Hunter et al v. Wirelesspcs Chicago LLC et al
Filing
299
MEMORANDUM Opinion and Order signed by the Honorable Beth W. Jantz on 3/23/2022: For the reasons discussed in the accompanying memorandum opinion and order, Plaintiffs' renewed motion for conditional certification and the issuance of notice 194 is granted in part and denied in part, and Defendants' motion to strike 286 is denied. An agreed motion is due by 4/6/22 for approval of an amended proposed Notice and Consent, or setting out in no more than two pages the parties' respective positions as to the form, following appropriate efforts to meet and confer (by telephone or videoconference; email will not suffice). The parties are also directed to meet and confer by 4/13/22 regarding a proposed collective discovery schedule. A Joint Status Report setting out the agreed proposed schedule, or stating the parties' respective positions on it is due by 4/20/22. All other previously ordered dates to stand. Mailed notice. (as, )
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DATISHA HUNTER, et al.,
Plaintiff,
No. 18 CV 980
v.
Magistrate Judge Beth W. Jantz
WIRELESSPCS CHICAGO LLC, et al.
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs Datisha Hunter, Latricia Hunter and Wilfredo Rivera (collectively, “Plaintiffs”
or “named Plaintiffs”) filed this putative class and collective action against Defendants
WirelessPCS Chicago LLC, Sky Net Wireless IL, LLC, Moeen Hasan Khalil, and Saed Khalil
(collectively, “Defendants”) for claimed violations of the Fair Labor Standards Act, 29 U.S.C. §
201 et seq. (“FLSA”), the Illinois Minimum Wage Law, 820 ILCS § 105/1 et seq. (“IMWL”), the
Illinois Wage Payment and Collection Act, 820 ILCS § 115/1 et seq. (“IWPCA”), and various
local ordinances. [Dkt. 1, Compl.] Before the Court is Plaintiffs’ renewed motion for conditional
certification and the issuance of notice pursuant to 29 U.S.C. § 216(b).1 [Dkt. 194, Pls.’ Mot.] For
the reasons that follow, Plaintiffs’ motion is granted in part and denied in part.
1
Plaintiffs were granted leave to file a third amended complaint while the conditional certification
motion was pending. [See dkt. 297.] Because the proposed third amended complaint does not
differ in relevant respects from the second amended complaint for purposes of conditional
certification, the Court’s reference to the second amended complaint herein applies with equal
force to the third amended one.
1
BACKGROUND
Plaintiffs were each employed as sales clerks at various Chicagoland MetroPCS franchise
locations, where they sold cellular phone products and services. [Dkt. 178, Defs.’ Answer ¶ 31.]
Plaintiffs allege that they were jointly employed by Defendants, and that Defendants willfully
violated the FLSA and state and local laws by failing to pay them and other similarly situated
employees minimum wages for all time worked, and failing to pay overtime wages for all hours
worked over forty (40) in individual workweeks. [Dkt. 175, Second Am. Compl. ¶¶ 84-92, 93104.] Specially, Plaintiffs contend that although they were sometimes paid appropriate regular
wages for their work, at other times their rate of pay was not as high as minimum wage. [Id. ¶ 46.]
Plaintiffs further allege that they worked off-the-clock hours (i.e., time for which they were not
compensated), that their hours were not consistently tracked and compensated correctly, and that
Defendants unlawfully deducted money from their wages2, resulting in payments of less than the
applicable minimum wage. [Id. ¶¶ 34-40, 46, 53-54, 66, 77, 133-36.] Plaintiffs purport to bring
their claims on behalf of all similarly situated current and former employees of the 10 MetroPCS
franchise locations in Illinois that Defendants operated, estimating there may be around 100 such
individuals. [Id. ¶¶ 1, 2, 84-92, 93-104; Pls.’ Mot. at 6.]
Plaintiffs move pursuant to 29 U.S.C. § 216(b) for conditional certification and notice of
the following two collectives:
Plaintiffs’ IWPCA unlawful deductions claim is based on the allegation that Defendants made
deductions from Plaintiffs’ pay without their written authorization and that were not otherwise
authorized by the IWPCA, and Plaintiffs additionally argue that pay deductions resulted in
payment of less than the minimum wage. [See Second Am. Compl. ¶¶ 133-36; Pls.’ Mem. at 45.] Plaintiffs do not specify the reasons for which Defendants made the alleged deductions. [See
id.] It appears from the named Plaintiffs’ affidavits, however, that they allege that at least some
deductions were taken without their permission for drawer shortages in the stores or pay advances.
[See D. Hunter Aff. ¶¶ 17-23; L. Hunter Aff. ¶¶ 19-21; Rivera Aff. 16-24.]
2
2
Minimum wage collective
All individuals employed by Defendants in Illinois to sell cell phones, cell phone
accessories, and cell phone services, regardless of the specific job title or titles used
to describe such individuals in Defendants’ data systems during the Class period
who were not paid minimum wages for all time worked (“FLSA Minimum Wage
Collective”).
[Pls.’ Mot. at 3.]
Overtime collective
All individuals employed by Defendants in Illinois to sell cell phones, cell phone
accessories, and cell phone services, regardless of the specific job title or titles used
to describe such individuals in Defendants’ data systems during the Class period
who worked more than 40 hours in one or more individual workweeks and were
not paid appropriate overtime (“FLSA Overtime Collective”).
[Id. at 3.]
This is not Plaintiffs’ first motion for conditional certification, and a review of the history
of this case is important to the consideration of the current motion. Plaintiffs first moved for
conditional certification on April 18, 2018, shortly after the filing of their initial complaint, as is
typical in FLSA putative collective actions. [See dkt. 15.] On May 2, 2018, the Court set a class
discovery schedule and briefing schedule on Plaintiffs’ motion. [Dkt. 23.] Both were subsequently
extended to accommodate class discovery and corresponding discovery disputes. [Dkt. 49.] By
August 2018, the parties turned their attention to the possibility of a class-wide settlement, and
they requested and received a referral to the Magistrate Judge to assist in that endeavor. [See, e.g.,
dkt. 65, 69.]
A settlement conference was held on October 15, 2018, and the parties consented to the
jurisdiction of the Magistrate Judge that same day. [Dkt. 88, 89.] In efforts to maximize the
possibility of settlement, the Court stayed formal discovery two days later, and presided over the
informal exchange of information in connection with settlement discussions for the next several
3
months. [Dkt. 92, 93, 96, 100.] On March 7, 2019, the Court struck by agreement Plaintiffs’
motion for conditional certification, without prejudice to its refiling if the parties were unable to
reach a settlement. [Dkt. 100.] On May 24, 2019, the Court recruited a second Magistrate Judge
to preside over further settlement negotiation sessions, again noting the parties’ agreement to
forego formal discovery pending the outcome of their mediation efforts. [Dkt. 109, 110.]
