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Thedford v. Drive In of Evansville, Inc.

United States District Court, N.D. Alabama, Southern Division

October 31, 2014

SHENNETTA THEDFORD; BRIANNA KING; DECORELAN TOMPKINS, a minor, by and through his parent, Sherry Tompkins; ALEXANDER DEBOSE; TALESHA WRENCH; SHANTERRICKA THEDFORD, a minor, by and through her parent, Shennetta Thedford; KRIBBE PERRYMAN, Plaintiffs,
DRIVE IN OF EVANSVILLE, INC., d/b/a as Sonic Drive-In, Defendant.



This case is presently pending before the court on plaintiffs' Motion for Conditional Certification and Judicial Notice Under § 216(b). (Doc. 11.)[1] Plaintiffs Shennetta Thedford, Brianna King, Decorelan Tompkins, Alexander Dubose, Talesha Wrench, Shanterricka Thedford, and Kribbe Perryman have sued their former employer, defendant Drive-In of Evansville, Inc., alleging violations of the Fair Labor Standards Act. They have filed a Motion for Conditional Certification, in which they ask the court to allow them to proceed with a collective action and to issue notice to similarly-situated current and former employees of defendant. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that plaintiffs' Motion for Conditional Certification and Judicial Notice Under § 216(b), (Doc. 11), is due to be denied.


The FLSA authorizes a collective action under the following conditions:

An action... may be maintained against any employer... by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C. § 216(b).[2] A district court, in its discretion, may conditionally certify a collective action when to do so would permit the "efficient resolution in one proceeding of common issues of law and fact arising from the same alleged... activity." Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989). "A plaintiff has the burden of showing a reasonable basis' for his claim that there are other similarly[-]situated employees." Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008) (citations omitted). "The FLSA itself does not define how similar the employees must be before the case may proceed as a collective action. And [the Eleventh Circuit has] not adopted a precise definition of the term." Id. at 1259. The Eleventh Circuit, however, has stated that "a unified policy, plan, or scheme of discrimination may not be required to satisfy the more liberal similarly-situated' requirement of § 216(b). Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1219 (11th Cir. 2001) (quoting Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir.1996)). Nevertheless, a plaintiff "must make some rudimentary showing of commonality between the basis for his claims and that of the potential claims of the proposed class, beyond the mere facts of job duties and pay provisions...." Marsh v. Butler Cnty. Sch. Sys., 242 F.Supp.2d 1086, 1093 (M.D. Ala. 2003); see also Fox v. Tyson Foods, Inc., No. 4:99-CV-1612-VEH, 2006 WL 6012784, at *4 (N.D. Ala Nov. 15, 2006); Williams v. Accredited Home Lenders, Inc., No. 1:05-CV-1681-TWT, 2006 WL 2085312, at *3 (N.D.Ga. July 25, 2006); Holt v. Rite Aid Corp., 333 F.Supp.2d 1265, 1270 (M.D. Ala 2004).

The Eleventh Circuit has held that "before facilitating notice, a district court should satisfy itself that there are other employees who desire to opt-in' and who are similarly situated' with respect to their job requirements and with regard to their pay provisions." Morgan, 551 F.3d at 1259 (internal quotations and citation omitted).

The initial issue is whether Plaintiffs have made the requisite showing to justify conditional certification of a nationwide collective action and court[-]authorized notice. In Hipp v. Liberty National Life Insurance Co., 252 F.3d 1208 (11th Cir. 2001), the Eleventh Circuit "suggest[ed]" a "two-tiered approach to certification of § 216(b) opt-in classes" to assist district courts in resolving the similarly situated inquiry. Id. at 1219. Under the first tier, which is labeled the "notice stage, " the district court must decide, "usually based only on the pleadings and any affidavits which have been submitted[, ]... whether notice of the action should be given to potential class members." Id. at 1218 (quoting Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003)). Before notice is given, a "district court should satisfy itself that there are other employees of the [defendant-] employer who desire to opt-in' and are similarly situated'...." Dybach v. State of Fla. Dep't of Corrs., 942 F.2d 1562, 1567-68 (11th Cir. 1991).

