White v. 14051 Manchester Inc.
| Decision Date | 30 May 2014 |
| Docket Number | No. 4:12-CV-469 JAR,4:12-CV-469 JAR |
| Court | U.S. District Court — Eastern District of Missouri |
| Parties | THELMA WHITE and NICOLE CARROLL, Individually and on behalf of others similarly situated, Plaintiff, v. 14051 MANCHESTER INC. d/b/a HOTSHOTS SPORTS BAR & GRILL, et al., Defendants. |
This matter is before the Court on Plaintiffs' Motion to Certify Missouri and Illinois State Law Claims as a Class Action (ECF No. 138), Defendants' Motion to Decertify Collective Class (ECF No. 145), Defendant Daniel Volmert's Motion for Partial Summary Judgment (ECF No. 147), Defendant Julie Volmert's Motion for Partial Summary Judgment (ECF No. 150), Defendants' Motion to Strike and Exclude Expert Testimony (ECF No. 153), Plaintiffs' Motion for Summary Judgment on Individual Liability of Daniel and Julie Volmert and Memorandum in Support (ECF No. 156), Plaintiffs' Motion for Summary Judgment on Liability and Memorandum in Support (ECF No. 157), and Defendants' Combined Motion to Strike Affidavits and Memorandum in Support Thereof (ECF No. 169). These matters are fully briefed and ready for disposition.
The two named plaintiffs Thelma White and Nicole Carroll (collectively, "Named Plaintiffs") were formerly employed by Hotshots Sports Bar & Grill ("Hotshots"),1 as servers and bartenders.
On March 14, 2012, Plaintiffs filed this action against various Hotshots locations. On or around March 8, 2013, Plaintiffs filed their Fourth Amended Complaint, alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.A. §207, et seq. in Count I, the Missouri Minimum Wage Law ("MMWL"), R.S. Mo. §290.500, et seq. in Count II, and the Illinois Minimum Wage Law ("ILWL"), 820 ILCS §105/1, et seq. in Count III. At issue is Hotshots' purported policy requiring tipped employees to share their tips with untipped "back of the house" employees. Plaintiffs contend that Defendants violated the FLSA, MMWL, and the IMWL by taking the "tip credit" while also misuing employee tips. (Fourth Amended Complaint, ECF No. 100, ¶2). Plaintiffs allege that Defendants should not have been permitted to take advantage of the "tip credit" and, consequently, Plaintiffs were paid less than minimum wage in violation of the FLSA, MMWL, and IMWL. (Id.)
On November 30, 2012, this Court conditionally certified, under the FLSA, a class of all current and former hourly-paid employees of Hotshots who shared in any tip pool for the period of three (3) years from the date of the mailing notice. Defendants have moved to decertify this collective action, Plaintiffs have moved to certify the state law claims for class action status, and both sides have filed motions for summary judgment, in addition to the other pending motions.
Section 216(b) of the FLSA provides that an action for unpaid minimum wages may be maintained against an employer by "any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b). "Section 216(b)'s collective action mechanism 'sets forth two requirements for the adjudication of claims as collective actions: (1) the plaintiffs must be "similarly situated" and (2) all party plaintiffs must give their written affirmative consent to participate in the action.'" Douglas v. First Student, Inc., 888 F. Supp. 2d 929, 932-33 (E.D. Ark. 2012)(quoting Wright v. Pulaski County, No. 4:09CV00065 SWW, 2010 WL 3328015, at *9 (E.D.Ark. Aug. 24, 2010)). Unlike a Rule 23 class action, a collective action under the FLSA is pursued on an opt-in basis, requiring employees to provide their consent in writing to join the action. 29 U.S.C. § 216(b); Ford v. Townsends of Arkansas, Inc., No. 4:08cv509, 2010 U.S. Dist. Lexis 46093, at *8 (E.D. Ark. Apr. 9, 2010).
At the initial conditional-certification stage, the plaintiffs' burden is not rigorous; they must only show that there is a "colorable basis for their claim" and "that a class of similarly situated plaintiffs exists." Smith, 404 F.Supp.2d at 1149. At the decertification stage, however, the standard is stricter, and three factors are analyzed: (1) the disparate factual and employment settings of the individual plaintiffs; (2) the various defenses available to defendant that appear to be individual to each plaintiff, and (3) fairness and procedural considerations. Id. at 1149-50 (citing Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th Cir. 2001). At the second stage, "the question is simply whether the differences among the plaintiffs outweigh the similarities of the practices to which they were allegedly subjected." White v. Baptist Mem'lHealth Care Corp., 08-2478, 2011 WL 1883959 (W.D. Tenn. May 17, 2011), aff'd, 699 F.3d 869 (6th Cir. 2012) (citing Monroe v. FTS USA, LLC, 763 F. Supp. 2d 979, 994 (W.D. Tenn. 2011)).
