Biggio et al v. H2O Hair Inc. et al

Filing 44

ORDER AND REASONS granting in part and denying in part 27 Motion to Certify Class; granting in part and denying in part 32 Motion for Partial Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CARRIE BIGGIO, ET AL.

CIVIL ACTION

VERSUS

NO. 15-6034

H20 HAIR INC., ET AL.

SECTION "B"(2)
ORDER AND REASONS

Before the Court are Plaintiffs’ “Motion to Conditionally
Certify Collective Action and Equitably Toll Limitations Period”
and Defendants’ “Motion for Partial Summary Judgment.” Rec. Docs.
27, 31. Defendants filed a Memorandum in Response to the motion
for conditional certification and Plaintiffs’ filed a Reply. Rec.
Docs. 34, 40. Plaintiffs also filed an opposition to the motion
for partial summary judgment and Defendants filed a Reply thereto.
Rec. Docs. 33, 43.
IT

IS

ORDERED

that

the

Motion

to

Conditionally

Certify

Collective Action and Equitably Toll Limitations Period is GRANTED
IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that the Motion for Partial Summary
Judgment is GRANTED IN PART and DENIED IN PART.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 18, 2015, Plaintiffs, Carrie Biggio and Chelsea

Luminais (collectively “Plaintiffs”), filed the present action
under the Fair Labor Standards Act (“FLSA”) against their former
employer asserting claims individually and on behalf of all those

similarly situated. Rec. Doc. 1 at 1-2. Plaintiffs worked fulltime

at

H2O

Hair,

Inc.

(“H2O”)

under

numerous

job

titles,

including, but not limited to: apprentice, stylist, masseuse,
blow-dry bar attendant, receptionist, assistant, and housekeeper.
Rec. Doc. 1 at 2. Named as Defendants in the action are H2O,
Michael

John

Gaspard,1

Holli

M.

Gaspard,2

and

XYZ

Insurance

Company.3 Rec. Doc. 1 at 2. Plaintiffs assert a number of claims,
including: (1) failure to pay minimum wage and overtime as mandated
by the FLSA; (2) retaliation against Plaintiffs and those similarly
situated who requested proper wages under the FLSA; (3) conversion
and misappropriation; (4) unjust enrichment; and (5) failure to
pay overdue wages following termination as required by LA. STAT.
ANN. § 23:621 et seq. Rec. Doc. 1 at 3-6. Plaintiffs seek unpaid
back

wages,

liquidated

damages,

punitive

damages,

costs,

and

attorney’s fees among other forms of relief applicable under
Louisiana and federal law. Rec. Doc. 1 at 6-7.
Shortly

after

filing

the

complaint,

Plaintiffs

filed

an

“Emergency Motion for Protective Order” urging the Court to enjoin
Defendants

from

communicating

with

Putative

Class

Members

following Defendants’ mailing of letters and checks to former

John Michael Gaspard served, at all relevant times, as H2O’s manager,
secretary, and treasurer. Rec. Doc. 1 at 2.
2 Holli Gaspard served, at all relevant times, as the president of H2O. Rec.
Doc. 1 at 2.
3 XYZ Insurance Company is, upon Plaintiffs’ information and belief, the
unnamed insurer providing coverage to Defendants for acts or omissions of
officers and directors. Rec. Doc. 1 at 2.
1

employees. Rec. Doc. 13. The Court granted in part and denied in
part

the

Plaintiffs’

motion,
request

requiring
to

bar

corrective
all

future

action

but

denying

communication

between

Defendants and potential class members. Rec. Doc. 23. Plaintiffs
then filed the present motion to conditionally certify the class.
II.

LAW AND ANALYSIS

a. Motion for Partial Summary Judgment
Defendants move for partial summary judgment, urging the Court
to dismiss with prejudice the following claims asserted in the
complaint: unjust enrichment claims under state law, state law
claims under LA. STAT. ANN. §§ 23:631-632, state law tort claims for
misappropriation and conversion, claims for prejudgment interest,
claims

for

punitive

damages

under

the

FLSA,

and

claims

for

compensatory damages for unpaid or underpaid wages. Rec. Doc. 31
at 1. Plaintiffs’ memorandum in opposition presents a host of
arguments in attempt to retain those claims.
1. State Law Claims
Plaintiffs’ Complaint alleges a number of state law claims in
addition to claims under the FLSA. See Rec. Doc. 1. Defendants
urge the Court to dismiss most of these claims on preemption
grounds, among others reasons. See Rec. Doc. 31-1. Plaintiffs’
primary defense with respect to maintaining the state law claims
is that those claims are not preempted or subsidiary because they
are based on separate and distinct “gap wages” owed to Plaintiffs.

