Medina v. Alicia's Mexican Grille Inc. et al
Filing
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OPINION AND ORDER denying 21 Motion to Certify Class.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARTHA MEDINA,
Plaintiff,
VS.
ALICIA’S MEXICAN GRILLE INC., et al,
Defendants.
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June 13, 2016
David J. Bradley, Clerk
CIVIL ACTION NO. 4:15-CV-1192
OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion for Conditional Certification and Notice to
Potential Plaintiffs. (Document No. 21). Having considered the Motion, Defendants’ Response
(Document No. 25), Plaintiff’s Reply (Document No. 28), the facts in the record, and the
applicable law, the Court concludes the motion should be denied.
I.
Background
Plaintiff Martha Medina (“Medina”) filed this case pursuant to Sections 29 U.S.C. §§
201–16 of the Fair Labor Standards Act (the “FLSA”). (Document No. 21 at 6). Medina filed her
Complaint “as a collective action, individually and on behalf of other similarly situated servers,
waiters/waitresses, hostesses, bartenders, and other tipped employees and those performing the
same or similar job duties at Alicia’s who might opt-in this lawsuit.” Id. Medina alleges
Defendant Alicia’s Mexican Grille Inc. (“Alicia’s”) violated the FLSA as follows:
Medina and other members of the Class: (1) were required to participate in a mandatory
tip pool, which was extended to employees that do not regularly and customarily receive
tips; (2) had the cost of uniforms deducted from their pay, thus reducing their pay below
the statutory minimum wage; (3) had impermissible withholdings from their tips for
incorrectly fulfilled orders; and (4) were required to work off-the-clock, resulting in
unpaid hours and artificially reducing hours below forty hours per week.
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Id. at 4. Medina alleges that a collective action under 216(b) of the FLSA is appropriate, because
there are other similarly situated employees who were affected by these policies. Id. at 3.
II.
Legal Standard
Section 216(b) of the FLSA permits an employee to bring an action “for and [on] behalf
of himself . . . and other employees similarly situated.” 29 U.S.C. § 216(b). Like most district
courts, this Court handles FLSA claims in two stages, as set forth in Lusardi v. Xerox Corp., 118
F.R.D. 351 (D.N.J. 1987), a notice stage followed by a decertification stage. See Blake v.
Hewlett-Packard Co., No. 4:11-CV-592, 2013 WL 3753965, at *4 (S.D. Tex. July 11, 2013)
(explaining rationale). This case is at the notice stage, where the court makes a preliminary
determination of whether potential plaintiffs are similarly situated to the named plaintiff. Mooney
v. Aramco Services Co., 54 F.3d 1207, 1212 (5th Cir. 1995). Plaintiffs bear the burden of
establishing they are similarly situated to other employees in the proposed class. England v. New
Century Fin. Corp., 370 F. Supp. 2d 504, 506 (M.D. La. 2005).
The FLSA does not provide a definition of “similarly situated,” leaving the matter for
courts to determine. See 7B Fed. Prac. & Proc. Civ. § 1807 (3d ed.). Courts customarily
determine whether the burden at the notice stage is met “based only on the pleadings and any
affidavits which have been submitted.” Mooney, 54 F.3d at 1213-14. Courts apply a “fairly
lenient standard,” requiring only “substantial allegations that the putative class members were
together the victims of a single decision, policy, or plan infected by discrimination.”
Mooney, 54 F.3d at 1214, n.8 (citing Sperling v. Hoffman-La Roche, Inc., 118 F.R.D. 392, 407
(D.N.J. 1988)).
Usually at the notice stage, because discovery has not yet occurred, courts do not review
the underlying merits of the action in deciding whether to conditionally certify the class. Walker
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v. Honghua America, LLC, 870 F. Supp. 2d 462, 465 (S.D. Tex. 2012). “At this stage, a plaintiff
must make a minimal 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.” McKnight v. D. Houston, Inc., 756 F. Supp. 2d 794, 801 (S.D. Tex. 2010)
(citations omitted).
