DING v. BAUMGART RESTAURANT, INC. et al

Filing 59

OPINION. Signed by Judge John Michael Vazquez on 1/30/2020. (dam, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GUI HUA DING,
Plaintiff

Civil ActIon No. 2:I8cv-lO358
OPINION

V.

BAUMGART RESTAURANT. INC..
BAUMGART’S NEXT DOOR, INC.,
GOU-FU WANG,
STEVE WU,
MARSHA WU,
THEAN CHOO CHONG.
Defàndants.

John Nlichael Vazcucz, U.S.D.J.

This matter comes before the Court on a motion for conditional collective action
certification pursuant to Section 216(b) of the Fair Labor Standards Act (“FLSA”) filed by named
Plaintiff Gui Hua Ding. Plaintiff is a former deliveryman at Defendant Baurngart Next Door, Inc.,
dib!a Baurngart’s Café.’ Plaintiff requests that the Court conditionally certify and provide notice

The relationship among the various Defendants is slightly unclear from the Complaint. Based
on explanations provided in the opposition briefs, it appears that Defendants GouFu Wang, Steve
Wu, and Marsha Wu owned and operated a restaurant known as Baumgart’s Café through an entity
called Baumgart Restaurant, Inc. At some point after Plaintiff began working there, possibly in
September of 2017. the restaurant was sold to Thean Choo Chong. who subsequently operated
Baurngart’s Café through an entity’ called Baumgart’s Next Door, Inc. Plaintiff alleges that

to a class ofall current and former non-exempt and non-managerial employees who were allegedly
not paid at least the minimum wage for all hours worked and compensated for overtime work as
required by the FLSA. D.E. 23. Defendants Baumgart Next Door, Inc. and Thean Choo Chong
(collectively, “Next Door”) filed a brief in opposition to Plaintiff? motion (D.E. 36) and
Defendants Baumgart Restaurant. Inc., Gou-Fu Wang. Steve Vu, and Marsha Wu (collectively,
“Resburant Group”) did the same (D.E. 37), to which Plaintiff replied (D.E. 40).2 The Court
reviewed all submissions made in support and in opposition to the motion, and considered the
motion without oral argument pursuant to L. Civ. R. 78,1(b). For the reasons stated below,
Plaintiffs’ motion is DENIED.
I.

FACTS AND PROCEDURAL HISTORY3
Named Plaintiff Ding filed his Complaint on June 10th, 2018, alleging that Defendants

Next Door and Restaurant Group failed to pay him minimum wage and compensate him for
overtime work as required by ELSA. He further claims that both groups of Defendants had a
policy and practice of underpaying other non-exempt and non-managerial employees.
Plaintiff was hired by Defendant Restaurant Group to work as a deliveryman on or about
October 1,2015. Compl. ¶ 35, D.E. 1. From then until September 30,2017, Plaintiff worked ten
and a half hours per day, five days a week. Id.

Ii 38. He also worked an additional five hours a

day, one day per week. Id. In addition to these regular duties, Plaintiff was on “driver duty” three
to four days a week, when he was required to shuttle other employees to and from a location in
working conditions differed for him under the different ownership regimes, but that both violated
Fl..SA.
2

Vhen appropriate, Next Door and the Restaurant Group are referred to as “Dcfendants”.

The fads are drawn from the Complaint (D.E. I) and an affidavit from Plaintiff that was
submitted in conjunction with the current motion (D.E. 24-5). This affidavit will be referred to as
the “Ding Aft”. Plaintiff’s memorandum in support (D.E. 25) will be referred to as ‘PW Br.”.

Queens, New York to the restaurant in Englewood, New Jersey. Id. ¶ 40. Driver duty constituted
an additional five hours per week during weeks when he was on duty three days a week and an
additional six hours and forty minutes when he was on duty four days a week. Id.