Rec. Doc. 33 at 2-6. However, Plaintiffs’ Complaint makes no
mention of gap wages, nor does it imply that such wages are owed
in addition to the wages sought under the FLSA. See Rec. Doc. 1.
Accordingly, Plaintiffs are granted leave to amend their Complaint
to properly assert claims for gap wages, if such claims have a
basis in the law. See Whitmire v. Victus, Ltd., 212 F.3d 885, (5th
Cir. 2000) (“Leave to amend pleadings ‘shall be freely given when
justice requires.’”); Stover v. Hattiesbrug Public Sch. Dist., 549
F.3d 985, 989 n.2 (5th Cir. 2008) (recognizing that, when an
opposition to a motion for summary judgment raises new claims,
district courts should construe it as a motion to amend the
complaint). By permitting Plaintiffs to amend their complaint to
more fully outline their claims for gap wages, the Court will be
in a better position to assess the validity of Plaintiffs’ state
law

claims

and

Defendants’

challenges

thereto.

Following

the

period for amendment of the Complaint, Defendants may timely reurge their motion with respect to the state law claims.
2. Permissible Penalties under the FLSA
Plaintiffs’ complaint seeks all “compensatory and punitive
damages as called for in the FLSA.” Defendants maintain that
punitive damages are not recoverable under the FLSA for non-payment
of minimum wage or overtime wages or for violation of the FLSA’a
anti-retaliation provision. Rec. Doc. 31-1 at 2-3. Defendants also
contend that the FLSA does not support an award of compensatory

damages for failure to pay minimum wage or overtime wages. Rec.
Doc. 31-1 at 7.
A. Punitive damages for violations of anti-retaliation
provisions
Defendants argue that 29 U.S.C. § 216(b) does not support
punitive

damage

awards

for

violations

of

the

FLSA’s

anti-

retaliation provision in 29 U.S.C. § 215(a)(3). Rec. Doc. 31-1 at
3. Plaintiffs aver that the language of the statute does support
punitive damage awards. Rec. Doc. 33 at 8. The statute specifically
states that: “Any employer who violates the provisions of section
215(a)(3) of this title shall be liable for such legal or equitable
relief as may be appropriate to effectuate the purposes of section
215(a)(3).” 29 U.S.C. § 216(b). While the Seventh Circuit has
specifically found that this language supports punitive damage
awards, Travis v. Gary Community Mental Health Center, Inc., 921
F.2d 108, 112 (7th Cir. 1990), the Fifth Circuit has yet to address
the issue. Nevertheless, several district courts in this Circuit
have, finding that punitive damages are not recoverable. See, e.g.,
Douglas v. Mission Chevrolet, 757 F. Supp. 2d 637, 640 (W.D. Tex.
2010); Adams v. Cedar Hill Indep. Sch. Dist., No. 13-2598, 2014 WL
66488, at *7 (N.D. Tex. Jan. 8, 2014).
In reaching their decisions, those courts pointed to the Fifth
Circuit’s directive “that the remedies provisions of the FLSA and
the

Age

Discrimination

in

Employment

Act

(“ADEA”)

must

be

interpreted consistently.” Douglas, 757 F. Supp. 2d at 639 (citing
Lubke v. City of Arlington, 455 F.3d 489, 499 (5th Cir. 2006)). In
Dean v. American Security Insurance Company, 559 F.2d 1036, 1038
(5th Cir. 1977), the Fifth Circuit found that the term “legal or
equitable relief” did not include punitive damages in the ADEA
context. Thus, other courts in this Circuit followed the Fifth
Circuit’s directive to interpret the FLSA consistently by refusing
to permit punitive damages in the FLSA anti-retaliation context as
well.

This

Court

finds

that

line

of

reasoning

persuasive.

Plaintiffs may not recover punitive damages pursuant to the FLSA’s
anti-retaliation provision.
B. Punitive damages and compensatory damages for failure
to pay minimum wage or overtime wages
Section 216(b) provides the following remedy for failure to
pay minimum wage or overtime wages:
Any employer who violates the provisions of
section 206 or section 207 of this title shall
be liable to the employee or employees
affected in the amount of their unpaid minimum
wages, or their unpaid overtime compensation,
as the case may be, and in additional equal
amount as liquidated damages.
29 U.S.C. § 216. By the plain language of the statute, compensatory
and punitive damages are not permitted for violations of section
206 and 207 covering minimum wage and overtime wages. Plaintiffs’
opposition presents no arguments to the contrary, providing only
the

