Jenkins v. White Castle Management Company

Filing 44

MEMORANDUM Opinion and Order Entered by the Honorable Joan B. Gottschall on 10/17/2013. Mailed notice (tlm)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JIMMY JENKINS,
Plaintiff,
v.
WHITE CASTLE MANAGEMENT CO.,
Defendant.

)
)
)
)
)
)
)
)
)

Case No. 12 C 7273
Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER
Plaintiff Jimmy Jenkins brings a complaint against White Castle Management Company
(“White Castle”) for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et
seq., the Illinois Minimum Wage Law (“IMWL”), 820 Ill. Comp. Stat. 105/1, et seq., and the
Illinois Wage Payment and Collection Act (“IWPCA”), 820 Ill. Comp. Stat. 115/1, et seq., on
behalf of himself and others similarly situated. Jenkins alleges that White Castle improperly
reduced his wages and failed to pay him for overtime work. Jenkins also alleges that White
Castle retaliated against him for protesting these violations. Jenkins seeks to bring his FLSA
claims as a collective action and seeks class-action treatment pursuant to Federal Rule of Civil
Procedure 23 for his Illinois state-law claims. Jenkins now moves to compel White Castle to
answer his discovery requests. As explained below, the court grants the motion in large part.
I. BACKGROUND
The court begins with a summary of Jenkins’s allegations. Jenkins was an employee of
the Dolton, Illinois White Castle restaurant.1 He claims that he was not paid for all of the time
he worked because he was required to work off the clock at the end of his shift, his overtime was
1

Jenkins’s motion to compel indicates that he now works at a different White Castle location.

improperly “rolled” into his subsequent week’s hours, and he was required to “repay” White
Castle for “drawer shortages.” He also claims that he suffered retaliation, including suspension,
when he protested these practices.
Jenkins further claims that the Dolton, Illinois White Castle had a practice of requiring its
employees to pay for business expenses such as drawer shortages, which reduced the employees’
wages to such a degree that they failed to meet Illinois wage law or FLSA requirements. On
behalf of a class, Jenkins asserts claims pursuant to the IMWL (Count I), and the IWPCA (Count
II), based on the alleged requirement that employees “repay” expenses such as drawer shortages.
Jenkins also brings a collective action under the FLSA (Count III) to recover unpaid wages for
overtime work, work performed “off the clock,” and wages lost due to repayment of drawer
shortages.

Jenkins asserts additional claims on behalf of the class under the doctrines of

quantum meruit (Count IV) and unjust enrichment (Count V). Jenkins states in the complaint
that his “[c]laims are limited to the Dolton White Castle location, as it appears that the policy and
procedure of repayment is the unwritten policy and procedure of only one manager at this one
location.” (Compl. ¶ 26.) He alleges that the practice affected all Dolton employees. (Id. at ¶
45.) He estimates that there are “at least 200 persons in the class.” (Id. at ¶ 30.)
The court scheduled discovery to close on July 31, 2013. (ECF No. 12.) Because the
parties expressed an interest in pursuing settlement discussions (which did not prove fruitful), the
discovery deadline was extended to August 30, 2013 (ECF No. 25), and then to September 30,
2013 (ECF No. 28). Jenkins filed this motion to compel on September 5, 2013. He argues that
in answering his document requests and interrogatories, White Castle limited its responses to
information pertaining only to Jenkins himself, refusing to answer requests for documents
pertaining to the putative Rule 23 and FLSA opt-in classes of Dolton employees.

2

II. LEGAL STANDARD
The federal rules permit liberal discovery in an effort to facilitate the trial or settlement of
legal disputes. Bond v. Utreras, 585 F.3d 1061, 1075 (7th Cir. 2009). “Parties may obtain
discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense. . . .
Relevant information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1). A district
court exercises substantial discretion in ruling on a motion to compel, and may fashion a ruling
appropriate in light of the circumstances of the case and the arguments of the parties. Gile v.
United Airlines, Inc., 95 F.3d 492, 495-96 (7th Cir. 1996). The court thus endeavors to strike a
balance between protecting a party from unduly burdensome discovery and ensuring that the
opposing party has all available documents likely to lead to relevant evidence.
III. ANALYSIS
A. General Objections
The court will first address White Castle’s broad arguments about the appropriate scope
of discovery, then examine Jenkins’s actual requests. White Castle argues that Jenkins seeks to
embark on “a virtually unlimited fishing expedition” that goes beyond the scope of his
complaint. As Judge Schenkier has aptly noted, the “fishing expedition” argument is unhelpful:
It is part and parcel of the discovery process for parties to make discovery
requests without knowing what they will get, or indeed, whether they will get
anything at all. In that sense, most discovery involves an element of “fishing.”
Thus, to conclusorily label a discovery request as a “fishing expedition” does little
to advance the discussion; the more appropriate inquiry (to continue with the
fishing metaphor) is how big a pond is the requesting party allowed to fish in, and
what may the requesting party fish for.
Whiteamire Clinic, P.A., Inc. v. Quill Corp., No. 12 C 5490, 2013 WL 5348377, at *6 (N.D. Ill.
Sept. 24, 2013). The pond at issue here is White Castle’s Dolton location. White Castle argues

