Hathaway v. Smallcakes Steele Creek, LLC et al
ORDER granting 10 Motion to Certify Class. Signed by District Judge Frank D. Whitney on 9/7/21. (clc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
SMALLCAKES STEELE CREEK,
SMALLCAKES BALLANTYNE, LLC
THIS MATTER is before the Court on Plaintiff’s Motion to Conditionally Certify a
Collective Action and Facilitate Notice. (Doc. No. 10). The Motion has been fully briefed and is
ripe for review. (Doc. Nos. 14, 15). For the reasons stated below, the Court GRANTS Plaintiff’s
Motion, subject to the terms set forth herein. (Doc. No. 10).
Plaintiff Angela Hathaway, by and through her mother and guardian ad litem, and on behalf
of herself and those similarly situated, filed this action against Defendants on June 6, 2016. (Doc.
No. 1). Plaintiff alleges Smallcakes Steele Creek, Ian Bowleg, Smallcakes Ballantyne, and Ayanna
Bowleg (collectively, “Defendants”) have violated the Fair Labor Standards Act (“FLSA”), the
North Carolina Wage and Hour Act (“NCWHA”) and are liable for unjust enrichment under North
Carolina common law. (Doc. No. 1).
According to the Complaint, Plaintiff was hired as a cashier by Defendant Smallcakes
Ballantyne on or around January 2, 2021. (Doc. No. 1). As a cashier, Plaintiff was a non-exempt
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hourly tipped employee. Id. at p. 6. Tips were generally left by customers either by depositing cash
into the tip jar or by leaving a credit card tip. Id. Plaintiff alleges that, while some customers left
tips in the tip jar, the majority of Smallcakes customers tipped via Smallcakes’ credit card
processing system. Id. Plaintiff alleges Defendants allowed her and other similarly situated
employees to keep only the tips deposited in the tip jar. Id. Defendants are alleged to have
wrongfully retained the tips collected via the credit card processing system, which amounted to
significantly more money than the tips collected via the tip jar. Id. at pp. 6-7.
When Plaintiff confronted Defendants Ian and Ayanna Bowleg about her concerns,
Defendants allegedly told Plaintiff that she, and other hourly tipped employees, would be paid a
discretionary bonus in lieu of the credit card tips. Id. at pp. 7-8. At least one employee is alleged
to have not received a discretionary bonus. Id. at p. 7. Plaintiff further alleges Defendants Ian and
Ayanna Bowleg threatened to—and did—retaliate against Plaintiff if Plaintiff continued to “push
the issue of tip withholding.” Id. at p. 9. Such retaliatory actions allegedly included removing the
tip jar from the counter and cutting Plaintiff’s hours from “20 hours per week to five hours per
Plaintiff filed the instant lawsuit, seeking damages on behalf of herself and others similarly
II. MOTION TO CONDITIONALLY CERTIFY COLLECTIVE
Plaintiff filed the instant motion, seeking conditional certification of a collective action
pursuant to Section 216(b) of the FLSA. (Doc. No. 10). Defendant does not oppose conditional
certification. (Doc. No. 14, p. 2). Accordingly, the Court GRANTS Plaintiff’s Motion seeking
conditional certification of a collective action.
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Plaintiff also seeks this Court’s approval of her proposed Notice to be sent to alleged
collective members. (Doc. No. 11, p. 6). Defendants object to some of the content and language of
the proposed Notice. (Doc. No. 14). In her response, Plaintiff agrees to some, but not all, of the
changes proposed by Defendants. (Doc. No. 15, pp. 2). As such, the Court ORDERS the agreedupon changes to be incorporated into the Notice sent to alleged members of the collective.
As to the remaining proposed changes, the Court has “wide discretion in facilitating notice
to potential claimants.” Danford v. Lowe’s Home Ctrs., LLC, No. 5:19-cv-00041-KDB-DCK,
2019 WL 4874823, at *3 (W.D.N.C. Oct. 2, 2019) (citing Hoffman-La Roche Inc. v. Sperling, 493
U.S. 165 (1989)). The Court’s wide discretion includes the ability to alter the content of the notice.
Danford, 2019 WL 4874823, at *3; see also Moss v. Senior Care Carolinas, PLLC, No. 3:20-cv00137-FDW-DCK, 2020 WL 3472600, at *4 (W.D.N.C. June 25, 2020). The Court will address
each of Defendant’s remaining proposed changes, and Plaintiff’s responses in opposition, in turn.
First, Defendant seeks to change some of the language under “IX. FURTHER
INFORMATION.” (Doc. No. 14, p. 5). The Notice currently reads: “*You must timely return this
form to preserve your rights,” and Defendants propose the following change: “*You must timely
return this form in order to opt-in to the collective action filed by Miranda Hathaway. If you do
not want to participate in the collective action filed by Miranda Hathaway, you should not return
this form.” Id. Plaintiff objects to this change, arguing that the additional language is redundant of
the language contained under “VI. NO LEGAL EFFECT IN NOT JOINING THIS LAWSUIT.”
(Doc. No. 15, p. 2).
The Court agrees with Defendants that the language in the proposed Notice may be
confusing to potential plaintiffs, particularly because the language is emphasized with an asterisk.
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Accordingly, the Notice should be changed to read: “*You must timely return this form in order
to opt-in to the collective action filed by Miranda Hathaway. If you do not want to participate in
the collective action filed by Miranda Hathaway, you should not return this form.”
Second, Defendant objects to the following language on the proposed consent form, (Doc.
