Reneau v. Spur 248 Steak, LLC d/b/a Steak N Shake et al

Filing 41

ORDER ADOPTING 28 REPORT AND RECOMMENDATIONS. The Court ADOPTS the Report and Recommendation of the United States Magistrate Judge as the findings and conclusions of this Court. Plaintiff's Motion for Potential Plaintiffs (Docket No. 24 ) is DENIED. Signed by Judge Robert W. Schroeder, III on 7/24/2017. (rlf)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
SEAN RENEAU, individually and on
behalf of all others similarly situated,
Plaintiff,

v.
SPUR 248 STEAK, LLC D/B/A
STEAK N SHAKE and
RANDALL B. HANSON,
Defendants.

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CIVIL ACTION NO. 6:16-CV-1126
RWS-JDL
JURY TRIAL DEMANDED

ORDER ADOPTING
REPORT AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
The above entitled and numbered civil action was referred to United States Magistrate
Judge John D. Love pursuant to 28 U.S.C. § 636. The Report and Recommendation of the
Magistrate Judge (Docket No. 28) recommending denial of Plaintiff Sean Reneau’s Motion for
Notice to Potential Plaintiffs pursuant to 29 U.S.C. § 216(b) (Docket No. 24) has been presented
for consideration. Plaintiff filed objections seeking reconsideration of the Order. Docket No. 33.
Plaintiff asserts that the Magistrate Judge’s findings need only be reviewed for clear error
and cites opinions finding that a motion to provide notice to potential FLSA plaintiffs is not the
same as a motion to maintain a class under Rule 23, which would require de novo review. Docket
No. 33 at 2 (citing Patton v. Thomson Corp., 364 F. Supp. 2d 263, 265–66 (E.D.N.Y. 2005);
Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 265–66 (D. Minn. 1991)). Without deciding
the issue, the Court finds that Plaintiff has effectively waived de novo review of the Magistrate
Judge’s opinion pursuant to 28 U.S.C. § 636 (B)–(C) by setting forth the clearly erroneous standard

and applying this standard in his objection analysis.1 See id. at 7 (asserting that the Magistrate
Judge’s findings were clearly erroneous). Thus, the undersigned proceeds to review the Magistrate
Judge’s decision for clear error.2
First, Plaintiff objects that the Magistrate Judge committed clear error by solely focusing
on Plaintiff’s shortcomings in meeting the “duties test,” and not the “salary test.” Docket No. 33
at 6–7. Plaintiff presents no case law for his assertion that proving potential plaintiffs are similarly
situated in terms of payment provisions is sufficient to meet the showing for conditional class
certification. Indeed, Plaintiff’s cited cases state that in order for Plaintiff to show that conditional
class certification is warranted, he must make a factual showing demonstrating that potential
plaintiffs are similarly situated in terms of both job requirements and payment provisions. Mathis
v. Stuart Petroleum Testers, Inc., No. 5:16–CV–094–RP, 2016 WL 4533271, at *2 (W.D. Tex.
Aug. 29, 2016). In other words, Plaintiff’s failure to meet either one of these requirements defeats
his motion for class certification. The Magistrate Judge’s decision to focus his analysis on
Plaintiff’s failure to provide a factual showing that potential plaintiffs are similarly situated with
respect to job requirements was not clear error.
Plaintiff’s objection with respect to the issue of Plaintiff’s job title relies on Plaintiff’s
incorrect assertion that a showing of similar salaries alone is sufficient for conditional class
certification. See Docket No. 33 at 7. Thus, this objection is also overruled.
Plaintiff also objects that “the Magistrate Judge’s criticism of Plaintiff’s one declaration is
clearly erroneous.” Docket. No. 33 at 8. Plaintiff argues that at this stage, he is not required to

1

Plaintiff, after setting forth the clear error standard of review, then confusingly states that the de novo standard of
review applies. Docket No. 33, at 2. However, given that Plaintiff’s analysis itself proceeds with the clear error
standard, the Court finds that Plaintiff has waived its right, if any, to de novo review.
2
Although Plaintiff has not convinced the Court that he is entitled to de novo review, the Court notes that even if de
novo review were applied, Plaintiff’s objections would fail for largely the same reasons provided below.
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demonstrate that there are similarly situated individuals who want to opt in to the lawsuit. Id. The
Magistrate Judge, however, did not address this third requirement for conditional certification,
which has been disputed by a number of courts. See, e.g., Villareal v. St. Luke’s Episcopal Hosp.,
751 F. Supp. 2d 902, 916 (S.D. Tex. 2010). Rather, the Magistrate Judge found that Plaintiff had
failed to make a “preliminary factual showing that a similarly situated group of potential plaintiffs
exist.” See Hayes v. Laroy Thomas, Inc., No. 5:05CV227, 2006 WL 1004991, at *4 (E.D. Tex.
Apr. 18, 2006). Evidence of potential opt-in Plaintiffs would have been one way that Plaintiff
could make such a showing, but not the only way. See H&R Block, Ltd. v. Housden, 186 F.R.D.
399, 400 (E.D. Tex. 1999). Specifically, the Magistrate Judge found:
Plaintiff’s Complaint, Motion, and Affidavit each include only conclusory assertions
that assistant managers are similarly situated at Steak N Shake. Plaintiff has not
identified any potential opt-in plaintiffs, submitted any affidavits of potential opt-in
plaintiffs, or provided evidence that might show a widespread plan of discrimination
that might allow the Court to better evaluate his claims. See Housden, 186 F.R.D. at
400; Hayes v. Laroy Thomas, Inc., No. 5:05CV227, 2006 WL 1004991, at *4 (E.D.
Tex. Apr. 18, 2006). Plaintiff has not even provided a description of his job duties
as an assistant manager at Steak N Shake. Indeed, Defendant has submitted evidence
that Plaintiff’s title at Steak N Shake was “Operations Supervisor,” not “Assistant
Manager.” (See Doc. No. 26, Ex. A-1.) There are simply no facts the Court can
evaluate in determining whether there are other assistant managers, let alone
operations supervisors, at Steak N Shake who are similarly situated to Plaintiff and
subject to the same allegedly improper payment practices. See Housden, 186 F.R.D. at
400 (finding plaintiffs’ conclusory statements that they “believe other workers were
discriminated against in similar ways” insufficient to make a factual showing of other
similarly situated potential plaintiffs).

Docket No. 28, at 6 (emphasis added). The Magistrate Judge’s analysis is not clearly erroneous
or contrary to law.
The Court is of the opinion that the findings and conclusions of the Magistrate Judge are
correct. Therefore, the Court ADOPTS the Report and Recommendation of the United States
Magistrate Judge as the findings and conclusions of this Court. Plaintiff’s Motion (Docket No.
24) is DENIED.

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SIGNED this 24th day of July, 2017.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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