At the second stage "the Court must make a factual determination based on information gained from discovery on whether the conditionally certified class members are in fact similarly situated." Johnson v. TGF Precision Haircutters, Inc., CIV.A. H-03-3641, 2005 WL 1994286, at *1 (S.D. Tex. Aug. 17, 2005)(citing Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995)). "If the [class members] are similarly situated, the district court allows the representative action to proceed to trial." Mooney, 54 F.3d at 1214. "If not, the district court decertifies the class, dismisses without prejudice the opt-in plaintiffs, and allows the class representative to proceed to trial on her individual claims." Johnson, 2005 WL 1994286, at *1 (citing Mooney, 54 F.3d at 1214). "The decision to certify or decertify a collective action under section 216(b) is within the district court's discretion." Nerland v. Caribou Coffee Co., Inc., 564 F. Supp. 2d 1010, 1018 (D. Minn. 2007).
Defendants contend that this collective action should be decertified. Defendants maintain that there is no unlawful, company-wide policy with respect to tip-sharing; rather, they claim that the tip sharing policy is lawful. Defendants assert Plaintiffs have failed to show that they are similarly situated to each other. Finally, Defendants state that credibility issues of the Named Plaintiffs preclude a collective action. Because the Court find that the differences among plaintiffs outweigh the similarities of the practices to which they were allegedly subjected, the Court decertifies the FLSA action. White, 2011 WL 1883959, *4.
Plaintiffs may show that they are similarly situated by either proving that the employer "engaged in a unified policy, plan, or scheme of FLSA violations," or that "their positions are 'similar, not identical' to the positions held by the other class members." Kautsch v. Premier Commc'ns, No. 06CV04035 NKL, 2008 WL 294271, at *1 (W.D.Mo. Jan. 31, 2008) (internal citation omitted); Wacker v. Pers. Touch Home Care, Inc., 4:08CV93 CDP, 2008 WL 4838146, at *4 (E.D. Mo. Nov. 6, 2008)(plaintiffs must provide competent evidence of an unlawful company-wide policy); Smith v. Heartland Auto. Servs., Inc., 404 F.Supp.2d 1144, 1149 (D. Minn. 2005). "Plaintiffs seeking to maintain an opt-in class action bear the burden to show that they are similarly situated with respect to their job requirements and pay provisions." Kautsch v. Premier Communications, No. 06-cv-04035-NKL, 2008 WL 294271, at *1 (W.D.Mo. Jan. 31, 2008)(citing Grayson v. K-Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996)).
Plaintiffs assert that there was "one relevant policy and violation: unlawful mandatory tip sharing with cooks and doormen." (ECF No. 171 at 22)(emphasis in original). In their declarations in support of the Motion to Conditionally Certify the class, the Named Plaintiffs, Thelma White and Nicole Carroll, stated that they were required to share their tips with non-tipped employees during every shift. See Declaration of Thelma White, ECF No. 44-2, ¶¶14-16; Declaration of Nicole Carroll, ECF No. 44-3, ¶¶15-17. Plaintiffs further assert that a unified, mandatory tip-sharing policy exists, as evidenced in part by Hotshots' unlawful written policy.
The Hotshots Employee Handbook states:
It is suggested a voluntary 5% gratuity to the cooks and bartenders at the end of your full shift.
(ECF No. 146 at 6). Plaintiffs argue that the mere suggestion of a tip to the cooks and bartenders in the written policy might violate the FLSA. (ECF No. 171 at 19-20). To the extent that thelegality of this policy is in dispute, Plaintiffs assert that this is an issue of fact that precludes decertification.
In the Motion to Decertify, Defendants state that the policy in the employee handbook is a lawful policy in support of voluntary tip-sharing and cannot form the basis of a FLSA claim. Defendants further argue that Plaintiffs have not set forth a company-wide unlawful policy.
Defendants also argue for decertification on the grounds that Plaintiffs have, at most, only set forth dozens of different policies that vary widely regarding the method, amount and requirements for tip-sharing. (ECF No. 146 at 11). Defendants maintain that, contrary to Plaintiffs' prior representations during conditional certification, the Hotshots servers and bartenders have asserted that they are subject to different tip sharing policies. In their briefing, Defendants outline the various "policies" mentioned by the named and opt-in plaintiffs during their depositions, such as tipping a percentage of the tips received, tipping a percentage of the food bill, or a flat pay out of $5-$10. Named Plaintiff Carroll stated that she had to give at least $10.00 per night to each cook on weekdays and $20.00 per night to each cook on weekends. (ECF No. 146 at 11). Named Plaintiff White said that she had to give at least 5% of her total tips earned each night to "the cook." (Id.). Several other opt-in plaintiffs stated that they were required to give 5% of their tips to the cooks....
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