Devries v. Morgan Stanley & Co., No. 12-81223-CIV, 2014 WL 505157, *2 (S.D. Fla. Feb. 7, 2014).

In this case, the parties were allowed ample time to conduct discovery on the issues for conditional certification and notice.[3] In Robinson v. Ryla Teleservices, Inc., No. CA 11-131-KD-C, 2011 WL 6667338, at * 1-2 (S.D. Ala. Dec. 21, 2011), the court allowed the defendant but not the plaintiffs time to conduct limited discovery before the plaintiffs filed a motion for conditional certification, and therefore, the court applied a lenient standard to assess the certification motion. Unlike in Robinson, where the plaintiffs had not been allowed time to conduct discovery, in this case, plaintiffs had the opportunity to conduct discovery, despite their choice not to avail themselves of it. (Doc. 17 at 37.) "The rationale [for the lenient standard] disappears... once plaintiffs have had an opportunity to conduct discovery with respect to defendant's policies and procedures." Davis v. Charoen Pokphand (USA), Inc., 303 F.Supp.2d 1272, 1276 (M.D. Ala. 2004) (citing White v. Osmose, Inc., 204 F.Supp.2d 1309, 1313 n.2 (M.D. Ala. 2002); Brooks v. BellSouth Telecomms., Inc., 164 F.R.D. 561, 566 (N.D. Ala. 1995)) (emphasis added). Therefore, "[t]his case is in a slightly different posture than that envisioned in Hipp as the first stage, or notice stage, ' and thus a more searching standard of review is appropriate." Davis, 303 F.Supp.2d at 1276 (internal citation omitted).

This court takes seriously its "responsibility to avoid the stirring up' of litigation through unwarranted solicitation." Brooks, 164 F.R.D. at 567. Plaintiffs "will not be permitted to rely on the allegations in [their] Complaint. Rather, [they] must rely on the evidence, and all the evidence will be considered, not just [plaintiffs' evidence]." Pickering v. Lorillard Tobacco Co., 10-CV-633-WKW, 2012 WL 314691, at *9 (M.D. Ala. Jan. 30, 2012).


Defendant, Drive-In of Evansville, Inc., owns and operates twenty-six Sonic Drive-In restaurants in four states: Alabama, Indiana, Kentucky, and Ohio. (Doc. 17 ¶ 6.) Plaintiffs' proposed class consists of over 3, 000 hourly employees who worked for defendant during the past three years. (Doc. 17 ¶ 10; Doc. 1 ¶ 5.)

The seven plaintiffs in this case all worked for defendant at the Adamsville, Alabama Sonic restaurant. (Doc. 17 at 39; Doc. 18-1 ¶ 2.) Six former employees, who also worked at the Adamsville restaurant, filed opt-in consent forms. ( Id.; Doc. 13-3 at 1-4, 9-10.) Only one of the thirteen plaintiffs and opt-in plaintiffs worked at another location-Jasmane Hayes worked at the Bessemer, Alabama Sonic restaurant until October 2012. (Doc.17 at 39; Doc. 18-1 ¶¶ 2, 11.) Mike Godwin is the district manager responsible for the Adamsville, Cullman, Fayette, Hamilton, Jasper, and Sumiton restaurants. (Doc. 17 ¶ 9; Doc. 20 ¶ 2.)

In their Motion, plaintiffs contend that defendant has four illegal policies that violate the FLSA: (1) defendant requires employees to work "off the clock" while refusing to pay them for that time; (2) defendant refuses to pay overtime compensation; (3) defendant shaves time off employee time records; and (4) defendant "falsif[ies] tip records to avoid paying the carhop employees minimum wage." (Doc. 11 at 2.) Plaintiffs allege that these policies all stem from two overarching company-wide policies: "the policy requiring that labor costs at each location not exceed a certain percentage of daily sales and the policy forbidding the compensation of off the clock' work." (Doc. 12 at 24.) Plaintiffs request that, should the court deny certification as to defendant's twenty-six locations, the court certify a class of employees at the restaurants which Mike Godwin oversees, or at the very least, a class of employees at the Adamsville and Bessemer locations. (Doc. 12 at 44 n. 4.)