¶ 43. In all,

Plaintiff worked an avenge of 63.33 hours per week between October 1, 2015 and September 30,
2017. Id. ¶ 44. For these labors, Plaintiff was paid $300 per week and an additional $15 each day
that he was on driver duty. Id. 146.
From about October 1, 2017 to April 29, 2018, Plaintiff was employed at the same
restaurant by Defendant Next Door, also as a deliveiyman. id. ¶ 37. During this period, he worked
ten and a half hours per day, five days a week. Id.
same schedule. Id.

¶ 48. He also continued with driver duty on the

¶ 52. Therefore, Plaintiff worked an avenge of 58.33 hours per week from

October 1, 2017 to April 29, 2018. Id.

¶ 53. Plaintiff was paid S325 per week and an additional

$15 each day he was on driver duty. Id. ¶55. At no time during his employment by either
Defendant Restaurant Group or Defendant Next Door was Plaintiff given any time for break, nor
was he paid at one and a half times the minimum wage for hours worked above 40 hours per week.
Id. ¶157,58.
Plaintiff alleges that Defendants had a policy of rthsing to pay the statutory minimum
wage as well as overtime to other non-exempt and non-managerial employees. Id.

¶ 67. This

policy violates FISA’s requirement for employers to provide one and a half times the wage rate
for every hour worked in excess of 40 hours per week. Id. ¶71. Plaintiff seeks several forms of
relief, including compensation for unpaid minimum and overtime wages.3 Id. 181.

Plaintiff is also seeking reimbursement for out-of-pocket costs that he and other deliveiymen
incurred in the course of their delivery duties. Compl. 84. But this relief does not appear to
apply the larger class, in which Plaintiff seeks to include all non-managerial employees, including
those without delivery duties.
3

In support of the claim that other putative class members, i.e., all non-exempt, nonmanagerial employees in the three-year period prior to the filing of the claim, arc “similarly
situated,” Plaintiffhas submitted an affidavit regarding the hours and pay rates of other employees.
Discovery in this case is still in the early stages. None of the evidence from discovery has been
presented in support of the instant motion. Therefore, this Court must rely primarily on Plaintiff’s
affidavit.5
Plaintiff explains in his affidavit that he “know[s] that it is Defendants’ policy not to pay
any employee at time and a half rate for all of their overtime hours.” Ding AfT. ¶ 33. He knows
this “because [he has] talked with other employees, who has [sic] the same or similar working
schedule as [he does), and was told that they were also not paid for the total amount of time they
have worked, nor compensated for all of their overtime hours worked.” Id. Plaintiff mentions that
he is familiar with the hours and pay rate of several other deliveiymen. Two, Kai Yu and Li,
worked for Defendants” for approximately the same period of time as Plaintiff. Id. ¶ 37, 44.
Thile neither were drivers, both worked around 57.5 hours per week and were paid at a weekly
rate of $325. Id.

¶ 38, 40,45,47.

Plaintiff knows their hours and pay rates because lie worked

similar schedules to them and had heard them mention how much they had been paid. Id. ¶139,
41,46,48.
Plaintiff also claims knowledge of the hours and pay rates of employees other than
deliveiymen. Their job titles were receptionist, waiter, “general manager.” and chet Id.

¶1!

49,

54, 59, 64, 69, 74, 79. Each worked for Defendants (or one of the Defendants) at some point

Plaintiff also includes a “related case” complaint filed in this Court in 2015. D.E. 24-2. This
complaint, for reasons discussed below, is of little value to the present analysis.
Plaintiff does not distinguish between Defendant Restaurant Group and Defendant Next Door
when describing the pay of co-workers.
4

during Plaintiff’s tenure of employment. Id. 11j 51, 56, 61,66,71,76. Plaintiff worked alongside
each and was therefore familiar with their respective schedules and that each averaged more than
40 hours of work per week. Id.

¶11 52, 53, 57. 58, 62,

63, 67, 68, 72, 73, 77, 78, 82, 83. While

Plaintiff states that he knows it is “Defendants’ common policy to not pay its employees with
overtime pay or maintain accurate payroll records,” he does not explain how he knows that the
non-deliverymen employees were underpaid, other than that he “sincerely believe[s]

.

.