Several months of further settlement negotiations followed, including the court-facilitated
informal exchange of additional information, and at least six settlement-related conferences with
the recruited Magistrate Judge. [See dkt. 113, 115, 116, 117, 120, 122.] Despite these efforts,
however, by December 12, 2019, the Court concluded that settlement was not “a realistic
possibility at this juncture [and that it was not] a productive use of the parties’ and the Court’s time
to focus exclusively on the possibility of settlement at this time.” [Dkt. 122.] The Court therefore
terminated settlement proceedings on December 16, 2019. [See dkt. 123.]
Litigation resumed thereafter, and in January 2020, the parties proposed a new discovery
schedule. [See dkt. 126, 127.] The case was reassigned to the undersigned the next month, and
discovery motion practice resumed shortly thereafter. [See dkt. 128, 130.] A schedule was
subsequently set and extended for the re-filing of Plaintiffs’ motion for conditional certification.
[See dkt. 157, 187.] On April 8, 2021, Plaintiffs filed their renewed motion for conditional
certification. [Pls.’ Mot.] The Court then set a briefing schedule, which was extended three times
upon Defendants’ request, and was eventually completed on August 10, 2021. [Dkt. 195, 199,
208, 230.] In addition, because the parties’ extensive discovery disputes had resulted in repeated
depositions of Defendants as well as the named Plaintiffs, supplementation of the conditional
certification briefs was allowed. [Dkt. 257.] Plaintiffs’ supplement was filed on December 31,
4
2021 [dkt. 283, Pls.’ Suppl.], and Defendants’ supplement was filed on January 7, 2022 [dkt. 285,
Defs.’ Suppl.], a little over two months ago.
LEGAL STANDARD
Section 216(b) of the FLSA “gives employees the right to bring their FLSA claims through
a collective action on behalf of themselves and other ‘similarly situated’ employees.” Alvarez v.
City of Chi., 605 F.3d 445, 448 (7th Cir. 2010) (citing 29 U.S.C. § 216(b)). A collective action
differs from a class action under the Federal Rules of Civil Procedure in that unnamed plaintiffs
must opt in to a collective action to be bound by it, whereas unnamed plaintiffs in a class action
must opt out to avoid being bound. See Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 771
(7th Cir. 2013). District courts have discretion in managing collective actions because the FLSA
does not detail specific procedures for certifying a conditional class or authorizing collective action
notices. See Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170-174 (1989); accord Alvarez,
605 F.3d at 449.
“The majority of courts in this circuit have adopted a two-step process for determining
whether an FLSA lawsuit should proceed as a collective action.” Soto v. Wings ‘R US Romeoville,
Inc., No. 15-CV-10127, 2016 WL 4701444, at *5 (N.D. Ill. Sept. 8, 2016) (internal quotation
omitted); accord Black v. P.F. Chang’s China Bistro, Inc., No. 16-CV-3958, 2017 WL 2080408,
at *3 (N.D. Ill. May 15, 2017); Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 847 (N.D. Ill.
2008) (collecting cases). Step one is the conditional certification stage, at which “[P]laintiffs need
only make a factual showing sufficient to demonstrate that they and potential plaintiffs together
were victims of a common policy or plan that violated the law.” In re New Albertsons, Inc., No.
21-2577, 2021 WL 4028428, at *1 (7th Cir. Sept. 1, 2021) (internal quotation omitted); see also
Osterholt v. Corepower Yoga, LLC, No. 16 CV 5089, 2017 WL 2180483, at *1 (N.D. Ill. May 18,
5
2017). Although this “modest factual showing” cannot be satisfied simply by “unsupported
assertions,” it remains “a low standard of proof because the purpose of this first stage is merely to
determine whether ‘similarly situated’ plaintiffs do in fact exist.” Kurgan v. Chiro One Wellness
Centers LLC, No. 10-CV-1899, 2014 WL 642092, at *2 (N.D. Ill. Feb. 19, 2014) (quoting Myers
v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)); accord Jimenez v. Chicago Soccer, Inc., No. 13
CV 7462, 2014 WL 274149, at *2 (N.D. Ill. Jan. 24, 2014). The merits of a case are not decided
at the first step, and the Court does not “weigh evidence, determine credibility, or specifically
consider opposing evidence presented by a Defendant.” Bergman v. Kindred Healthcare, Inc., 949
F. Supp. 2d 852, 855-56 (N.D. Ill. 2013) (citation omitted).
This modest step one standard, however, “has sometimes been supplanted by a more
rigorous examination standard if there has been more extensive discovery allowed the plaintiff.”
Id. at 856. This “intermediate” standard, while more stringent than the lenient first-step standard,
is still less rigorous than the second-step decertification standard. Kurgan, 2014 WL 642092, at
*3. Under this “intermediate” approach, “[B]oth sides’ evidentiary submissions [are] considered
in determining whether there is a group of similarly situated employees who may be discovered
by sending out an opt-in notice.” Bergman, 949 F. Supp. 2d at 856; Kurgan, 2014 WL 642092, at
*3. “In evaluating each side’s submissions, it must be kept in mind that, despite the discovery that
has been allowed, defendants still have greater access to evidence than plaintiffs and plaintiffs’
modest showing need not be conclusive.” Bergman, 949 F. Supp. 2d at 856. “So even if a stricter
standard is applied, Plaintiffs need only make a ‘modest plus’ factual showing that there is a group
of potentially similarly situated plaintiffs that may be discovered by sending opt-in notices.”
Kurgan, 2014 WL 642092, at *3.
6
The second and later step in a collective proceeding comes after any opt-ins have appeared
and discovery has been completed. Once it is known which employees will be part of the
collective, “the defendant is given an opportunity to move for decertification. At that stage, if
requested to do so, the court makes a more rigorous examination of the facts relating to whether
or not the case may appropriately continue as a collective action.” Bergman, 949 F. Supp. 2d at
856; see also In re New Albertsons, Inc., 2021 WL 4028428, at *1.
DISCUSSION
Plaintiffs seek step one conditional certification of the two collectives described above:
one for FLSA minimum wage claims, and another for FLSA overtime claims. Plaintiffs’ theory
of FLSA violation is that they and other individuals employed at Defendants’ MetroPCS franchise
locations were not always paid for all of the hours they worked and sometimes paid below the
minimum wage or the premium overtime wage because Defendants took improper deductions
from their paychecks and required off-the-clock work. [See Second Am. Compl.; Pls.’ Mot. at 37.] Plaintiffs also seek an order equitably tolling the statute of limitations for the claims of the
putative opt-ins from the filing of Plaintiffs’ first conditional certification motion on April 18,
2018, to the present. [Pls.’ Mot. at 12-14.] Defendants oppose conditional certification on the
merits, and argue that equitable tolling should not apply. [Dkt. 251, Defs.’ Resp. at 5-15.] The
Court addresses each issue in turn.
