O'Brien v. Ed Donnelly Enterprises, Inc.
| Decision Date | 05 August 2009 |
| Docket Number | No. 08-3184.,No. 07-4553.,07-4553.,08-3184. |
| Citation | 575 F.3d 567 |
| Parties | Teresa O'BRIEN, et al. (No. 07-4553); Jessica Dellarussiani, et al. (No. 08-3184), Plaintiffs-Appellants, v. ED DONNELLY ENTERPRISES, INC., and Ed Donnelly, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Lisa A. Wafer, Ferron & Associates, Columbus, Ohio, for Appellants. Loriann E. Fuhrer, Kegler, Brown, Hill & Ritter, Columbus, Ohio, for Appellees.
ON BRIEF:
Lisa A. Wafer, John W. Ferron, Jessica G. Fallon, Ferron & Associates, Columbus, Ohio, for Appellants. Loriann E. Fuhrer, Kegler, Brown, Hill & Ritter, Columbus, Ohio, for Appellees.
Before: MOORE and WHITE, Circuit Judges; TARNOW, District Judge.*
TARNOW, D. J., delivered the opinion of the court, in which MOORE, J., joined. WHITE, J. (p. 53), delivered a separate opinion concurring in part.
These appeals involve two related cases in which former employees of two McDonald's franchises allege that their employer refused to pay the employees the wages that they were due, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 216(b); the corresponding Ohio statute; and other Ohio law. For the reasons that follow, in the Dellarussiani appeal, we affirm the district court's entry of judgment pursuant to the defendants' Fed.R.Civ.P. 68 offer of judgment, except that the issue of attorney fees is remanded to the district court. Having achieved all the relief that they could hope to get on their most important claims, the Dellarussiani plaintiffs no longer have a stake in these claims in the O'Brien case. As for an Ohio Prompt Pay Act claim, which plaintiffs lost in Dellarussiani on summary judgment, and as to common-law claims pleaded in O'Brien but not in Dellarussiani, the appeal is not moot, though these claims will be barred by res judicata. Therefore, defendants' motion to dismiss the Dellarussiani plaintiffs from the O'Brien appeal is granted in part, but denied in part as to the Prompt Pay Act and common-law claims. Though we disagree with the standard that the district court applied in deciding whether the O'Brien plaintiffs were "similarly situated" under the FLSA, we affirm the decertification. We do so, because in view of our dismissal of most of the Dellarussiani plaintiffs' claims from the O'Brien appeal, there is only one possible opt-in plaintiff who could join the lead plaintiffs in O'Brien. But the district court correctly observed that this particular opt-in plaintiff failed to allege that she suffered from any unlawful practices. She is clearly not similarly situated to the lead plaintiffs. Nor are the Dellarussiani plaintiffs, who have only a few extant supplemental claims, similarly situated to the lead plaintiffs, given that these claims will inevitably be barred by res judicata. Therefore, we affirm the district court's decertification of the collective action. That leaves the claims of the lead O'Brien plaintiffs. As to the lead plaintiffs, we reverse the district court's grant of summary judgment in defendants' favor as to the lead plaintiffs' "off the clock" claims and vacate the grant of summary judgment as to the lead plaintiffs' claim that their time-sheets were improperly altered.
The defendants in this case are Ed Donnelly and the corporation that he and his wife own, Ed Donnelly Enterprises, Inc. O'Brien J.A. 150. Defendants bought two McDonald's stores in Bellefontaine, Ohio in February 2002. O'Brien J.A. 155.
For varying lengths of time between 2002 and 2004, plaintiffs worked in at least one of these two stores. They earned wages between $6.25 and $9.00 per hour. O'Brien Appellants' Br. at 7.
Plaintiffs allege that there were two main ways in which defendants and their managers paid plaintiffs less than what they had earned. The first practice involved requiring plaintiffs to work "off the clock," that is, before they had punched into, or after they had punched out of, the computerized system that tracked employees' start, end, and break times.
The second manner in which plaintiffs claim they were cheated is this: plaintiffs say that defendants electronically altered the times that had previously been entered by the timekeeping system when an employee punched in or out of work. These edits, according to plaintiffs, reduced the total number of hours recorded in the employees' payroll reports to a number less than what the employees had actually worked.1
In O'Brien v. Ed Donnelly Enterprises, Inc., and Ed Donnelly, plaintiffs brought the following claims: the first cause of action was for violations of the FLSA; the second, for violations of Ohio's corresponding wage-payment law, O.R.C. § 4111; the third, for violations of Ohio's Prompt Pay Act, O.R.C. § 4113.15(B); the fourth, for fraud; the fifth, for breach of contract; and the sixth, for promissory estoppel.
The district court initially certified a class of plaintiffs under the FLSA. The ultimate class of plaintiffs (two lead plaintiffs and eight opt-in plaintiffs) moved for sanctions against defendants for spoliation of evidence. This request was denied. After discovery, the district court found that the opt-in plaintiffs were not similarly situated and decertified the class, dismissing the eight opt-in plaintiffs without prejudice. All plaintiffs but one appealed the decertification order, and this appeal is before this court. Retaining the same counsel as used in the O'Brien action, six opt-in plaintiffs refiled individual suits, which were consolidated as Dellarussiani v. Ed Donnelly Enterprises, Inc., and Ed Donnelly. Stevie LeVan, another opt-in plaintiff, did not file an individual action, but joins the O'Brien appeal.
The two lead plaintiffs in O'Brien proceeded individually in that case. After striking several affidavits as inconsistent with prior deposition testimony, the district court granted summary judgment in favor of the defendants against both plaintiffs. The two O'Brien plaintiffs appealed this final judgment and several of the evidentiary decisions made by the district court. This appeal is also before this court.
Each of the Dellarussiani plaintiffs filed a three-count complaint. Count I claimed violations of the FLSA; count II claimed violations of the corresponding Ohio statute; and count III alleged that defendants were required to pay liquidated damages under Ohio law, separate from any FLSA damages. Defendants made an offer of judgment pursuant to Fed.R.Civ.P. 68 with regard to counts I and II. Defendants offered to pay $6,142.20 (the full amount of claimed damages for counts I and II) plus reasonable attorney fees as determined by the district court. The offer allowed the district court to decide count III on the merits. The Dellarussiani plaintiffs rejected the offer; however, the district court found that defendants' offer of judgment mooted counts I and II. The district court entered judgment in favor of the Dellarussiani plaintiffs in the amount of the offer on counts I and II....
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