[they

were] also not paid minimum wages or overtime wages because all of us were paid the same way
and were given similar working schedules and pay rate.” Id.

¶C

84, 85. In addition to these

individuals, Plaintiff states that, upon information and belief, there are more than 40 members of
the proposed class. Compl. ¶25.
ft.

LEGAL STANDARD
The FLSA requires employers to pay overtime compensation for an employee’s work that

is in excess of forty hours per week. 29 U.S.C.

§ 207(a). Employees who work in a bonafide

executive capacity, however, are exempt from FLSA overtime requirements.

29 U.S.C.

§

21 3(a)( I). To qualify’ under the executive exemption, an employee must satisfy’ the criteria set
forth in 29 C.F.R.

§ 541.100, which requires that (I) the employee receive compensation on a

salary basis, (2) her primary duty is management of a recognized department, (3) she customarily
and regularly directs the work of two or more employees, and (4) she has authority to hire or fire
employees. 29 C.F.R.

§ 541.100. An employee’s primary duty is “the principal, main, major or

most important duty that the employee performs,” 29 C.F.R.

“

§ 541.700(a).7 Accordingly, if an

In addition, “concurrent performance of exempt and nonexempt work does not disqualify’ an
employee from the executive exemption if the requirements of § 541.100 are otherwise met.” 29
C.F.R. § 541.106(a). Whether the employee performs concurrent duties “is detcnnined on a caseby-case basis.” Id.
5

employee falls under the bona fide executive exemption, she is not entitled to overtime pay
pursuant to the FLSA. See Lava! v. Jersey City lions. Auth., No. 10-4416, 2011 WL 1792795, at
*6 (D.NJ. May 10,2011) (dismissing FLSA claim because plaintiff’s job responsibilities, which
included supervising and evaluating staff members, fell into the executive exemption).
The FLSA provides employees with a private right of action to bring a collective suit
against an employer to recover unpaid wages. Pursuant to 29 U.S.C.

§ 216(b), an employee and

additional “similarly situated” employees can file a collective action suit against an employer to
recover unpaid overtime compensation required by Section 207, The term “similarly situated,”
however, is not defined by the FLSA or the supporting regulations. See Rsqffbz v. Avis Budget Car
Rental, LW, No. 11-1069,2014 WL 294675, at *2 (D.N.J. Jan. 27,2014). As a result courts have
interpreted similarly situated to mean that a plaintiff must “produce some evidence, beyond pure
speculation, of a factual nexus between the manner in which the employer’s alleged policy affected
her and the manner in which it affected other employees.” Symezyk v. Genesis Health Care Corp.
(Symayk I), 656 F.3d 189, 193 (3d Cir. 2011), rev ‘d on other rounds 1v Genesis HealthCare
Corp. v. Svmczvk (Svmczyk II), 133 S. Ct. 1523 (2013). Further, “[n]o employee shall be a party
plaintiff to any such action unless he gives his consent in writing to become such a party and such

While the group of similarly situated employees is frequently called a class, there are a number
of key differences between a Rule 23 class action and an FLSA collective action. First, FLSA
collective action plaintiffs must “opt-in” to the class, rather than “opt-out,” which occurs in a Rule
23(b)(3) class action. Bobiyk v. Durand Glass Mfg., Inc., 50 F. Supp. 3d 637, 642 (D.N.J. 2014).
In addition, in a Rule 23 class, plaintiffs must establish that “the putative class meets the threshold
requirements of Rule 23(a) as well as one of the three Rule 23(b) categories.” Id. In contrast, in
an FLSA collective action, plaintiffs must only establish that they are “similarly situated.” Id. at
64142. Last, in a Rule 23 class action, the statute of limitations for the entire class is tolled when
a complaint is filed. For each individual FLSA collective action member, however, the statute of
limitations is only tolled when that employee files written consent to opt into the class. Adam! v.
Cardo Windows. Inc., No. 12-2804, 2015 VL 1471844, at *5 (D.N.J. Mar. 31,2015).