conclusory

assertion

that

those

sections

“do

allow

such

claims.” Rec. Doc. 33 at 7. While courts should interpret the FLSA
broadly as a remedial statute, “its reach is still cabined by the
statutory language.” Powell v. Carey Int’l, Inc., 514 F. Supp. 2d
1302, 1324 (S.D. Fla. 2007).
C. Pre-judgment Interest
Plaintiffs’ Complaint seeks “pre-judgment and post-judgment
interest at the highest rates allowed by law.” Rec. Doc. 1 at 7.
Defendants claim that pre-judgment interest is not recoverable
under § 216(b) of the FLSA because the Act provides for liquidated
damages. Rec. Doc. 31-1 at 8-9. In addressing this issue, the
Supreme Court of the United States stated: “Interest is not
recoverable in judgments obtained under Section 16(b). . . . To
allow

an

employee

to

recover

the

basic

statutory

wage

and

liquidated damages, with interest, would have the effect of giving
an employee double compensation for damages arising from delay in
the payment of basic minimum wages.” Brooklyn Sav. Bank v. O’Neil,
324 U.S. 697, 715 (1945). See also Reich v. Tiller Helicopter
Services, Inc., 8 F. 3d 1018, 1031 (5th Cir. 1993). Plaintiffs’
opposition ignores Defendants’ argument and instead cites to two
cases out of the Second Circuit that found pre-judgment interest
permissible under § 217 of the FLSA and 42 U.S.C. § 1983. Rec.
Doc. 33 at 10 (citing Donovan v. Sovereign Sec., Ltd., 726 F.2d
55, 58 (2d Cir. 1984); Gierlinger v. Gleason, 160 F.3d 858, 87374 (2d Cir. 1998)). In light of the Supreme Court’s explicit

command, those cases have no bearing on the permissibility of prejudgment interest under § 216(b). Accordingly, this Court finds
pre-judgment interest unrecoverable under 29 U.S.C. § 216(b).
Therefore, Defendants’ Motion is granted with respect to the claims
for unwarranted relief under FLSA but denied without prejudice
with respect to the state law claims.
b. Motion to Conditionally Certify
Equitably Toll Limitations Period

Collective

Action

and

Defendants do not oppose conditional certification of the
collective action. Rec. Doc. 34 at 1-2. Rather, they oppose certain
language in Plaintiffs’ Proposed Oder and Proposed Notice, which
are attached to the Motion. Rec. Doc. 34 at 2-8. Following the
parties’ exchange of briefs,4 the remaining issues boil down to
three paragraphs in the Proposed Order and one paragraph in the
Proposed Notice. See Rec. Docs. 34, 40.
1. Issues with the Proposed Order
A. Paragraph Two
The second paragraph of the Proposed Order currently reads:
Defendants shall within ten (10) days of the
date of the this Order, provide to Plaintiffs’
counsel a list of all Putative Class Members,
including first and last name, last known
address,
telephone
numbers
and
email
addresses, dates of employment, and date of
birth of all conditionally certified Putative
Class Members who were employed on or after
January 8, 2013.
Plaintiff’s Reply brief made a number of concessions on issues raised by
Defendants, limiting those that the Court must address.
4

Rec. Doc. 27-13. Defendants take issue with the following: (1) the
ten

day

period

within

which

to

respond

with

the

required

information; (2) providing phone numbers and e-mail addresses of
putative class members; and (3) providing the date of birth for
putative class members. Rec. Doc. 34 at 4-5. Plaintiffs concede to
taking out the date of birth request but continue to advocate for
the other two provisions. Rec. Doc. 40 at 2.
Defendants request twenty days instead of ten to provide
Plaintiffs’ counsel a list of the contact information for the
putative class members, but they provide no reason why it would
take

twenty

days

to

compile

that

information.

Despite

the

Defendants’ failure to provide reasons for an extended period, the
Court finds that it is not unusual to provide Defendants more time
than ten days to gather the information requested. See, e.g., Mejia
v. Brothers Petroleum, LLC, No. 12-2842, 2014 WL 3530362, at *4
(E.D La. July 16, 2014) (providing thirty days to produce names,
mailing addresses, and e-mail addresses). Accordingly, twenty days
is fair and appropriate.
Defendants also claim that the Notice should be sent via
regular mail, and that the Court should not require them to provide
e-mail addresses and telephone numbers. Defendants maintain that
doing so would lead to a barrage of calls and emails soliciting
them to join the lawsuit. First, this Court’s earlier Order and
Reasons (Rec. Doc. 23) warned against the use of coercive tactics

