McCoy, et al. v. Over Easy Management, Inc., et al.

Filing 37

MEMORANDUM AND ORDER granting 24 Motion to Certify Class. Consent to Join Forms at documents 9 , 10 , 16 , 17 are approved by the Court. See Order for details. Signed by District Judge Eric F. Melgren on 4/9/2015. (cm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

PATRICIA A. McCOY, et al., individually
and on behalf of all others similarly situated,
Plaintiffs,

vs.

Case No. 14-CV-01309-EFM

OVER EASY MANAGEMENT, INC., et al.,
Defendants.

MEMORANDUM AND ORDER
Plaintiffs Patricia A. McCoy, Retta A. Feldkamp, and Christina L. Reeves, on behalf of
themselves and all others similarly situated, filed this wage and hour suit against Defendants
Over Easy Management, Inc., Over Easy LP, Over Easy Number IX, LP, Over Easy Number X,
LP, and Gregg A. Hansen alleging violations of the Fair Labor Standards Act and Kansas Wage
Payment Act. This matter is before the Court on Plaintiffs’ Motion for Conditional Certification
of Class Claims under § 216(b) of the FLSA (Doc. 24). Because the Court finds that Plaintiffs
have met the lenient standard for conditional certification, the Court grants Plaintiffs’ motion.
I.

Factual and Procedural Background

Plaintiffs brought this class action suit on September 19, 2014, alleging that the pay
policies and practices of their former or current employer, Defendants Over Easy Management,
Inc. (“OEM”), Over Easy LP (“OELP”), Over Easy Number IX, LP (“OELP#9”), Over Easy

Number X, LP (“OELP#10”), and Hansen violated the Fair Labor Standards Act, 29 U.S.C.
§ 201 et seq. (“FLSA”), and the Kansas Wage Payment Act (“KWPA”).

Defendants are

franchisees of Huddle House, a 24/7 diner-type restaurant that operates in twenty-one states.
Defendant Hansen is an officer and director of Defendant OEM. Defendant Hansen is directly
involved in the operation of the Huddle House Restaurants in Kansas. Defendant OEM is the
general partner of OELP#9 and OELP#10. OELP#9 is a Huddle House Restaurant located
within a “Pilot Flying J” truck stop in Emporia, Kansas. OELP#10 is a Huddle House Restaurant
located within a “Pilot Flying J” truck stop in Salina, Kansas. OELP#9 and OELP#10 are both
supervised by Karen Kersey as Regional Manager.
Plaintiffs have filed sworn declarations in support of their motion. These declarations
state that Plaintiff McCoy has been employed at the Salina Huddle House restaurant since
January 20, 2014. She initially worked as a server, was promoted to lead server, and now works
as a cook. The declarations also state that Plaintiffs Feldkamp and Reeves are former employees
of the Salina Huddle House restaurant, where they worked as servers. Finally, the declarations
provide that opt-in Plaintiff Tracey Francis has worked at the Salina Huddle House restaurant
since September 4, 2012, as a server.
Plaintiffs allege the following facts: (1) Defendants deducted time for breaks of less than
thirty minutes from the time that servers and cooks at the restaurants worked; (2) Defendants did
not make the necessary disclosures to servers about how tips were to be recorded and paid to
them; (3) Defendants’ payroll system improperly computed the tips earned by servers, causing
them to retain Plaintiffs’ earned tips; (4) servers were required to wash dishes in addition to those
duties normally performed by wait staff; and (5) Defendants failed to pay McCoy over-time for
time worked in excess of forty hours per week.

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Plaintiffs ask the Court for an Order conditionally certifying a class of all persons
described as: “Cooks and servers employed at Huddle House restaurants in Salina and Emporia,
Kansas, operated by Over Easy Management, Inc., Over Easy LP, Over Easy Number IX, LP,
Over Easy Number X, LP, and Gregg Hansen, from September 19, 2013 to the Present.”1 In
addition, Plaintiffs ask the Court to (1) order Defendants to provide the names, last known
addresses, and telephone numbers of putative class members in an easily malleable format; (2)
designate McCoy, Feldkamp, and Reeves as class representatives and their counsel as class
counsel; and (3) approve Plaintiffs’ notice of claim and right to opt-in form and consent to join
forms.
II.

