Church v. The Pine Club, LLC
DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS (DOC. # 10 ); OVERRULING PLAINTIFF'S AMENDED MOTION FOR CONDITIONAL CLASS CERTIFICATION AND COURT-SUPERVISED NOTICE TO POTENTIAL OPT-IN PLAINTIFF'S (DOC.#[9 ]) WITHOUT PREJUDICE TO REFILING WITHIN 60 DAYS. Within 14 days of the date of this Decision and Entry, Defendant shall provide contact information to Plaintiff's counsel concerning the five individuals named in paragraph 10 of Plaintiff's Declaration. Signed by Judge Walter H. Rice on 7/15/2021. (bjr)
Case: 3:20-cv-00135-WHR Doc #: 12 Filed: 07/15/21 Page: 1 of 16 PAGEID #: 135
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
TERRI CHURCH, individually and
on behalf of others similarly
Case No. 3:20-cv-135
JUDGE WALTER H. RICE
THE PINE CLUB, LLC,
DECISION AND ENTRY OVERRULING DEFENDANT’S MOTION FOR
JUDGMENT ON THE PLEADINGS (DOC. #10); OVERRULING
PLAINTIFF’S AMENDED MOTION FOR CONDITIONAL CLASS
CERTIFICATION AND COURT-SUPERVISED NOTICE TO POTENTIAL
OPT-IN PLAINTIFFS (DOC. #9) WITHOUT PREJUDICE TO REFILING
WITHIN 60 DAYS
On behalf of herself and others similarly situated, Plaintiff Terri Church filed
suit against her former employer, The Pine Club, LLC, alleging violations of the Fair
Labor Standards Act (“FLSA”), the Ohio Minimum Fair Wage Standards Act, and
the Ohio Prompt Pay Act. On behalf of herself only, she also asserts a claim of
unlawful retaliation in violation of Ohio Revised Code Chapter 4112.
This matter is currently before the Court on Plaintiff’s Amended Motion for
Conditional Class Certification and Court-Supervised Notice to Potential Opt-In
Plaintiffs, Doc. #9, and on Defendant’s Motion for Judgment on the Pleadings,
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Background and Procedural History
In 2011, Plaintiff Terri Church was hired as a server at The Pine Club, a
restaurant in Dayton, Ohio. At that time, General Manager Karen Watson informed
her that she would receive an hourly wage of $3.50. Over the years, Church’s
hourly wage increased to $4.30. She also received tips from her customers.
In October of 2019, Karen Watson’s nephew, Tyler, who also worked at the
restaurant, allegedly asked Church if she could keep a secret. He then allegedly
asked her if she wanted to “see a picture of [his] big dick.” She quickly told him
no. A few days later, she reported Tyler’s conduct to Karen Watson. Watson
responded by demanding that Church take a drug test. A few hours later, Church
was suspended and, five days later, her employment with The Pine Club was
On April 9, 2020, Church filed suit against The Pine Club on behalf of
herself and other tipped servers at the restaurant. Doc. #1. After Defendant filed
a Motion to Dismiss for Failure to State a Claim, Doc. #4, Plaintiff responded by
filing a First Amended Complaint, Doc. #5. 1
In her First Amended Complaint, she alleges that Defendant violated federal
and state wage laws. During the relevant time period, the federal minimum wage
was $7.25 per hour. There is, however, an exception in the FLSA for “tipped
The Motion to Dismiss was rendered moot by the filing of the First Amended
Complaint, which superseded the pleading that was the subject of that motion.
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employees.” See 29 U.S.C. § 203(m)(2)(A). Employers must pay tipped
employees a base hourly wage of at least $2.13. Employers may then take a “tip
credit” of up to $5.12 per hour to meet the minimum wage obligations. Id.
However, this tip credit is available only if the employer first informs the employee
of the provisions of § 203(m)(2)(A). Id. See also 29 C.F.R. § 531.59(b) (“an
employer is not eligible to take the tip credit[,] unless it has informed its tipped
employees in advance of the employer’s use of the tip credit[,] of the provisions of
section 3(m)(2)(A) of the Act.”).
Counts I, II and III of the First Amended Complaint are brought as Collective
Action claims on behalf of Plaintiff and others similarly situated. In Count I,
Church alleges that The Pine Club violated the FLSA by taking the tip credit
without first notifying the tipped employees of these provisions. She maintains
that, because The Pine Club took the tip credit even though it was not eligible to
do so, it violated federal and state minimum wage laws by not paying its tipped
servers $7.25 per hour. In Count II, Church alleges that this conduct violated
Article II, Section 34a of the Ohio Constitution, and in Count III, she alleges that
The Pine Club violated Ohio’s Prompt Pay Act, O.R.C. § 4113.15(B), by failing to
pay her and other tipped servers all wages earned within 30 days of performing the
work. Count IV, which is not part of the Collective Action, alleges unlawful
retaliation against Church in violation of O.R.C. Chapter 4112.
