Meriwether v. Beverly Hills Liquor & Grocery Inc. et al

Filing 32

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiffs' motion to conditionally certify collective action [# 18 ] is denied. IT IS FURTHER ORDERED that class action certification on Count II of the complaint is denied as plaintiff failed to timely move for class certification. IT IS FURTHER ORDERED that plaintiff's motion to compel [# 13 ] is denied. IT IS FURTHER ORDERED that defendant's motion to strike [# 21 ] is denied. Signed by District Judge Catherine D. Perry on January 17, 2014. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARY MERIWETHER, individually )
and on behalf of all others similarly )
situated,
)
)
Plaintiff,
)
)
vs.
)
)
BEVERLEY HILLS LIQUOR &
)
GROCERY INC., et al.,
)
)
Defendants.
)

Case No. 4:13 CV 651 CDP

MEMORANDUM AND ORDER
Plaintiff was a cashier at Beverley Hills grocery and liquor store from
August 2009 until February 2011. Beverley Hills is jointly owned by defendants
Mike Jabbar and his son Tim Jabbar. Plaintiff alleges that she and other similarly
situated employees were denied overtime compensation at a rate equal to one-andone-half times their regular rate of pay for all hours worked in excess of 40 hours
per week. Plaintiff brings a collective action for unpaid compensation under the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., on behalf of herself and
others similarly situated.1 Plaintiff now moves for conditional certification of this

1

Plaintiff’s complaint also seeks to certify a class action under Federal Rule of Civil
Procedure 23 for a state law statutory claim under the Missouri Minimum Wage Law (MMWL),
Mo. Rev. Stat. § 290.500 et seq. However, plaintiff did not timely move for class certification
under the provisions of the case management order and admitted during oral argument on her

case as a collective action under FLSA so that she may notify certain of
defendants’ past and present employees of this action and provide them the
opportunity to “opt in” as plaintiffs to this litigation.2 Defendant opposes
conditional certification on various grounds. I held a hearing on plaintiff’s motion
on January 9, 2014. After careful consideration of the arguments of the parties
made during that hearing, as well as the briefs and exhibits previously filed, I must
deny plaintiff’s motion for the reasons that follow.
Background
Plaintiff’s cashier duties included operating the cash register, greeting
customers, some stocking of shelves, operating the lottery terminal, cleaning,
occasionally ordering inventory, and other miscellaneous duties. Her normal
schedule was Monday through Friday, 8:00 a.m. to 3 p.m., which amounts to 35
hours per week. Since April 2010, Beverley Hills has employed approximately 15
cashiers (usually no more than five at one time), three of which are salaried
motion for conditional certification that she had abandoned her class action claim set out in Count
II of her complaint. Therefore, class action certification will be denied on plaintiff’s state law
claim.
2

Plaintiff seeks to hold not only Beverley Hills Liquor & Grocery liable as her employer,
but also owners Mike and Tim Jabbar. Defendants do not dispute this for FLSA purposes, but
object to plaintiff’s attempt to conditionally certify a class which includes not only Beverley
Hills’ employees, but also employees of any business owned by Tim Jabbar. I need not reach this
issue because I find that plaintiff has failed to demonstrate that conditional certification is
appropriate even with respect to the employees of Beverley Hills, much less the employees of
unrelated businesses owned by one of the defendants.
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employees. Plaintiff was classified as a non-exempt employee. Beverley Hills had
three stock boys during this time period, and they were non-exempt employees,
too.
Beverley Hills recorded hours worked by its non-exempt employees in a
ledger kept in the manager’s office known as the “bluebook.” All cashiers and
managers have access to the bluebook.3 Cashiers were told to write down their
hours in the bluebook as worked. However, if a cashier arrived late, she might be
expected to just stay late to make up the time even if the bluebook showed her
coming and going on her normal schedule. Some times were also scratched out in
the bluebook.4 Thus, the bluebook may not have always accurately reflected the
times an employee actually clocked in and out, even though defendants contend
that it accurately reflected the amount of time actually worked. Employees were
paid on a weekly basis in cash and never received a paycheck or paystub
documenting their wages. They were required to sign a weekly payroll register
showing hours worked before getting their money. The payroll report does not

3

Stock boys do not. Managers record their time for them in the bluebook.