Courts have denied conditional certification where “the action arises from circumstances
purely personal to the plaintiff, and not from any generally applicable rule, policy, or practice.”
England, 370 F. Supp. 2d at 507. In addition, courts often consider policies of judicial economy
and avoidance of “‘stirring up’ of litigation through unwarranted solicitation” as balanced against
the remedial policy of the FLSA. Severtson v. Philips Beverage Co., 137 F.R.D. 264, 266-67 (D.
Minn. 1991); see Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 171 (1989) (explaining that
the benefits of collective actions for judicial economy depend on employees receiving “accurate
and timely notice” and that “the potential for misuse of the class device, as by misleading
communications, may be countered by court-authorized notice”).
Discussion
A.
Existence of Class Members
First the Court will consider whether there is a reasonable basis for crediting the assertion
that other aggrieved individuals exist. McKnight, 756 F. Supp. 2d at 801. Medina has not filed
declarations from any other servers, but, in her affidavit, Medina states that she and other servers
were paid $2.13 per hour; that the impermissible tip pool applied to all servers; that she and other
servers were not permitted to clock in until serving their first table of the day, despite arriving
earlier; that she and other servers were not allowed to clock in during mandatory meetings; that
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Alicia’s made Medina and other servers pay for their uniforms via a paycheck deduction; and
that Alicia’s would withhold the full cost of a meal from Medina’s and other servers’ tips if a
customer order were fulfilled incorrectly.1 (Document No. 21-1 at 2-4). Although Medina’s
affidavit provides the only evidence of the existence of these similarly aggrieved employees, the
Court will assume that Medina has established a reasonable basis for crediting the assertions that
aggrieved individuals exist. Simmons v. T-Mobile USA, Inc., No. CIV A H-06-1820, 2007 WL
210008, at *5 (S.D. Tex. Jan. 24, 2007) (finding the first factor met, where plaintiff only
presented his own affidavit as evidence of existence of other class members). See also Hayes v.
Laroy Thomas, Inc., No. 5:05CV227, 2006 WL 1004991, at *7 (E.D. Tex. Apr. 18, 2006)
(allowing certification where plaintiffs did not present any affidavits from other potential
plaintiffs); Neagley v. Atascosa Cty. EMS, No. CIV.A.SA04CA0893XR, 2005 WL 354085, at *3
(W.D. Tex. Jan. 7, 2005) (same). However, Plaintiff’s complaint is at the “outer bounds of what
should be presented to the Court when presenting a collective action.” Neagley, 2005 WL
354085, at *3.
B.
“Similarly Situated”
Given the existence of potential class members, the Court must determine whether
Medina has made substantial allegations that “those aggrieved individuals are similarly situated
to [her] in relevant respects given the claims and defenses asserted.” McKnight, 756 F. Supp. 2d
at 801. Medina must allege that the potential class members were subject to a “single decision,
policy, or plan infected by discrimination,” Mooney, 54 F.3d at 1214, n.8, rather than
“circumstances purely personal to the plaintiff.” England, 370 F. Supp. 2d at 507. Medina’s
1
The Court excludes allegations solely related to Medina, such as her allegation that “[n]either Mr. Herrera nor any
other employee at Alicia’s ever informed me of the provisions of the tip credit or tip-pooling arrangement.”
(Document No. 21-1 at 3) (emphasis added); England v. New Century Fin. Corp., 370 F. Supp. 2d 504, 507 (M.D.
La. 2005).
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affidavit alleges that other servers were subject to the same policies as she was (not being able to
clock in, and uniform and meal deductions), but does not allege that any hostesses, bartenders, or
other tipped employees were subject to these same policies. (Document No. 21-1 at 2-4).
Therefore, the relevant class as to these claims can only include other servers.
