Ciani et al v. Talk of the Town Restaurants, Inc.

Filing 40

ORDER: Plaintiffs John Ciani and Scott Green's Motion for Conditional Certification and Court-Authorized Notice Pursuant to 29 U.S.C. § 216(b) 22 is GRANTED as described herein. The parties are directed to file with this Court a Jointly P roposed Notice to the Class by February 2, 2015. Charley's is directed to produce to Ciani and Green by February 2, 2015, a list containing the names and last known addresses of putative class members as described above. Signed by Judge Virginia M. Hernandez Covington on 1/16/2015. (AKH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN CIANI and SCOTT GREEN,
Plaintiffs,
v.

Case No.

8:14-cv-2197-T-33AEP

TALK OF THE TOWN RESTAURANTS,
INC., D/B/A CHARLEY’S
STEAKHOUSE,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
John

Ciani

and

Scott

Green’s

(“Plaintiffs”)

Motion

for

Conditional Certification and Court Authorized Notice Pursuant
to 29 U.S.C. § 216(b) (Doc. # 22), which was filed on December
8,

2014.

Charley’s

Defendant
Steakhouse

Talk

of

the

(“Charley’s”)

Town

Restaurants

filed

a

d/b/a

Response

Opposition to the Motion on January 5, 2015. (Doc. # 36).

in
For

the reasons that follow, the Motion is granted as detailed
herein.
I.

Background
Ciani worked as a server for Charley’s from March of 2011

to January of 2013. (Doc. # 2 at 2). Green worked as a server
for Charley’s from February of 2009 to May of 2014. (Id.).
Plaintiffs contend that they “were paid less than the federal
minimum

wage,

specifically;

Defendant

has

been

taking

advantage of the tip credit, which allows Defendant to include
in its calculation of wages a portion of the amounts employees
receive in tips. (Id. at 3). Furthermore, Plaintiffs argue
that “Plaintiffs were subject to a company-wide policy whereby
they were not paid all overtime compensation earned when they
worked in excess of forty hours during any given week, and
were also not paid minimum wage. (Doc. # 22 at 2).
Green

asserts

that

he

was

“paid

an

hourly

rate

of

approximately $4.91 for the 30 hours” he worked per week and
he usually worked four to five days per week. (Doc. # 22-4).
Furthermore, Charley’s “also had a mandatory policy in place
which required all servers who worked banquets to pay directly
from their tips 3% of the gross sales earned calculated on a
pro rata basis per server . . . This cash was taken from each
banquet by Defendant and then sent to Defendant’s headquarters
in Orlando, Florida.” (Id. at 2). Ciani stated that he was
paid “an hourly rate of approximately $4.91 for the 35-45
hours” he worked per week and typically worked four to six
days per week without overtime pay. (Doc. # 22-5). “On at
least one occasion [Ciani] worked 19 days in a row.” (Id.).
In

addition

to

Plaintiffs,

another

former

Charley’s

employee has come forward with a declaration indicating that
Charley’s employees were required to give a percentage of
2

their tips to non-tipped employees and the corporation. (Doc.
# 22-6).
Plaintiffs initiated this action on August 1, 2014, in
Circuit Court. On September 4, 2014, this case was removed
from the Thirteenth Judicial Circuit in and for Hillsborough
County, Florida by Charley’s and the same day the Complaint
was filed requesting payment of unpaid back wages and overtime
compensation pursuant to the Fair Labor Standards Act, 29
U.S.C. § 216(b), as well as other relief. (See Doc. ## 1, 2).
At this juncture, Plaintiffs seek an order conditionally
certifying this case as a collective action consisting of “all
‘servers’ and ‘bartenders’ who worked for Defendant within the
last three years who believe they: (1) were not paid proper
overtime or minimum wage compensation during any work week of
their employment within the applicable statute of limitations
period;

and

(2)

were

subject

to

Defendant’s

‘tip-pool’

policies.” (Doc. # 22 at 2).
Among other arguments, Charley’s asserts that conditional
certification is not appropriate because “Plaintiffs have not
demonstrated that a sufficient number of other individuals
desire

to

opt

into

this

lawsuit

in

order

to

justify

a

collective action throughout central Florida.” (Doc. # 36).
As will be discussed below, the Court finds that Ciani and
3

Green

meet

the

low

threshold

required

for

conditional

certification.
II.

Legal Standard
The Fair Labor Standards Act expressly permits collective

actions against employers accused of violating the FLSA’s
mandatory overtime provisions. See 29 U.S.C. § 216(b) (“[a]n
action . . . may be maintained against any employer . . . by
any one or more employees for and in behalf of himself or
themselves and other employees similarly situated.”).