4

Defendants claim that these scratch outs were done either by the employees themselves or
by managers with the knowledge and consent of employees to reflect times actually worked.
Plaintiff disputes this and claims that defendants altered bluebook time entries, but in her
deposition she admits that she could not name any other cashiers whose time entries were
improperly altered.
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contain an hourly rate of pay, does not show how many hours were worked per
day, and incorrectly states that employees were paid by check.5
Plaintiff alleges that she worked extra shifts but was told not to record them
in the bluebook because “we don’t pay overtime.”6 She claims that she was paid in
cash separately for these extra shifts but that she did not receive overtime pay for
them. Plaintiff also alleges that she was not given any breaks.
Plaintiff did not file a verified complaint, and she did not sign an affidavit in
support of her motion for conditional certification. The sole affidavit submitted in
support of plaintiff’s motion is that of Patricia McCombs. [Doc. # 18]. McCombs
avers that she has personal knowledge of the facts asserted because she was a
cashier at Beverley Hills from March to April 2010,7 which is outside the statute of
limitations period for conditional certification purposes. Thus, McCombs is not
even a potential class member. McCombs states that “for any hours over forty (40)

5

If plaintiff’s allegations are taken as true, presumably the payroll report would not show
any overtime hours worked, either, because those hours were tracked separately and paid at the
end of her shift. Although unclear from the complaint or plaintiff’s brief, apparently this is the
basis for plaintiff’s allegation that she was “required to agree to falsified records of work hours in
order to maintain employment.” [Doc. # 1 ¶ 18].
6

In her deposition, plaintiff testified that she was told this in either June or July of 2010 by
defendant Tim Jabbar. No one else was present for this alleged conversation.
7

Although plaintiff’s counsel stated during oral argument that McCombs may have also
previously worked for another business owned by one of the defendants, he presented no
evidence to confirm this and, in any event, McCombs does not aver that her knowledge comes
from her employment anywhere other than Beverley Hills.
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hours per week worked, I was not paid time-and-a-half, was paid cash, and the
hours were not recorded by Defendants.” [Doc. # 18-5 ¶ 5]. She also claims that
“[d]efendants altered my time sheets in a ‘bluebook’ kept to track cashier hours.”
[[Doc. # 18-5 ¶ 8]. McCombs avers that “[f]or hours worked beyond a set
schedule, defendants would pay me separately in the form of cash” and that she
saw other cashiers “get paid in the same illegal fashion.” [Doc. # 18-5 ¶ ¶ 8-9].
Yet McCombs actually only worked two weeks for Beverley Hills, with five hours
in one week and nineteen hours the second.
With the instant motion, plaintiff requests an order granting conditional class
certification certifying this case as a collective action and authorizing plaintiff to
send notice under § 216(b) of the FLSA to “all current and former employees of
defendants who work as cashiers in excess of forty (40) hours in a workweek and
were denied overtime compensation at a rate of one-and-one-half times their
regular rate of pay” for a three year period.
Discussion
Section 7 of the Fair Labor Standards Act mandates that an employer may
not subject non-exempt employees to a work week in excess of 40 hours unless the
employee is compensated for her overtime with additional pay of at least one and
one half times her regular hourly wage. 29 U.S.C. § 207. The Act also provides
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that any employer who violates this restriction “shall be liable to the employee or
employees affected in the amount of their . . . unpaid overtime compensation . . .
and in an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).
An action to recover the overtime and liquidated damages may be
maintained “by any one or more employees for and on behalf of himself or
themselves and other employees similarly situated.” Id. The FLSA does not define
the term “similarly situated.”8 Although the Eighth Circuit Court of Appeals has
not decided the standard to determine whether potential opt-in plaintiffs are
“similarly situated” under § 216(b), the district courts in this circuit use a two-step
analysis. See e.g., Simmons v. Enterprise Holdings, Inc., 2011 WL 855669, *2
(E.D. Mo. Mar. 9, 2011); Littlefield v. Dealer Warranty Services, LLC, 679 F.
Supp. 2d 1014, 1016 (E.D. Mo. 2010); Parker v. Rowland Express, Inc., 492 F.
Supp. 2d 1159 (D. Minn. 2007); Davis v. Novastar Mortgage, Inc., 408 F. Supp.
2d 811 (W.D. Mo. 2005); Dietrich v. Liberty Square, L.L.C., 230 F.R.D. 574 (N.D.
Iowa 2005); McQuay v. American International Group, Inc., 2002 WL 31475212