No. 10-2): “*Statute of limitations concerns mandate that you return this form as soon as possible
to preserve your rights.” The Court agrees with Defendants that the bolded language suggests to
potential plaintiffs that the only way they can preserve their rights is by joining the collective
action. Thus, the proposed consent form should remove the bolded language regarding the statute
Third, Defendants seeks to include language informing potential plaintiffs of their role in
the litigation. Defendants ask to include the following language in “V. EFFECT OF JOINING
THIS LAWSUIT”: “Opt-in plaintiffs may be required to participate in the discovery process by
producing documents, participating in oral depositions, and testifying at a hearing or trial.”
Plaintiff opposes such inclusion, arguing that courts have found notices need not include
information about the opt-in plaintiffs’ litigation costs and obligations. (Doc. No. 15, p. 3). The
Court is not persuaded by Plaintiff’s argument and finds Defendants’ proposed language to be
consistent with recent cases in this District. See Moss, 2020 WL 3472600, at *5 (approving
language informing opt-in plaintiffs about their discovery obligations “to ensure that each
individual is fully informed”); Danford, 2019 WL 4874823, at *8 (including language informing
opt-in plaintiffs of their discovery obligations in the court-approved Notice). Accordingly, to
ensure opt-in plaintiffs are aware of their potential obligations, the following language should be
added to the section entitled “V. EFFECT OF JOINING THIS LAWSUIT”: “Opt-in plaintiffs may
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be required to participate in the discovery process by producing documents, participating in oral
depositions, and testifying at a hearing or trial.”
Fourth, Defendants ask to include the following language under “V. EFFECT OF
JOINING THIS LAWSUIT”: “Should Plaintiff be unsuccessful, all opt-in plaintiffs may have to
pay a share of Defendants’ attorneys’ fees.” (Doc. No. 14, p. 6). Plaintiff objects to the inclusion
of such language, arguing the FLSA does not allow for attorney fee awards to a prevailing
defendant. (Doc. No. 15, p. 4). The Court agrees with Plaintiff. See Mode et al. v. S-L Distrib. Co.,
LLC, et al., No. 3:18-cv-00150-KDB-DSC, 2021 WL 3921344, at *17 (W.D.N.C. Sept. 1, 2021)
(“There is no comparable statutory authority for the award of attorneys’ fees to a prevailing
defendant.” (citing E.E.O.C. v. Clay Printing Co., 13 F.3d 813, 817) (4th Cir. 1994)). Accordingly,
the Court does not approve Defendants’ proposed language as to attorneys’ fees. However, in
ensuring all opt-in plaintiffs are fully informed of their obligations as to costs, the Court directs
Section V to include the following sentence: “Should Plaintiff be unsuccessful, you may be
required to pay a pro-rata share of Defendants’ costs in defending the lawsuit.”
Fifth, Defendants seek to reduce the opt-in period from 90 days to 60 days. (Doc. No. 14,
p. 6). Plaintiff opposes the reduction, but the Court finds a 60-day opt-in period to be appropriate.
As Plaintiff points out, all potential plaintiffs are “mostly teenagers and young adults living with
their parents” in the greater Charlotte area. Sixty days is sufficient time for a relatively small
number of opt-in plaintiffs located in the same geographical area to receive and respond to Notice
of this lawsuit. The 60-day period should be made explicit in the section entitled: “IV. YOUR
RIGHT TO PARTICIPATE IN THIS LAWSUIT.”.
Sixth, Defendants object to sending the Notice via email and posting at places of
employment. (Doc. No. 14, p. 7). This Court has regularly “approved posting Notices at places of
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employment on numerous occasions” as well as via email. Moss, 2020 WL 3472600, at *6
(collecting cases). The Court accordingly approves dissemination of the Notice via email, U.S.
Mail, and by posting such Notice at the relevant place of employment.
Finally, Defendants object to Plaintiff’s request to provide potential opt-in plaintiffs’ Social
Security numbers, telephone numbers, email addresses, and dates of birth. (Doc. No. 14, pp. 7-8).
“While courts have routinely approved requests for . . . email addresses, courts have been more
reluctant to authorize the disclosure of other private information, such as telephone numbers”
absent a special showing. See Moss, 2020 WL 3472600, at *6 (disallowing plaintiff from seeking
the telephone numbers, Social Security numbers, and dates of birth from opt-in plaintiffs) (citation
and quotation omitted). Here, Plaintiff has alleged no special reason for requiring telephone
numbers, Social Security numbers, and dates of birth. Absent this special showing, and in an effort
to protect the privacy of potential opt-in plaintiffs, the Court denies Plaintiff’s request for telephone
numbers, Social Security numbers, and dates of birth for potential opt-in plaintiffs. However,
Defendant is required to submit to Plaintiff the names, addresses, dates of employment, and email
addresses of potential opt-in plaintiffs in a “computer readable format” within fourteen (14) days
of this Order.
1. Plaintiff’s Motion, (Doc. No. 10), for collective action certification is GRANTED on the
terms set forth herein.
2. The case shall proceed with respect to the FLSA claims as a collective action under 29
U.S.C. § 216(b).
3. For purposes of Plaintiff’s FLSA claim, the collective is defined as follows:
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All current and former non-exempt hourly tipped employees who are or were
employed by Smallcakes Steele Creek, LLC, Smallcakes Ballantyne, LLC, Ian
Bowleg and/or Ayanna Bowleg beginning June 16, 2018 to the present.
4. Pursuant to Fed. R. Civ. P. 23(g), Plaintiff’s counsel shall serve as counsel for the
5. Defendant shall provide Named Plaintiff’s counsel the last known names, addresses, dates
of employment, and email addresses of potential opt-in plaintiffs in a computer readable
format of all putative collective members who worked for Defendant at any time from June
16, 2018, to present within fourteen (14) days of this Order.
IT IS SO ORDERED.
Signed: September 7, 2021
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