Conditional Certification
The discovery conducted thus far warrants application of the intermediate “modest plus”
standard of review to Plaintiffs’ motion. See Osterholt, 2017 WL 2180483, at *2; Kurgan, 2014
WL 642092, at *3. Discovery has been underway since the parties’ settlement negotiations ended
in December 2019, including written and oral discovery resulting in a significant number of
7
discovery disputes. [See, e.g., dkt. 32, 94, 109, 132, 146, 157, 160, 177, 183, 185, 190, 193, 197,
230, 257.]3 Indeed, as mentioned above, supplemental briefs on Plaintiffs’ motion were allowed
specifically to permit the presentation of deposition testimony obtained both from Plaintiffs and
Defendants following the Court’s ruling on a set of the parties’ cross discovery motions. [See dkt.
257, Oct. 5, 2021 Order at 10.] Accordingly, the Court considers the evidence submitted both by
Plaintiffs and Defendants, while remaining mindful of the fact that Defendants still have greater
access to evidence at this stage than Plaintiffs. See, e.g., Osterholt, 2017 WL 2180483, at
*2; Bergman, 949 F. Supp. 2d at 856.
Nevertheless, and despite the age of this litigation, this is only the first step in the collective
certification process. It is not intended to definitively resolve the question of whether this case is
appropriate for collective treatment, but rather to assess whether it is appropriate to provide courtapproved notice, to others who may be similarly situated, of the opportunity to join the case. See
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 75 (2013) (“The sole consequence of
conditional certification is the sending of court-approved written notice to employees[.]”); In re
New Albertsons, Inc., 2021 WL 4028428, at *2 (“[C]onditional certification and authorization of
notice to others who may be similarly situated is a preliminary, non-final step that does not
adjudicate any party’s rights.”)
Plaintiffs allege that they and other employees had their wages deducted without
authorization and were required to work “off-the-clock”— first, for a period of time when they
were initially hired but lacked credentials to access a computerized timekeeping system, and
second, both before stores opened and after they closed, when they were required to work but
3
Indeed, discovery is now closed as to the named Plaintiffs. [See, e.g., dkt. 190, 205, 225, 230,
257, 269.] As Defendants acknowledge, however, fact discovery arising from the addition of any
opt-in plaintiffs remains to be conducted. [See dkt. 278.]
8
directed not to log in and account for their time. [Second Am. Compl. ¶¶ 46, 53, 54, 64, 64; Pls.’
Mot. at 3-7.] Plaintiffs further allege that they and other employees were not always paid for their
time, and that they routinely worked more than 40 hours per week without compensation at the
overtime rate. [Second Am. Compl. ¶¶ 56, 57, 85-92, 93-104; Pls.’ Mot. at 3-7.]
To support their allegations, Plaintiffs submit several affidavits, some payroll
documentation, and deposition testimony.4 They first submit affidavits from each of the named
Plaintiffs, who attest that they and other employees logged into and out of a computerized
timekeeping system in conjunction with opening and closing of the stores, and that each believed
that Defendants did not accurately provide the payroll company with their actual hours worked or
commissions earned. [Dkt. 194-1, D. Hunter Aff. ¶¶ 10, 11, 17, 18; dkt. 194-2, L. Hunter Aff. ¶¶
10, 11, 17, 18; dkt. 194-3, Rivera Aff. ¶¶ 9, 10, 14, 15.]5
Plaintiffs represent in their motion that they “know of at least three other employees whose
testimony would support their contentions,” but they identify no names or other evidence to
support their assertion. [See Pls.’ Mot. at 9.] Such statements are disregarded. See, e.g., United
States v. Stevens, 500 F.3d 625, 628-29 (7th Cir. 2007) (“[A]rguments in a . . . brief, unsupported
by documentary evidence, are not evidence.”); Campania Mgmt. Co. v. Rooks, Pitts & Poust, 290
F.3d 843, 853 (7th Cir. 2002) (“[I]t is universally known that statements of attorneys are not
evidence.”); Lee v. Chicago Youth Centers, 69 F. Supp. 3d 885, 888 (N.D. Ill. 2014) (collecting
cases) (“[I]t is basic that unsupported statements of lawyers in briefs are not evidence, do not count,
and are given no weight.”).
4
5
Plaintiffs also attempt to support some allegations, including that Defendants did not provide
accurate information to their payroll company, by citation to the opinion of their counsel,
submitted in an affidavit. [See Pl.’s Mot. at 5; dkt. 194-4, Choate Aff. ¶¶ 4-5.] Plaintiffs’ counsel
is not a witness with personal knowledge, her opinion of the record is no substitute for evidence,
and the Court therefore does not consider this affidavit in considering this motion. See, e.g., Nw.
Nat. Ins. Co. v. Baltes, 15 F.3d 660, 662 (7th Cir. 1994) (affirming decision to strike affidavit of
party’s attorney not based on personal knowledge and not showing that “the lawyer is ‘competent
to testify to the matters stated’”); DF Inst., LLC v. Dalton Educ., LLC, No. 19-CV-452-JDP, 2020
WL 4597122, at *3 (W.D. Wis. Aug. 11, 2020) (attorney’s declaration that a document contains
trade secrets is not evidence of the same where the attorney “doesn’t have the foundation to explain
the importance of the document.”).
9
Plaintiff Datisha Hunter further attests that she was not given login credentials or other
means of recording her time when she was first hired, that her paychecks usually reflected less
time than she had worked, and that she regularly worked over 40 hours but rarely was paid
overtime or for the actual time she worked. [D. Hunter Aff. ¶¶ 9, 13-15.] Additionally, she attests
that she never saw a payroll deduction policy while working for Defendants, but that Defendants
made 40 deductions of her pay totaling about $2,700, most of which were unauthorized. [Id. ¶¶
17-23.] Plaintiffs submit payroll records they say demonstrate that such deductions resulted in
payment to Datisha Hunter of less than the applicable minimum wage. [Id. at Ex. A.]
Plaintiff Latricia Hunter similarly attests that, for the six months she worked for
Defendants, she regularly worked beyond store hours, frequently working an additional 15 minutes
beyond store hours, but was not paid for this time. [L. Hunter Aff. ¶¶ 5-8, 12.] She further attests
that she and her co-workers utilized a computer timekeeping system to record their time but that
Defendants did not give her login credentials until about one month after she started working for
them, her paychecks usually reflected less time than she worked and did not always include her
earned commissions, and she regularly worked over 40 hours but rarely was paid overtime or for
the actual time that she had worked. [Id. ¶¶ 10-12, 14-16.] She testified in deposition that she
routinely performed opening duties for 30-45 minutes before clocking in. [Dkt. 283-5, L. Hunter
Dep. at 155:15-157-13.] Finally, she attests that she never saw a payroll deduction policy while
working for Defendants and that she never authorized any payroll deductions, but that Defendants
withheld $50.00 from her paycheck on at least one occasion without her knowledge or
authorization. [L. Hunter Aff. ¶¶ 19-21.]
Like Plaintiffs Datisha and Latricia Hunter, Plaintiff Wilfredo Rivera attests that that he
and his co-workers utilized a computer timekeeping system to record their time, but that
10
Defendants did not give him login credentials or any other means of recording his time until about
a month after he started working for them, his paychecks usually reflected less time than he worked
and did not always include his earned commissions, and he regularly worked over 40 hours but
rarely was paid overtime or for the actual time that he had worked. [Rivera Aff. ¶¶ 8-10, 12, 13.]