This matter is currently before the Court on Plaintiff’s Amended Motion for
Conditional Class Certification and Court-Supervised Notice to Potential Opt-In
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Plaintiffs. Doc. #9. 2 Defendant filed its Memorandum in Opposition, along with a
Motion for Judgment on the Pleadings, Doc. #10. Plaintiff then filed her Reply,
Doc. #11. In its Motion for Judgment on the Pleadings, Defendant argues that,
because the Amended Complaint is too conclusory to state a plausible Collective
Action claim, the Amended Motion for Conditional Class Certification must be
denied. As such, the Court will turn first to the Motion for Judgment on the
Defendant’s Motion for Judgment on the Pleadings (Doc. #10)
Pursuant to Fed. R. Civ. P. 12(c), the Pine Club asks the Court to dismiss
Counts I, II and III, the Collective Action claims asserted in the First Amended
Complaint. Doc. #10.
Fed. R. Civ. P. 12(c)
Motions for judgment on the pleadings under Federal Rule of Civil Procedure
12(c) are analyzed under the same standard as motions to dismiss under Federal
Rule of Civil Procedure 12(b)(6). See Warrior Sports, Inc. v. National Collegiate
Athletic Ass'n, 623 F.3d 281, 284 (6th Cir. 2010). “For purposes of a motion for
judgment on the pleadings, all well-pleaded material allegations of the pleadings of
the opposing party must be taken as true, and the motion may be granted only if
the moving party is nevertheless clearly entitled to judgment.” JPMorgan Chase
The Amended Motion is substantially similar to the original Motion for
Conditional Class Certification, which was filed just twelve days earlier. Doc. #7.
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Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007) (internal citation and
quotation marks omitted). However, the court need not accept as true legal
conclusions or unwarranted factual inferences. Id. (citing Mixon v. Ohio, 193 F.3d
389, 400 (6th Cir. 1999)).
To withstand a Rule 12(c) motion for judgment on the pleadings, “a
complaint must contain direct or inferential allegations respecting all the material
elements under some viable legal theory.” Commercial Money Ctr., Inc. v. Illinois
Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007). “The factual allegations in the
complaint need to be sufficient to give notice to the defendant as to what claims
are alleged, and the plaintiff must plead ‘sufficient factual matter’ to render the
legal claim plausible, i.e., more than merely possible.” Fritz v. Charter Twp. of
Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (quoting Ashcroft v. Iqbal, 556 U.S.
662 (2009)). A “legal conclusion couched as a factual allegation” need not be
accepted as true, nor are recitations of the elements of a cause of action
sufficient. Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
While the allegations in the complaint are the primary focus in assessing a
Rule 12(c) motion, “matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint[ ] also may be taken into
account.” Barany–Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting
Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001)).
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The FLSA permits an employee to bring a collective action on behalf of
herself “and other employees similarly situated” for damages stemming from
violations of the FLSA’s minimum wage provisions. 29 U.S.C. § 216(b). In its
Motion for Judgment on the Pleadings, Defendant argues that the factual
allegations set forth in the First Amended Complaint are too conclusory to support
a plausible collective action claim for relief under the FLSA. 3
Defendant argues that the Complaint in a collective action must “indicate
who those other employees are, and allege facts that would entitle them to relief.”
Zhong v. August August Corp., 498 F. Supp.2d 625, 628 (S.D.N.Y. 2007). In
Zhong, the court dismissed without prejudice collective action claims where the
allegedly similarly-situated employees were only minimally referenced in the body
of the complaint, and where the complaint made no reference “to a policy to which
other employees are subject, nor to any company policy at all.” Id. at 631.
Defendant also relies on Pickering v. Lorillard Tobacco Co., No. 2:10cv633,
2011 U.S. Dist. LEXIS 3647 (M.D. Ala. Jan. 13, 2011), in which the court found
that the complaint “contains no factual basis by which to assess whether Plaintiff
The Court rejects Plaintiff’s argument that the Motion for Judgment on the
Pleadings is procedurally improper. Plaintiff objects because this motion was
included in Defendant’s Memorandum in Opposition to the Amended Motion for
Class Certification. Plaintiff argues that, because the Court had established an
abbreviated briefing schedule on the Amended Motion for Class Certification, she
had only eight days to respond to the Motion for Judgment on the Pleadings.
