Cope v. Let's Eat Out, Inc.

• Decision Date: 02 January 2019
• Docket Number: Case No. 6:16-cv-03050-SRB
• Parties: Olivia COPE, on Behalf of Herself and All Other Similarly Situated Persons, Known and Unknown, Plaintiff, v. LET'S EAT OUT, INC., et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

354 F.Supp.3d 976

Olivia COPE, on Behalf of Herself and All Other Similarly Situated Persons, Known and Unknown, Plaintiff,

v.LET'S EAT OUT, INC., et al., Defendants.

Case No. 6:16-cv-03050-SRB

United States District Court, W.D. Missouri, Southern Division.

Signed January 2, 2019

Douglas M. Werman, Sarah J. Arendt, Zachary C. Flowerree, Pro Hac Vice, Chicago, IL, Rowdy B. Meeks, Rowdy Meeks Legal Group LLC, Prairie Village, KS, for Plaintiff.

Kirsten A Milton, Pro Hac Vice, Jackson Lewis PC, Chicago, IL, Kyle B. Russell, Jackson Lewis PC, Overland Park, KS, Paul DeCamp, Pro Hac Vice, Epstein, Becker & Green, PC, Washington, DC, Ryan P Lessmann, Pro Hac Vice, Jackson Lewis PC, Denver, CO, Joseph McGreevy, Kuhlman & Lucas LLC, Kansas City, MO, for Defendants.

ORDER

STEPHEN R. BOUGH, UNITED STATES DISTRICT JUDGE

Before the Court is Defendants' Motion to Decertify FLSA and Missouri Classes. (Doc. # 271). For the following reasons the motion is DENIED.

I. Background

Plaintiff Olivia Cope asserts a Section 216(b) collective action on behalf of all current and tipped employees of Defendants' Buffalo Wild Wings restaurants who were paid sub-minimum wages in the last three years in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq. Plaintiff alleges Defendants willfully violated the FLSA by paying servers and bartenders sub-minimum, tip-credit rates of pay, while (1) failing to inform them of the tip-credit provisions of the FLSA; (2) regularly requiring them to perform improper types and excessive amounts of non-tipped work; and (3) requiring them to reimburse the restaurants from their tips for customer walkouts and cash register shortages. On July 12, 2016, this Court conditionally certified a class for notice purposes prior to the completion of discovery based on this Court's finding that Plaintiff had established a colorable basis for her claim that putative class members were the victims of a single policy resulting in compensation that did not satisfy the tip-credit provisions and minimum wage requirements of the FLSA. (Doc. # 80).

Plaintiff also asserts a class action pursuant to Federal Rule of Civil Procedure 23 on behalf of:

a. All current and former servers and bartenders working at any of Defendants' Buffalo Wild Wings restaurants in Missouri who, at any time from February 10, 2014 until May 31, 2015, were paid sub-minimum, tip-credit rates of pay.

b. All current and former servers and bartenders working at any of Defendants' Buffalo Wild Wings restaurants who, at any time from February 10, 2011 until May 31, 2015, were paid sub-minimum, tip-credit rates of pay.

Under the Rule 23 Class Action, Plaintiff alleges Defendants violated the Missouri Minimum Wage Law ("MMWL"), Mo. Rev. Stat. § 290.500 et seq. , and Missouri common law by failing to pay Plaintiff and other tipped employees all earned minimum wages. Specifically, Plaintiff alleges Defendants unlawfully enforced a policy or practice of requiring tipped employees to reimburse the restaurants from their tips for customer walkouts and cash register shortages. On May 10, 2017, this Court certified the Rule 23 Class Action and designated Olivia Cope as Class Representative. Defendants now move this Court to either decertify or exclude certain individuals from both the FLSA and Rule 23 classes.

II. Legal Standard

A. FLSA Collective Action Decertification

Section 216(b) provides that a FLSA action may be brought by an employee for himself and on behalf of "other employees similarly situated." 29 U.S.C. § 216(b). "Plaintiffs may be similarly situated when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs." Bouaphakeo v. Tyson Foods, Inc. , 765 F.3d 791, 796 (8th Cir. 2014) (internal quotations omitted), aff'd on other grounds by Tyson Foods, Inc. v. Bouaphakeo , ––– U.S. ––––, 136 S.Ct. 1036, 194 L.Ed.2d 124 (2016). The Eighth Circuit has not articulated a standard for determining whether potential opt-in plaintiffs are "similarly situated" for purposes of certification in FLSA cases. However, a majority of the district courts in the Eighth Circuit use a two-step analysis. See, e.g., McClean v. Health Sys., Inc. , No. 11-CV-03037-DGK, 2011 WL 6153091 (W.D. Mo. Dec. 12, 2011); Chankin v. Tihen Commc'ns, Inc. , No. 08-CV-196-HEA, 2009 WL 775588 (E.D. Mo. Mar. 20, 2009) ; Kautsch v. Premier Commc'ns , 504 F.Supp.2d 685, 688 (W.D. Mo. 2007).