Legal Standard

The FLSA permits legal action “against any employer . . . by any one or more employees
for and in behalf of himself or themselves and other employees similarly situated.”2 Unlike class
actions pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure, a collective action
brought under the FLSA includes only those similarly-situated individuals who opt into the
class.3 But the FLSA does not define what it means to be “similarly situated.” Instead, the
Tenth Circuit has approved an ad-hoc, two-step approach to § 216(b) certification claims.4 The

1

Motion for Conditional Certification, Doc. 24, p. 2.

2

29 U.S.C. § 216(b).

3

See id. (stating that employees must give written consent to become party plaintiffs).

4

Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir. 2001). Although Thiessen involved
a collective action brought under the Age Discrimination in Employment Act (“ADEA”), the Tenth Circuit
explicitly noted that the ADEA adopts the class action opt-in mechanism set out in § 216(b) of the FLSA. Id. at
1102. For that reason, Thiessen controls the analysis in this case. See Peterson v. Mortgage Sources Corp., 2011 WL
3793963, at *4, n.12 (D. Kan. Aug. 24, 2011).

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ad hoc approach employs a two-step analysis for determining whether putative opt-in plaintiffs
are similarly situated to the named plaintiff.5
First, in the initial “notice stage,” the court “determines whether a collective action
should be certified for purposes of sending notice of the action to potential class members.”6
The notice stage “require[s] nothing more than substantial allegations that the putative class
members were together the victims of a single decision, policy, or plan.”7 The standard for
conditional certification at the notice stage is lenient and typically results in certification for the
purpose of notifying potential plaintiffs.8
The second step of the ad hoc approach occurs after discovery.9 At this stage, the district
court applies a stricter standard and reviews the following factors to determine whether the opt-in
plaintiffs are similarly situated: (1) the disparate factual and employment conditions of the
individual plaintiffs; (2) defenses available to the defendant that are individual to each plaintiff;
and (3) other fairness and procedural conditions.10

5

Thiessen, 267 F.3d at 1102-03.

6

Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676, 679 (D. Kan. 2004).

7

Thiessen, 267 F.3d at 1102 (citations omitted) (internal quotation marks omitted).

8

See, e.g., id. at 1103; Pack v. Investools, Inc., 2011 WL 3651135, *3 (D. Utah Aug. 18, 2011); Smith v.
Pizza Hut, Inc., 2011 WL 2791331, at *5 (D. Colo. July 14, 2011); Sloan v. Renzenberger, 2011 WL 1457368, at *3
(D. Kan. Apr. 15, 2011).
9

Thiessen, 276 F.3d at 1102-03. The second stage in the certification analysis is most often prompted
by a motion for decertification. Id.
10

Id. at 1103 (citations omitted). The court in Thiessen discussed a fourth factor irrelevant to claims
brought under the FLSA. See Peterson, 2011 WL 3793963, at *4, n. 13.

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III.
A.

Analysis

Conditional Certification under FLSA § 216(b)
The parties agree that this case is in the notice stage for collective action certification

under § 216(b) as little discovery has occurred. Plaintiffs argue that potential class members are
similarly situated because the servers employed by Defendants and the cooks employed by
Defendants performed the same duties. Plaintiffs further argue that Defendants treated all
servers and all cooks the same by failing to make, keep, and preserve accurate records of
Plaintiffs’ wages, hours, and conditions of work, by failing to pay them for all the time that they
worked, and by improperly retaining tip money from the servers’ pay.
Defendants assert two arguments in response. First, Defendants argue that Plaintiff
McCoy is not similarly situated to the putative class members she purports to represent.
Defendants assert that none of the other declarants have held positions as lead servers or cooks
and that Plaintiff McCoy is the only plaintiff to allege that she was denied overtime
compensation. The Court has recognized that “[a] fundamental requirement of maintaining a
class action is that the representatives must be members of the classes or subclasses they seek to
represent.”11 Defendants’ argument, however, is unpersuasive. Plaintiffs seek to conditionally
certify a class of persons who worked as “servers or cooks” at the Kansas Huddle House
restaurants. Plaintiff McCoy was employed first as a server, then as lead server, and then as a
cook at the Salina Huddle House restaurant. The fact that Plaintiff McCoy has been employed in
various positions in the restaurant does not disqualify her from being a class representative for
putative plaintiffs who were also employed as servers and cooks in the restaurants.
11

Stubbs v. McDonald’s Corp., 227 F.R.D. 661, 665 (D. Kan. 2005) (citing Clayborne v. Omaha Pub.
Power Dist., 211 F.R.D. 573, 580 (D. Neb. 2002)).

