Meyer v. Panera Bread Co.

• Decision Date: 16 October 2018
• Docket Number: No. 17-cv-2565 (EGS/GMH),17-cv-2565 (EGS/GMH)
• Citation: 344 F.Supp.3d 193
• Parties: Alan MEYER and David Cornelius, Individually and on behalf of all others similarly situated, Plaintiffs, v. PANERA BREAD CO., Defendant.
• Court: U.S. District Court — District of Columbia

344 F.Supp.3d 193

Alan MEYER and David Cornelius, Individually and on behalf of all others similarly situated, Plaintiffs,

v.PANERA BREAD CO., Defendant.

No. 17-cv-2565 (EGS/GMH)

United States District Court, District of Columbia.

Signed October 16, 2018

Sally Jasmine Abrahamson, Lucy Brierly Bansal, Outten and Golden, LLP, Washington, DC, Justin M. Swartz, Outten & Golden LLP, New York, NY, for Plaintiffs.

Alexander J. Passantino, Seyfarth Shaw, LLP, Washington, DC, Jade M. Gilstrap, Pro Hac Vice, Brett C. Bartlett, Pro Hac Vice, Kevin M. Young, Seyfarth Shaw, LLP, Atlanta, GA, for Defendant.

MEMORANDUM OPINION AND ORDER

G. MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE

As relevant here, Plaintiffs Alan Meyer and David Cornelius have brought this putative collective action pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. , and the District of Columbia Minimum Wage Act ("DCMWA"), D.C. Code § 32-1001 et seq. Plaintiffs, who were assistant managers at two restaurants owned by Defendant Panera, LLC ("Defendant" or "Panera"), claim that they and other assistant managers employed by Defendant were misclassified as exempt employees under the FLSA and DCMWA and therefore were illegally denied overtime wages for hours that they worked in excess of forty hours per week. Plaintiffs further allege that Defendant failed to keep accurate records of the time that Plaintiffs worked and failed to keep required payroll records, and that all of these violations were willful.

Plaintiffs have filed a Motion for Conditional Certification and Court-Authorized Notice Pursuant to Section 216(b) of the FLSA and the DCMWA.¹ ECF No. 36. The motion is ripe for adjudication.² For the reasons that follow, the undersigned will grant in part and deny in part Plaintiffs' motion for conditional certification.

I. BACKGROUND

Plaintiffs filed their original complaint on March 29, 2017. ECF No. 1. On January 30, 2018, Plaintiffs filed their original motion for conditional certification (ECF No. 11) and Defendant filed a motion to dismiss Plaintiffs' original complaint (ECF No. 10). On May 17, 2018, Plaintiffs, with Defendant's consent, filed the operative Amended Complaint (ECF No. 29), which substituted Panera, LLC, as the defendant for Panera Bread Co., and "clarif[ied] the scope of the proposed collectives." ECF No. 30 at 1. According to the Amended Complaint, Defendant is a Delaware corporation operating hundreds of restaurants in the United States and Canada, and which had an annual revenue of over $2.5 billion in 2015. ECF No. 29, ¶¶ 3, 30–31. Plaintiffs allege that they were employed as assistant managers at two different Panera Bread restaurants: Mr. Meyer worked at a location in Washington, D.C., from April 2015 until October 2015; Mr. Cornelius worked at a location in Birmingham, Alabama, from October 2013 until September 2015. Id. , ¶¶ 19–20, 25–26. Plaintiffs assert that, as assistant managers of restaurants operated by Defendant, they "predominantly perform[ed] non-managerial work" but were nevertheless classified as exempt from the overtime provisions of the FLSA (and, in Mr. Meyers' case, the D.C. Wage Laws). Id. , ¶¶ 2, 5–7, 22, 28, 36. They further contend that each of them regularly worked more than forty hours per week and, as a consequence of their misclassification, did not receive overtime pay. Id. , ¶¶ 21, 27.

The Amended Complaint also alleges that Defendant "has the power to control the terms and conditions of employment for Plaintiffs and those similarly situated, including with respect to their compensation and classification as exempt or non-exempt employees"; that it "maintained control, oversight, and direction over Plaintiffs and similarly situated employees"; and that it "applies the same employment policies, practices, and procedures to all [assistant managers]." Id. , ¶¶ 33–35. Plaintiffs contend that Defendant's violations of the FLSA and the DCMWA were willful. Id. , ¶¶ 71–72.

As relevant here, the Amended Complaint alleges a collective under the FLSA consisting of all similarly situated assistant managers

whom Defendant classified as exempt from overtime requirements, who worked more than 40 hours per week for Defendant in the United States—excluding New York, New Jersey, [California,]³ and Massachusetts—at any time between March 25, 2014 and the date of final judgment in this matter, and who elect to join this action (the "FLSA Collective").

Id. , ¶ 39 (footnote omitted). It further alleges a collective under the DCMWA consisting of all similarly situated assistant managers classified as exempt, who worked more than 40 hours per week for Defendant in Washington, D.C., from March 25, 2014, through February 27, 2015, and who elect to join the action (the "DCMWA Collective").⁴ Id. , ¶ 40.

