Armstrong v. Genesh Inc.

Filing 32

MEMORANDUM AND ORDER granting 15 defendant's Motion to Strike Plaintiff's Reply in Support of Motion for Conditional Class Certification; granting 25 plaintiff's Motion for Conditional Class Certification of Class Claims Under § 216(B) of the FLSA. Signed by District Judge Carlos Murguia on 12/12/2011. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GABRIEL ARMSTRONG
On behalf of himself and all others
similarly situated,

Plaintiff,
v.

GENESH, INC.,
Defendant.

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Case No. 11-1161-CM

MEMORANDUM AND ORDER
Plaintiff Gabriel Armstrong brings this putative collective action under the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201, et seq., claiming that his employer, defendant
Genesh, Inc., has a practice and policy of failing to pay straight time and overtime compensation
owed to plaintiff and other similarly situated employees. Defendant operates fifty-two Burger
King restaurants in Missouri and Kansas, and plaintiff is a Salaried Assistant Manager at a
Burger King. This matter is before the court on two motions: plaintiff’s Motion for Conditional
Class Certification of Class Claims Under § 216(B) of the FLSA (Doc. 15) and defendant’s
Motion to Strike Plaintiff’s Reply in Support of Motion for Conditional Class Certification (Doc.
25). The court issues the following rulings on the motions.
I.

Motion to Strike Reply

Defendant asks the court to strike pages 12–15 of plaintiff’s reply brief and the five
exhibits offered for the first time in support of the argument contained in those pages. Defendant
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correctly notes that this court ordinarily declines to consider new arguments and evidence
offered for the first time in a reply brief. See Liebau v. Columbia Cas. Co., 176 F. Supp. 2d
1236, 1244 (D. Kan. 2001) (“Courts in this district generally refuse to consider issues raised for
the first time a reply brief.”). Plaintiff offered evidence in his reply brief that appears to have
been available to submit with his motion for conditional certification. While plaintiff submitted
the evidence in response to defendant’s argument that plaintiff had not adequately supported his
motion, the court believes that the evidence would have been more properly submitted with
plaintiff’s motion—not with the reply brief, effectively depriving defendant of the opportunity to
respond. The court could consider the newly-submitted evidence and give defendant an
opportunity to respond, but the court believes this measure is unnecessary. The court will
consider the merits of plaintiff’s motion without considering pages 12–15 of the response or the
five exhibits referenced therein. Defendant’s motion to strike is granted.
II.

Motion for Conditional Certification

Conditional certification of a class under the FLSA requires compliance with the FLSA
class action mechanism, which states: “An action to recover the liability prescribed in either of
the preceding sentences may be maintained . . . by any one or more employees for and in behalf
of himself or themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Whether
an employee may maintain a § 216(b) class action, then, depends on whether he or she is
“similarly situated” to other members of the putative class. Although § 216(b) does not define
the term “similarly situated,” the Tenth Circuit has endorsed the ad hoc method of determination.
Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001).

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Under the ad hoc method, “a court typically makes an initial ‘notice stage’ determination
of whether plaintiffs are ‘similarly situated.’” Id. at 1102 (citation omitted). This initial
determination “‘require[s] nothing more than substantial allegations that the putative class
members were together the victims of a single decision, policy, or plan.’” Id. (citation omitted);
see also Hadley v. Wintrust Mortg. Corp., No. 10-2574-EFM, 2011 WL 4600623, at *2 (D. Kan.
Oct. 3, 2011); Shockey v. Huhtamaki, Inc., 730 F. Supp. 2d 1298, 1300 (D. Kan. 2010). This
standard is a lenient one. Williams v. Sprint/United Mgmt. Co., 222 F.R.D. 483, 485 (D. Kan.
2004).
“Because the court has minimal evidence, [the notice stage] determination . . . typically
results in ‘conditional certification’ of a representative class.” Mooney v. Aramco Servs. Co., 54
F.3d 1207, 1214 (5th Cir. 1995). The “similarly situated” standard is considerably less stringent
than Rule 23(b)(3) class action standards. Grayson v. K-Mart Corp., 79 F.3d 1086, 1096 (11th
Cir. 1996). Ordinarily, the court makes the determination fairly early in the litigation, before the
parties complete discovery. Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676, 679 (D. Kan.
2004). And in making the determination, the court does not reach the merits of the plaintiff’s
claims. Hoffman v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997) (citation omitted).
The court must therefore determine whether plaintiff has offered substantial allegations
that members of the putative class are similarly situated. As suggested above, a plaintiff can
demonstrate that he and putative class members are similarly situated by showing that they were
subject to a common policy. Brown, 222 F.R.D. at 679; Hoffman, 982 F. Supp. at 261 (“[C]ourts
have held that plaintiffs can meet this burden by making a modest factual showing sufficient to