8

A 216(b) collective action differs from class actions brought under Rule 23 of the Federal
Rules of Civil Procedure. Davis v. Novastar Mortgage, Inc., 408 F. Supp. 2d 811, 814-15 (W.D.
Mo. 2005). A primary distinction is that under FLSA a similarly situated employee must “opt-in”
to the collective action to be bound by it, whereas under Rule 23, a similarly situated employee
must “opt-out” to avoid being bound by the judgment. Id. See also Grayson v. K Mart Corp., 79
F.3d 1086, 1096 (11th Cir. 1996) (noting that the “similarly situated” standard is considerably less
stringent than Rule 23(b)(3) class action standards).
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(E.D. Ark. 2002).
As is typical under the two-step process, plaintiff has moved for conditional
certification for notice purposes at an early stage of the litigation. See Davis, 408
F. Supp. 2d at 815. At this first step in the process, I do not reach the merits of her
claims. Kautsch v. Premier Communications, 504 F. Supp. 2d 685, 688 (W.D. Mo.
2007); Hoffmann v. Sbarro, Inc., 982 F. Supp. 249, 262 (S.D.N.Y. 1997) (citation
omitted). Plaintiff’s burden at this stage is not onerous. See Kautsh, 504 F. Supp.
2d at 688; Smith v. Heartland Automotive Services, Inc., 404 F. Supp. 2d 1144,
1149 (D. Minn. 2005) (burden at first stage is “not rigorous”). Conditional
certification at the notice stage requires “nothing more than substantial allegations
that the putative class members were together the victims of a single decision,
policy or plan.” Davis, 408 F. Supp. 2d at 815. “Plaintiffs need not show that
members of the conditionally certified class are actually similarly situated.” Fast v.
Applebee’s International, Inc., 2007 WL 1796205, *3 (W.D. Mo. June 19, 2007).9
However, plaintiff must establish a colorable basis for her claim by providing
“more than the mere averments in [her] complaint.” Severtson v. Phillips Beverage
Co., 141 F.R.D. 276, 278-79 (D. Minn. 1992); Jost v. Commonwealth Land Title

9

That determination is made during the second step of the process, after the close of
discovery. Id.
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Ins. Co., 2009 WL 211943, *2 (Jan. 27, 2009). The burden may be met by
“detailed allegations supported by affidavits,” Grayson v. K Mart Corp., 79 F.3d
1086, 1097 (11th Cir. 1996), but “[u]nsupported assertions that FLSA violations
were widespread and that additional plaintiffs” exist do not meet this burden.
Hayes v. Singer, Co., Inc., 696 F.2d 884, 887 (11th Cir. 1983). “Determining
whether such a collective action is the appropriate means for prosecuting an action
is in the Court’s discretion.” Heartland, 404 F. Supp. 2d at 1149 (citation omitted).
Once the Court conditionally certifies the class, potential class members are given
notice and the opportunity to “opt-in.” Parker, 492 F. Supp. 2d at 1159.
At the second step of the process, the defendant may move to decertify the
class. See Dernovish v. AT&T Operations, Inc., 2010 WL 143692, *1 (W.D. Mo.
Jan. 12, 2010). This is typically done after the close of discovery when I have
more information and am able to make a factual determination as to whether the
members of the conditionally certified class are similarly situated. See Davis, 408
F. Supp. 2d at 815. To be similarly situated, however, “class members need not be
identically situated.” Fast, 2007 WL 1796205, *4 (W.D. Mo. June 19, 2007).
I find that plaintiff has failed to meet her relatively low burden of
demonstrating that conditional certification is appropriate. Plaintiff has not come
forward with substantial allegations that she and the other members of the
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proposed collective action were victims of a single decision, policy or plan to
deprive them of overtime compensation. Although plaintiff points to defendants’
failure to keep adequate time and pay records as evidence of a common policy,
both parties agree that there is no private right of action for record-keeping
violations under the FLSA. See Vengurlekar v. Silverline Technologies, Ltd., 220
F.R.D. 222, 230 n.8 (S.D.N.Y. 2003). While evidence of an unlawful recordkeeping system may support plaintiff’s allegation that defendants’ records were
inaccurate, it does not demonstrate that plaintiff and other potential class members
were victims of a common policy or plan to violate the FLSA by denying them
overtime compensation.10 There is certainly evidence in the record to support
plaintiff’s individual claim that she was denied overtime compensation.11 This is
not enough for conditional certification, though, because plaintiff must also “show
that there is some factual basis beyond the mere averments in [her] complaint for

10

The same is true of plaintiff’s argument that cash payments to employees represent a
common policy or plan. The fact that all employees were paid in cash -- something which
plaintiff does not allege violates the law -- does not mean they were subject to a common policy
to deny them overtime compensation. Although not explicitly argued, I make the same finding
with respect to plaintiff’s claims about defendants taking cash drawer shortages out of the
cashier’s pay.
11

