Perez et al v. Prime Steak House Restaurant Corp.
Filing
51
OPINION AND ORDER re 34 Motion to Certify Class. The Court GRANTS plaintiffs' motion for conditional certification pursuant to section 216(b) of the FLSA. The Court DENIES plaintiffs' request that defendant PSHRC disclose telephone and Social Security numbers at this time. The Court directs the parties to confer about the form and the content of the notice to be sent to potential opt-in plaintiffs and file a stipulated notice on CM/ECF no later than 8/26/2013. Signed by Judge Francisco A. Besosa on 08/12/2013. (brc)
Perez et al v. Prime Steak House Restaurant Corp.
Doc. 51
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MOISES
PEREZ
and
ALEJANDRO
VELEZ-CESPON,
on
behalf
of
themselves and others similarly
situated,
Plaintiffs,
Civil No. 12-1248 (FAB)
v.
PRIME STEAK HOUSE RESTAURANT
CORP.
a/k/a
PRIME
STEAK
RESTAURANT CORPORATION d/b/a
RUTH’S CHRIS STEAK HOUSE P.R.,
et al.,
Defendants.
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is the motion for conditional certification
and court-authorized notices pursuant to section 216(b) of the Fair
Labor Standards Act (“FLSA”) filed by plaintiffs Moises Perez
(“plaintiff Perez”) and Alejandro Velez-Cespon (“plaintiff Velez”)
(collectively, “plaintiffs”), (Docket No. 34).
Having considered
the arguments in the plaintiffs’ motion, the response in opposition
filed by defendant Prime Steak House Restaurant Corp. (“defendant
PSHRC”), (Docket No. 39); plaintiffs’ reply, (Docket No. 43); and
plaintiffs’ motion submitting consent to sue affidavits, (Docket
Nos. 47 and 49); the Court GRANTS the plaintiffs’ request for
conditional certification.
Dockets.Justia.com
Civil No. 12-1248 (FAB)
I.
2
BACKGROUND
Defendant PSHRC is a corporation doing business as Ruth’s
Chris Steak House Puerto Rico.
Plaintiffs were PSHRC’s employees;
plaintiff Perez worked as a Runner and Server1 at Ruth’s Chris
Steak House at El San Juan Hotel, Carolina, Puerto Rico, until he
resigned on August 30, 2011, and plaintiff Velez worked as a Server
at the same restaurant until he resigned on December 8, 2011.2
On
August 2, 2012 the plaintiffs filed their amended complaint — on
behalf
of
themselves
and
other
similarly
situated
persons
—
asserting claims that defendant PSHRC violated the FLSA, 29 U.S.C.
§§ 201–219, by (1) paying all workers less than the minimum wage;
(2) withholding tips from all service employees; (3) failing to
inform workers about the tip-credit provisions of the FLSA; and
(4) failing to pay overtime wages.
(Docket No. 17.)
On July 11, 2013, the plaintiffs moved to conditionally
certify a proposed class of:
1
At the restaurant, a “Runner” is responsible for expediting
service. A Runner is responsible for arranging orders, taking them
to the table, serving orders if the Server is unavailable, serving
appetizers and desserts, preparing take-out orders, and helping
with other preparation duties.
A “Server” is responsible for
taking
orders,
serving
food
and
beverages,
requesting
identification when alcoholic beverages are ordered, suggesting
courses and wine, answering questions about food preparation,
handling bills, and various other related duties. (Docket No. 17
at 5.)
2
The complaint omits the date when either of the plaintiffs
began to work for defendant PSHRC. (See Docket No. 17.)
Civil No. 12-1248 (FAB)
3
all present and former restaurant workers from Prime
Steak House Restaurant Corporation a/k/a Prime Steak
Restaurant Corporation d/b/a Ruth’s Chris Steak House
P.R. (“Employer”) from April 13, 2009 to the present who
worked overtime hours and/or who have participated in the
tip pool established by this Employer.
(Docket No. 34-1 at 1.)
