Huaman et al v. Ojos Locos Sports Cantina, LLC
Filing
36
MEMORANDUM OPINION AND ORDER granting in part and denying in part 10 Motion to Certify Class. (Ordered by Judge Jane J Boyle on 8/19/2014) (Judge Jane J Boyle)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LIA MELISSA HUAMAN, YESENIA
PEREZ, DIANA SANCHEZ, NELLY
SANTOYO, ALICIA TIRADO, and
ELIA ZAMORA, individually and on
behalf of all others similarly situated,
Plaintiffs,
v.
OJOS LOCOS SPORTS CANTINA
LLC and FRONT BURNER
RESTAURANTS, LP,
Defendants.
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CIVIL ACTION NO. 3:13-CV-4938-B
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Motion for Conditional Class Certification and Notice to
Potential Plaintiffs (doc. 10), which was filed on May 16, 2014. For the reasons below, Plaintiffs’
Motion is GRANTED in part and DENIED in part.
I.
BACKGROUND
This case arises out of a Fair Labor Standards Act (“FLSA”) claim for unpaid minimum wages
and overtime. 29 U.S.C. §§ 201, et seq. The six named plaintiffs are former waitresses suing on behalf
of themselves and all those similarly situated. Am. Compl. 4. Defendant Ojos Locos Sports Cantina
LLC (“Ojos Locos”) owns and operates sports bars and grills in Dallas, Fort Worth, and San Antonio,
Texas. Def.’s Opp. 3. Defendant Front Burner Restaurants, L.P. (“Front Burner”) is a limited
partnership organized under the laws of the State of Delaware that “provides certain payroll and
human resources functions for Defendant Ojos Locos, including the calculations of servers’ pay and
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the issuance of pay checks and wage settlements.” Doc. 33, Def.’s Ans. 3–4.
Plaintiffs worked as waitresses (servers) for Ojos Locos.1 Am. Compl. 4; Pls.’ Mot. 2; Def.’s
Resp. 3. In that capacity, they tended to patrons and worked as cashiers for food and alcohol that
were purchased. Am. Compl. 4; Pls.’ Reply 10. Plaintiffs collected some payments for checks and tips
in cash, which they kept during their shifts. Am. Compl. 4. However, checks and tips that were paid
by credit card were processed by a computer system near the bar areas. Id. Plaintiffs allege that they
were not paid any hourly wages by Defendants. Id. They further claim that they were issued
fraudulent paystubs, which showed arbitrary and incorrect hours worked. Id. In particular, Plaintiffs
allege that the paystubs always totaled fewer than forty hours, though Plaintiffs maintain they
“routinely worked in excess of forty hours per week.” Id. at 4–5. Plaintiffs insist they were not paid
overtime for these extra hours. Id. at 5.
Plaintiffs also claim that Defendants had “an established practice of requiring [them] and the
Plaintiff Class to pay the bills of walked checks, declined credit cards, and food and drink that was
[sic] given away out of the cash they received from tips and previous checks that were paid in cash.”
Id. As a result of these deductions and “partial tips,” Plaintiffs allege that on multiple occasions they
worked entire shifts without receiving either cash wage payments or tips. Id.
For these alleged FLSA violations—paying no hourly wages, withholding overtime pay, and
making improper deductions from their earnings,2 Plaintiffs filed suit against Defendant Ojos Locos
1
Plaintiffs refer to themselves as “waitresses” throughout their filings, while Defendant refers to them
instead as “servers.” Neither party addresses—let alone objects to—the other’s terminology. The Court
interprets this to mean that “waitresses” and “servers” have identical job duties, and the terms are therefore
interchangeable. The Court will use them accordingly.
2
Under the FLSA, “an employer is prohibited from taking certain self-serving deductions from an
employee’s wages. Deductions are improper when they deprive a worker of the federally mandated minimum
wage or overtime pay.” Gellhaus v. Wal-Mart Stores, Inc., 769 F. Supp. 2d 1071, 1077 (E.D. Tex.