This evidence was not supplied by plaintiff. Unverified allegations in a complaint are
not evidence, see Jost, 2009 WL 211943, at *2, and plaintiff signed no affidavit in support of her
motion. Although defendants initially provided only excerpted portions of plaintiff’s deposition
testimony in opposition to conditional certification, they later provided her entire deposition and I
have read and considered it.
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the class action allegations.” West v. Border Foods, Inc., 2006 WL 1892527, *2
(D. Minn. July 10, 2006) (citations and quotations omitted).
Here, plaintiff has been unable to demonstrate that she is similarly situated
to any other employee. In her deposition testimony, plaintiff admits that she cannot
identify any potential class member other than herself who was not properly paid
overtime wages or whose hours were improperly altered so as not to reflect
overtime hours worked. Defendants Mike and Tim Jabbar testified that the scratch
outs in the bluebook were either made by the employee or by a manager to more
accurately reflect hours actually worked, not to prevent an employee from
recording overtime hours. Although plaintiff offers the Jabbars’ deposition
testimony in support of her motion, it does nothing to demonstrate that plaintiff
was similarly situated to any other potential class members or that she and potential
class members were subject to a common policy, plan or scheme to deny them
overtime pay. The Jabbars both testified that there is no such policy and that
cashiers are trained when hired to properly record all time worked.
The only affidavit offered in support of conditional certification is that of
McCombs, which does not support plaintiff’s class claim, either.12 McCombs is
12

In the pending motion to strike McCombs’ affidavit [Doc. #21], the parties spend a great
deal of time arguing about whether I should consider McCombs’ affidavit using the more rigorous
requirements of Fed. R. Civ. P. 56 – which would require it to be excluded unless it met the test
for admissibility – or whether I should apply a more lenient standard given the nature of the
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not a potential class member and worked at Beverley Hills for a few hours over a
very short period of time. More importantly, she never worked any overtime. That
she never received overtime pay, then, is of no moment to the question of whether
defendants actually had a common policy of denying overtime compensation for
those employees who actually worked overtime. The remainder of her affidavit is
so vague and conclusory as to be devoid of any usefulness to the Court,
particularly when it uses stilted language written in such a way as to conceal the
fact that she never actually worked any overtime for Beverley Hills. See Wacker v.
Personal Touch Home Care, Inc., 2008 WL 4838146, *3-*4 (Nov. 6, 2008) (where
defendant demonstrated that plaintiff’s sole affidavit in support of certification was
not true, was not based on actual personal knowledge, and was submitted by an
affiant who did not actually work 40 hours per week, denial of conditional
certification was appropriate). What I am left with, then, is no evidence -- either by
affidavit or deposition -- that any potential class member other than the plaintiff
ever worked overtime without overtime pay. That plaintiff’s rights may have been
violated under the FLSA, however, is insufficient to demonstrate that conditional

proceedings. I need not resolve this issue because I conclude that, under any standard, McComb’s
affidavit is not helpful and does not support plaintiff’s claims of the existence of a common policy
or plan to deprive Beverley Hills employees of overtime compensation. Accordingly, I will deny
the motion to strike as I have considered the affidavit and accorded it such weight as I deemed
appropriate.
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certification is warranted.
It is important to note that I make no rulings on the merits of this case, which
will be addressed at a later time, nor have I considered the affidavits submitted by
defendants from other Beverley Hills cashiers who claim they were not paid
improperly.13 I also reject defendants’ arguments that an alleged lack of interest in
a collective action by potential class members is an appropriate factor to consider
when deciding whether to conditionally certify a collective action. See Ondes v.
Monsanto Co., 2011 WL 6152858, *5 (Dec. 12, 2011). Although the burden on
plaintiff is not great, I find that plaintiff has not demonstrated that she is similarly
situated to any other potential class members based on the individualized evidence
presented.14 Accordingly, I will deny plaintiff’s motion for conditional
certification.
Finally, after careful consideration I will deny the pending motion to compel.
Accordingly,
IT IS HEREBY ORDERED that plaintiffs’ motion to conditionally certify

13

Defendants play their own game of “hide the ball” by submitting affidavits from cashiers
who are actually salaried (and therefore exempt) employees as evidence that conditional
certification is not warranted.
14

Considering the substantial nature of the allegations made by plaintiff regarding her own
FLSA claim and defendants’ woefully inadequate record-keeping procedures, I would urge the
parties to make a serious effort to resolve this dispute through mediation rather than continued
litigation.
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collective action [#18] is denied.
IT IS FURTHER ORDERED that class action certification on Count II of
the complaint is denied as plaintiff failed to timely move for class certification.
IT IS FURTHER ORDERED that plaintiff’s motion to compel [#13] is
denied.
IT IS FURTHER ORDERED that defendant’s motion to strike [#21] is
denied.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 17th day of January, 2014.

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