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Next, Defendants argue that if a class is conditionally certified, that class should be
limited to servers at the Salina Huddle House restaurant. Before looking at whether the proposed
class should be limited to the Salina restaurant, the Court will examine whether the class should
be limited to servers instead of both servers and cooks. Defendants argue that the class should be
limited to servers because according to Plaintiff McCoy’s declaration, when she became a cook
she was paid $7.25 per hour—the required minimum wage for non-tipped employees.
Defendants argue that none of the other declarants worked as cooks and that Plaintiff McCoy is
the only declarant to allege that she was not paid overtime wages as a cook. According to
Defendants, this is not sufficient evidence upon which the Court could certify a class consisting
of both cooks and servers.
The Court disagrees. Defendants ignore the statements in Plaintiff McCoy’s declaration
stating that all cooks had the same duties, that management deducted time for breaks of less
thirty minutes, that management failed to pay cooks for all time worked, and that the
management’s pay practices applied to all cooks.

These statements qualify as substantial

allegations that the cooks were “together the victims of a single decision, policy, or plan”12 and
are sufficient to grant conditional certification at this stage for a class that includes cooks.
Defendants also argue that the Court should limit the proposed class to those employed at
the Salina Huddle House restaurant. According to Defendants, such limitation is appropriate
because Plaintiffs provide no evidence, and have no personal knowledge, regarding the duties or
compensation of the servers and cooks at the Emporia restaurant. Plaintiffs’ complaint, however,
alleges that the servers and cooks at the Emporia restaurant were subject to the same pay policies

12

Thiessen, 267 F.3d at 1102.

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and practices as the servers and cooks at the Salina restaurant. In addition, the complaint alleges,
and Defendants admit, that Defendant Hansen is directly involved in the operation of both the
Salina and Emporia restaurants.

Because Defendant Hansen was directly involved in the

operation of both restaurants, the Court reasonably infers that the pay practices at the Emporia
restaurant were the same as, or at least very similar to, those at the Salina restaurant. Plaintiffs’
allegations are sufficient to satisfy the lenient threshold for conditional certification. If, however,
after additional discovery, Defendants learn that the pay practices at the Emporia restaurant are
not similar to those alleged at the Salina restaurant, Defendants may file a motion to decertify the
class.
The Tenth Circuit does not require any quantum of evidence to be produced at the notice
stage. This district has often stated: “Generally, where putative class members are employed in
similar positions, the allegation that defendants engaged in a pattern or practice of not paying
overtime is sufficient to allege that plaintiffs were together the victims of a single decision,
policy or plan.”13 Here, Plaintiffs’ complaint and declarations allege (1) that all cooks at the
Salina Huddle House restaurant performed the same duties and that all servers at the Salina
restaurant performed the same duties; (2) that Defendant Hansen was directly involved in the
operation of both the Salina and Emporia Huddle House restaurants; (3) that Defendants did not
pay servers for all the tips they earned; (4) that management improperly deducted time for breaks
of less than thirty minutes for both servers and cooks; and (5) that Defendants failed to pay cooks
for overtime compensation. The Court finds these allegations to be substantial and therefore

13

Renfro v. Spartan Computer Servs., 243 F.R.D. 431, 433-34 (D. Kan. 2007).

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concludes that conditional certification is appropriate for sending notice to putative class
members.
B.

Proposed Notice of Claims and Consent to Join Forms
Plaintiffs submitted a proposed Notice of Claim and Right to Opt-In form (the “Notice”)

and four Consent to Join forms for the Court’s review. The Court will first examine Plaintiffs’
proposed Notice.
District courts have the discretion to monitor the preparation and distribution of collective
action notices.14 When exercising this discretion, courts must ensure fair and accurate notice and
should refrain from altering the proposed notice absent strict necessity.15 Here, Defendants made
five specific objections to Plaintiffs’ proposed Notice of Claim and Right to Opt-In. Plaintiffs
agree with two of Defendants’ suggested changes and provide the Court with a revised Notice in
its reply. The Court approves these modifications and addresses the remaining objections
below.16
Defendants’ Objection No. 1, Disclaimer: The Court overrules Defendants’ objection
regarding the placement of the disclaimer, i.e. that the Court has not expressed an opinion
regarding the merit of the lawsuit, in the Notice. Defendants argue that the disclaimer should be
placed on the first page of the Notice, but they cite no specific authority or evidence supporting

14

Hoffman-LaRoche, Inc. v. Sperling, 493 U.S. 165, 172 (1989); see also Lewis v. ASAP Land Exp., Inc.,
2008 WL 2152049, at *2 (D. Kan. May 21, 2008).
15

Sloan v. Renzenberger, Inc., 2011 WL 1457368, at *4 (D. Kan. Apr. 15, 2011) (citations omitted).