Plaintiff, however, could have sought an extension of time to respond to that
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and the other employees are similarly situated.” Id. at *7. The court noted that
the complaint contained no description of the job duties, job titles, or pay
provisions of the other employees who were allegedly similarly situated. Id. at *6.
Zhang and Pickering are legally distinguishable from Church’s case, because
courts within the Sixth Circuit have not required “extensively detailed factual
pleading” of FLSA claims. See Roberts v. Corrections Corp. of Am., No.
3:14cv2009, 2015 WL 3905088, at *7 (M.D. Tenn. June 25, 2015) (collecting
cases). At the pleading stage, there is no need to specifically identify the similarlysituated employees. The relevant question is whether the complaint “contains
factual allegations of the prima facie elements of the FLSA claim.” Id. at *8.
Zhang and Pickering are also factually distinguishable from Church’s case.
Church’s First Amended Complaint is sufficient to put Defendant on notice that
she intends to pursue a Collective Action on behalf of herself and all non-exempt
employees who were employed by The Pine Club in a “tipped position,” and who
were not informed of the provisions of 29 U.S.C. § 203(m) before the restaurant
took the tip credit. Doc. #5, PageID#34.
Unlike the plaintiff in Zhang, Church has alleged that the violations of federal
and state law were the result of Defendant’s “payroll policies and practices.” Id.
She further alleges that the class “has damages under the FLSA as a result of
Defendant’s policy which failed to inform its employees of the required tip credit
provisions prior to taking a tip credit.” Id. These allegations are not conclusory.
Plaintiff has alleged facts supporting a plausible claim that she and the other tipped
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servers at The Pine Club are entitled to damages based on Defendant’s alleged
violations of the FLSA.
Defendant further argues that Plaintiff has failed to allege facts showing that
the Pine Club acted willfully, such that the FLSA’s three-year statute of limitations
would apply. See 29 U.S.C. § 255(a) (establishing a two-year statute of
limitations for violations of the FLSA, but extending the statute of limitations to
three years for a “willful violation”). Plaintiff, however, alleges that Defendant
“knew or should have known of the tip credit provisions of the FLSA” and
“knowingly and willfully failed to inform Plaintiff and the [similarly-situated
persons] of the tip credit provisions prior to applying a tip credit.” Doc. #5,
PageID#35. These allegations of willfulness are sufficient to withstand the Motion
for Judgment on the Pleadings.
The Court finds that the factual allegations contained in Counts I, II and III of
the First Amended Complaint are sufficient to state plausible Collective Action
claims under federal and state wage laws. The Court therefore OVERRULES
Defendant’s Motion for Judgment on the Pleadings, Doc. #10.
Plaintiff’s Amended Motion for Conditional Class Certification and CourtSupervised Notice to Potential Opt-In Plaintiffs (Doc. #9)
The Court turns next to Plaintiff’s Amended Motion for Conditional Class
Certification and Court-Supervised Notice to Potential Opt-In Plaintiffs, Doc. #9.
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As previously noted, the FLSA permits an employee to maintain an action
against an employer on behalf of similarly-situated employees. 29 U.S.C. ' 216(b).
However, in contrast to the Aopt out@ procedures governing some class actions, as
set forth in Federal Rule of Civil Procedure 23, the FLSA contains an Aopt in@
procedure. The statute provides that A[n]o employee shall be a party plaintiff to
any such action unless he gives his consent in writing . . . and such consent is
filed in the court in which such action is brought.@ 29 U.S.C. ' 216(b).
The Supreme Court has held that, in order to help identify similarly-situated
employees and notify them of their right to Aopt in,@ district courts may facilitate
discovery of the names and addresses of those employees and may monitor
preparation and distribution of the notice of the collective action. Hoffman-
LaRoche, Inc. v. Sperling, 493 U.S. 165, 169-72 (1989). Nevertheless, because
of the potential for abuse, the court must be careful to guard against Athe >stirring
up= of litigation through unwarranted solicitation.@ Severtson v. Phillips Beverage
Co., 137 F.R.D. 264, 266-67 (D. Minn. 1991).
Therefore, prior to authorizing such notification, the court must determine
Awhether plaintiffs have shown that the employees to be notified are, in fact,
>similarly situated.=@ Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir.
2006). Because this inquiry usually takes place at the beginning of discovery, the
standard for conditional certification of a collective action is Afairly lenient.@ Courts
generally require only a Amodest factual showing@ that the plaintiff=s position is
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similar to the positions held by the putative class members. Id. at 546-47 (quoting
Pritchard v. Dent Wizard Int=l, 210 F.R.D. 591, 595 (S.D. Ohio 2002), and
Moriskey v. Public Serv. Elec. & Gas Co., 111 F. Supp.2d 493, 497 (D.N.J.
