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You v. Grand China Buffet & Grill, Inc.

United States District Court, N.D. West Virginia

March 15, 2018

TING YOU, on behalf of himself and others similarly situated and also known as Danny You, Plaintiff,
v.
GRAND CHINA BUFFET & GRILL, INC., doing business as Grand China Buffet & Grill; ATLANTIC BUFFETT & GRILL, LLC, doing business as Grand China Buffet & Grill; QI FENG CHEN; AMANDA CHEN; and HUI CHEN, Defendants.

          MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR CONDITIONAL CERTIFICATION OF COLLECTIVE ACTION [DKT. NO. 34]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         Before the Court is the plaintiff's motion for conditional certification of a collective action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq. (Dkt. No. 34). For the reasons discussed below, the motion is DENIED subject to renewal.

         I. BACKGROUND

         The plaintiff, Ting You (“Mr. You”), is a former employee of defendant Grand China Buffet and Grill, a restaurant located at 270 Emily Drive in Clarksburg, West Virginia. Mr. You previously worked as a waiter at the restaurant, where he was also regularly tasked with “side work, ” including food preparation and cleaning tasks. Although he has no records to support his allegations, Mr. You asserts that, from approximately April 2013 to March 2015, he worked six days a week, for a total of seventy-four (74) hours each week. According to Mr. You, the defendants paid him no wages, and he relied solely on tips, which were subject to a “demerit system” if customers complained about their meals or left without paying the full bill. Mr. You further alleges that he did not receive any overtime pay, nor was he informed that his tips counted toward the minimum wage.

         On July 18, 2017, Mr. You filed a motion for conditional certification of a collective action and the implementation of a court-facilitated notice plan (Dkt. No. 34). He alleges that the defendants regularly failed to compensate him and other employees for time worked in excess of forty (40) hours per week in violation of the FLSA, and proposes to represent a collective of former and current restaurant employees. He seeks to include any non-managerial employees from March 16, 2014 to the present, who were also subject to the same unfair employment practices, lack of overtime compensation, and unpaid minimum wage compensation. The defendants dispute that collective certification is appropriate under 29 U.S.C. § 216(b) (Dkt. No. 41). The matter is now fully briefed and ripe for review.

         II. APPLICABLE LAW

         Under the FLSA, employees may maintain a collective action on behalf of themselves and “other employees similarly situated.” 29 U.S.C. § 216(b). Putative plaintiffs who wish to join an FLSA collective action are required to “opt in” by filing a written consent form with the Court. Id. Certification of a collective action is appropriate where the class members (1) are “similarly situated” and (2) opt in to the pending action. Romero v. Mountaire Farms, Inc., 796 F.Supp.2d 700, 705 (E.D. N.C. 2011); see also Felix de Asencio v. Tyson Foods, Inc., 130 F.Supp.2d 660, 662 (E.D. Pa. 2001) (“The only two requirements . . . under the FLSA are that class members be similarly situated and that each member file a consent to joining the action.” (citation omitted)).

         District courts generally take a two-step approach to certification of FLSA collective actions. Cleary v. Tren Services Inc., No. 2:11-123, 2012 WL 1189909, at *3 (S.D. W.Va. Apr. 9, 2012); see also Nolan v. Reliant Equity Investors, LLC, No. 3:08-62, 2009 WL 2461008, at *7 (N.D. W.Va. Aug. 10, 2009) (collecting cases). The “notice” or “conditional certification” stage comes first. This stage typically occurs early in the proceedings, before discovery is completed. Cleary, 2012 WL 1189909, at *3. Accordingly, “the Court need only reach a preliminary determination that potential plaintiffs are ‘similarly situated.'” Patton v. Thomson Corp., 364 F.Supp.2d 263, 267 (E.D.N.Y. 2005) (citations omitted). If the court finds that the plaintiffs have cleared this “low bar, ” Westfall v. Kendle Intern, CPU, LLC, No. 1:05-00118, 2007 WL 486606, at *9 (N.D. W.Va. Feb. 15, 2007), it will conditionally certify the class and, if appropriate, “authorize[] plaintiffs' counsel to provide the putative class members with notice of the lawsuit and their right to opt-in.” Romero, 796 F.Supp.2d at 705 (citing Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)).

         The second stage of the inquiry occurs if the defendant moves to “decertify” the class, which generally takes place after discovery is completed and the matter is ready for trial. Cleary, 2012 WL 1189909, at *3; see also Nolan, 2009 WL 2461008, at *7. “At that point, the court makes a factual determination as to whether the class is truly ‘similarly situated.'” Purdham v. Fairfax Cty. Pub. Schools, 629 F.Supp.2d 544, 547 (E.D. Va. 2009) (citing Parker v. Rowland Express, Inc., 492 F.Supp.2d 1159, 1164 (D. Minn. 2007)). As the court typically has “much more information on which to base its decision” at this stage, Hipp, 252 F.3d at 1218 (citation omitted), it “applies a heightened, fact specific standard to determine whether the proposed class members are similarly situated.” Cleary, 2012 WL 1189909, at *3 (citations omitted).

         The pending motion concerns only the first step of the certification process. At this stage, the plaintiff bears the burden of demonstrating “the existence of a putative class of ‘similarly situated' persons.” Purdham, 629 F.Supp.2d at 548. Plaintiffs are similarly situated to a proposed class when, collectively, they were victims of “a single decision, policy, or plan that violated the law.” Nolan, 2009 WL 2461008 at *7 (quoting Reeves v. Alliant Techsystems, Inc., 77 F.Supp.2d 242, 247 (D.R.I. 1999)); see also De Luna-Guerrero v. North Carolina Grower's Ass'n, Inc., 338 F.Supp.2d 649, 654 (E.D. N.C. 2004) (“plaintiffs must raise a similar legal issue as to coverage, exemption, or nonpayment or minimum wages or overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions” (citation omitted)). In other words, the named plaintiff must demonstrate some sort of “factual nexus” that connects his claims to the other putative plaintiffs “as victims of an unlawful practice.” Sharpe v. APAC Customer Services, Inc., No. 09cv329, 2010 WL 135168, at *4 (W.D. Wis. Jan. 11, 2010).

         The plaintiff's burden at this stage has been described as “minimal, ” Lynch v. United Servs. Auto. Ass'n, 491 F.Supp.2d 357, 367-68 (S.D.N.Y. 2007), and “lenient.” Yeibyo v. E-Park of DC, Inc., et al., No. 2007-1919, 2008 WL 182502, at *7 (D. Md. Jan. 18, 2008). District courts in this Circuit have found conditional certification appropriate where plaintiffs put forth a “modest factual showing” that the members of the putative class were victims of a common policy or practice that violated the FLSA. Westfall, 2007 WL 486606, at *8 (citation omitted).

         “This evidence need not, however, enable the court to determine conclusively whether a class of ‘similarly situated' plaintiffs exists.” Mitchel v. Crosby Corp., No. DKC 10-2349, 2012 WL 4005535, at *3 (D. Md. Sept. 10, 2012). Rather, plaintiffs seeking conditional certification need only submit evidence establishing “a colorable basis for their claim that a class of ‘similarly situated' plaintiffs exist[s].” Faust v. Comcast Cable Communications Management, LLC, No. WMN-10-2336, 2011 WL 5244421, at *2 (D. Md. Nov. 1, 2011) (quoting Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 266 (D. Minn. 1991)).

         III. ...


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