A. Requiring Employees to Work "Off the Clock" Without Pay

Plaintiffs contend:

Though hourly employees are required to be at work for their scheduled shifts, the defendant instructs the hourly employees that they are not allowed to clock into the time-keeping system (the time clock) until they are instructed to do so by a manager. [(Doc. 1 ¶ 16.)] The [d]efendant requires the managers to prohibit the hourly employees from clocking in when they begin work in order to keep labor costs down; instead, the hourly employees must work off the clock. [(Doc. 1 ¶¶ 16, 24, 33.)] Additionally, hourly employees are required to work off the clock at the end of their scheduled shifts. [(Doc. 1 ¶¶ 22, 33, 36.)]
... The [d]efendant's policy for all its locations is that hourly employees are not compensated for time worked "off the clock, " [(Doc. 1 ¶13), and] [t]he [d]efendant's policy for all its locations is that labor costs must not exceed 22 percent on a daily or weekly basis. [(Doc. 13-4 ¶ 6; Doc. 13-6 ¶ 14.)] The general and assistant managers are required to keep constant track of the labor percentage throughout each day to make sure it does not reach 22 percent... [(Doc. 13-6 ¶ 14), and the] district manager instructs the general managers and assistant managers that in order to keep labor costs at or below 22 percent, the hourly employees, which includes the assistant managers, are prohibited from working on the clock when the labor percentage gets close to or reaches 22 percent of the daily sales. [(Doc. 13-4 ¶¶ 25-26; Doc. 13-6 ¶ 9; Doc. 13-5 ¶ 16; Doc. 13-7 ¶ 6.)]
... If the assistant managers and/or general managers allow the hourly employees to work on the clock for the entire time that they work regardless of how high the labor percentage gets, then they [the assistant and general managers] will be terminated by the district manager. [(Doc. 13-4 ¶ 9; Doc. 13-6 ¶ 8.)]

(Doc. 12 at 4-7.)

Shennetta Thedford began working for defendant in September 2010. (Doc. 13-4 ¶ 2.) Thedford testified that "[t]throughout the time that [defendant] has owned Sonic, I was required to work off the clock for multiple hours on a daily basis. I was not compensated for the hours I worked off the clock." (Doc. 13-4 ¶ 3.) She states that defendant assigned her eight-hour shifts, but she "worked well over [eight] hours per day." ( Id. ¶ 11.) Thedford also testified that defendant forbade her "from clocking in until the store made a certain amount of money for the day (approximately $40 in sales)." ( Id. ¶ 19.) As a crew member and later as an assistant manager, Thedford alleges she was required to arrive and begin working at 5:30 a.m. but could not "clock in until enough business came through the door." ( Id. ¶ 25.) Thedford further testified that general manager David McGee and his predecessor, Kathy, required her and other employees to work off the clock until labor costs dropped below 22% of sales. ( Id. ¶ 26.) In addition to testifying that she was required to work for over an hour off the clock at the end of her shift "on a daily basis, " Thedford testified that "some days [she] was not able to clock in at all [and]... was not compensated at all for the days [she] worked but was not able to clock in." ( Id. ¶¶ 27, 29.) Thedford also testified that "Scott (last name unknown), ... a co-owner of Drive-In of Evansville, Inc., reviews the weekly reports from each location and makes comments on the reports regarding labor. Labor that exceeds 22 percent is considered too high and the general managers and assistant managers for those locations with labor exceeding 22 percent are disciplined and will be terminated if labor is higher than 22 percent." ( Id. ¶ 21.)

Thedford points to Mike Godwin as the main decisional source requiring employees to work off the clock, stating that during her time as general manager, Godwin threatened to terminate her if she did not reduce labor costs below 22% of sales for the week. ( Id. ¶ 33.) Additionally, she states that Godwin required her to fire Alexander Dubose because Dubose allowed employees to work on the clock "for too long and his labor percentage was too high." ( Id. ¶ 34.) Thedford contends that Godwin terminated her on November 11, 2013 because he "didn't see any progress' with [her], which meant [she] wasn't keeping labor low enough." ( Id. ) Defendant contends, to the contrary, that ...

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