As with both Hunters, Rivera also attests that he never saw a payroll deduction policy while
working for Defendants, and that although he had authorized certain deductions from his pay for
cash advances, the “vast majority” of deductions from his pay were taken without his
authorization. [Id. ¶¶ 16-23.] Rivera testified in deposition that he had been instructed by “all of
upper management” not to clock in when he first arrived at work but only upon the store’s actual
opening and that it was considered to be “stealing time if [he] were to clock in before the doors
opened.” [Dkt. 283-6, Rivera Dep. at 122:10-123:07.] Rivera explained that he was told this by
“Abigail, Mo. G, Adam . . . [and] Ali.” [Id. at 242:01-244:13.]6
Additionally, Plaintiffs submit the Rule 30(b)(6) deposition testimony of WirelessPCS
Chicago and Sky Net Wireless IL, acknowledging a policy of requiring employees to be at work
15 minutes prior to the store’s opening, and explaining that they delegated operation of the
Chicagoland franchises—including the handling of employee schedules, the accuracy of
timekeeping records, and the validity of wage deductions—to local “area managers.” [See dkt.
283-1, Wireless Defs.’ Dep. (Monroy) at 153:12-155:24; dkt. 283-2, Wireless Defs.’ Dep.
(Ittayem) at 46:02-48:12, 101:03-103:19.] Importantly, although Plaintiffs argue in their briefing
that Defendants “confirmed that their policy mandated employees worked [sic] off-the-clock,” the
Other than “Mo. G,” who was subsequently identified in an affidavit as an area manager for
WirelessPCS Chicago and Sky Net Wireless IL, Mohammed Ghaben [see dkt. 283-8, Ghaben Aff.
¶ 4], Plaintiffs do not provide the full names or positions of the people Rivera testified had directed
him to work off the clock. [See Pls.’ Mot.; Pls.’ Suppl.]
6
11
testimony that Plaintiffs cite for this point reflects only that employees were expected to begin and
end work beyond the hours that stores were open to the public, and not that this time was meant to
be uncompensated. [See Pls.’ Suppl. at 2-3, citing Wireless Defs.’ Dep. (Ittayem) at 102:13103:06.] Furthermore, Plaintiffs do not identify the stores or area in which they worked or the area
manager(s) with authority over those stores. [See Pls.’ Mot. at 1-7; Pls.’ Suppl. at 1-5.]
Finally, Plaintiffs submit the affidavit of Mohammed Ghaben,7 a former area manager for
WirelessPCS Chicago and SkyNet Wireless IL, who explains that: (1) employees routinely called
him among other nicknames, “Mo. G;” (2) Chicagoland employees of WirelessPCS Chicago and
Sky Net Wireless IL regularly worked beyond store hours and used a computer system to track
their time; and (3) Defendants set employee hours and store hours, instructed him to “hold workers
accountable [for] drawer shortages,” and directed him to set up a corporation Defendants funded
to facilitate paying their employees. [Ghaben Aff. ¶¶ 4, 8-21.] Notably, however, Ghaben does
not attest that employees who worked beyond store hours were not compensated for that work, or
that holding workers accountable for drawer shortages was done without their consent or resulted
in payment at less than the minimum wage.8 Ghaben attests that none of the WirelessPCS Chicago
and Sky Net Wireless IL locations had any required posters regarding applicable minimum wage.
[Id. ¶ 22.] Neither Plaintiffs nor Ghaben explain whether he was Plaintiffs’ area manager, or
For the same reasons set out in this Court’s February 4, 2022 order [dkt. 292] denying
Defendants’ motion for extension of time to depose Mohammed Ghaben or to strike his testimony,
Defendants’ motion to strike Ghaben’s affidavit [dkt. 286] is denied.
7
Although Plaintiffs argue in their briefing that Ghaben “confirmed that employees were expected
to work off-the-clock,” his actual affidavit says only that employees worked before and after store
hours; it says nothing about whether that work was on or off of the clock, or otherwise impacted
minimum or overtime wage pay. [Compare Pls’ Suppl. at 3 with Ghaben Aff. ¶¶ 18, 19.]
8
12
indeed what area he managed, and whether any others managed that same area.9 [See Pls.’ Suppl.;
Ghaben Aff.]
According to Defendants, Plaintiffs’ evidence fails to make the requisite showing to
conditionally certify either proposed collective for several reasons, as follows.
Plaintiffs’
respective declarations are both too vague as to other employees and too individualized as to their
own underpayment claims. [See Defs.’ Resp. at 7-12.] Defendants argue that the only reference
to other employees in each named Plaintiff’s affidavit is found in statements that the affiant “and
other employees” logged into a computerized time system as part of their store opening process at
the start of their shifts, and logged out of the system as part of store closing at the end of their
shifts. [See id. at 8-9.] Defendants further argue on this point that Plaintiffs do not indicate what
these “other” employees’ positions were, in which stores they worked, what their duties entailed,
whether they were salaried or hourly, whether they had supervisors common to Plaintiffs, or when
they worked for the Defendants. [Id. at 9.] Defendants contend that this lack of particularity
renders the statements lacking in personal knowledge, and insufficient to support Plaintiffs’
motion. [Id.] Moreover, Defendants say, given the infirmities in Plaintiffs’ affidavits, and the fact
that Defendants testified that employees were expected to be paid beyond store hours and
Defendants’ timekeeping records demonstrate Plaintiffs’ clock in and out times were beyond store
hours, Plaintiffs present “no evidence” that any timekeeping policy violated the FLSA or that
Plaintiffs were not paid for their time. [Id. at 10; Defs.’ Suppl. at 2 and Ex. A; Wireless Defs.’
Dep. (Ittayem) at 101:03-103:19.] Finally, Defendants contend, because Plaintiffs’ claims are
9
Regarding stores in the Chicagoland area, Ghaben attests only that during the time he worked as
an area manager, he “regularly visited” them. [Ghaben Aff. ¶ 17.]
13
based in part on deductions, the specifics of each employees’ pay will be at issue, thus rendering
proceeding as a collective action inefficient and improper. [Defs.’ Resp. at 11; Defs.’ Suppl. at 3.]
Upon consideration of the evidence and arguments, the Court concludes that Plaintiffs have
made the “modest plus” factual showing sufficient to carry them past the first stage of the
conditional certification process, although just in part. The affidavits and deposition testimony of
the three named Plaintiffs, paired with their pay records and Defendants’ testimony about how
they conducted their business, make a sufficient showing that Plaintiffs and other employees—at
the store(s) at which Plaintiffs worked—were subjected to the same practices and policies
requiring them to perform certain tasks past store hours or incur payroll deductions, which may
have resulted in payment below the federal minimum wage and/or overtime rate. Additionally,
the fact that all of the named Plaintiffs attest to having had no means of recording their time for a
period when they were first hired, and that they regularly worked more than 40 hours per week
and rarely were paid overtime for such work, suggests that the alleged practice of underpayment
was not limited to just one employee. [See D. Hunter Aff. ¶¶ 9, 13-15; L. Hunter Aff. ¶¶ 8, 9, 14,
16; Rivera Aff. ¶ 8, 13.] On the “modest plus” standard that must be satisfied at step one, it may
be inferred that these practices were common to all employees at the store(s) where Plaintiffs
worked. Plaintiffs’ affidavits “[n]eed not be ‘highly specific,’ and ‘it is not necessary for the
[affiants] to provide such details as the dates and times they worked overtime hours for which they
were not compensated.” Black, 2017 WL 2080408, at *4 (internal quotations omitted).