3

that because Jenkins’s claims are limited to the Dolton location and the conduct of one manager
there, Jenkins is not entitled to seek documents that originate outside of the Dolton location.
The scope of a claim, however, is not necessarily identical to the scope of relevant
discovery. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978) (“[D]iscovery is
not limited to issues raised by the pleadings, for discovery itself is designed to help define and
clarify the issues.”). Even if Jenkins’s allegations are limited to the Dolton facility, there may be
managers outside of the Dolton location (area or regional supervisors, for example) with
documents relevant to conduct that occurred at the Dolton location. Jenkins is not barred from
seeking documents relevant to the alleged conduct at Dolton merely because the issues were
discussed by higher-level management or with respect to multiple White Castle locations. He is
entitled to responsive documents both from Dolton-level management and from area and
regional managers with respect to these topics.
White Castle also argues that no class or collective action has been certified in this case,
and that Jenkins is therefore not entitled to records pertaining to other employees at the Dolton
restaurant, such as work schedules, personnel files, wage rates, and records of terminations.
White Castle does not object specifically to any particular production requests—rather, it makes
a blanket argument that it need not provide any discovery about other Dolton employees because
no class or collective action has been certified.
In this district, FLSA collective actions generally involve a two-step process.

The

plaintiff must first show that other similarly situated employees are potential claimants. See,
e.g., Russell v. Ill. Bell Tel. Co., 575 F. Supp. 2d 930, 933 (N.D. Ill. 2008); Mielke v. Laidlaw
Transit, Inc., 313 F. Supp. 2d 759, 762 (N.D. Ill. 2004). To do so, “the plaintiff must make ‘a
modest factual showing sufficient to demonstrate that they and potential plaintiffs together were

4

victims of a common policy or plan that violated the law.’” Russell, 575 F. Supp. 2d at 933
(quoting Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003)). If the
plaintiff can make this showing, the court may conditionally certify a collective action, and the
plaintiff may send notice of the suit to similarly situated employees who may choose to opt in as
plaintiffs. Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777, 779 (N.D. Ill. 2007).
This means that to pursue a collective action, Jenkins needs to show that there are other
potential plaintiffs who are similarly situated to him. Because White Castle denies that it had
common policies giving rise to his claims, he will need discovery to make this showing. See
Molina v. First Line Solutions LLC, 566 F. Supp. 2d 770, 786 (N.D. Ill. 2007) (“Unless
defendant admits in its answer or briefs that other similarly situated employees exist, plaintiffs
cannot rely on their allegations alone to make the required modest factual showing.”).
In the class-action context, meanwhile, courts routinely allow pre-certification discovery
for the purposes of defining the class and identifying how many similarly situated employees
exist. See e.g., Chavez v. Hat World, No. 12 C 5563, 2013 WL 1810137, at *2-3 (N.D. Ill. Apr.
29, 2013) (requiring payroll information to be produced to allow plaintiff to identify whether
other potential class members were similarly situated); Whiteamire Clinic, 2013 WL 5348377, at
*6 (requiring defendant to allow plaintiff to image its hard drives to determine who was sent
unsolicited facsimile advertisements in a Telephone Consumer Protection Act case).
In sum, given the burden a plaintiff bears to define the class and identify a policy or
policies common to the class pursuant to both Rule 23 and the FLSA, Jenkins will need
discovery to pursue his class and collective action claims. White Castle may not contest class
and/or collective action certification while denying Jenkins discovery relevant to whether a class
or collective action should be certified.

5

B. Discovery Requests
The court now turns to Jenkins’s specific requests.

It notes that White Castle’s

opposition to the motion to compel includes less than two pages addressing the actual discovery
requests and does not include specific objections to particular requests. White Castle instead
relies entirely on the blanket arguments summarized above.
Jenkins asks the court to compel White Castle to produce the following discovery
regarding communications by White Castle management:
1. All communications from White Castle agents discussing drawer shortages, “rolling” of
time, overtime, and off-the-clock work. (Document Request 4)
2. Any and all notes, e-mails, memorandums or any other writing prepared by the
Defendant and sent to its various locations that concern, touch on and/or directly discuss
the Plaintiff’s claims or Defendant’s defenses. (Document Request 16)
3. All communications from any employee questioning, disputing, objecting or otherwise
protesting the payments for drawer shortages, for all Illinois locations. (Document
Request 36)
The motion to compel is granted as to the communications by employees or management
discussing drawer shortages, “rolling” of time, overtime, and off-the-clock work.