S

6

consent is filed in the court in which such action is brought.” § 216(b). Thus, employees must
actively “opt-in” to an FLSA collective action suit.9
The Third Circuit follows a two-step process for deciding whether a case may proceed as
an FLSA collective action. Caniesi v. VuW ofPittsburgh Med. Ctr., 729 F.3d 239, 243 (3d Cir.
2013). In the first step, a court must determine whether plaintiffs make “‘a modest factual
showing’ that the employees identified in their complaint are ‘similarly situated.” Id. (quoting
Zavala

i

Wal-Mart Stores Inc., 691 F.3d 527, 536 & n.4 (3d Cir. 2012)). If plaintiffs satis1’ this

burden, “the court will ‘conditionally ceftifr’ the collective action for the purpose of facilitating
notice to potential opt-in plaintiffs and conducting pre-kial discovery.” Mad4v

Gen. Elec. Co.,

59 F. Supp. 3d 675,681 (D.N.J. 2014) (quoting Zavcda, 691 F.3d at 536). A court usually considers
conditional certification after the parties have engaged in limited discovery. See. eg.. Goodman
v. Burlington Coat Facton, No. 114395, 2012 WL 5944000, at *l..2 (D.NJ. Nov. 20, 2012).
The tenu conditional certification is actually a misnomer. Conditional certification of an
FLSA matter does not produce a class with independent legal status and is not necessary “for the
existence of a representative action under the FLSA.” Svmczyk 1, 656 F.3d at 194. Rather, “[t]he
sole consequence of conditional certification is the sending of court-approved written notice to
employees, who in turn become parties to a collective action only by filing written consent with
the court.” Symczykll, 133 S. Ct. at 1530 (internal quotations omitted).
There is no express provision in the FLSA pertaining to court-facilitated notice to potential
opt-in plaintiffs. In HoJJinan-La Roche Inc.

i

Sperling, the Supreme Court concluded that district

courts have discretion, in appropriate Section 216(b) cases, to authorize and facilitate notice to

In response to “excessive litigation spawned by plaintiffs lacking a personal interest in the
outcome,” the FLSA was amended in 1947 to, among other things, add thc opt-in requirement.
Sec Hqfjinann-La Roche Inc. v. Sperling, 493 U.S. 165, 173 (1989).
‘

7

potential class members. 493 U.S. 165, 171 (l989)i° The Court stated that collective actions
allow plaintiffs to pool their resources and provide an efficient vehicle to resolve “common issues
of law and fact arising from the same alleged [wrongfUl) activity” in one proceeding. Id. at 170.
“These benefits, however, depend on employees receiving accurate and timely notice concerning
the pendency of the collective action.” Id. As a result, the Supreme Court concluded that trial
courts are responsible for ensuring that the joinder of additional plaintifTh is accomplished in an
efficient manner. Id. at 170-71. Early involvement in the notice process frequently permits district
courts to “manage collective actions in an orderly fashion” and ensures that notice is “timely,
accurate, and informative.” Id. at 172-73.

In facilitating notice, however, “courts must be

scrupulous to respect judicial neutrality” as it pertains to the merits of the action. Id. at 174.
For the second step, which usually occurs after the close of MI discovery, courts apply a
“stricter standard” to determine whether the plaintiffs are, in fact, similarly situated. Zavala, 691
F.3d at 535-36. To make this determination, courts “considerfl all the relevant fUctors and make[)
a determination on a case-by-case basis.” Id. at 536, While case specific, the relevant factors may
include whether employees have the same job description, are subject to the same compensation
plan, received the same training, or whether they advance similar claims and seek substantially the
same form of relief Id. at 536-37. Plaintiffs must establish by a preponderance of the evidence
that they are similarly situated. Id. at 537. In addition, just because a class was conditionally
certified at the first step does not mean that the class will also be certified at the second step. See,
e.g., Adam! v. Cardo Windows, Inc., No. 12-2804, 2016 WL 1241798, at *5_Il (D.NJ. Mar. 30,
2016) (decertiing class at second step because plaintiff failed to establish that lie was similarly