The plaintiffs also seek court approval of their proposed
notice
to
putative
class
members,
as
well
as
a
court
order
compelling PSHRC “to produce within 10 days a list of all nonmanagerial, tipped employees who were employed at PSHRC in Puerto
Rico at any point in the three years prior to the entry of the
Complaint with the following information: name, last known mailing
address, alternate address (if any), all known telephone numbers,
Social Security number, and dates of employment.”
(Docket No. 34
at 12.)
II.
STANDARD
Pursuant to the FLSA, an employee may bring suit against an
employer on his or her own behalf and on behalf of other “similarly
situated” employees.
29 U.S.C. § 216(b).3
Neither the Supreme
Court nor the First Circuit Court of Appeals has addressed the
exact contours of the concept of “similarly situated,” and “other
3
The FLSA provides its own right and mechanism for collective
certification distinct from Fed. R. Civ. P. 23.
While Rule 23
certification requires the uninterested to “opt out,” the FLSA’s
section 216(b) requires that those interested in joining the
putative class “opt in.”
Johnson v. VCG Holding Corp., 802 F.
Supp. 2d 227, 232—33 (D. Me. 2011) (citing 29 U.S.C. § 216(b) and
Fed. R. Civ. P. 23).
Civil No. 12-1248 (FAB)
4
Circuits have not drawn bright lines for determining whether
employees are ‘similarly situated.’”
Prescott v. Prudential Ins.
Co., 729 F. Supp. 2d 357, 362—63 (D. Me. 2010) (Hornby, J.).
“The
general practice of district courts within the First Circuit,
[however,]
has
been
to
adopt
a
‘two-tiered’
certification of collective actions under the FLSA.”
F.
Supp.
2d
at
233
(citing
decisions
from
the
approach
to
Johnson, 802
districts
of
Massachusetts, Rhode Island, and Puerto Rico that have followed the
two-tiered approach).
In the first stage — known as the “notice
stage,” — “the Court relies upon the pleadings and any affidavits
to determine, under a ‘fairly lenient standard,’ whether the
putative class members ‘were subject to a single, decision, policy,
or plan that violated the law.’”
O’Donnell v. Robert Half Int’l,
Inc., 429 F. Supp. 2d 246, 249 (D. Mass. 2006) (citing Kane v. Gage
Merch. Servs., Inc., 138 F. Supp. 2d 212, 214 (D. Mass. 2001)).
At
the second stage, which takes place after discovery, “a defendant
may move for de-certification if the plaintiffs are shown not to be
similarly situated.”
O’Donnell, 429 F. Supp. 2d at 249.
In this case, plaintiffs’ motion falls within the first stage.
Accordingly, the plaintiffs carry the burden of showing that the
putative class is “similarly situated.”
Johnson, 802 F. Supp. 2d
at 234 (citing Prescott, 729 F. Supp. 2d at 363—34 and Morgan v.
Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008)).
To accomplish their burden, the plaintiffs must make “a minimal
Civil No. 12-1248 (FAB)
5
factual showing that (1) there is a reasonable basis for crediting
the assertion that aggrieved individuals exist; (2) those aggrieved
individuals are similarly situated to the plaintiff in relevant
respects given the claims and defenses asserted; and (3) those
individuals want to opt in to the lawsuit.”
2d at 234.
Johnson, 802 F. Supp.
Because the plaintiffs have met their burden as to all
three elements, the Court finds that conditional certification is
warranted.
III. DISCUSSION
A.
Existence of Aggrieved, Similarly Situated Employees
The plaintiffs have carried their burden, “light as it is
at this stage,” Johnson, 802 F. Supp. 2d at 235, of demonstrating
a reasonable basis from which the Court can conclude that aggrieved
individuals employed at the Ruth’s Chris location at the El San
Juan Hotel exist.
To determine whether the first prong is met,
courts look to whether employees “have similar (not identical) job
duties and pay provisions, . . . and are victims of a common policy
or plan that violated the law.”
363—64.
Plaintiffs’
amended
Prescott, 729 F. Supp. 2d at
complaint
contains
information
concerning the respective duties and responsibilities of class
members based on their employment titles as a runner, server,
bartender, bar attendant, service assistant, host or hostess, and
busboy.
(Docket No. 17 at 6—7.)