Conditional certification is meant only to aid in identifying similarly situated
employees. It is not a final determination that the case may proceed as a
collective action. After the opt-in forms have been filed and discovery is complete,
a defendant may file a motion for decertification. At that point, the court
examines with much stricter scrutiny the question of whether these other
employees are, in fact, similarly situated to the plaintiff. Comer, 454 F.3d at 54647.
In this case, Plaintiff asks the Court to conditionally certify the following
All individuals currently or formerly employed by Defendant in a tipped
server position for which a tip credit was applied at any time between
April 9, 2017 and the date [of] the Court order conditionally certifying
Plaintiff also asks the Court to approve the proposed Notice to Potential Opt-In
Plaintiffs, implement procedures for its dissemination, and direct Defendant to
identify all potential opt-in plaintiffs within 14 days.
In its Memorandum in Opposition to Plaintiff’s Amended Motion for Class
Certification, Defendant argues that Plaintiff’s motion must be denied because she
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has failed to make even a “modest factual showing” that she is similarly situated
to the other tipped servers.
As the Sixth Circuit explained in O’Brien v. Ed Donnelly Enterprises, Inc.,
575 F.3d 567 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co.
v. Gomez, 577 U.S. 153 (2016), a plaintiff may show that she is similarly situated
to other putative class members “when they suffer from a single, FLSA-violating
policy, and when proof of that policy or of conduct in conformity with that policy
provides a violation as to all the plaintiffs.” Id. at 584. “[R]epresentative testimony
from a subset of plaintiffs” could be evidence that such a policy exists. Id.
At the conditional certification phase, a plaintiff must present “some
evidence to support her allegations that others are similarly situated.” Harrison v.
McDonald’s Corp., 411 F. Supp.2d 862, 868 (S.D. Ohio 2005) (Holschuh, J.).
Conclusory allegations that others are similarly situated will not suffice. Courts
often consider whether other potential plaintiffs are identified, whether affidavits of
other potential plaintiffs have been submitted, and whether there is evidence of a
widespread policy that violates the FLSA. Myers v. Marietta Mem. Hosp., 201 F.
Supp. 3d 884, 890 (S.D. Ohio 2016) (Marbley, J.). The Court finds that, at this
stage, Plaintiff has failed to make even a “modest factual showing” that she is
similarly situated to the putative class members.
In her Declaration, Plaintiff states that, during the last three years of her
employment at The Pine Club, she worked with approximately ten other tipped
servers, including Jamie, Holly, Candy, Wanda, Teresa, Linda and Cheryl. Doc. #911
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1, PageID#98. Plaintiff maintains that they openly discussed the fact that the
hourly wage that they received fell below the federal minimum wage of $7.25 per
hour. Id. Plaintiff further states that, although Defendant held meetings with the
tipped servers to discuss their personal tax obligations stemming from the tips they
received, Defendant never discussed the FLSA’s tip credit at these meetings. Id.
Likewise, nothing in the Employee Handbook or on Plaintiff’s monthly pay stubs
mentions the tip credit being taken by Defendant. Id. at PageID#99.
Plaintiff’s Declaration then states that “[t]he other Tipped Servers informed
me that Defendant never informed them that Defendant was taking a tip credit
against Defendant’s minimum wage obligation owed to me and the other Tipped
Servers.” She identifies Holly, Wanda, Jamie, Teresa and Linda as the employees
who told her this. Id. Plaintiff, however, has submitted no affidavits or sworn
declarations from any of these other tipped servers.
Plaintiff’s statement about what those other servers told her is inadmissible
hearsay, 4 and cannot be considered in evaluating her motion for conditional
certification. See Harrison, 411 F. Supp.2d at 866 ("hearsay statements cannot
be considered in connection with a Plaintiff's § 216(b) motion for the purpose of
determining whether other employees are similarly situated.").
Hearsay is an out-of-court statement made by someone other than the
declarant, offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c).
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Courts typically require a sworn statement from at least one other employee
to support a finding that the plaintiff is similarly situated to other putative class
members. See, e.g., Nazih v. Café Istanbul of Columbus, LLC, No. 2:17-cv-947,
2018 U.S. Dist. LEXIS 154283, at **7-8 (S.D. Ohio Sept. 11, 2018) (Marbley, J.)
(conditionally certifying “tip credit” class based on affidavits of plaintiff and one
other employee); Murton v. Measurecomp, LLC, No. 1:07cv3127, 2008 U.S. Dist.