Although conditional certification is warranted, however, Plaintiffs’ definition of the
collectives is too broad. First, they include no defined class period (remedy discussed further
below). More fundamentally, however, Plaintiffs’ evidentiary submissions suggesting that they
are similarly situated to other employees are limited to Plaintiffs’ observations and experiences at
14
the store(s) at which Plaintiffs worked. As Defendants correctly note, Plaintiffs submit no
evidence to show, or other knowledge of, a centralized policy or practice requiring off-the-clock
or otherwise uncompensated work resulting in payments of less than the minimum wage or
overtime rate at all of Defendants’ stores in Illinois. [See Def’s Suppl. at 2.] On this issue, it is
important to distinguish several points as between Plaintiffs’ arguments and the actual evidence as
submitted.
First, Plaintiffs argue that former Area Manager Ghaben “confirmed that employees were
expected to work-off-the-clock.” But his affidavit says only that employees worked beyond store
hours—and is notably silent about whether employees were paid for that time or otherwise ever
received less than wages due or the federal minimum wage. [Compare Pls’ Suppl. at 3 with
Ghaben Aff. ¶¶ 18, 19.]
Similarly, while Plaintiffs argue that the corporate defendants “confirmed [in their Rule
30(b)(6) depositions] that their policy mandated” off-the-clock work, the cited and surrounding
testimony reflects that while it was expected that employees work beyond store hours, it was also
expected that they be compensated for that time. [Compare Pls.’ Suppl. at 2-3 (citing Wireless
Defs.’ Dep. (Ittayem) at 102:13-103:06) with Wireless Defs.’ Dep. (Ittayem) 102:08-12; see also
Defs.’ Resp. at 2.] See Kurgan, 2014 WL 642092, at *3 (“both sides’ evidentiary submissions are
considered” under the intermediate “modest plus” standard).
Nor does Rivera’s deposition testimony that he had been instructed by “all of upper
management” that it was considered “stealing time if [he] were to clock in before the doors
opened,” [Rivera Dep. at 122:10-123:07], and that he was told this by “Abigail, Mo. G, Adam . . .
[and] Ali,” [id. at 242:01-244:13], permit an inference that similar conditions were faced by
employees at other stores. His testimony provides no context for whether this practice extended
15
beyond the store(s) at which he worked, or who these named individuals were, other than “Mo. G”
(Ghaben, discussed above), and Plaintiffs identify no evidence to otherwise bridge this gap.
Similarly, although Plaintiffs have had the opportunity to depose multiple corporate
representatives of WirelessPCS Chicago and Sky Net Wireless IL, Plaintiffs’ purported evidence
about centralized management and operation of the Chicagoland stores is insufficient to
extrapolate that what Plaintiffs experienced or observed at their store(s) also occurred at all of the
other franchise locations. Plaintiffs provide no link between centralized control on the one hand,
and the practice of off-the-clock or other unpaid work at any location beyond Plaintiffs’ own
observations at their own store(s). [See Pls.’ Mot. at 3-12; Pls.’ Suppl. at 1-5.] Moreover, as
Plaintiffs highlight, corporate testimony reflected that “upper management” delegated operation
of the Chicagoland franchises—including the handling of employee schedules, the accuracy of
timekeeping records, and the validity of wage deductions—to local “area managers.” [See Pls.’
Suppl. at 3-5; Wireless Defs.’ Dep. (Monroy) at 153:12-155:24; Wireless Defs.’ Dep. (Ittayem) at
46:02-48:12, 101:03-103:19.] And Plaintiffs do not even identify the stores or area in which they
worked, or the area manager(s) with authority over those stores.
[See Pls.’ Mot. at 1-7; Pls.’
Suppl. at 1-5.]
In sum, because Plaintiffs’ first step evidence provides insufficient support for including
employees who worked at store(s) other than those where the named Plaintiffs worked, the Court
therefore narrows the proposed opt-in collectives accordingly to only those store(s) at which the
named Plaintiffs worked. See, e.g., Black, 2017 WL 2080408, at *10 (limiting scope of grant of
conditional certification to only certain restaurant locations, where Plaintiffs failed to minimally
show that alleged off-the-clock policy applied anywhere beyond the locations where Plaintiffs
contended that they worked and had observed it); DeMarco v. Nw. Mem’l Healthcare, No. 10 C
16
397, 2011 WL 3510905, at *4 (N.D. Ill. Aug. 10, 2011) (collecting cases narrowing proposed
collective based on limitations in step one showing, and explaining that, a “court may narrow the
lead plaintiff’s proposed opt-in class where the first-stage evidence provides no tangible support
for including certain employees in the class”). Accordingly, Plaintiffs’ minimum wage and
overtime collectives will be certified, but limited to the store(s) at which the named Plaintiffs
worked.
Defendants’ Further Objections
Defendants’ additional objections to conditional certification of either collective are
unpersuasive. First, despite the limitations in Plaintiffs’ showing as discussed above, Defendants’
contention that Plaintiffs offer no evidence of any FLSA violation or that they were not
compensated for time worked is inaccurate. [See Defs’ Suppl. at 2.] Plaintiffs have pointed to
evidence that they had no means of recording their time for a period when they were first hired,
that they were not compensated for all of the hours that they worked, and that they routinely
worked more than 40 hours per week but were rarely compensated at the overtime rate. [See D.
Hunter Aff. ¶¶ 9, 13-15; L. Hunter Aff. ¶¶ 8, 14-16; Rivera Aff. ¶¶ 8, 12-13; Rivera Dep. at 122:10123:07, 242:01-244:13; L. Hunter Dep. at 155:15-157-13.] Each named Plaintiff also describes
that they and other employees logged into and out of the computerized timekeeping system as part
of store opening and closing procedures. [See D. Hunter Aff. ¶¶ 10, 11; L. Hunter Aff. ¶¶ 10, 11;
Rivera Aff. ¶¶ 9, 10.] Each of the named Plaintiffs also attests that their wages were deducted
without their knowledge or authorization, and Plaintiffs submit evidence to show that in the case
of Datisha Hunter, those deductions resulted in payment below the minimum wage. [See D.
Hunter Aff. ¶¶ 17-23 and Ex. A; L. Hunter Aff. ¶¶ 19-21; Rivera Aff. ¶¶ 16-23 and Ex. A.]
Although Defendants may challenge the import of this evidence at a later stage, these affidavits
17
and deposition testimony are evidence sufficient to meet Plaintiffs’ step one showing, albeit with
the limitations discussed above.