Hoffman-La Roche involved an age discrimination class under the ADEA, “which incorporates
enforcement provisions of the FLSA.” 493 U.S. at 167 (internal citation omitted).
8

situated to other employees). If plaintiffs satisfy their burden at the second step, “the case may
proceed to trial as a collective action.” S)’mcrj* 1, 656 F.3d at 193.
ilL

ANALYSIS
Under the first step as set forth by the Third Circuit Plaintiff here seeks to conditionally

certify a class of all non-managerial employees employed by “Defendants” with an opt-in period
of three years from the date of the Complaint. During the first step, courts apply “a thirly lenient
standard” to determine whether the employees are “similarly situated.” Mac/dy, 59 F. Supp. 3d at
681. It is sufficient if a plaintiff establishes that he “bring(s) the same claims and seek the same
form of relief.” Id. A plaintiff is not required to show that his position is identical to the position
of other potential class members. Rather, as noted, a plaintiff must “produce some evidence,
beyond pure speculation, of a factual nexus between the manner in which the employer’s alleged
policy affected [him] and the manner in which it affected other employees.” Ict (internal bracket
omitted) (quoting Svnsczvk 1, 656 F.3d at 193). In deciding whether to conditionally certify a class,
courts should considcr “all relevant factors and make a factual determination on a case-by-case
basis.” Id. Courts, however, should not assess the merits of either a plaintiffs claims or a
defendant’s defenses during the conditional certification stage. See Goodman

i

Burlington Coat

Factory, No. 114395,2012 WL 5944000, at *54 (D.N.3. Nov. 12,2012).
The Court concludes that Plaintiffhas not made a sufficient showing to warrant conditional
certification. While Ding’s affidavit shows that other deliverymen may be similarly situated to
him, it does not show that Ding’s experience is typical of the broader proposed class. Ding’s
affidavit does discuss two deliveiymen who allegedly worked more than 40 hours per week and
did not receive overtime payment. Although die affidavit is from Ding alone, he at least explains

9

that he knows how many hours the others worked since he worked alongside them. He also
explains that knows how much they were paid due to conversations he had with them.
But Ding does not adequately explain how he knows that other members of the class were
underpaid. He does provide evidence that employees holding a variety ofjob titles —chef, waiter,
receptionist—worked more than 40 hours per week. He does not provide sufficient infonnation,
however, that these individuals were paid less than they were legally owed. Plaintiffs conclusoty
statement that he “sincerely believe[s]” that all the employees he mentioned were not paid
minimum or overtime wages is not evidence. Nor is his conclusoiy claim that he “know[sJ it is
Defendants [sici common policy to not pay its employees with overtime pay[.J” Ding Aff. 184.
He does not say how he knows that it was Defendant’s common policy or provide any other
supporting evidence. Indeed, he does not mention the salaries of other employees at all. To claim
that he is similarly situated to all non-managerial employees, Plaintiff would have to adequately
show that their rights under FLSA were also violated. He only makes that showing for a narrow
subclass—deliverymen.
Plaintiffs attached related case complaint” likewise fails to demonstrate that other
employees were similarly situated to him. This complaint was filed in 2015. Its allegations
concern a chef and a waiter who worked more than 40 hours per week and were not paid overtime
wages. D.E. 24-2, ¶1165-80. However, the allegations address a period before Ding began working
for Defendants in October of 2015 and refer to actions that occurred more than three years before
the filing of Ding’s complaint. Id.. ¶‘ 68, 75. Such employees would therefore not even be
included in Ding’s proposed class. As a result, these allegations do not sufficiently support an

I0

inference that those in Ding’s proposed class werc similarly situated to these individuals or that
othcr employces in thc appropriate period werc similarly situatcd to Ding.’
In further support of the motion, Plaintiff cites to Yang v. Viii. Super Mkt., Inc. to claim
that his relatively sparse set of evidence meets the standard for conditional certification. Civ. No.
l8-cv-10486, 2019 WL 1275059 (D.N.J. Mar. 20, 2019). In Yang, the court granted certification
on the basis of an affidavit similar to Ding’s. Id. at *4_6. That case, however, is diffcrent from
the instant case in two ways. First, in Yang, Judge Walls analyzed the merits in the specific context
of claims by supermarket employees. Id. at *67 Second, in Yang, the plaintiff had provided

htv

affidavits, the first of which was from the plaintiff and the second of which echoed plaintiff’s
claim. Id, at *5
Plaintiff also relies on Purnaniasidi

i’.

