Cedeno v. Kona Grill, Inc. et al

Filing 22

ORDER: Plaintiff's Motion and Memorandum of Law in Support of Conditionally Certifying a FLSA Collective Action and Sending Notice to the Class 16 is denied. Plaintiff's Motion for Hearing 21 is denied as moot. Signed by Judge James S. Moody, Jr. on 7/24/2017. (LN)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

MIGUEL CEDENO, Individually, and
on behalf of All Others Similarly Situated,
Plaintiffs,
v.

Case No. 8:17-cv-1039-T-30AEP

KONA GRILL, INC. and KONA
MACADAMIA, INC.,
Defendants.
_____________________________________/

ORDER
THIS CAUSE comes before the Court upon Plaintiff’s Motion and Memorandum of
Law in Support of Conditionally Certifying a FLSA Collective Action and Sending Notice
to the Class (Dkt. 16) and Defendants’ Response in Opposition (Dkt. 20). The Court, having
reviewed the motion, response, and being otherwise advised in the premises, concludes that
Plaintiff’s motion should be denied.
BACKGROUND
On May 5, 2017, Plaintiff Miguel Cedeno filed this collective action against
Defendants Kona Grill, Inc. and Kona Macadamia, Inc., under the Fair Labor Standards Act
(“FLSA”), alleging that he and other similarly situated employees were entitled to overtime
compensation. Plaintiff moves to conditionally certify a nationwide collective action of “all
current and former employees of Kona Grill, Inc. after June 1, 2014, who worked overtime
but were not paid overtime wages, and who held the following positions: sous chef, assistant

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general manager of restaurant, assistant manager of restaurant, site development manager,
lease

administrator,

development

procurement

manager,

facilities

manager,

purchasing/facilities coordinator, project designer, manager of architecture, accounts payable
manager, accountant, senior manager of tax, manager of IT, senior tax analyst, marketing
manager, marketing coordinator, applications system support analyst, recruiter, training
manager, and training coordinator.” (Dkt. 16).
At this early stage, “the notice stage,” Plaintiff must show that there are other
similarly situated employees who desire to opt-in to the action. Plaintiff does not meet this
burden and, therefore, the Court will not certify the proposed 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). See CameronGrant v. Maxim Healthcare Sys., 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

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decision -- usually based only 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. See Dybach v. State of Fla. Dep’t of Corrs., 942 F.2d
1562, 1567-68 (11th Cir. 1991).
The onus is on Plaintiff to demonstrate a reasonable basis for the assertion that there
are other employees who desire to opt-in. See Rodgers v. CVS Pharmacy, Inc., No. 8:05-cv770-T-27MSS, 2006 WL 752831, at *3 (M.D. Fla March 23, 2006) (quoting Haynes v.
Singer Co., Inc., 696 F. 2d 884, 887 (11th Cir. 1983)). Although this is a lenient standard,
mere belief or unsupported expectations that additional plaintiffs will come forward are
insufficient to justify certification. Id.; see also Hart v. JP Morgan Chase Bank, N.A., No.
8:12-cv-00470-T-27TBM, 2012 WL 6196035, at *4 (M.D. Fla. Dec. 12, 2012); David v.
Associated Out-Door Clubs, Inc., No. 8:09-cv-1541-T-30MAP, 2010 WL 1730702, at *1-*2
(M.D. Fla. April 27, 2010).
Here, Plaintiff falls short of establishing that other employees desire to opt-in this
action. Kona Grill, Inc. owns 46 restaurants in 23 states and the Commonwealth of Puerto
Rico. In July 2014, Plaintiff worked as a sous chef in the Sarasota, Florida location. Plaintiff
alleges that Kona misclassified him and other employees as exempt from receiving overtime
compensation.
Plaintiff’s motion relies heavily on the affidavit of Lisa Ethelbah, Kona’s former
human resources manager. According to Ethelbah, audits she performed during her

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employment reflected that Kona had misclassified employees as exempt from the FLSA’s
overtime pay requirements throughout both the corporate office and restaurants. Ethelbah
claims that Plaintiff worked in one of the positions that she had identified as being
misclassified as exempt.
Tellingly, neither Plaintiff, nor Ethelbah, identify a single individual who desires to
join this action. They also fail to even state that they are aware of other Kona employees
who desire to opt-in this action. And no individuals have filed notices of consent to join this
action. The failure to identify other interested employees is particularly glaring when one
considers the size of the proposed class, which encompasses employees working in 46
different restaurant locations. Even though the threshold to conditionally certify a class is
low, it is not invisible. Accordingly, Plaintiff’s motion fails on this basis.
However, even if Plaintiff had provided sufficient evidence that other employees
desire to opt-in this action, Plaintiff fails to establish that the employees are similarly
situated. Typically, conditional certification involves a group of employees who share the
same job title and duties, like (in the restaurant context) a class of servers, bartenders, or food
runners. Plaintiff’s proposed class includes twenty-one different job titles that are completely
unrelated with respect to their duties, compensation, supervision, location, and exemption
classification.

The only similarity is that the twenty-one job titles were allegedly

misclassified as exempt. But this is too broad.
Indeed, as this Court previously held when it denied a plaintiff’s motion to
conditionally certify a broad class of non-exempt “former hourly-paid laborers,” “[n]on-

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exempt employees, of course, are the entire class of employees to which the FLSA’s
minimum-wage requirement applies. If such a broad and inexact class of employees were
sufficient to conditionally certify a class under the FLSA, the conditional-certification
standard would not merely be a lenient one, but a meaningless one. It is not.” See White v.
SLM Staffing LLC, No. 8:16-CV-2057-T-30TBM, 2016 WL 4382777, at *2 (M.D. Fla. Aug.
17, 2016). If the Court were to certify Plaintiff’s proposed class in this case, the Court would
essentially render the similarly-situated requirement meaningless.
It is therefore ORDERED AND ADJUDGED that:
1.

Plaintiff’s Motion and Memorandum of Law in Support of Conditionally

Certifying a FLSA Collective Action and Sending Notice to the Class (Dkt. 16) is denied.
2.

Plaintiff’s Motion for Hearing (Dkt. 21) is denied as moot.

DONE and ORDERED in Tampa, Florida on July 24, 2017.

Copies furnished to:
Counsel/Parties of Record

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