For the

reasons discussed above, these documents are relevant to Jenkins’s claims, regardless of whether
they were prepared specifically in response to events at the Dolton location. The motion to
compel “any and all” communications that discuss Jenkins’s claims or White Castle’s defenses,
however, is vague and overbroad. The motion is therefore denied as to that request.
Jenkins also seeks the following discovery related to employees at the Dolton White
Castle location:
1. All documents showing the name, job title, and wage rates of employees who work or
worked at the Dolton location. (Document Requests 6, 32)

6

2. Lists of current and former employees by name, address, phone number, and email
address, dating back five years prior to the filing of the complaint. (Document Requests
9, 10; Interrogatory 6)
3. All documents which reflect the actual hours employees at the Dolton location worked
for each week during the last three years. (Document Request 14)
4. Documents demonstrating off-the-clock work or rolling of hours or compelled payments
by any employee at any time. (Document Request 7)
5. Notices of termination during the last two years, and all discipline and/or terminations
issued to any Dolton employees for the following: working off-the-clock; not fulfilling
work duties in time ‘allowed’; drawer shortages; working overtime; excess overtime;
excess labor budgets; over budgeted amount of work hours or overtime hours; rolling of
employee work time; any other reason not listed above. (Document Requests 12, 26)
6. Personnel files for all Dolton employees for the last two years, and for all employees
disciplined for working overtime, working beyond their scheduled hours, drawer
shortages, or rolling hours. (Document Request 34)
7. Identities of all employees ordered to pay drawer shortages, disciplined or terminated for
drawer shortages, rewarded for not having drawer shortages, disciplined or terminated
for working off the clock, disciplined or terminated for “rolling” work time.
(Interrogatory 8)
For purposes of defining the class, Jenkins is entitled to know the number of employees
who work or worked at the Dolton location and what their job titles are or were. To the extent
that he seeks “all” documents containing such information, however, the request is too broad.
White Castle is not required to produce every such document containing this information; a list
of the employees and their job titles is sufficient.
Hours worked and wage rates at the Dolton location are also relevant to the claims
Jenkins asserts. Wage information is potentially sensitive and may not warrant disclosure in all
circumstances. See, e.g., Smith v. City of Chi., 04 C 2710, 2005 WL 3215572, at *2 (N.D. Ill.
Oct. 31, 2005) (explaining that salary disclosure may violate the privacy of employees). The
clear relevancy of such information to Jenkins’s theory of this case, however, outweighs the

7

privacy concerns. Hour and wage information pertaining to the Dolton employees is therefore
discoverable, subject to the entry of a protective order.
Jenkins also requests personal information about all Dolton employees. “In considering
the disclosure of records of non-parties in discovery, courts balance the privacy concerns of the
non-parties against the relevancy of the documents.”
3671704, at *2 (N.D. Ill. July 12, 2013).

Arango v. Landry’s, Inc., 2013 WL

Plaintiffs are entitled to contact potential class

members to obtain information about the merits of the case. See generally Gulf Oil Co. v.
Bernard, 452 U.S. 89 (1981). But a defendant is not typically required to provide the name and
contact information for all class members, absent a showing of relevancy to the case.
Oppenheimer Fund, Inc., 437 U.S. at 354. Jenkins’s requests are overbroad. White Castle is not
required to produce the contact information and personnel file of every employee, as this goes
beyond the information required to identify the size of the class and whether a common policy
existed. Similarly overbroad is the request for “all” notices of termination for “any other reason
not listed.” As many reasons for terminations or discipline are not relevant to this case, “all”
notices of termination are not discoverable.
Even so, Jenkins will need some discovery from Dolton employees to show the existence
of a common policy, as required for preliminary certification of a collective action, and to show
commonality and typicality, as required to prevail on a motion for Rule 23 class certification.
Therefore, White Castle shall provide him the identities and personnel files of employees who
were disciplined or terminated for reasons relevant to Jenkins’s claims. Those are employees at
Dolton who were ordered to “repay” drawer shortages, or who were disciplined or terminated for
drawer shortages, “excess labor budgets,” working off the clock, “rolling” work time, working
overtime or excess overtime, or working beyond their scheduled hours. Such documents will be

8

discoverable subject to a protective order.

Some records in the personnel files are likely

irrelevant to Jenkins’s claims. If the parties cannot agree as to the content of the personnel files
that will be produced, White Castle may raise objections to the production of certain records.
Finally, Jenkins seeks discovery relevant to his individual retaliation claim:
1. All documents relating to Jenkins’s work schedule for the last two years, including all
email communications, all draft schedules, all requests by Jenkins or orders to him
relating to the schedule. (Document Request 40)
2. Schedules of all the managers at Jenkins’s current work location and at Dolton for the last
three years. (Document Request 38)
These documents are relevant to Jenkins’s contention that his work schedule was rearranged in a
disruptive manner in retaliation for his complaints, and they are therefore discoverable.
IV. CONCLUSION
Jenkins’s motion to compel is granted in part, as outlined above. The parties are directed
to meet and confer with the goal of agreeing to a protective order governing the discoverable
evidence and to a schedule for responding to the document requests and interrogatories. The
parties shall file a proposed schedule and protective order by October 22, 2013; if it is not
agreed, the filing shall identify each party’s position on the areas of disagreement.

ENTER:

/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: October 17, 2013

9