While certainly not identical,
the positions all relate to the serving of food or drinks to
Civil No. 12-1248 (FAB)
6
clients at the Ruth’s Chris restaurant, and the plaintiffs plead
that “[i]t is Defendant’s policy (so are its employees’ functions
arranged) that all these employees work together as a team to
better serve the clientele.” Id. at 7. Furthermore, income earned
by each position relies partly on tips.
Id. at 6—7.
From Exhibit
2 to the amended complaint, it is reasonable to conclude that PSHRC
had a policy of participating in the tip pool for “operations,”
which would violate section 203(m) of the FLSA.
Plaintiffs thus
make a sufficient factual showing that supports the conclusion that
employees at the Ruth’s Chris restaurant at the El San Juan Hotel
exist and are similarly situated in relevant respects.
Plaintiffs seek certification of a class that includes
all persons employed in any tipped position by PSHRC “at any Puerto
Rico location,” rather than only those current or former employees
at plaintiffs’ individual workplace at the El San Juan Hotel. “For
a class to extend beyond the named plaintiffs’ own work location,
[the plaintiffs] must demonstrate that ‘employees outside of the
work location for which the employee has provided evidence’ were
similarly affected by the employer’s policies.” Travers v. JetBlue
Airways Corp., 2010 U.S. Dist. LEXIS 103419, 2010 WL 3835029, at *2
(D. Mass. 2010) (quoting Horne v. United Servs. Auto. Ass’n., 279
F. Supp. 2d 1231, 1235 (D. Ala. 2003).
Although a plaintiff need
not “demonstrate the existence of similarly situated persons at
every location in the proposed class, they must demonstrate that
Civil No. 12-1248 (FAB)
7
there existed at least one similarly situated person at a facility
other than their own.”
Johnson, 802 F. Supp. 2d at 236 (internal
quotations and citations omitted).
and
supporting
affidavits
are
Plaintiffs’ amended complaint
entirely
sufficient to meet this standard.
devoid
of
evidence
At this stage, there is simply
no evidence in the record from which the Court can conclude that
PSHRC’s policies are company-wide and that employees at any other
of its Puerto Rico locations are subject to the same general
practices.
See Trezvant v. Fid. Emplr. Servs. Corp., 434 F. Supp.
2d 40, 51 (D. Mass. 2006) (concluding that plaintiff employees
“failed to show that [the employer’s] policies . . . are companywide . . . [where] the affidavits were all from employees that
worked in the company’s New Hampshire office [and n]one of the
[e]mployees submitting affidavits purported to know the policies of
other
branches
of
the
company”).
Accordingly,
the
evidence
submitted does not support any conditional certification at PSHRC
locations outside of the Ruth’s Chris restaurant at the El San Juan
Hotel.
B.
Similarly Situated Employees’ Interest in Joining The
Suit
Plaintiffs have demonstrated that such similarly situated
employees are indeed interested in joining the suit.
granting
conditional
identification
of
certification,
other
similarly
many
situated
courts
Before
require
employees
who
the
are
interested in joining the putative class. Johnson, 802 F. Supp. 2d
Civil No. 12-1248 (FAB)
at 237.
8
The Court joins district courts within the First Circuit,
as well as numerous other district courts and the Eleventh Court of
Appeals,
in
holding
that
a
plaintiff
must
demonstrate
that
similarly situated employees are truly interested in joining the
suit before the Court may grant conditional certification.
(citing eleven cases).
Id.
As a district court in Minnesota has
explained:
a plaintiff must do more than show the mere
existence of other similarly situated persons,
because there is no guarantee that those
persons will actually seek to join the
lawsuit.
And, if those other, similarly
situated persons were to decline to opt in to
the case, no purposes would have been served
by “certifying” a collective-action “class” —
the case ultimately would involve no one other
than the plaintiff. Furthermore, if an FLSA
plaintiff were required to show only that
other potential plaintiffs exist (rather than
showing that those potential plaintiffs would
actually seek to join the lawsuit), it would
“render
preliminary
class
certification
automatic, as long as the Complaint contains
the magic words: ‘Other employees similarly
situated.’”
Civil No. 12-1248 (FAB)
9
Parker v. Rowland Express, Inc., 492 F. Supp. 2d 1159, 1165 (D.