2011)(internal citations omitted).
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Sports Cantina LLC in the 44th Judicial District Court of Dallas County, Texas, on November 7,
2013. Doc. 1-5, Pls.’ Orig. Pet. Shortly thereafter, on December 19, 2013, Defendant Ojos Locos
removed the action to this Court. Doc. 1. On May 16, 2014, Plaintiffs filed their present Motion.
Doc. 10. With leave of Court, Ojos Locos filed its response on June 13, 2014, and Plaintiffs then filed
their reply. Docs. 12, 17, 26. On July 18, 2014, Plaintiffs filed an Amended Complaint, adding
Defendant Front Burner Restaurants, LP to the action. Doc. 30.
As Plaintiff’s Motion for Conditional Class Certification and Notice to Potential Plaintiffs is
ripe, the Court will consider its merits below.
II.
LEGAL STANDARD
“In 1938 Congress enacted the FLSA as a means of regulating minimum wages, maximum
working hours, and child labor in industries that affected interstate commerce.” Reich v. Tiller
Helicopter Servs., Inc., 8 F.3d 1018, 1024 (5th Cir. 1993)(citing 29 U.S.C. § 202). “[T]he FLSA was
designed to give specific minimum protections to individual workers and to ensure that each
employee covered by the Act would receive ‘[a] fair day’s pay for a fair day’s work.’” Barrentine v.
Ark.-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981)(quoting Overnight Motor Transportation Co. v.
Missel, 316 U.S. 572, 578 (1942)).“Minimum wage and overtime requirements are the two central
themes of the Act.” Gellhaus, 769 F. Supp. 2d at 1076.
The FLSA grants “individual employees broad access to the courts.” Barrentine, 450 U.S. at
740. In particular, it allows a suit to be instituted by “one or more employees for and in behalf of
himself or themselves and other employees similarly situated” to recover unpaid minimum wages or
overtime, as well as liquidated damages, from employers who violate the statute’s provisions. 29
U.S.C. § 216(b). “This type of collective action follows an ‘opt-in’ procedure in which ‘[n]o employee
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shall be a party plaintiff to any such action unless he gives his consent in writing to become such a
party and such consent is filed in the court in which such action is brought.’” Vogt v. Texas
Instruments, Inc., No. 3:05–CV–2244–L, 2006 WL 4660134, at *2 (N.D. Tex. Sept. 19,
2006)(quoting 29 U.S.C. § 216(b)). Accordingly, “those who choose not to opt-in to a class action
under § 216(b) are not bound by and may not benefit from the judgment.” Hall v. Burk, No.
301CV2487H, 2002 WL 413901, at *2 (N.D. Tex. Mar. 11, 2002).
District courts have discretion to allow a party asserting claims on behalf of others to notify
potential plaintiffs that they may choose to “opt in” to the suit. Hoffman-LaRoche, Inc. v. Sperling, 493
U.S. 165, 169 (1989); see also Vogt, 2006 WL 4660134, at *2. Though the Fifth Circuit has not
adopted a particular standard to use in determining whether to allow notification, the prevailing view
among federal courts is to follow the two-step approach outlined in Lusardi v. Xerox Corp., 118
F.R.D.
351
(D.N.J.
1987).
See
Barnett
v.
Countrywide
Credit
Indus.
Inc.,
No.
CIV.A.3:01–CV–1182–M, 2002 WL 1023161, at *1 (N.D. Tex. May 21, 2002).
Under Lusardi, the court first makes an inquiry into whether the plaintiff has provided
sufficient evidence that similarly situated plaintiffs exist. Id. “Because the court generally has minimal
evidence at this stage, the determination is made using a fairly lenient standard and typically results
in conditional certification of a conditional class.” Jones v. SuperMedia Inc., 281 F.R.D. 282, 287
(N.D. Tex. 2012). Although courts generally require “nothing more than substantial allegations that
the putative class members were together the victims of a single decision, policy, or plan,” a factual
basis for the allegations must exist and there must be a showing of some “identifiable facts or legal
nexus that binds the claims so that hearing the cases together promotes judicial efficiency.” Id.