in communicating with potential class members. The Court continues
to expect all parties to act in concert with those orders. Further,
the Court finds production of telephone numbers unnecessary as
“notice by both e-mail and first-class mail is both routine and
reasonably calculated to accomplish the broad remedial goals of
the notice provision of the FLSA.” Prejean v. Obrien’s Response
Mgmt., Inc., No. 12-1045, 2013 WL 5960674, at *10 (E.D. La. Nov.
6, 2013). See also Mejia, 2014 WL 3530362 at *4 (giving defendants
30 days “to provide plaintiffs with a computer-readable data file
containing all potential opt-in plaintiffs’ names, last known
mailing addresses, and email addresses.”).
B. Paragraph Five
Paragraph five of the proposed order reads: “Plaintiffs’
counsel may mail additional Notices subsequent to the initial
Notice as is necessary to ensure all Putative Class Members are
provided adequate Notice.” Rec. Doc. 27-13. Defendants contend
that such a provision creates the potential for abusive tactics.
Rec. Doc. 34 at 5-6. Plaintiffs respond by offering to change the
paragraph to permit only a reminder notice halfway through the
notice period. Rec. Doc.
“There is a split among district courts as to whether reminder
notices to putative class members are proper in FLSA actions.”
Garcia v. TWC Admin., llc, No. 14-985, 2015 WL 1737932, at *6 (W.D.
Tex. Apr. 16, 2015). However, courts in this Circuit have found

that reminder notices are unnecessary absent specific reasons why
a

reminder

is

needed

to

ensure

sufficient

notice

under

the

circumstances of a particular case. Id.; Santinac v. Worldwide
Labor Support of Illinois, Inc., 107 F. Supp. 3d 610, 619 (S.D.
Miss. 2015). Here, Plaintiffs provided the Court with no reason
why this case justifies a reminder notice. See Rec. Doc. 40 at 4.
Accordingly,

the

Court

denies

the

request

without

prejudice,

permitting Plaintiffs the opportunity to later file a motion
requesting reminder notices be sent if they can demonstrate a
compelling reason for such a reminder.
C. Paragraph Eight
Paragraph eight of the Proposed Order reads: “The Statute of
Limitations is hereby tolled from the date of January 8, [2016]5
until

ninety

(90)

days

after

the

approved

Notice

is

sent.”

Defendants object to the equitable tolling of the statute of
limitations in this matter, noting that tolling is a moot issue
for the named Plaintiffs and those who have already opted-in. Rec.
Doc. 34 at 6. Additionally, Defendants argue that Plaintiffs have
not established any facts that justify tolling in this scenario.
Rec. Doc. 34 at 6. Plaintiffs maintain that equitable tolling is
justified here because Defendants actively misled putative class
members regarding the cause of action. Rec. Doc. 27-1 at 15.

The Proposed Order actually says January 8, 2013, but Plaintiffs’ counsel
later acknowledged the typographical error and indicated he meant for it to
read January 8, 2016.
5

Under the FLSA, “an employee may commence an action within
two years after the cause of action accrues or, if it is a willful
violation, within three years.” Vargas v. Richardson Trident Co.,
No. 09-1674, 2010 WL 730155, at *9 (S.D. Tex. Feb. 22, 2010)
(citing 29 U.S.C. § 255(a)). The limitations period begins to run
for

named

plaintiffs

when

the

suit

is

filed

and

for

opt-in

plaintiffs on the date of opting-in. Vargas, 2010 WL 730155 at *9.
“In the Fifth Circuit, equitable tolling for FLSA limitations is
rare and applies only in extraordinary circumstances.” Mejia v.
Bros. Petroleum, LLC, No. 12-2842, 2014 WL 3853580, at *2 (E.D.
La. Aug. 4, 2014) (citing Teemac v. Henderson, 298 F.3d 452, 457
(5th Cir. 2002)). “Courts apply equitable tolling most frequently
where ‘the plaintiff is actively misled by the defendant about the
cause of action or is prevented in some extraordinary way from
asserting his rights.” Id. at *1 (quoting Teemac, 298 F.3d at 457).
“The party who invokes equitable tolling bears the burden of
proof.” Id.
Here, Plaintiffs have not demonstrated that any putative
class members are unable to assert claims due to the limitations
period. Their argument for equitable tolling is wholly contingent
on future events that may never occur. Accordingly, this Court
finds that the question of equitable tolling is not ripe for
adjudication at this time. Cf. U.S. v. Harrison, No. 10-40131,
2012 WL 1476073, at *1 (D. Kan. Apr. 27, 2012) (holding, in the

