Wintjen v. Denny's, Inc.

• Docket Number: 2:19-CV-00069-CCW
• Decision Date: 25 August 2022
• Parties: JULI WINTJEN, on behalf of herself and all others similarly situated, Plaintiff, v. DENNY'S, INC., DOE DEFENDANTS 1-10, Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

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JULI WINTJEN, on behalf of herself and all others similarly situated, Plaintiff, v. DENNY'S, INC., DOE DEFENDANTS 1-10, Defendants.

No. 2:19-CV-00069-CCW

United States District Court, W.D. Pennsylvania

August 25, 2022

MEMORANDUM OPINON ORDER

CHRISTY CRISWELL WIEGAND UNITED STATES DISTRICT JUDGE

Before the Court are PlaintiffJuli Wintjen's Motion for Finding of Willfulness (“Plaintiffs' Motion”)seeECF No. 171, and DefendantDenny's Inc.'s Motion to Exclude Opt-In Plaintiffs with Time-Barred Claims from Collective Action (“Defendant's Motion”), seeECF No 174.Both Motions have been fully briefed and are ripe for disposition.Plaintiffs' Motion will be DENIED, and Defendant's Motion will be GRANTED IN PART and DENIED IN PART.

I.Background

In this case, Ms. Wintjen asserts claims under the Fair Labor Standards Act,29 U.S.C. §§ 201 et seq.(“FLSA”), and the Pennsylvania Minimum Wage Act, 43 P.S. §§333.101, et seq.(“PWMA”), on behalf of herself and other similarly situated restaurant servers employed by Denny's.SeeECF No. 1.

Ms. Wintjen claims that Denny's violated the FLSA and the PMWA by (a) failing to provide compliant tip-credit notice to its tipped employees and (b) requiring its tipped employees to spend more than 20% of their working hours performing non-tip-generating side-work (e.g. tasks such as cleaning, rolling silverware, or bussing dishes).SeeECF No. 72at 1.The Court granted summary judgment in Ms. Wintjen's favor regarding her claim that Denny's did not provide compliant tip-credit notice and failed to keep proper records of the time worked by its servers in tipped and untipped roles, but denied her motion for summary judgment as it pertained to her PMWA claims.SeeECF No. 73.The Court also denied Denny's cross-motion for summary judgment.Seeid.The Court then conditionally certified a collective action for Ms. Wintjen's FLSA claims and certified a class under Federal Rule of Civil Procedure 23(a) and 23(b)(3) for her PWMA claims.SeeECF No. 106.The Court also granted Ms. Wintjen's request for equitable tolling, thereby extending the applicable limitations period for any opt-in plaintiff by one year and one week.Seeid. at 3(tolling the limitations period from March 9, 2020, to March 16, 2021).Following conditional certification of the FLSA collective, 117 individuals opted-in to the collective action.SeeECF No. 172at 2.

Plaintiffs' Motion here seeks a determination that Denny's' willfully violated the FLSA and, that a three-year limitations period applies to the claims of the opt-in Plaintiffs.SeeECF No. 171.Under 29 U.SC. § 255(a), claims that an employer violated the FLSA must be commenced within two years, unless the violation was willful, in which case a three-year statute of limitations applies.As to the tip-credit notice claim, Plaintiffs argue that Denny's willfully violated the FLSA because (a) Denny's admits it had “institutional knowledge” of the tip-credit notice requirements and (b) Denny's began providing fully compliant notice to new servers as of March 2019, but did not provide that fully compliant notice to existing employees; and (c) Denny's corporate representative conceded that Denny's did not separately track the amount of time a server spent performing side-work while clocked in under the sub-minimum wage “server” job code.SeeECF No. 172 at 5-6.Furthermore, in a supplemental Reply filed by Ms. Wintjen, she also points to evidence that Denny's provided fully compliant tip-credit notice to servers from July 2011 to January 2012, and only resumed providing complete notice in March 2019.SeeECF No. 187-1at 2.

Defendant's Motion, on the other hand, seeks a determination that the claims of 43 of the opt-in Plaintiffs are time-barred.SeeECF No. 174.Under 29 U.S.C. § 256(b), the statute of limitations applicable to an opt-in plaintiff's claims continues to run until that opt-in plaintiff files with the court a consent to join the collective action.Given that the Court granted Ms. Wintjen's request for equitable tolling of one year and one week, the statute of limitations for the opt-in Plaintiffs in this case is, therefore, four years and one week if Denny's willfully violated the FLSA or three years and one week if no willful violation occurred.SeeECF No. 175at 1-2.Denny's argues that 19 opt-in Plaintiffs filed their consent to join forms more than four years and one week after their date of separation from Denny's and that those claims are time-barred regardless of which limitations period applies.Seeid.The other 24 opt-in Plaintiffs cited in Defendant's Motion filed their consent to join forms more than three years and one week after their date of separation; accordingly, Denny's argues that their claims are time-barred unless the longer limitations period for willful violations applies.Seeid.