(internal citations and quotation marks omitted). After granting conditional certification, the court
will reexamine the class once notice, time for opting-in, and discovery have all taken place. Barnett,
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2002 WL 1023161, at *1. If the court finds that the class is no longer made up of similarly situated
persons, it may decertify the class, usually upon a motion filed by the defendant. Id.
III.
ANALYSIS
Plaintiffs seek to certify the following class: “all current and former Waitresses and Service
staff who worked for Defendant [Ojos Locos] in the State of Texas.” Pls.’ Mot. 1. Ojos Locos opposes
Plaintiffs’ Motion and insists that conditional certification is inappropriate. In particular, Ojos Locos
claims that Plaintiffs fail to show that it maintained a uniform policy or practice giving rise to the
alleged violations, that other Ojos Locos establishments employed the same wage-and-hour practices,
or that other servers were subjected to the same conditions. Def.’s Opp. 1.
A.
Conditional Certification
Plaintiffs’ Motion concerns the first or “notice” stage of classification, which means they must
show 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[s] in relevant aspects given the
claims and defenses asserted; and (3) those individuals want to opt in to the lawsuit.” Morales v.
Thang Hung Corp., No. 4:08–2795, 2009 WL 2524601, at *2 (S.D. Tex. Aug. 14, 2009). If the Court
finds that the action “arises from circumstances purely personal to the plaintiff[s], and not from any
generally applicable rule, policy, or practice,” it may deny the conditional certification. Tolentino v.
C & J Spec-Rent Servs. Inc., 716 F. Supp. 2d 642, 647 (S.D. Tex. 2010)(internal quotation marks
omitted).
1.
Do Aggrieved Individuals Exist?
Plaintiffs have stated a cognizable claim under both Sections 206 and 207 of the FLSA, which
require employers to pay non-exempt employees minimum wage and to pay overtime for hours
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worked in excess of forty per week, respectively. 29 U.S.C. §§ 206(a), 207(a). Plaintiffs have alleged
that they were non-exempt, hourly employees, who were not paid any hourly wages or overtime
compensation. Am. Compl. 4–5; see also Perez Decl. at ¶¶ 7, 16; Santoyo Decl. at ¶¶ 8, 17; Zamora
Decl. at ¶¶ 8, 17; Tirado Decl. at ¶¶ 8, 17. Plaintiffs also claim that they were compensated pursuant
to Defendant’s “established practice”of requiring “Plaintiffs and the Plaintiff Class” to pay the bills
of “walked checks,” declined credit cards, or gifted food or drinks out of their cash tips or from
previous checks that were paid in cash. Am. Compl. 5. Four of the six named plaintiffs have provided
declarations describing how they routinely worked more than forty hours a week without receiving
overtime pay or having their pay statements reflect the correct number of hours worked. Perez Decl.
at ¶¶ 9, 16; Santoyo Decl. at ¶¶ 10, 17; Zamora Decl. at ¶¶ 10, 17; Tirado Decl. at ¶¶ 10, 17.
Plaintiffs’ declarations also indicate that declarants were aware of other “Waitresses and Service
staff” who performed similar duties and who were paid in the same manner. See Perez Decl. at ¶ 20;
Santoyo Decl. at ¶ 21; Zamora Decl. at ¶ 19; Tirado Decl. at ¶ 19
“Declarations such as these are ideal for analysis of whether the putative class members were
together the victims of a single decision, policy, or plan.” Jones, 281 F.R.D. at 290 (internal quotation
marks omitted). Plaintiffs’ evidence indicates that Ojos Locos may have indeed committed FLSA
violations with respect to Plaintiffs and others. See Tolentino, 716 F. Supp. 2d at 649 (internal
quotation marks omitted)(“Affidavits show that a defendant implemented the same policy with
respect to different employees, and that additional plaintiffs wish to join the collective action suit.”).