context of a § 2255 motion, that the question of equitable tolling
is ripe for adjudication only once the statute of limitations has
been raised as an issue). Plaintiffs may raise the question at a
later time if the statute of limitations poses an issue for a
putative class member.
2. Issue with the Proposed Notice
Defendants take issue with Part III of the Proposed Notice,
which addresses who can join the lawsuit:6
All current and former employees may join the
case if you were properly employed by the
Defendants at any time during the past three
(3) years and you are owed properly calculated
wages under the law. If you recently received
a letter or compensation from the Defendants,
your rights in this lawsuit are not affected
and you may also join for properly calculated
wages and other damages. If Plaintiffs are
successful, individuals who receive notice and
who timely submit an “Opt-In Form” may be
entitled to receive payment of their properly
calculated unpaid wages. You may also be
entitled
to
liquidated
damages,
prejudgment/post-judgment interest, compensatory
and punitive damages, penalties and damages
relating to La. R.S. § 23:632, attorney’s
fees, and other costs.
Rec. Doc. 27-12 at 2. Defendants claim that the portion discussing
damages misrepresents the scope of permissible recovery and that
the paragraph should only identify who can join, not what they
could expect to gain from the suit. Rec. Doc. 34 at 4-5. Plaintiffs
respond that the notice only notifies them of the entire lawsuit
Defendants initially took issue with two other portions of the Proposed
Notice, but Plaintiffs have since conceded on those issues.
6

and does not make promises of riches as Defendants allege. Rec.
Doc. 40 at 3-4. Based on the earlier discussion regarding the
motion for partial summary judgment (striking some claims and
leaving some active pending an amended complaint) and that section
of the Notice’s purpose to identify class members, this Court finds
that no discussion of potential damages or remedies is needed.
Accordingly, Part III should be amended to read:
III.
WHO CAN JOIN THE LAWSUIT
All current and former employees of the named
Defendants who are currently employed, or were
employed during the past three (3) years, who
have unpaid minimum wages, and those who have
not been paid time and one-half for hours in
excess of forty (40) hours per week. If you
recently received a letter or compensation
from the Defendants, your rights in this
lawsuit are not affected.
III. CONCLUSION
Based on the foregoing discussion,
IT IS ORDERED that the Motion for Partial Summary Judgment is
GRANTED IN PART and DENIED IN PART. The Motion is granted insofar
as Plaintiff’s claims for punitive damages under the FLSA, claims
for compensatory damages under 29 U.S.C. §§ 206-207, and claims
for pre-judgment interest on unpaid minimum wages and unpaid
overtime wages are DISMISSED WITH PREJUDICE. The Motion is denied
without prejudice with respect to Plaintiff’s state law claims.
Plaintiffs have fourteen (14) days from the date of this Order to
file an amended complaint asserting the gap wages claims raised in

their opposition to the Motion for Partial Summary Judgment.
Following the period for amendment, Defendants may re-urge their
motion for summary judgment with respect to the state law claims.
IT IS FURTHER ORDERED that the Motion to Conditionally Certify
Collective Action and Equitably Toll Limitations Period is GRANTED
IN PART and DENIED IN PART. The motion is denied without prejudice
with respect to the issue of equitable tolling. It is granted with
respect to conditional certification, subject to the following
orders. In addition to the agreements and concessions previously
made by the parties,
IT IS ORDERED that:
1) The following class is conditionally certified for the
purposes

of

Plaintiffs’

collective

action

claims:

All

current and former employees of the named Defendants who
are currently employed, or were employed at any time during
the past three (3) years, who have unpaid minimum wages
and unpaid overtime wages.
2) Defendants shall, within twenty (20) days of the date of
this Order, provide Plaintiffs’ counsel with a computerreadable

data

file

containing

all

potential

opt-in

plaintiffs’ names, last known mailing addresses, and email
addresses.
3) The Notice of Pendency of Lawsuit (“the Notice”) and the
Plaintiff

Consent

Form

attached

as

Exhibit

11

to

Plaintiffs’ Motion to Conditionally Certify Class (Rec.
Doc. 27-12) are hereby approved subject to the changes
mandated above and the agreements previously reached by
the parties.
4) The Notice for opting in must be mailed by Plaintiffs’
counsel to the putative class members within fifteen (15)
days following Plaintiffs’ counsel’s receipt of the abovereferenced data file with the contact information for
potential class members.
5) Plaintiff Consent Forms must be postmarked and deposited
in the U.S. Mail on or before ninety days following the
first mailing of the Notice.
6) Each

form

shall

be

marked

with

the

date

received

by

counsel, and Consents to join will be treated as filed on
the date marked, so long as they are filed with the Court
within one week of the date marked.
New Orleans, Louisiana, this 14th day of March, 2016.

____________________________
UNITED STATES DISTRICT JUDGE