The first step in the two-step analysis is the notice stage. At this stage, "plaintiff moves for conditional certification [ ], wherein a class is certified for notice purposes" prior to the completion of discovery. Davis v. NovaStar Mortg., Inc. , 408 F.Supp.2d 811, 815 (W.D. Mo. 2005). "At the second step of the process, the defendant may move to decertify the class. This is typically done after the close of discovery when the Court has much more information and is able to make a more informed decision." Fast v. Applebee's Int'l, Inc. , 243 F.R.D. 360, 363 (W.D. Mo. 2007) (citation omitted). "On a motion to decertify, the courts must determine whether plaintiffs are similarly situated with respect to their job requirements and pay provisions." Fast v. Applebee's Int'l Inc. , No. 06-4146-CV-C-NKL, 2009 WL 2391921, at *1 (W.D. Mo. Aug. 3, 2009) (citing Grayson v. K-Mart , 79 F.3d 1086 (11th Cir. 1996) ). The court may consider three factors in making its determination: "(1) individual plaintiff's disparate factual and employment settings, (2) defenses which are individual to each plaintiff, and (3) fairness and procedural considerations." Id. "[M]inor differences in Plaintiffs' situations do not warrant decertification." Id. ; Bouaphakeo , 765 F.3d at 796.

B. Rule 23 Class Action Decertification

Rule 23 requires that a class action satisfy all four prerequisites of Rule 23(a) and at least one of the provisions of Rule 23(b). Comcast Corp. v. Behrend , 569 U.S. 27, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). Pursuant to Rule 23(a), the party seeking certification must demonstrate that the proposed class satisfies the requirements of numerosity, commonality, typicality, and adequate representation. Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (internal quotations and citations omitted). Rule 23(b)(3) requires that the Court find that "questions of law or fact common to class members predominate over any questions affecting only individual members," and that a class action is the "superior" method of adjudication of the controversy. "Once a class is certified, the Court has an ongoing duty to ensure that the class continues to be certifiable." Nobles v. State Farm Mut. Auto. Ins. Co. , No. 2:10-CV-04175-NKL, 2013 WL 12153518, at *2 (W.D. Mo July 8, 2013) (citing Petrovic v. Amoco Oil Co. , 200 F.3d 1140, 1145 (8th Cir. 1999) ).

III. Discussion

A. FLSA Collective Action Claims

1. Failure to Inform Employees of Tip-Credit Provisions of the FLSA

Plaintiff claims Defendants violated the FLSA by failing to inform their employees of the tip-credit provisions of the FLSA. As Plaintiff points out in her Suggestions in Opposition to Defendant's Motion to Decertify, Defendants do not address this claim in their Motion for Decertification. Plaintiff also fails to advance her argument for class certification on this claim in her Suggestions in Opposition. Defendants argue in their Reply Suggestions that according to evidence set forth by Defendants' tipped employees in 35 declarations submitted prior to step-one certification of this class, "many of Defendants' employees ... were advised of the tip credit." (Doc. # 286, p. 6).

The Court finds class certification remains proper as to the claim that Defendants failed to inform plaintiffs of the tip-credit provisions of the FLSA. While defendants typically move for decertification at the close of discovery "when the Court has much more information and is able to make a more informed decision," here, neither Plaintiff nor Defendants have presented the Court with analysis of any new discovery as to this claim. ( Fast , 243 F.R.D. at 363 ) (citation omitted). In Defendants' Suggestions in Opposition to Plaintiff's Motion for Step-One Notice, Defendants state, "[Defendants] did indeed notify Plaintiff and all other members of the class of the tip credit provision of the FLSA, whether through individual signed notices and/or through the poster that hangs in each of its restaurants." (Doc. # 39, p. 18 n.22). This statement demonstrates class members experienced similar rather than "disparate factual and employment settings," in that class members all allegedly signed notices and/or worked in the presence of a poster informing them of the FLSA tip credit provision. ( Bouaphakeo , 765 F.3d at 796 ). Defendants have not put forth any individualized defenses, which cuts in favor of class treatment of this claim. Further, fairness and procedural considerations weigh in favor of class treatment as to this claim, given that Defendants claim all class members were made aware of the FLSA tip credit provision in a similar manner. That being the case, it would be efficient and fair to all parties to resolve the claim on a class-wide basis.

2. Requirement that Employees Reimburse Restaurants for Customer Walkouts and Cash Register Shortages

Plaintiff claims Defendants violated the FLSA by enforcing a policy that required tipped employees to reimburse Defendants for customer walkouts and cash register shortages. As Plaintiff points out in her Suggestions in Opposition to Defendant's Motion to Decertify, Defendants do not address this claim in their Motion for Decertification. Plaintiff also fails to advance her argument for class certification as to this claim in her Suggestions in Opposition. Defendants argue in their Reply Suggestions that it "would be improper to maintain certification of an FLSA class based on customer walkouts and...