courts across the Middle and Southern Districts of Florida have routinely denied requests for
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conditional certification where, as here, the plaintiffs attempt to certify a broad class based
only on the conclusory allegations of a few employees.” Rappaport v. Embarq Mgmt. Co.,
2007 WL 4482581, at *4 (M.D. Fla. Dec. 18, 2007) (listing many cases denying conditional
certification based on conclusory allegations).
It is therefore ORDERED AND ADJUDGED that:
1.
Plaintiffs’ Motion to Conditionally Certify Collective Action and Facilitate
Notice to Potential Class Members (Dkt. 18) is DENIED.
2.
The parties shall file an Amended Case Management Report within fourteen
(14) days of this Order.
DONE and ORDERED in Tampa, Florida on October 6, 2011.
Copies furnished to:
Counsel/Parties of Record
S:\Even\2011\11-cv-642.mtcertifyflsa18.frm
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