lehiban Japanese Rest,, Civ. No. l0-cv-1549, 2010

WL 3825707 (D.N.J. Sept. 24, 2010). In that case, the plaintiff provided an affidavit from another
employee which noted that the employee “regularly [saw] other employees, such as waiters.
waitresscs, and bussers working the same hours and receiving the same type of pay as [he did.]”
lii at *10. The proposed class in that case was narrower, consisting only of “tipped •food service
workers.” Id. at

*

2. While the court granted certification, Judge Cavanaugh noted that the plaintiff

had only “presented the barest minimum” required to succeed. Id. at *9 The “barest minimum”—

Additionally, the plaintiffs in the related case did not work at Ding’s place of work. (D.E.. ¶J
65, 75). Although those plaintiffs claim that Defendant Restaurant Group treated employees of
their various restaurants interchangeably (Id., ¶ 58), Plaintiff Ding only makes allegations as to
one restaurant. The related case complaint also makes no allegations as to Defendant Next Door.
Finally, even with the benefit of affidavits in addition to the complaint, the motion for conditional
certification in that case was denied by Judge Salas. 5th Ozing 11a v. 4175 LLC, No. 15-5530,
2018 WL 1509090 (D.N.J. Mar. 27, 2018).
11

an affidavit stating that someone “regularly [sawj” other employees in the proposed class be
underpaid—is still more than what Ding has offered here.
Plaintiff also notes that Defendants violated New Jersey labor laws, including the
requirement to provide wage statements. PIL Br. at 8. While acknowledging that these are not
FLSA violations, Plaintiff claims that Defendants’ “common treatment” ofemployees by violating
these laws “further demonstrates” a factual nexus between the Plaintiff’s experience and that of
other employees. Id. Even assuming that this is a fuir inference, Ding only says that he did not
receive wage statements. Ding Alt IN 3 1-32. He presents no evidence that other employees had
a similar experience.
Ultimately, the issue here is not that Ding’s allegations are not credible’2 or, as Defendants

suggest, because they are inadmissible hearsay. Instead, the issue is that Ding has not provided
sufficient evidence of the pay rates of any employees other than deliverymen. This is a fatal error
when seeking to conditionally certifr a class much broader than just deliveiymen.
Plaintiff does correctly state that conditional certification can be granted despite members
of the proposed class possessing different job titles and responsibilities. PIf. Br. at 6-7. But Ding

has not shown a factual nexus between his experiences and those of members ofhis proposed class.
Plaintiff has not adequately shown that non-managerial employees, other than two other
deliverymen, were compensated similarly to him. Nor, other than a general “belief,” has he shown

any evidence that they were denied overtime pay. Ding’s offered evidence therefore does not show
that members of the proposed class are similarly situated to him.

12

Defendant Restaurant Group’s declarations from employees disputing Ding’s allegations are
not relevant—at this stage, this Court is not making decisions on the merits. See Goodman, 2012
WL 5944000, at *54 (declining to consider “happy campW’ declarations from the defendant since
that “inquiry necessarily addresses the merits of Plaintiff? claim and is therefore premature.”).
12

Accordingly, this Court dismisses the motion for notice without prejudice.
IV.

CLASS NOTICE
Since conditional certification will not be granted at this juncture. the Court does not reach

Plaintiffs other issues, such

as

the extent and manner of notice, the

opt—in

period, or whether the

period of limitations ought to be tolled.
V.

CONCLUSION
For the foregoing reasons, Plaintiffs’ motion is denied without prejudice. An appropriate

fom of Order accompanies this Opinion.
Dated: January 30, 2020

ie1aelVazci...J.

19

I,