LEXIS 108060, at **14-15 (N.D. Ohio June 9, 2008) (conditionally certifying
collective action based on affidavits of plaintiff and one other employee); Snide v.
Discount Drug Mart, Inc., No. 1:11cv244, 2011 U.S. Dist. LEXIS 133736, at *12
(N.D. Ohio Oct. 7, 2011) (conditionally certifying limited collective action based on
statements by plaintiff and two others who submitted sworn statements that they
were subjected to the same violations as plaintiff); Myers, 210 F. Supp.3d at 895
(holding that affidavits of the three named plaintiffs were sufficient to show that
they were similarly situated to putative class members).
As Judge Marbley noted in Myers, some courts are willing to consider
inadmissible evidence in ruling on motions for conditional certification because, at
this stage of the litigation, no discovery has yet taken place, and the plaintiff likely
has no access to the contact information of other potential plaintiffs, making it
difficult to obtain their sworn statements. 210 F. Supp.3d at 893.
Notably, Myers involved claims that the employer automatically deducted
thirty minutes for meal breaks even though employees were rarely able to take an
uninterrupted thirty-minute lunch hour. Plaintiffs’ affidavits stated that other
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employees who were subject to the automatic deduction were also prevented from
taking uninterrupted meal breaks. The court found that, even if it was not
appropriate to consider this inadmissible hearsay, it was reasonable to infer that
the plaintiffs had personal knowledge of the alleged widespread violations, given
that they would have regularly observed their coworkers clocking in and clocking
out. Id. at 893-94.
In contrast, in this case, it is unlikely that Plaintiff would have been privy to
any conversations that Defendant may have had with other tipped servers, at the
time they were hired, concerning their hourly wage and any tip credit that
Defendant planned to take. Rather than relying on her personal knowledge of
whether Defendant gave these other servers the required notice, she is relying
solely on what they allegedly told her.
Proof that Defendant failed to inform Terri Church of the provisions of 29
U.S.C. § 203(m)(2)(A) prior to taking the tip credit does not prove that Defendant
failed to do the same with respect to any other putative class member. Absent the
affidavit or declaration of at least one other tipped server at The Pine Club to
support a finding that Defendant had a policy of taking the tip credit without
complying with the statute’s notice provision, Plaintiff is unable to satisfy her
burden of making even a “modest factual showing” that she is similarly situated to
the other tipped servers at The Pine Club.
Accordingly, the Court OVERRULES her Amended Motion for Conditional
Class Certification and Court-Supervised Notice to Potential Opt-In Plaintiffs, Doc.
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#9. 5 Nevertheless, the Court does so WITHOUT PREJUDICE to renewal following
the conclusion of a 60-day period of limited discovery. Within 14 days of the date
of this Decision and Entry, Defendant shall provide to Plaintiff’s counsel the last
names, last known addresses and last known email addresses of those individuals
identified in paragraph 10 of Plaintiff’s affidavit as the five tipped servers who
allegedly told Plaintiff that Defendant did not inform them about the tip credit
either, i.e., Holly, Wanda, Jamie, Teresa and Linda, Doc. #9-1, PageID#99.
If, within this 60-day period of limited discovery, Plaintiff can provide
additional support for her claim that she is similarly-situated to the other tipped
servers, she may file a Second Amended Motion for Conditional Class Certification
and Court-Supervised Notice to Potential Opt-In Plaintiffs. If not, the case will
proceed on any of her individual claims.
For the reasons set forth above, the Court OVERRULES Defendant’s Motion
for Judgment on the Pleadings, Doc. #10.
Defendant also argues that Plaintiff cannot show that she was similarly situated
to other tipped servers given that she also alleges that Defendant retaliated against
her by suspending her and then terminating her after she complained to Karen
Watson about Tyler’s sexual comments. Plaintiff’s individual claim of retaliation,
however, has absolutely no impact on the question of whether Plaintiff was
similarly situated to other tipped servers during the term of her employment with
respect to Defendant’s alleged failure to notify all of them about the tip credit
provisions of the FLSA.
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The Court OVERRULES Plaintiff’s Amended Motion for Conditional Class
Certification and Court-Supervised Notice to Potential Opt-In Plaintiffs, Doc. #9,
WITHOUT PREJUDICE to renewal within 60 days. Within 14 days of the date of
this Decision and Entry, Defendant shall provide contact information to Plaintiff’s
counsel concerning the five individuals named in paragraph 10 of Plaintiff’s
(tp - per Judge Rice authorization after his
Date: July 15, 2021
WALTER H. RICE
UNITED STATES DISTRICT JUDGE
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