This is so despite Defendants’ argument that they paid Plaintiffs for all of their time (not
just store hours) and Defendants’ submission of timekeeping records showing that Datisha Hunter
and Wilfredo Rivera clocked in and out at times different than posted store hours. [See Defs.’
Resp. at 11-12 and Ex. D, E; Defs.’ Suppl. at 2 and Ex. A.] Defendants’ argument raises factual
issues that are deferred until later in the litigation. See Ivery v. RMH Franchise Corp., 280 F.
Supp. 3d 1121, 1135 (N.D. Ill. 2017). Plaintiffs are not obliged to prove their claims in order to
satisfy the relatively low burden of identifying other similarly situated persons to whom notice
may be provided. See id. Although the Court considers Defendants’ evidence, it does so with an
eye towards determining whether Plaintiffs have demonstrated that similarly situated potential optin plaintiffs may exist—not whether Plaintiffs have sustained their substantive claims. See
Bergman, 949 F. Supp. 2d at 855-56.
Second, notwithstanding Defendants’ argument, a lack of specificity in Plaintiffs’
affidavits as to when and how much they contend they were underpaid does not suggest a lack of
personal knowledge rendering their evidence insufficient. Unlike in Defendants’ cited case of
Mares v. Caesars Ent., Inc., No. 4:06CV0060 JDTWGH, 2007 WL 118877, at *3 (S.D. Ind. Jan.
10, 2007), each of the named Plaintiffs’ affidavits in this case is based on each individual’s
personal knowledge as to what they and other employees did at work. [See D. Hunter Aff. ¶¶ 10,
11; L. Hunter Aff. ¶¶ 10, 11; Rivera Aff. ¶¶ 9, 10.] Cf. Mares, 2007 WL 118877, at *3 (statements
based on affiant’s “understanding” of policies and practices arising out of an alleged conversation
with some other unidentified person was insufficient to establish personal knowledge).
“Allegations in declarations need not be highly specific, and it is not necessary for the declarants
18
to provide such details as the dates and times they worked overtime hours for which they were not
compensated.” Black, 2017 WL 2080408, at *4 (internal quotation omitted). Instead, “[T]he
declarations need only allege facts sufficient to support an inference that he or she has actual
knowledge about other employees’ job duties, pay structures, hours worked, and whether they
were properly paid.” Id. (emphasis added). Here, Plaintiffs describe what they saw their coworkers do, and their affidavits sufficiently demonstrate their knowledge as to their own and their
co-workers’ practices of clocking in and out. See id. Defendants offer no reason to think that
Plaintiffs would not have been in a position to see other employees clock in or out, or otherwise
work at the store off of the clock. Although Plaintiffs’ evidence might be thin, and much more
will be needed at step two, Plaintiffs’ evidence is sufficient to meet the “modest plus” burden at
step one. See Black, 2017 WL 2080408, at *4; Ballou v. iTalk, LLC, No. 11 C 8465, 2013 WL
3944193, at *5 (N.D. Ill. July 31, 2013).
Further, while Defendants raise legitimate concerns about the individualized analysis of
each potential opt-in plaintiff’s circumstances, such arguments are not appropriately adjudicated
at step one certification. See, e.g., Ballou, 2013 WL 3944193, at *5 (collecting cases); Soto, 2016
WL 4701444, at *9; Jirak, 566 F. Supp. 2d at 850. While the amount of compensated time each
employee was allegedly denied or why/when certain deductions were made may vary, the practices
Plaintiffs contend allegedly violated the FLSA (i.e., working off the clock, or imposing unlawful
deductions) does not. See Ballou, 2013 WL 3944193, at *5 (“[C]ourts in this district have . . .
rejected . . . arguments that collective actions should not be conditionally certified because they
may later require a more individualized inquiry.” (internal quotation omitted) (collecting cases)).
It remains to be seen at a later stage whether Plaintiffs might avoid individualized issues and be
19
able to prove their claims by representative evidence that “would enable a rational determination
of each class member’s damages.” See Espenscheid, 705 F.3d at 776.
Similarly, Defendants’ argument regarding potential individual set-off issues based on a
group chat message involving Rivera and various other employees which refers to “hold[ing] the
deposits” is speculative and premature at this stage of the litigation. [See Defs.’ Suppl. at 4.] In
asserting that the topic of holding store deposits raises potential set-off issues that defeat the
propriety of conditional certification, Defendants ask not only that the Court credit Defendants’
interpretation of the particular evidence they cite, but also that the Court credit Defendants’
prediction as to what Plaintiffs might argue in response. Such weighing of the evidence is
inappropriate at step one certification. See, e.g., Ivery, 280 F. Supp. 3d at 1137-38 (conditional
certification is meant only to determine the size and contour of a potential collective and whether
potential members are similarly situated, and not to resolve factual disputes or decide substantive
issues going to the merits). In sum, although it is possible that individual issues will eventually
predominate in their claims, Plaintiffs have sufficiently shown a common policy or practice
affecting them and other similarly situated employees at their own store(s) such that conditional
certification is appropriate.
Finally, contrary to Defendants’ assertions, there is no adequacy of representation problem.
Although Defendants specifically critique only two of the three named Plaintiffs, Defendants
contend that all three are incapable of serving as representative plaintiffs in this case. [See Defs.’
Suppl. at 5.] Specifically, Defendants argue that because Datisha Hunter repeatedly testified that
she was unable to remember certain information and because she did not give “straight answers”
in response to Defendants’ deposition questions, she is “obviously incapable of providing
representative testimony.” [Id.] Defendants similarly assert that Rivera is “unable to testify for
20
himself let alone anyone else,” although they appear to complain more of his counsel’s numerous
objections and instructions not to testify than to the testimony Rivera provided. [Id.] Regardless,
Defendants present no authority to support their assertion that either the limits of Datisha Hunter
or Rivera’s memory or the manner in which they testified at deposition so taints each of them that
a finding that they are incapable of serving as representative plaintiffs should be made in
conjunction with conditional certification. [See id.] Such unsupported arguments are forfeited.
See Crespo v. Colvin, 824 F.3d 667, 674 (7th Cir. 2016).
Moreover, even if it were not forfeited, Defendants’ challenge based on the named
Plaintiffs’ adequacy is inapplicable. “Most courts articulating the requirements for conditional
certification of a collective action . . . have concluded that the FLSA does not incorporate Rule
23’s adequacy criterion for conditional certification.” Butler v. DirectSAT USA, LLC, 876 F. Supp.
2d 560, 573 n.14 (D. Md. 2012) (internal quotation and alteration omitted) (collecting cases); see
also Ballou, 2013 WL 3944193, at *7; Ivery, 280 F. Supp. 3d at 1136-37 (rejecting similar
adequacy argument and noting that, “[T]he FLSA requires only that the collective representative
be ‘similarly situated’ to others in terms of the work performed.”).