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demonstrate that they and potential plaintiffs together were victims of a common policy or plan
that violated the law.”).
The putative class members identified in plaintiff’s amended complaint are:
those employees, and former employees, of Defendant who worked in the
position of Assistant Manager, or who otherwise had similar job duties and
compensation structures as those of the Plaintiff employed in the capacity of
Assistant Managers, who were suffered or permitted to work by Defendant while
not being paid all straight time compensation and overtime premiums at one and
one-half times their regular rate of pay for all hours worked per week in excess of
forty (40).
(Doc. 12, at 2.) Plaintiff alleges that, as a policy, defendant expects Assistant Managers to work
110 hours per two-week pay period. Defendant pays Assistant Managers based upon the number
of hours they work in a two-week period, reduced to the nearest five-hour increment. Plaintiff
alleges that a statement by Jennifer Robinson, defendant’s Payroll and HR Manager, best
demonstrates this policy: When plaintiff received a salary deduction in the amount of $44.59, he
asked Ms. Robinson why he received the deduction. Ms. Robinson responded, “I paid you that
because you only worked 105 hours. Just as I pay you more if you work more if you work less I
pay you less.” (Doc. 16-1, at 3.) According to plaintiff, this statement demonstrates the
company’s policy and practice of categorizing Assistant Managers as salaried employees, but
deducting pay from their salary if and when Assistant Managers work less than 110 hours.
Plaintiff states by affidavit that, based on his knowledge of defendant’s business practices
acquired through years of experience, he knows that most, if not all, of the Burger King stores
operated by defendant use Assistant Managers with similar job duties and compensation
structure.

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While the evidence presented by plaintiff is less than abundant, the court is bound by the
lenient standards governing conditional certification. This court has seen other motions with
stronger evidentiary support, but the breadth of support in other cases does not change the
Thiessen standard. Plaintiff has made substantial allegations that members of the class were
victims of a common policy. The court concludes that the above-cited evidence is sufficient to
conditionally certify a class.
In addition to seeking conditional certification, plaintiff seeks the following relief:
[(1)] an Order authorizing notice to be mailed to a class composed of all Assistant
Managers and other persons with similar job duties and compensation structures,
employed by Genesh Inc. (“Defendant”) within three years from the date of
certification, to the present, who were not paid all minimum wages and overtime
compensation due and owing; [(2)] an Order requiring Defendants to provide
Plaintiff with the names, addresses, and telephone numbers of each of the class
members in an easily malleable format, such as Microsoft Excel, in order to assist
with the issuance of class notice; [(3)] an Order requiring Defendant to post the
Notice of this lawsuit in conspicuous locations where such Assistant Managers
are employed; [(4)] an Order tolling the statute of limitations from the date of the
filing of Plaintiff’s Motion for Conditional Class Certification until the close of
the opt-in period; [(5)] an Order designating Gabriel Armstrong as class
representative; and [(6)] an Order approving Plaintiff’s counsel to act as class
counsel in this matter.

Defendant did not oppose any of these requests. Plaintiff’s requests are reasonable and in accord
with the relief that this court has granted in other cases granting conditional certification. The
court therefore grants plaintiff’s requests. Defendant shall provide plaintiff with the list
identified above within fifteen days of the entry of this Memorandum and Order. The proposed
Notice submitted by plaintiff shall be mailed within forty-five days of this Memorandum and
Order, and all consents must be received and filed with the court within 120 days of this

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Memorandum and Order. All other relief is granted as requested by plaintiff in the above-quoted
paragraph.
IT IS THEREFORE ORDERED that defendant’s Motion to Strike Plaintiff’s Reply in
Support of Motion for Conditional Class Certification (Doc. 25) is granted.
IT IS FURTHER ORDERED that plaintiff’s Motion for Conditional Class Certification
of Class Claims Under § 216(B) of the FLSA (Doc. 15) is granted.
Dated this 12th day of December, 2011, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

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