In

prospective collective actions brought pursuant to Section
216(b), potential plaintiffs must affirmatively opt into the
collective

action.

Id.

(“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.”).
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 Servs., Inc., 347 F.3d 1240, 1242 (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

makes

a

decision
4

-

usually

based

on

the

pleadings and any affidavits which have been submitted 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. Morgan v. Family Dollar Stores, Inc., 551
F.3d 1233, 1258 (11th Cir. 2008); Dybach v. State of Fla.
Dep’t of Corrections, 942 F.2d 1562, 1567-68 (11th Cir. 1991).
This determination is made using a “fairly lenient standard.”
Hipp, 252 F.3d at 1218. Plaintiffs bear the burden of showing
a reasonable basis for the contention that there are other
similarly

situated

litigation.

employees

who

desire

to

join

in

the

Dybach, 942 F.2d at 1567-68.

III. Conditional Certification Analysis
A.

Other Individuals Seek to Join the Suit

The record reflects that there are two named Plaintiffs
(John Ciani and Scott Green) and two Opt-In Plaintiffs (David
Laycock and Anthony Muto) (“Opt-In Plaintiffs”) who have filed
consent documents reflecting their desire to join in the
action. (Doc. ## 17, 18).
Although there is no magic number requirement for the
notice stage, the presence of two opt-in plaintiffs, each
having filed a declaration describing their working conditions
5

and their desire to join in this suit, satisfies the Court
that others desire to join in the action. See, e.g., RobbinsPagel v. WM. F. Puckett, Inc., No. 6:05-cv-1582-Orl-31DAB,
2006 U.S. Dist. LEXIS 85253 (M.D. Fla. Nov. 22, 2006)(finding
that three affidavits alleging claims of unpaid overtime was
sufficient to establish that other individuals were interested
in joining the action); Dieujuste v. R.J. Elec., Inc., No. 780272, 2007 U.S. Dist. LEXIS 100531 (S.D. Fla. Aug. 21,
2007)(granting conditional certification when two individuals
sought overtime wages against the same employer and each filed
a declaration); Pendlebury v. Starbucks Coffee, Co., No. 04cv-80521,

2005

U.S.

Dist.

LEXIS

574

(S.D.

Fla.

Jan.

3,

2005)(granting conditional certification upon consideration of
four affidavits from store managers complaining of improper
exemption from overtime eligibility). The Court finds that
Plaintiffs have met their burden of demonstrating that other
employees seek to join the action.
B.

The Employees are Substantially Similar

As explained in Morgan, the plaintiff’s burden of showing
a “reasonable basis” for the claim that “similarly situated”
employees

seek

to

join

the

action

is

“not

particularly

stringent, fairly lenient, flexible, not heavy, and less
stringent than that for joinder under Rule 20(a) or for
6

separate trials under 42(b).” 551 F.3d at 1260-61 (internal
citations omitted).
For purposes of defining the “similarly situated class”
pursuant to § 216(b), Plaintiffs need only show that the
defined

class

similarly

is

comprised

situated

to

of

them

with

representatives
respect

to

who

their

are
“job

requirements and pay provisions.” See Dybach, 942 F.2d at
1568.

In support of their Conditional Certification Motion,

Plaintiffs offer declarations explaining that Plaintiffs were
similarly-situated in that they: “(1) perform similar duties,
(2) worked similar hours, (3) were not paid overtime and/or
minimum wages in accordance with the FLSA, (4) were subjected
to the same illegal tip pool policies and, (5) worked at the
same location for Defendant.” (Doc. # 22 at 10).
Furthermore, Plaintiffs allege that “another way for the
Court

to

determine

whether

the

notice-stage

‘similarly

situated’ requirement has been met is by evidence that the
putative class members were victims of a common decision,
policy, plan or practice.” (Id.). Under the FLSA, it is
permissible for an employer to pay an employee cash wages
below minimum wage if the employer supplements the difference
with the employee’s tips, which is referred to as the employer
taking a “tip credit.” (Id.). Here, Ciani and Green argue that
7

“the primary issue in the present matter concerns the second
prong of the tip credit, whether the inclusion of kitchen
staff in the servers’ and bartenders’ tip pool invalidates the
Defendant’s use of the tip credit in paying these employees a
reduced minimum wage.” (Id.). The declarations attached as
exhibits to the present Motion confirm that Charley’s employed
hundreds of similarly situated employees, that all of these
employees were paid an hourly rate, worked similar hours, and
were subject to the “tip credit” described above.