Statute of Limitations & Equitable Tolling
Because the Court grants conditional certification, it next turns to Plaintiffs’ request to
equitably toll the limitations period as to putative opt-in plaintiffs. [See Pls.’ Mot. at 12-14.] Under
the FLSA, the statute of limitations continues to run for each potential plaintiff until he or she opts
in to the lawsuit. See Lucas v. JJ’s of Macomb, Inc., 321 F. Supp. 3d 882, 885 (C.D. Ill. 2018).
The FLSA requires that an action “be commenced within two years after the cause of action
accrued,” unless the violation was willful, in which case a three-year statute of limitations
applies. 29 U.S.C. § 255(a). An FLSA lawsuit commences as to an individual claimant on: (1)
21
the date the complaint was filed if the claimant is specifically named as a party in the complaint
and she or he files written consent to become a party plaintiff on such date; or (2) the date on which
such written consent is filed. See 29 U.S.C. § 256. Therefore, the filing of the lawsuit does not
toll the statute of limitations for potential class members until they file their own consents.
According to Plaintiffs, the claims of the putative opt-in plaintiffs should be tolled from
the April 18, 2018, filing of their first conditional certification motion to the present, given the
Court’s prior vacating of the briefing schedule on their first motion, and the parties’ subsequent
agreement to strike it without prejudice in efforts to encourage their settlement negotiations. [See
Pls.’ Mot. at 12-14.] Emphasizing the broad remedial nature of the FLSA, Plaintiffs urge that
courts routinely apply equitable tolling in FLSA cases, focusing on the fairness to all parties in
weighing the issue. [See id.] As Plaintiffs reason, equitable tolling is especially appropriate here,
where Defendants have had actual notice of the scope of their potential liability since the outset,
and to avoid prejudice to potential opt-in plaintiffs whose claims might be extinguished without
tolling of the limitations period. [See id. at 13-14.]
Defendants, on the other hand, assert that equitable tolling should not apply to Plaintiffs’
claims, because Plaintiffs have failed to show that some extraordinary circumstance prevented
potential claimants either from opting in or filing their own action(s) against Defendants in the
years since Plaintiffs’ initial motion. [See Defs.’ Resp. at 12-15.] Moreover, Defendants argue,
because all of their stores were closed by June 8, 2018, and Plaintiffs present no evidence to
support application of the three-year limitation period for willful FLSA violations, no unexpired
claims of any putative plaintiffs should remain. [See id. (citing dkt. 251-3, S. Khalil Dep.).]
Although Defendants “acknowledge that fundamental fairness dictates that the statute should be
tolled for a normal time for briefing and ruling” on Plaintiffs’ conditional certification motion,
22
they argue that even with a tolling period of 60 days (from April 18, 2018 to June 18, 2018) to
account for a briefing schedule and issuance of a decision (which they concede would be
“unusually fast”), there still would presently be no unexpired claims—even with application of a
three-year limitations period. [Id. at 13.] Defendants additionally argue (without any record
citation) that because Sky Net Wireless IL, LLC, was closed in August 2017, and Moeen Khalil
was “not an employer under the FLSA at all” but only named in this action as an investor in Sky
Net Wireless IL, LLC, there were no unexpired claims against him after August 2020, even
assuming application of a three-year limitations period. [Defs.’ Suppl. at 1-2; Defs.’ Resp. at 1-2,
14.]
As an initial matter, courts have held that a conclusory allegation of willfulness is sufficient
to justify providing notice to the putative class on the basis of a potentially applicable three-year
limitations period. See, e.g., Ivery, 280 F. Supp. 3d at 1135 (collecting cases). This is so because
the issue of willfulness goes directly to the merits, and “it is both unnecessary and unfair to require
plaintiffs to prove the ‘willfulness’ of the defendants’ alleged actions before permitting notice.”
Id. Given Plaintiffs’ allegation of willful FLSA violations, [see Second. Am. Compl. ¶¶ 92, 103,
104, 153, 163, 164, 171, 181, 182], the Court therefore contemplates a three-year limitations period
in considering Plaintiffs’ request for equitable tolling.
Next, the statute of limitations in an FLSA action is not jurisdictional, and equitable tolling
can be applied in appropriate circumstances. See, e.g., Bergman, 949 F. Supp. 2d at 860.
“[A] litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes
two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Menominee Indian Tribe of Wisconsin
v. United States, 577 U.S. 250, 255 (2016) (internal quotation and alteration omitted); accord
23
Knauf Insulation, Inc. v. Southern Brands, Inc., 820 F.3d 904, 908 (7th Cir. 2016). To satisfy the
second
prong,
the
circumstances
causing
the
litigant’s
delay
must
be
“both
extraordinary and beyond its control.” Menominee Indian Tribe, 577 U.S. at 255.
Some courts consider a delay in issuing a ruling on a conditional certification motion “an
extraordinary circumstance that should not cause the opt-ins to lose out on the potential benefits”
of a collective action lawsuit. See Bergman, 949 F. Supp. 2d at 860-61. Other courts disagree,
however, reasoning that the passage of several months from motion to determination is a
predictable and common result of busy dockets. See, e.g., Sylvester v. Wintrust Fin. Corp., No. 12
C 01899, 2014 WL 10416989, at *2 (N.D. Ill. Sept. 26, 2014). Still other courts question the
ability to assess the diligence of potential plaintiffs in advance of their opting into the case. See
Calloway v. AT & T Corp., 419 F. Supp. 3d 1031, 1037 (N.D. Ill. 2019) (denying plaintiffs’ motion
to equitably toll FLSA claims prior to conditional certification without prejudice to individual optin plaintiffs’ subsequent renewal).
This Court need not weigh in on that debate here. In this case, there was a prior stay of
discovery and conditional certification proceedings during the parties’ protracted efforts over
many months to settle their dispute on a class-wide basis, and the Plaintiffs’ first conditional
certification motion was correspondingly stricken without prejudice to renewal. [See dkt. 49, 92,
100.] Given this background, the Court cannot assess the diligence of putative plaintiffs, because
“these circumstances have precluded their notice of the action.” See Lucas, 321 F. Supp. 3d at
887.10 As the court explained in Lucas, 321 F. Supp. 3d at 886-87, some courts consider the
10
Defendants did not raise and accordingly have waived any prudential standing challenge to the
named Plaintiffs’ ability to seek tolling on behalf of putative plaintiffs. See Alioto v. Town of
Libson, 651 F.3d 715, 721 (7th Cir. 2011) (party waives argument by failing to make it before the
district court).
24
following factors in determining whether to toll the statute of limitations when unable to assess
the diligence of the putative collective members: (1) whether the extraordinary circumstances were
beyond the control of the plaintiff or the putative collective members; (2) whether refusal to toll
the statute of limitations would result in hardship for the putative collective members; and (3)
whether tolling prejudices the defendant. See id. This Court agrees with this reasoning, and
considers each of those factors here.
As to the first and second factors, the record in this case demonstrates that Plaintiffs could
not pursue their initial certification motion given the stay while the parties focused their efforts on
settlement. [See dkt. 92.] As a result, putative opt-in plaintiffs did not receive notice of the action,
and these circumstances were beyond their control. See Lucas, 321 F. Supp. 3d at 887; Yahraes v.