Though Defendant denies all of Plaintiffs’ allegations and insists it paid servers hourly wages and
overtime, had a policy against altering employees’ time records, and prohibited employees from
working “off the clock,” the Court finds its responses unmoving. Defendants’ arguments go to the
merits of Plaintiffs’ case and are inappropriate to consider at the notice stage. Lee v. Metrocare Servs.,
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980 F. Supp. 2d 754, 767 (N.D. Tex. 2013); see also Heeg v. Adams Harris, Inc., 907 F. Supp. 2d 856,
861 (S.D. Tex. 2012)(noting that courts do not review the “underlying merits” at the notice stage);
McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794, 802 (S.D. Tex. 2010)(noting that the court does
not assess the merits of the claim at either stage of certification). Plaintiffs have only a“low burden”
at this stage, and the Court concludes that there is a reasonable basis for crediting the assertion that
aggrieved employees exist. Black v. Settlepou, P.C., No. 3:10–CV–1418–K, 2011 WL 609884, at *4
(N.D. Tex. Feb. 14, 2011); Jones, 281 F.R.D. at 290.
2.
Are There Aggrieved Individuals who are Similarly Situated to Plaintiffs?
To establish that employees are similarly situated, a plaintiff must show that such employees
are “‘similarly situated’ with respect to their job requirements and with regard to their pay provisions.
The positions need not be identical but similar.” Barnett, 2002 WL 1023161, at *2. “A court may
deny a plaintiff’s right to proceed collectively only if the action arises from circumstances purely
personal to the plaintiff, and not from any generally applicable rule, policy, or practice.” Tolentino,
716 F. Supp. 2d at 650 (internal quotation marks omitted).
Plaintiffs’ declarations and pleadings indicate that all six worked as waitresses, and their
duties included taking orders from customers, delivering orders to and from the kitchen, serving food
and beverages, and collecting payments for checks. See Perez Decl. at ¶ 3; Santoyo Decl. at ¶ 3;
Zamora Decl. at ¶ 3; Tirado Decl. at ¶ 3; Am. Compl. 4 at ¶ 19. Plaintiffs’ Motion states that the
women worked at “Dallas/Fort Worth locations,” but later indicates that Plaintiffs’ job duties
involved tending to patrons “in assigned sections of the bar in Dallas, Texas.” Pls.’ Mot. 3. Plaintiffs
allege Defendant did not pay them hourly wages or overtime and, instead, used its point-of-sale
computer system to document false tip amounts and issue payroll statements with bogus hours. Pls.’
Mot. 3–4. The four declarant plaintiffs also allege General Manager Omar Benitez and Assistant
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Manager Eddie Benitez often required them to pay for walked checks or declined credit cards out of
their cash tips.Perez Decl. at ¶ 10; Santoyo Decl. at ¶ 11; Zamora Decl. at ¶ 11; Tirado Decl. at ¶
11. Finally, plaintiffs state they are aware of other waitresses and service staff who performed similar
job duties, were paid in the same manner, and would be interested in joining the lawsuit if they knew
about it. Perez Decl. at ¶ 20; Santoyo Decl. at ¶ 21; Zamora Decl. at ¶ 19; Tirado Decl. at ¶ 19.
Defendant does not dispute that Plaintiffs worked as waitresses or that they were employed
at the Dallas location. See Def.’s Opp. 3. Defendant also does not deny that it relies on its point-ofsale computer system to ring up customers’ bills and calculate workers’ hours, or that sometimes
managers will adjust employees’ hours in the computer system. Def.’s Opp. 4–6. However,
Defendant again denies that it failed to pay Plaintiffs hourly wages or overtime or that it forced
Plaintiffs to pay for walked checks out of their tips. Id. Defendant also states that it had a policy
regarding proper use of its computer system to record employees’ hours. Def.’s Resp. 5. Defendant
further includes a chart of Plaintiffs’ average hours worked per week, each of which is less than forty,
and provides declarations from five servers who worked at the Dallas location during the same period
as Plaintiffs and state they were paid hourly rates, they generally did not work more than forty hours,
and they were paid for all hours worked. See id. at 8; see also Arriaga Decl.; Caldwell Decl.; Ortiz
Decl.; Rodriguez Decl.; Salazar Decl. Finally, Defendant challenges Plaintiffs’ declarations as being,
inter alia, “conclusory,” and suggests three should be stricken for not being certified translations from
Spanish to English. Def.’s Opp. 26, 2 n.1.