16

The Court finds that the revised Notice properly includes: (1) a heading similar to that shown in the form
notice suggested by the Federal Judicial Center; (2) a statement informing potential plaintiffs that they may be
required to pay Defendants’ costs if they are unsuccessful; and (3) a statement informing potential plaintiffs that
they may be required to travel. See Revised Notice, Doc. 33-1.

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such placement.17 In addition, the disclaimer in the Federal Judiciary Center’s form notice does
not appear at the beginning of the notice.18 Plaintiffs therefore are not required to change the
placement of the disclaimer in the proposed Notice.
Defendants’ Objection No. 2, Formatting: The Court overrules Defendants’ objection
that Plaintiffs’ use of all capital letters and boldface type to highlight the headings is improper.
The Court should not “alter a plaintiff’s proposed notice unless such alteration is necessary.”19
Plaintiffs’ proposed format is useful and not prejudicial.

In addition, the Federal Judicial

Center’s form notice also contains headings with all capital letters and boldface type.20
Defendants Objection No. 3, Identification of Defense Counsel:

Defendants’

objection is overruled. Plaintiffs are not required to include information about Defendants’
counsel in the Notice.

This Court agrees with the reasoning set forth in Wass v. NPC

Internationl, Inc.,21 regarding the exclusion of such information: “ ‘Defense counsel does not
play a role in managing the distribution of the notice or the gathering of consent forms.
Including additional lawyers only creates the potential for confusion of those who receive the
notice.’ ”22

17

See Creten-Miller v. Westlake Hardware, Inc., 2009 WL 2058734, at *2 (D. Kan., Jul. 15, 2009)
(denying the defendant’s request to place the disclaimer at the beginning of the notice).
18

Federal Judicial Center, http://www.fjc.gov (last visited April 9, 2015).

19

Lewis, 2008 WL 215049, at *2.

20

Federal Judicial Center, http://www.fjc.gov (last visited April 9, 2015).

21

2011 WL 1118774 (D. Kan. Mar. 28, 2011).

22

Id. (quoting Cryer v. Intersolutions, Inc., 2007 WL 1053214, at *3 (D.D.C. Apr. 7, 2007).

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Turning to the four Consent to Join forms submitted by Plaintiffs, the Court notes that
Defendants have not objected to the forms’ format or substance. The Court has reviewed them
and has no objections as well. Therefore, they are approved.
C.

Certification under Fed. R. Civ. P. 23 of Plaintiffs’ KWPA Claims
Defendants argue that Plaintiffs have failed to meet their burden to certify a class under

Fed. R. Civ. P. 23 for their KWPA claims. In their reply, however, Plaintiffs clarify that they are
not seeking certification under Rule 23. Instead, they are only seeking conditional certification
under § 216(b) of the FLSA. Therefore, the Court need not consider at this time whether
Plaintiffs’ state law claims should be certified under Rule 23.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Conditional Certification of
Class Claims under § 216(b) of the FLSA (Doc. 24) is GRANTED, and a plaintiff opt-in class is
certified as set forth herein. Plaintiffs are authorized to send out notice, as set forth herein, to
each potential member of the class. Defendants are ordered to provide Plaintiffs with the names,
addresses, and telephone numbers of putative class members in an easily malleable format, such
as Microsoft Excel. Patricia A. McCoy, Retta A. Feldkamp, and Christina L. Reeves are
appointed as class representatives, and their counsel, Ayesh Law Offices, is designated class
counsel. In addition, the Court approves the Consent to Join forms filed by Thomas J. Weigel
(Doc. 9), Marvin Greenlee (Doc. 10), Tracey Francis (Doc. 16), and Lori Ann Morrell (Doc. 17).
IT IS SO ORDERED.
Dated this 9th day of April, 2015.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

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