Each

declarant also indicates that there are “many, many other
servers and bartenders who want to join this lawsuit.” (Doc.
## 22-4, 22-5, 22-6).
Charley’s

contends

that

Plaintiffs

and

the

Opt-In

Plaintiffs are not similarly situated because “Plaintiffs and
the opt-ins even amongst themselves have divergent experiences
with respect to overtime.” (Doc. # 36 at 12). Furthermore,
Charley’s argues that “Plaintiffs’ tip sharing claim also
depends on highly factual and individualized circumstances,
which militate against collective treatment.” (Id.). “The
purported class of hourly workers here includes current and
former employees who will have vastly different experiences
from location to location, position to position, manager to
manager, shift to shift, and day to day with respect to tip8

sharing.” (Id. at 13). In addition, Charley’s has filed
competing

affidavits

by

present

Charley’s

employees

challenging Plaintiffs’ allegations that Plaintiffs worked
overtime and did not receive appropriate compensation and the
allegations

regarding

the

“tip

credit.”

(Doc.

#

36-1).

However, the evidence Charley’s proffers exceeds by far this
Court’s limited inquiry at the notice stage of the conditional
certification process.
The court was faced with a similar situation in Simpkins
v. Pulte Home Corporation, No. 6:08-cv-130-Orl-19DAB, 2008
U.S. Dist. LEXIS 64270 (M.D. Fla. Aug. 21, 2008).

There,

Pulte classified all superintendents as exempt from overtime
and Simpkins, a superintendent, filed a FLSA action. Id. at
*10-11.

Simpkins

sought

conditional

certification.

Id.

Similar to Charley’s strategy, “Pulte present[ed] a mass of
evidence

in

opposition

to

Simpkins

collection

of

declarations,” including evidence showing that superintendents
had varying levels of education, training, and licensure;
worked on different types of projects; had varying amounts of
discretion; and worked flexible hours. Id. at *14.
There, the Court noted that “the evidence Pulte presents
goes far beyond the scope of this Court’s review at the first
stage of the certification process.” Id. at *15. The Simpkins
9

court granted conditional certification after finding that
Simpkins demonstrated a reasonable basis to conclude that
other similarly situated superintendents wished to join the
action. Following the sound reasoning of Simpkins, this Court
determines that Plaintiffs and the Opt-In Plaintiffs have
shown that there are similarly situated employees who seek to
join this action, and Charley’s arguments arrayed against
conditional certification are prematurely asserted.
An analogous situation arose in Reyes. There, a group of
retail account executives sought conditional certification of
a FLSA action.

AT&T countered with a deluge of competing

affidavits, including numerous affidavits by current retail
account

executives

claiming

that

they

were

all

properly

compensated. The court declined AT&T’s invitation to engage in
a “battle” of the affidavits. 801 F. Supp. 2d at 1358.

This

Court similarly considers, but is not convinced by, Charley’s
affidavits, including affidavits filed by current employees
indicating

contradictory

information

on

overtime

and

tip

practices. See Creely v. HCR Manorcare, Inc., 789 F. Supp. 2d
819, 839 (N.D. Ohio 2011)(“[T]his Court is not swayed by
[defendant’s]

submission

of

thirty-five

‘happy

camper’

affidavits. . . . [T]he Court’s function at this stage of
conditional certification is not to perform a detailed review
10

of individual facts from employees hand-picked by [defendant].
Those questions of breadth and manageability of the class are
left until the second stage analysis following the receipt of
forms from all opt-in plaintiffs.”).
Nor do Charley’s affidavits pinpointing variations in the
individual titles, schedules, and practices convince the Court
that conditional certification is unwarranted.

See Vondriska

v. Premier Mort. Funding, Inc., 564 F. Supp. 2d 1330, 1335
(M.D.

Fla.

2007)

(“Variations

in

specific

duties,

job

locations, working hours, or the availability of various
defenses

are

examples

of

factual

issues

that

are

not

considered at the notice stage.”); Morgan, 551 F.3d at 1261-62
(courts should consider at the second stage “the various
defenses

available

to

defendant[s]

[that]

appear

to

be

individual to each plaintiff.”); Pendlebury, 2005 U.S. Dist.
LEXIS 574, at *10 (granting conditional certification and
refusing to consider factual dispute raised by defendant at
the conditional notification stage where plaintiff offered
affidavits establishing a similarly situated class).
Thus,

to

the

extent

Charley’s

tenders

competing

affidavits, the Court declines to engage in a credibility
analysis. The Court finds that the employees are substantially
similar for the notice stage of conditional certification.
11

C.