II.Discussion

A willful violation of the FLSA occurs where an employer, “at the time of its FLSA violation, either ‘knew' its conduct was prohibited by the FLSA or ‘showed reckless disregard for the matter.'”Souryavong v. Lackawanna Cty., 872 F.3d 122, 126(3d Cir.2017)(quotingMcLaughlin v. Richland Shoe Co., 486 U.S. 128, 133(1988)).“Acting only ‘unreasonably' is insufficient-some degree of actual awareness is necessary.”Id.(quotingMcLaughlin, 486 U.S. at 135 n.13).That is, “[g]eneral awareness of the [FLSA's] requirements” is insufficient to demonstrate willfulness, Wright v. Ristorante La Buca Inc., No. 18-2207, 2018 U.S. Dist. LEXIS 180518(E.D. Pa.Oct. 22, 2018); rather, “[w]illful FLSA violations require a more specific awareness of the legal issue.”Souryavong,872 F.3d 126(citingFlores v. City of San Gabriel, 824 F.3d 890, 896, 905-07(9th Cir.2016)).Furthermore, the Third Circuit has held that whether a violation is willful is normally “‘a question of fact'”; consequently, a motion for a finding of willfulness should only be granted “if ‘there is no legally sufficient evidentiary basis for a reasonable jury to find for' the non-moving party.”Id.(quotingBianchi Trison Corp. v. Chao, 409 F.3d 196, 208(3d Cir.2005)andRego v. ARC Water Treatment Co., 181 F.3d 396, 400(3d Cir.1999)).

Here, Ms. Wintjen has not met her burden to demonstrate that there is no basis for a jury to find for Denny's on the question of willfulness.Although Ms. Wintjen points to evidence that Denny's had “institutional knowledge” of the tip credit notice requirement, and that Denny's provided complete notice to at least some servers in 2011 and 2012 and then to all new servers beginning in March 2019, that evidence, while suggestive, does not necessarily show that Denny's knew the notice it provided in the 2012-2019 period was incomplete or that Denny's showed reckless disregard towards its obligation to provide complete notice.Indeed, at summary judgment, although Denny's onboarding materials only provided some-but not all-of the information required for complete tip credit notice, the Court also considered evidence that Denny's provided Department of Labor Fact Sheet #15 to the managers of its Pennsylvania restaurants.SeeECF No. 72at 12.Fact Sheet #15 indisputably sets forth the complete set of information required for tip credit notice to be compliant.Seeid.At a minimum, distribution of Fact Sheet #15 to managers is sufficient to raise a triable issue as to whether Denny's “recklessly disregarded” its tip credit notice obligations.As such, the Court finds that a reasonable jury could conclude that Denny's did not willfully violate the FLSA.SeeWalsh v. E. Penn Mfg. Co., 555 F.Supp.3d 89, 136(E.D. Pa.2021)(declining to find willfulness where “a reasonable jury may well find that [defendant] was negligent or assumed incorrectly that it complied with its obligations under the FLSA.”).

As to the claim that Denny's violated its minimum wage obligations by requiring Plaintiffs to spend more than 20% of their time on side-work, the Court only granted summary judgment in Ms. Wintjen's favor on the discrete issue of whether Denny's “‘ke[pt] records of the hours in which an employee receives tips, and the hours in which they do not,' as required by 29 C.F.R. § 516.28.”ECF No. 72at 20 (quoting Belt v. P.F Chang's Bistro, Inc., 401 F.Supp.3d 512, 537(E.D. Pa.2019).Given also that the Court denied Denny's motion for summary judgment on the underlying side-work claim itself, notwithstanding any non-compliance with statutory record keeping requirements, there remains a triable issue as to whether Denny's side-work requirement for its servers in fact resulted in any violation of the FLSA.Seeid.;see alsoLopez v. Tri-State Drywall, Inc.,861 F.Supp.2d 533, 536-37(E.D. Pa.2012)(noting that “federal courts have held there is no private right of action for a record keeping violation.”) and Adami v. Cardo Windows, Inc., No. 12-2804(JBS/JS), 2013 U.S. Dist. LEXIS 102447, at *12(D.N.J.July 23, 2013)(dismissing claim with prejudice...