After the Amended Complaint was filed, the Court denied as moot Defendant's motion to dismiss the original complaint. Minute Order dated May 21, 2018; see, e.g. , Gray v. D.C. Pub. Sch. , 688 F.Supp.2d 1, 6 (D.D.C. 2010) (collecting cases holding that a motion to dismiss directed to a complaint is mooted when an amended complaint is filed); Nader v. Democratic Nat. Comm. , 590 F.Supp.2d 164, 167 n.2 (D.D.C. 2008), aff'd , No. 09-7004, 2009 WL 4250599 (D.C. Cir. Oct. 30, 2009). Plaintiffs' original motion for conditional certification was similarly denied as moot. Minute Order dated May 21, 2018; see, e.g. , Lawrence v. Maxim Healthcare Servs., Inc. , No. 1:12CV2600, 2013 WL 12178607, at *1 (N.D. Ohio Apr. 26, 2013) (denying as moot motion for conditional certification filed prior to amended complaint that changed definition of collective); see also In re Amazon Fulfillment Ctr. Fair Labor Standards Act (FLSA) and Wage and Hour Litig. , No. 14-MD-2504, 2014 WL 3695750, at *1 (W.D. Ky. July 14, 2014) (noting that plaintiffs in one constitutive case in multidistrict litigation "repeatedly mooted their conditional certification motion [by] amend[ing] the complaint prior to any court determination"); Lytle v. Lowe's Home Ctrs., Inc. , No. 8:12-cv-1848, 2014 WL 103463, at *6 (M.D. Fla. Jan. 10, 2014) ("Based upon the filing of [the] Second Amended Complaint, the Court denied as moot [the] Motion for Conditional Certification in order to promote accuracy in the filings and clarity of the record.").

Plaintiffs thereafter filed a renewed Motion for Conditional Certification on June 5, 2018. ECF No. 36 at 2. That motion requests conditional certification of the FLSA Collective and the DCMWA Collective, as well as ancillary relief, including authorizing notice to potential collective members. The motion is supported by declarations from nine former employees of Defendant (ECF Nos. 36-5 through 36-11 and 36-19 through 36-20), two of which Defendant has sought to strike, contending that the declarations are "a sham."⁵ ECF No. 21-1 at 1. The Court's denial of Defendant's motion to strike is the subject of a Memorandum Opinion and Order filed contemporaneously with this one.

II. DISCUSSION

A. Legal Standard

Both the FLSA and the DCMWA require employers to pay their workers the minimum wage and, if the employee works more than forty hours in a workweek, overtime compensation. 29 U.S.C. § 207(a)(1) ; D.C. Code § 32-1003. Both statutes also empower employees to bring actions on their own behalf and on behalf of other employees "similarly situated" in a collective action. 29 U.S.C. § 216(b) ; D.C. Code § 32-1308(a)(1)(C)(iii) ; see also Dinkel v. MedStar Health, Inc. , 880 F.Supp.2d 49, 52 (D.D.C. 2012). "D.C. law permits DCMWA ... claims to be brought ‘[c]onsistent with the collective action procedures of the Fair Labor Standards Act.’ " Stephens v. Farmers Rest. Grp. , 291 F.Supp.3d 95, 106 (D.D.C. 2018). Unlike classes formed pursuant to Rule 23 of the Federal Rules of Civil Procedure, in which "potential class members are parties to the suit unless they affirmatively opt out ," in a wage and hour collective action, "only plaintiffs who affirmatively opt in can benefit from the judgment or be bound by it." Damassia v. Duane Reade, Inc. , 250 F.R.D. 152, 161 (S.D.N.Y. 2008) (quoting Lachapelle v. Owens-Illinois, Inc. , 513 F.2d 286, 289 (5th Cir. 1975) ); see also Munoz v. Big Valley, Inc. , 915 F.Supp.2d 46, 48 (D.D.C. 2013).

Courts in this Circuit and others have implemented a two-stage inquiry for determining when a collective action is appropriate. Stephens , 291 F.Supp.3d at 105. The first stage, referred to as "conditional certification," requires the Court to determine whether it is appropriate "to send notice to potential opt-in plaintiffs who may be ‘similarly situated’ to the named plaintiffs with respect to whether [an] FLSA violation has occurred." Dinkel , 880 F.Supp.2d at 52–53 (quoting Myers v. Hertz Corp. , 624 F.3d 537, 555 (2d Cir. 2010) ). "If conditional certification is granted, then the matter proceeds as a collective action through the close of discovery, at which time the defendant may move for ‘decertification,’ prompting a ‘more searching’ inquiry into whether putative class members are in fact ‘similarly situated.’ " Stephens , 291 F.Supp.3d at 105 (quoting Ayala v. Tito Contractors , 12 F.Supp.3d 167, 170 (D.D.C. 2014) ).

At issue here is the first stage—conditional certification. This initial stage requires that the plaintiff make only a "modest factual showing sufficient to demonstrate that [he] and potential plaintiffs together were victims of a common policy or plan that violated the law." Castillo v. P & R Enters., Inc. , 517 F.Supp.2d 440, 445 (D.D.C. 2007) (quoting Chase v. AIMCO Props. , 374 F.Supp.2d 196, 200 (D.D.C. 2005) ). The bar at this stage is quite low. Ayala , 12 F.Supp.3d at 170 (collecting cases). The plaintiff must present, through the allegations in his pleadings and any affidavits submitted with the motion, "some evidence, ‘beyond pure speculation,’ of a factual nexus between the manner in which the employer's alleged policy affected [a plaintiff] and the manner in which it...