United States District Court, N.D. West Virginia
TING YOU, on behalf of himself and others similarly situated and also known as Danny You, Plaintiff,
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]
M. KEELEY UNITED STATES DISTRICT JUDGE
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
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.
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.
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.”
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)).
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
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).
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).
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)).