Despite Defendant’s objections, the Court concludes that this action does not arise out of
circumstances purely personal to Plaintiffs. Defendant concedes that it utilizes a computer system
at its Dallas location to record server hours, that managers have access to this system and can change
employees’ hours, and that the Dallas location generally operates with a staff of 40 to 45 servers.
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Def.’s Opp. 3–6. Taken in consideration with Plaintiffs’ common duties, wages (or lack thereof), and
allegedly bogus time sheets, the Court concludes there is a “meaningful nexus that binds Plaintiffs’
claims together.” Jones, 281 F.R.D. at 291. Defendant’s assertions regarding the average hours
Plaintiffs actually worked and Ojos Locos’ policies regarding pay once again go towards the merits
of Plaintiffs’ case and are not appropriate to consider at this stage. Lee, 980 F. Supp. 2d at 767.
Similarly, other servers’ declarations are not dispositive. “While the Court must be satisfied that
other ‘similarly situated’ employees desire to opt in, numerosity is not a requirement for conditional
certification under the Lusardi approach.” Id. at 768 (internal citations omitted); see also Black, 2011
WL 609884, at *3 (rejecting defendant’s argument that plaintiff was required to obtain preliminary
support from unspecified number of potential class members as “putting the cart before the horse”).
Finally, the Court disagrees that Plaintiffs’ declarations are simply “conclusory” and “selfserving.” Furthermore, Defendant’s allegation that they are inadmissible is inapposite; “Plaintiffs need
not present evidence in a form admissible at trial at the notice stage.” Lee, 980 F. Supp. at 761.
Indeed, “because the Plaintiffs were not required to present affidavits that would otherwise meet the
requirements of a dispositive motion . . . , the Court declines to strike the declarations merely
because Plaintiffs did not provide affidavits in Spanish with a certified translation into English.”
Vargas v. HEB Grocery Co., LP, No. SA–12–CV–116–XR, 2012 WL 4098996, at *2 (W.D. Tex.
Sept. 17, 2012). It is enough that each of Plaintiffs’ declarations was based on personal knowledge.
See Lee, 980 F. Supp. 2d at 762 (declining to strike declarations for failing to meet all the
requirements of Federal Rule 56(e), but noting that declarations must be based on personal
knowledge). Plaintiffs have provided declarations based on their personal knowledge and have made
substantial allegations that they are similarly situated to potential class members. See Perez Decl. at
¶ 1; Santoyo Decl. at ¶ 1; Zamora Decl. at ¶ 1; Tirado Decl. at ¶ 1. The Court is therefore satisfied
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that it is “likely that similarly situated aggrieved individual exist in the case.” Jones, 281 F.R.D. at
291.
3.
Do Similarly Situated Aggrieved Individuals Want to Opt in to the Lawsuit?
For the reasons already discussed, the Court finds it likely that similarly situated aggrieved
individuals may want to opt in to this lawsuit. Though Plaintiffs have only provided declarations for
themselves, “courts have allowed for class certification without either the submission of statements
from similarly situated employees, or affidavits from named Plaintiffs that provide specific information
about other employees.” Jones, 281 F.R.D. at 291 (collecting cases); see also Walker v. Honghua Am.,
LLC, 870 F. Supp. 2d 462, 471 (S.D. Tex. 2012)(“Many courts have determined that plaintiffs do
not need to present evidence that potential opt-in plaintiffs desire to opt-in.”). In the event other
similarly situated employees are found not to exist, the issue may be raised at the decertification
stage. Tolentino, 716 F. Supp. 2d at 653.