Medina does state that “Alicia’s allowed not only its servers to be paid from the tip pool,
but the tip pool was extended to also pay bartenders, hostesses, busboys, and expediters (also
known as ‘expos’).” Id. at 3. However, there is no evidence that bartenders and hostesses2 are
“similarly situated” to Plaintiff, given the differences in job titles, and presumably in duties.
Plaintiff does not describe the duties of bartenders or hostesses, but typically each would have a
different role from Plaintiff.3 At this first stage, “there must be a showing of ‘some identifiable
facts or legal nexus [that] bind the claims so that hearing the cases together promotes judicial
efficiency.’” McKnight, 756 F. Supp. 2d at 801. See also Foraker v. Highpoint Sw., Servs., L.P.,
No. CIV.A. H-06-1856, 2006 WL 2585047, at *4 (S.D. Tex. Sept. 7, 2006) (workers in same job
category and treated “as a single class of employee[s]” were similarly situated); Aguirre v. SBC
Commc’ns, Inc., No. CIV.A. H-05-3198, 2006 WL 964554, at *6 (S.D. Tex. Apr. 11, 2006)
(“Plaintiffs’ conclusory and unsupported allegations are inadequate even for first-stage
certification and notice, particularly given the affidavits […] describing significant differences in
coach leaders’ job duties.”). Even if employees in other positions were subject to the same
general policy regarding the tip pool, the facts and legal issues relevant to each would be very
different, negating any judicial efficiency. Therefore, the relevant class can only include other
servers.
2
These are the two positions which Plaintiff seeks to join in her collective action, and which she alleges were
subject to the tip pool. (Document No. 1 at 2; Document No. 21-1 at 3).
3
In addition to different job duties, bartenders and hostesses would likely have a different base pay rate, as well as a
different amount of tips received, if any. Therefore, the tip pool policy would affect them differently.
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Furthermore, Medina’s affidavit does not include allegations or evidence of similar
policies at additional Gloria’s locations, other than where she worked (the Cypress location). Id.
Therefore, the relevant class can only include servers at the Cypress location. Wilson v. Navika
Capital Grp., LLC, No. CIV.A. H-10-1569, 2011 WL 3020876, at *3 (S.D. Tex. July 22, 2011).
Medina’s affidavit appears to contain sufficient allegations that other servers at Alicia’s Cypress
location were subject to the same policies, given the low burden on plaintiffs at this stage. 4
McKnight, 756 F. Supp. 2d at 801. However, the Court will not consider this issue further,
because, as described below, class certification is not appropriate.
C. Desire to opt-in to the lawsuit
Lastly, the Court will consider whether other potential plaintiffs want to opt-in to
Medina’s suit. McKnight, 756 F. Supp. 2d at 801. “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. Affidavits from potential class members affirming their
intention to join the suit are ideal for an analysis of whether the putative class members were
together the victims of a single decision, policy, or plan.” Id. at 805 (internal quotations and
citations omitted). Medina has not included any affidavits from other potential class members,
nor does she allege that she is aware of anyone who is interested in joining the lawsuit.
Therefore, she has failed to meet her burden on this criterion, and class certification is not
appropriate. Pacheco v. Aldeeb, No. 5:14-CV-121-DAE, 2015 WL 1509570, at *8 (W.D. Tex.
Mar. 31, 2015) (“In addition to requiring the existence of similarly situated individuals, most
courts require that a plaintiff present some evidence that those individuals are likely to opt-in to
the lawsuit.”); Behnken v. Luminant Min. Co., LLC, 997 F. Supp. 2d 511, 522 (N.D. Tex. 2014)
4
It is not appropriate for the Court to consider Defendants’ evidence regarding these policies at this time. Walker v.
Honghua America, LLC, 870 F. Supp. 2d 462, 465 (S.D. Tex. 2012).
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(“[B]efore granting court-facilitated notice, the court should satisfy itself that there are other
similarly situated employees ... who would desire to opt-in to this lawsuit.”) (quoting Valcho v.