Geographical Scope of the Litigation

Charley’s correctly argues that Plaintiffs and the Opt-In
Plaintiffs have only provided statements about the conditions
at Charley’s Steakhouse in Tampa, Florida. (Doc. # 36 at 17).
Charley’s

requests

that

any

order

granting

conditional

certification should be limited to the location at which
Plaintiffs and the Opt-In Plaintiffs worked. (Id.). The Court
agrees. There is no evidence before the Court bearing upon the
manner in which Charley’s employees outside of Tampa, Florida
are compensated, nor have Plaintiffs and the Opt-In Plaintiffs
made any supported allegations that the other locations follow
the same procedures as the Tampa, Florida location. The Court
determines that it is appropriate to limit the breadth of this
action to Charley’s Tampa, Florida location.
D.

Content of Class Notice

Plaintiffs proposed form of Class Notice (Doc. # 22-1) is
also before the Court. Charley’s raises a number concerns with
respect

to

the

Class

Notice,

including

that

it

lacks

information concerning Opt-In Plaintiffs’ obligations and
rights. (Doc. # 36 at 18).
Court-authorized notice in a class action context helps
to prevent “misleading communications” and ensures that the
notice is “timely, accurate, and informative.”
12

Hoffmann-La

Roche, Inc. v. Sperling, 493 U.S. 165, 171 (1989). The Court
also agrees that Plaintiffs proposed Class Notice does not
fully advise the notice recipients (1) that if they opt in,
they may be required to appear for trial and (2) if Plaintiffs
are unsuccessful, Charley’s may attempt to recover its costs
from the potential class members. See Sealy v. Keiser Sch.
Inc., No. 11-cv-61426, 2011 U.S. Dist. LEXIS 152369, at *13
(S.D. Fla. Nov. 8, 2011)(finding that the proposed class
notice failed to fully advise potential class members of the
consequences of opting into the suit, including that defendant
may attempt to recover its costs from the potential class
members if the lawsuit is unsuccessful and that the potential
class members may be required to appear for trial). The Court
directs counsel from both parties to jointly revise the Class
Notice to more adequately reflect the consequences for opt-in
Plaintiffs.
Having addressed the issues raised with respect to the
Class Notice and the scope of the action, the Court directs
counsel for Charley’s and counsel for Plaintiffs to confer
regarding the proposed Class Notice. The parties are directed
to file an agreed form of Class Notice for the Court’s
approval by February 2, 2015.
E.

Dissemination of the Class Notice
13

Plaintiffs assert that the Class Notice should be sent
via first

class

mail

and

posted

at

each

of

Defendants’

locations. (Doc. # 22 at 12). Furthermore, Plaintiffs state
that “due to the transient nature of the putative class
members and the possibility that Defendant does not have
accurate

physical

addresses

for

its

former

employees,

Plaintiffs further request that they be permitted to send, via
Electronic Mail, a ‘Follow-Up’ notice.” (Id.). Charley’s does
not argue against the Class Notice being disseminated via
first class mail, but objects to the posting of Class Notice
at any of its locations. (Doc. # 36 at 18). Charley’s also
argues against reminder notice by electronic mail on the
grounds that it is unwarranted. (Id.).
The Court determines that it is appropriate to furnish
Class Notice via first class mail. The Court denies without
prejudice Plaintiffs request that Class Notice be posted at
Charley’s locations and for an email “follow-up” notice.

The

Court notes that other courts have required that Class Notice
be posted at the workplace only after a showing that a
defendant has failed to cooperate in the collective action
process. See, e.g., Sutton v. Singh, No. 6:12-cv-1254-Orl28TBS, 2013 U.S. Dist. LEXIS 81162, at *12-13 (M.D. Fla. May
2, 2013)(finding the plaintiffs’ request for posting of class
14

notice

at

the

workplace

to

be

“premature”

because

the

plaintiffs did not show that the defendant “produced an
inadequate list of names and/or addresses to [p]laintiffs,
thereby necessitating some other form of notice.”). In this
case, the Court directs Charley’s to produce to Plaintiffs by
February 2, 2015, a list containing the names and last known
addresses, which includes employees (or former employees) from
the Tampa, Florida location within the last three years. The
Court may reconsider its determination regarding posting Class
Notice in the workplace and email “follow-up” notice if
Plaintiffs show that Charley’s has failed to timely and
adequately provide the contact information described above.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiffs

John

Ciani

and

Scott

Green’s

Motion

for

Conditional Certification and Court-Authorized Notice
Pursuant to 29 U.S.C. § 216(b) (Doc. # 22) is GRANTED as
described herein.
(2)

The parties are directed to file with this Court a
Jointly Proposed Notice to the Class by February 2, 2015.

(3)

Charley’s is directed to produce to Ciani and Green by
February 2, 2015, a list containing the names and last
known addresses of putative class members as described
15

above.
DONE and ORDERED in Chambers, in Tampa, Florida, this
16th day of January, 2015.

Copies: Counsel of Record

16