Though the Court finds that Plaintiffs have satisfied their modest burden for conditional
certification, it nevertheless takes issue with the class of individuals Plaintiffs wish to certify. Plaintiffs
request certification of “all current and former Waitresses and Service staff who worked for
Defendant in the State of Texas.” Pls.’ Mot. 1. However, the Court has already noted that Plaintiffs
stated their duties were to “assigned sections of the bar in Dallas, Texas.” Pls.’ Mot. 2–3. In addition,
Plaintiffs have not provided anything that reasonably indicates that the alleged FLSA violations may
have occurred anywhere besides Dallas. “FLSA violations at one of a company’s multiple locations
generally are not, without more, sufficient to support company-wide notice.” Rueda v. Tecon Servs.,
Inc., No. H–10–4937, 2011 WL 2566072, at *4 (S.D. Tex. June 28, 2011). Plaintiffs direct the Court
to Yesenia Perez’s declaration, which states that Dallas Assistant Manager Joey Martinez told her he
set up the point-of-sale computer system for San Antonio and Houston locations. Pls.’ Mot. 11; Pls.’
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Reply 5; Perez Decl. at ¶ 19. However this statement provides no basis for inferring that FLSA
violations may have occurred in these other cities. The Court gleans from Plaintiffs’ filings that it was
managers’ tampering with hours that caused the bogus time sheets rather than the computer system
itself. As such, the mere existence of that system—or its being set up by an assistant manager from
Dallas—is not telling. Accordingly, the Court declines to extend the class beyond the Dallas Ojos
Locos. See Flowers v. MGTI, LLC, No. H–11–1235, 2012 WL 1941755, at *4 (S.D. Tex. May 29,
2012)(declining to extend collective certification to other locations because record was devoid of
evidence of practices beyond one locale).
A second concern of the Court’s is Plaintiffs’ request to include “service staff” in the potential
class. Plaintiffs fail to define this term in their filings, and, as Defendant points out, “service staff”
could reasonably refer to a number of positions, including table bussers, hosts, or bartenders. Def.’s
Opp. 14. Further, Plaintiffs plainly state in their reply brief that “The Ojos Locos Sports Cantina
Chicas comprise the putative class,” and that Plaintiffs and Chicas shared the same job duties of
tending to patrons at the bar and serving as cashiers for the food and drinks patrons purchased. Pls.’
Reply 8, 10 (emphasis in original). This jibes with Plaintiffs’ declarations, in which Plaintiffs identify
as waitresses and state that their duties were to take orders from customers, deliver orders to and
from the kitchen, serve food and beverages, and collect payments for checks. Perez Decl. at ¶¶ 2–3;
Santoyo Decl. at ¶¶ 2–3; Zamora Decl. at ¶¶ 2–3; Tirado Decl. at ¶¶ 2–3.
Though the Court recognizes individuals need not be identical for conditional certification,
potential class members must nevertheless be “similarly situated with respect to their job
requirements and with regard to their pay provisions.” Tolentino, 716 F. Supp. 2d at 649–50 (internal
quotation marks omitted). Defendant here has indicated that each position at Ojos Locos is subject
to different terms and conditions of employment, and Plaintiffs have failed to explain how “service
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staff,” who reasonably could hold any number of positions at Ojos Locos, are similarly situated to
them as waitresses. Accordingly, the Court declines to include “service staff” within the class.
Finally, the Court takes issue with Plaintiffs’ request to include “all current and former”
waitresses. An FLSA cause of action “may be commenced within two years after the cause of action
accrued . . . , except that a cause of action arising out of a willful violation may be commenced within
three year after the cause of action accrued.” 29 U.S.C. § 255(a). “Based on the statute of
limitations, courts have recognized that class certification is appropriately limited to workers
employed by defendant up to three years before notice is approved by the court.” Quintanilla v. A
& R Demolitina, Inc., No. H–04–1965, 2005 WL 2095104, at *16 (S.D. Tex. Aug. 30, 2005); see also
Watson v. Travis Software Corp., No. H–07–4104, 2008 WL 5068806, at *8 (S.D. Tex. Nov. 21,
2008)(limiting class period to “three years before the issuance of notice is approved”). Accordingly,
the Court concludes that the class period must commence three years prior to the Court’s approval
of notice and therefore shall not extend to all former waitresses.