Rest. Assocs. Events Corp., No. 10-CV-935 SLT, 2011 WL 844963, at *2 (E.D.N.Y. Mar. 8, 2011)
(granting equitable tolling of FLSA claims based on extraordinary circumstances of procedural
history of case, including a court-imposed stay). By striking the briefing schedule, imposing a
stay, and then striking the motion by agreement, “without prejudice to refiling . . . if the parties do
not reach a settlement,” it is also clear that all parties and the Court contemplated maintaining a
status quo while they endeavored to resolve the lawsuit on a collective/class basis. [See, e.g., dkt.
49, 92, 100.] This is no small factor here, because it is well-settled that “[t]he law generally favors
and encourages settlements.” Nat’l Cas. Co. v. White Mountains Reins. Co. of Am., 735 F.3d 549,
556
(7th
Cir.
2013)
(quoting
Metro.
Hous.
Dev.
Corp.
v.
Vill.
of
Arlington
Heights, 616 F.2d 1006, 1013 (7th Cir. 1980)). Denying Plaintiffs’ request for tolling would not
only result in hardship to the putative plaintiffs who would lose significant time to bring their
claims as a result of the delay incurred during the stay and the parties’ extensive efforts to settle,
but it would also undermine the encouragement of settlements and the intent of the parties at the
25
time they endeavored to resolve their dispute. As to the third factor, tolling the statute of
limitations does not unfairly prejudice Defendants, who have known the potential scope of their
liability since service of Plaintiffs’ complaint. See Lucas, 321 F. Supp. 3d at 888. For these
reasons, application of equitable tolling is appropriate here.
Plaintiffs’ request to toll from the filing of their first conditional certification motion to the
present, however, is once again too broad. Beyond the period that discovery and conditional
certification was stayed and the parties focused on efforts to settle, Plaintiffs present no evidence
or argument to suggest that they were prevented from filing for conditional certification or that
putative collective members were prevented from opting in or initiating their own action. To apply
equitable tolling in a blanket fashion under these circumstances would transform this remedy into
“a routine, automatic one.” See Soto, 2016 WL 4701444, at *10.
Accordingly, the Court concludes that tolling of the limitations period is appropriate from
the filing of Plaintiffs’ first conditional certification motion, April 18, 2018, [dkt. 15], until the
termination of settlement proceedings on December 12, 2019, [dkt. 122], for a total of 603 days.
Additionally, given Defendants’ agreement that some period of tolling during the pendency of the
current conditional certification motion is appropriate, and the fact that the briefing schedule on
the current motion was extended three times upon Defendants’ request, resulting in a total
extension of 90 days, i.e., from May 12, 2021, to August 10, 2021 [see dkt. 198, 208, 230], tolling
for an additional 90 days is appropriate, for a total tolling of the three-year limitations period of
693 days. Plaintiffs’ motion to equitably toll the limitations period is thus granted in part and
denied in part.
Accordingly, even if Defendants no longer employed anyone as of June 8, 2018, as they
claim, it is not the case that no unexpired claims of putative plaintiffs could remain (because by
26
this Court’s calculation, tolling the three-year limitations period by 693 days means that claims
arising as of June 8, 2018, may not expire until around May 1, 2023). The tolling period must be
taken into consideration in Plaintiffs’ revised collective definitions, and the Court thus turns to
Plaintiffs’ proposed form of notice.
Plaintiffs’ Proposed Form of Notice
Having found that conditional certification is appropriate, and that unexpired claims of
putative plaintiffs may remain, the Court therefore concludes that notice of the action should issue
to people who worked at the same MetroPCS franchise location(s) as any of the named Plaintiffs.
Neither Plaintiffs nor Defendants identified those particular store(s) for the Court. Accordingly,
Plaintiffs must revise their proposed Notice and Consent with these narrowed collectives in mind.
Plaintiffs must also include a proposed time period in the definition of their collectives, consistent
with this Court’s equitable tolling analysis. Further, Plaintiffs’ amended proposed notice must
remove characterization of the case as in its “early” pretrial stage, and must either remove reference
to Ghaben and Hamad Brothers as Defendants, or note that they have been dismissed without
prejudice. [See dkt. 218.] As to these issues and Defendants’ additional objections to the notice
[see Defs.’ Resp. at 15], Plaintiffs are directed to meet and confer with Defendants and file an
agreed motion by 4/6/22 for approval of an amended proposed Notice and Consent, or setting out
in no more than two pages the parties’ respective positions as to the form.
Finally, to assist in the distribution of notice, Plaintiffs additionally request an order
instructing Defendants to produce within seven days the names, last known addresses and email
addresses of prospective opt-in plaintiffs in Microsoft Excel format. [Pls.’ Mot. at 2-3, 15.] They
also request the visible posting of a copy of the court-approved notice in Defendants’ business
premises in Illinois, an order precluding Defendants from securing any releases or waivers from
27
their employees of their FLSA claims, and an order compelling Defendants to “enclose the courtapproved notice in pay envelopes in English and in Spanish to all of Defendants’ current
employees.” [Pls.’ Mot. at 11-12.] Defendants do not respond to these requests, and have
accordingly waived any objection to them, which are granted in part as unopposed.11 See Alioto,
651 F.3d at 721. Accordingly, within seven days of this Court’s approval of an amended proposed
Notice and Consent, Defendants shall produce the names, last known addresses and email
addresses of prospective opt-in plaintiffs in whatever format such information is stored and may
be made accessible to Plaintiffs, so that Plaintiffs may issue notice and one subsequent reminder
by U.S. postal mail and email (in English and Spanish). In the event that Defendants still operate
any of the operative store(s) within the scope of the collectives and have employees there,
Defendants shall post the Court-approved Notice within seven days of its approval and include the
notice in potential opt-in plaintiffs’ next pay envelopes (in both English and Spanish versions, if
provided by Plaintiffs).
CONCLUSION
For each of the foregoing reasons, Plaintiffs’ renewed motion for conditional certification
and issuance of notice pursuant to U.S.C. § 216(b), [dkt. 194], is granted in part and denied in part,
consistent with this opinion. An agreed motion is due by 4/6/22 for approval of an amended
proposed Notice and Consent, or setting out in no more than two pages the parties’ respective
positions as to the form. The parties also are directed to meet and confer on a proposed collective
discovery schedule, by 4/13/22. A Joint Status Report setting out their agreed proposed schedule,
11
Perhaps this is because, according to Defendants, they no longer operate MetroPCS franchise
locations in Chicagoland, and thus have no employees there. Perhaps these issues are even
undisputed. In any case, it is not clear from the parties’ filings, and the Court makes no
determination on such factual matters at this point.
28
or stating the parties’ respective positions on it (rather than argument), is due by 4/20/22. All other
previously ordered dates to stand.
SO ORDERED.
Dated: 3/23/22
BETH W. JANTZ
United States Magistrate Judge
29
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