Dallas Cty. Hosp. Dist., 574 F. Supp. 2d 618, 622 (N.D. Tex. 2008)); Simmons, 2007 WL
210008, at *9 (denying certification where plaintiff did not present any admissible evidence that
other aggrieved employees were interested in participating in plaintiff’s suit). See also Parker v.
Rowland Express, Inc., 492 F. Supp. 2d 1159, 1165 (D. Minn. 2007) (“Simply put, 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.”); Dybach v. State of Fla.
Dep’t of Corr., 942 F.2d 1562, 1567 (11th Cir. 1991) (“[T]he district court should satisfy itself
that there are other employees of the department-employer who desire to ‘opt-in.’”). But see
Argo v. Precision Drilling Co., LP, No. 4:15-CV-00604, 2015 WL 9319233, at *1 (S.D. Tex.
Dec. 23, 2015) (“This Court has rejected that requirement because it is ‘at odds with the Supreme
Court’s command that the FLSA be liberally construed to effect its purposes.’”) (quoting Dreyer
v. Baker Hughes Oilfield Operations, Inc., No. CIV.A. H-08-1212, 2008 WL 5204149, at *3
(S.D. Tex. Dec. 11, 2008)).5
This requirement exists because “[o]thers’ interest in joining the litigation is relevant to
deciding whether or not to put a defendant employer to the expense and effort of notice to a
conditionally certified class of claimants in a collective action.” Simmons, 2007 WL 210008, at
*9. Furthermore, “courts ... have a responsibility to avoid the ‘stirring up’ of litigation through
5
In Dreyer v. Baker Hughes Oilfield Operations, Inc., two plaintiffs already existed. No. CIV.A. H-08-1212, 2008
WL 5204149, at *1 (S.D. Tex. Dec. 11, 2008). In Argo v. Precision Drilling Co., LP, there was an additional
declaration from an opt-in plaintiff. No. 4:15-CV-00604, 2015 WL 9319233, at *2 (S.D. Tex. Dec. 23, 2015).
Therefore these two cases are not directly relevant to the case at hand. If Plaintiff had even one declaration, other
than her own, the circumstances would be different. Wedel v. Vaughn Energy Servs., LLC, No. 2:15-CV-93, 2015
WL 5920034, at *1 (S.D. Tex. Oct. 9, 2015) (“The Court finds that two individuals [named as putative opt-in
plaintiffs] satisfy the third Lusardi factor.”) (citing Pacheco v. Aldeeb, No. 5:14–CV–121–DAE, 2015 WL 1509570
(W.D. Tex. Mar. 31, 2015); Tolentino v. C & J Spec–Rent Servs. Inc., 716 F. Supp. 2d 642, 653 (S.D. Tex. 2010);
Lee v. Metrocare Servs., 980 F. Supp. 2d 754, 768 (N.D. Tex. 2013); Jones v. SuperMedia Inc., 281 F.R.D. 282, 291
(N.D. Tex. 2012)).
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unwarranted solicitation.” Valcho, 574 F. Supp. 2d at 622 (quoting D’Anna v. M/A-Com, Inc.,
903 F. Supp. 889, 894 (D. Md. 1995)).
III.
Conclusion
Plaintiff’s Motion for Class Certification will be denied, because Plaintiff has failed to
demonstrate that any other aggrieved employees have an interest in joining her lawsuit. This fact,
combined with the sparse evidence that other potential plaintiffs even exist, makes certification
inappropriate.6
For the foregoing reasons, it is hereby
ORDERED that Plaintiff’s Motion for Conditional Certification (Doc. 21) should be
DENIED.
SIGNED at Houston, Texas, this 13th day of June, 2016.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
6
This ruling does not prevent Plaintiff from using independent efforts to identify potential plaintiffs of the lawsuit.
Valcho v. Dallas Cty. Hosp. Dist., 574 F. Supp. 2d 618, 622, n.1 (N.D. Tex. 2008) (citation omitted). Any additional
plaintiffs can then join as named parties. Id. at n.2 (citation omitted).
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