The Court further concludes that the class period must end in December 2013. Plaintiffs
concede that they are no longer employed by Ojos Locos, and Defendant has provided evidence that
no plaintiff has worked at its Dallas location since December 2013. Def.’s Opp. 15; Benitez Decl. at
¶ 11. More importantly, Defendant has indicated that “since late 2013, the Dallas location has had
servers sign off and acknowledge the accuracy of any manager adjustments to their time in writing.”
Def.’s Opp. 15; Estrada Decl. at ¶ 9. This policy change demonstrates that servers employed since
December 2013 are not “similarly situated” to those before that time—namely Plaintiffs, “as they are
not together ‘victims of a single decision, policy, or plan,’ regardless of whether FLSA violations
continued to occur after that time.” Tolentino, 716 F. Supp. 2d at 654–55. Thus, the class period
must end in December 2013. See Walker, 870 F. Supp. 2d at 472–73.
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In sum, the Court concludes that conditional certification is appropriate, though only with
respect to waitresses (servers) who worked at the Dallas Ojos Locos from three years before the Court
approves notice until December 2013.
B.
Notice
Having determined that conditional certification is appropriate, the next consideration is
notice. Defendant has raised several objections with respect to Plaintiffs’ proposal. Def.’s Opp. 28.
Defendant has also requested the Court direct the parties to confer and jointly arrive at language
that is mutually agreeable. Id. The Court agrees that the parties should attempt to resolve any
differences regarding the substance of the notice. Accordingly, the Court ORDERS the parties to
confer and attempt to agree on the contents of the notice. The Court further ORDERS the parties
submit a concise statement to the Court detailing any issues they could not resolve.
The Court notes that Plaintiffs have requested the Court order Defendant to disclose the
names, last known addresses, and email addresses of potential plaintiffs. Pls.’ Mot. 15. Plaintiffs ask
this information be provided within ten days of the Court’s order and in usable electronic form.
Id. Plaintiffs also request permission to mail and email notice and consent forms to class members.
Id. Defendant has not objected to any of these requests, and the Court finds them to be reasonable.
Accordingly, the Court ORDERS Defendant to produce the full names (including middle names if
known), last known addresses, and email addresses for all individuals to whom notice may be sent.
In addition, the Court GRANTS Plaintiffs’ request to mail and email class members once notice and
consent forms have been approved.
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IV.
CONCLUSION
In conclusion, Plaintiffs’ Motion is GRANTED in part and DENIED in part as follows:
1.
The Court hereby conditionally certifies this collective action.;
2.
The prospective class may only include waitresses (servers), who were not
paid minimum wage or were not paid overtime at the rate of one and one-half
times their regular hourly rate, and were employed at the Dallas Ojos Locos
up to three years before the Court approves notice until December 2013.;
3.
The Court ORDERS the parties to confer and submit a proposed notice to
the Court, revised in accordance with the Court’s comments above. The
parties should discuss any Spanish-language version of the notice that
Plaintiffs wish to send. If the parties are unable to agree on the contents of
the notice, they shall submit to the Court a brief joint statement explaining
any outstanding issues. The proposed notice or joint statement is due within
two weeks of this Order.; and
4.
The Court ORDERS Defendant to produce to Plaintiffs’ counsel, in usable
electronic format and no later than ten days from this Order, the full names
(including middle names if known), last known addresses, and email
addresses for all individuals to whom notice may be sent.
Once the Court has approved notice, it will direct Plaintiffs in a separate order to file notice
and consent forms to each potential class member. The Court will similarly provide a date by which
potential class members will have to file consent forms with the Court to join the collective action.
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SO ORDERED.
SIGNED: AUGUST 19, 2014.
_________________________________
JANE J. BOYLE
UNITED STATES DISTRICT JUDGE
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