Minn. 2007) (citing Smith v. Sovereign Bancorp, Inc., 2003 U.S.
Dist. LEXIS 21010, 2003 WL 22701017 at *2 (E.D. Pa. 2003)).4
In
their
amended
complaint,
the
plaintiffs
identify
eighteen servers, five runners, four bartenders, nine busboys, and
two hosts and hostesses who they claim either were or are currently
included in the tip pool required by defendant PSHRC.
No. 17 at 7—8.)
(Docket
They stop short in their amended complaint and
their motions of stating or otherwise offering evidence that those
similarly situated employees have any interest in joining the suit.
On August 10, 2013, however, plaintiffs submitted two motions which
include consent
employees.5
to
sue
affidavits
signed
by
eleven
of those
Thus, evidence indicates that similarly situated
4
This requirement may implicate “a potential for a ‘chicken
and egg’ problem[] in that ‘[r]equiring an FLSA plaintiff who does
not know the identities of the members of the proposed class to
provide information about class members’ desire to opt in could
require the plaintiff to produce the very information that [he or]
she sought to obtain through conditional certification and
notice.’” Johnson, 802 F. Supp. 2d at 238 (citing Detho v. Bilal,
2008 U.S. Dist. LEXIS 57133, 2008 WL 2962821 at *3 (S.D. Tex.
2008); see also Wise v. Patriot Resorts Corp., 2006 U.S. Dist.
LEXIS 97992, 2006 WL 6110885 at *1 (D. Mass 2006) (“[I]t is
unrealistic to expect a party to consider whether to ‘opt-in’ to a
collective action before that party is aware of the pendency of the
action.”). Just as other courts have reasoned, however, the first
stage’s “light burden[,] combined with any preliminary discovery a
Court might allow, should be sufficient to alleviate such
concerns.” Johnson, 802 F. Supp. 2d at 238 (citing Detho, 2008
U.S. Dist. LEXIS 5733, 2008 WL 2962821 at *1).
5
Ten of the first names listed in Docket No. 17 at page 21
match the names on the consent to sue affidavits in Docket Nos. 47
and 49.
Civil No. 12-1248 (FAB)
10
employees are indeed interested in joining the suit, and plaintiffs
have met their burden under all three elements.
Accordingly,
conditional certification is warranted for the following class:
All present and former restaurant workers from Prime Steak House
Restaurant Corporation a/k/a Prime Steak Restaurant Corporation
d/b/a Ruth’s Chris Steak House P.R. (“Employer”)’s El San Juan
Hotel, Carolina, Puerto Rico location from April 13, 2009 to the
present who worked overtime hours and/or who have participated in
the tip pool established by this Employer.
IV.
CONCLUSION
For the reasons discussed above, the Court GRANTS plaintiffs’
motion for conditional certification pursuant to section 216(b) of
the FLSA, (Docket No. 34).
Defendant PSHRC is ORDERED to provide,
within ten (10) days of the date of this Order, the name and last
known mailing address(es) of the putative class members to the
plaintiffs.
The Court DENIES plaintiffs’ request that defendant
PSHRC disclose telephone and Social Security numbers at this time.6
Further, in light of the numerous objections defendants have to the
6
Because the defendant’s employees “clearly have substantial
privacy concerns associated with their social security numbers,”
the Court finds that plaintiffs must establish a need for Social
Security and telephone numbers before that information may be
turned over. See Byard v. Verizon West Virginia, Inc., 287 F.R.D.
365, 376–77 (N.D.W.Va. 2012).
“The return of the notice as
undeliverable may establish such a need,” id. at 376, but “[c]ourts
generally release social security numbers only after notification
via first class mail proves insufficient.” Bredbenner v. Liberty
Travel, Inc., 2009 WL 2391279, at *3 n.3 (D.N.J. 2009).
Civil No. 12-1248 (FAB)
11
proposed notice submitted by plaintiffs, the Court directs the
parties to confer about the form and the content of the notice to
be sent to potential opt-in plaintiffs and file a stipulated notice
on CM/ECF no later than August 26, 2013.
IT IS SO ORDERED.
San Juan, Puerto Rico, August 12, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
United States District Judge
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