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Miller v. Jah, LLC

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

January 5, 2018

BREEANA MILLER, on behalf of herself and all others similar situated, Plaintiffs,
JAH, LLC d/b/a JIMMY'S LOUNGE Defendant.



         Breeana Miller filed this lawsuit against Jimmy's Lounge (“Jimmy's”), on behalf of herself and others similarly situated, alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq.[1] Doc. 1. Presently before the court is Miller's Amended Motion for Conditional Certification, doc. 48. The motion is fully briefed, docs. 49, 52, 54, and ripe for review. For the reasons stated more fully below, the motion is due to be granted in part.


         Miller and the putative class members are dancers that worked at Jimmy's between September 16, 2013, and September 16, 2016. Docs. 47; 48 at 1. Jimmy's allegedly misclassified Miller and the putative class members as independent contractors, and does not pay them any wages. Doc. 47 at 5-6. Instead, the putative class members' sole income from their work is in the form of tips. Id. at 6. Miller alleges that the putative class members are employees, rather than independent contractors, because Jimmy's promulgates a number of rules that the putative class members must follow. These rules include requiring the dancers to pay “tip-out” fees to Jimmy's management and other non-tipped employees; requiring them to report to work at specific times and attend a specific number of shifts each week; setting the prices of private dances; and imposing monetary penalties for absences, lateness, leaving shifts early, the dancers' weight, and other aspects of their physical appearance. Id. at 10-11.


         Section 216(b) of the FLSA authorizes actions for unpaid overtime compensation 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). Thus, to maintain a collective action under the FLSA, plaintiffs must demonstrate that they are “similarly situated.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258 (11th Cir. 2008). Further, would-be plaintiffs in a § 216(b) collective action must affirmatively “opt in” to the suit. 29 U.S.C. § 216(b) (“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.”). “That is, once a plaintiff files a complaint against an employer, any other similarly situated employees who want to join must affirmatively consent to be a party and file written consent with the court.” Morgan, 551 F.3d at 1259. The FLSA does not provide specific procedures by which potential plaintiffs may opt in, but the Supreme Court has held that “district courts have discretion, in appropriate cases, to implement 29 U.S.C. § 216(b) . . . by facilitating notice to potential plaintiffs.” Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989); see also Haynes v. Singer Co., 696 F.2d 884, 886 (11th Cir. 1983). Indeed, the Supreme Court has endorsed the practical benefits of FLSA collective actions, as follows:

A collective action allows . . . plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of resources. The judicial system benefits by efficient resolution in one proceeding of common issues of law and fact arising from the same alleged discriminatory activity. These benefits, however, depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.

Hoffman-La Roche, 493 U.S. at 170.

         The Eleventh Circuit has suggested a two-tiered process for district courts to manage collective actions. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218-19 (11th Cir. 2001). At the first stage, called conditional certification or the “notice” stage, the district court makes a determination, based on the pleadings and affidavits on file, of whether it should authorize notice of the action to potential class members. Id. at 1218. Because the court has minimal evidence, the standard is lenient. Id. The district court must merely ascertain whether there are other employees who wish to opt in, and that they are similarly situated to the original plaintiff “with respect to their job requirements and with regard to their pay provisions.” Morgan, 551 F.3d at 1259 (quoting Dybach v. Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991)). Indeed, this inquiry “typically results in ‘conditional certification' of a representative class.” Hipp, 252 F.3d at 1218. If the court conditionally certifies a class, court-supervised notice of the pendency of the action is then given to the potential class members, and they are afforded an opportunity to opt in to the action. Id.

         The second stage of the process is activated by the defendant's filing of a decertification motion following the completion of discovery. Id. At this stage, based on a fully-developed record, the court makes a determination of whether the named plaintiffs and the opt-ins are similarly situated. Id. The plaintiff has a heavier burden to show similarity at the second stage. Morgan, 551 F.3d at 1261. If the court finds the plaintiffs are not similarly situated, it decertifies the action, dismisses the opt-in plaintiffs without prejudice, and the named plaintiffs proceed to trial on their individual overtime claims. Hipp, 252 F.3d at 1218. At all times, the decision to certify an opt-in class under section 216(b) “remains soundly within the discretion of the district court.” Id. at 1219.

         III. ANALYSIS

         Miller's burden for conditional certification hinges on her ability to show that she and the prospective opt-in plaintiffs are “similarly situated.” Morgan, 551 F.3d at 1259 (citation omitted). The FLSA does not define “similarly situated, ” see 29 U.S.C. § 216(b), and while the Eleventh Circuit has refused to adopt a precise definition, see Morgan, 551 F.3d at 1259, it has provided some guidance. It is clear that to maintain a FLSA collective action, the named plaintiff or plaintiffs “need only show that their positions are similar, not identical, to the positions held by the putative class members.” Grayson v. K-Mart, 79 F.3d 1086, 1096 (11th Cir. 1996). Yet, the “similarities necessary to maintain a collective action under § 216(b) must extend ‘beyond the mere facts of job duties and pay provisions.'” Anderson v. Cagle's, Inc., 488 F.3d 945, 953 (11th Cir. 2007). “Otherwise, ‘it is doubtful that § 216(b) would further the interests of judicial economy, and it would undoubtedly present a ready opportunity for abuse.'” Id. (citation omitted). Essentially, a plaintiff must demonstrate a “reasonable basis” for her claim of class-wide discrimination. Grayson, 79 F.3d at 1097. This burden, “which is not heavy, [is met] by making substantial allegations of class-wide discrimination, that is, detailed allegations supported by affidavits which successfully engage defendants' affidavits to the contrary.” Id. (citation omitted); see also Morgan, 551 F.3d at 1261 (“The district court's broad discretion at the notice stage is thus constrained, to some extent, by the leniency of the standard for the exercise of that discretion. Nonetheless, there must be more than ‘only counsel's unsupported assertions that FLSA violations [are] widespread and that additional plaintiffs would come from other stores.'”) (citation omitted).

         Miller contends that she is similarly situated with the putative class, as they are all dancers that Jimmy's treats identically in terms of work hours, pay, and policies. Doc. 49 at 7-9. Jimmy's does not dispute this. See doc. 52. Rather, Jimmy's contends that Miller has failed to produce sufficient evidence that there are other employees that desire to opt in. Id. at 6-12. Miller counters by attaching with her reply the affidavit of a putative class member who states that she would opt in if given the opportunity.[2] Doc. 54-1.

         “The number of plaintiffs necessary to demonstrate a desire to opt in is not many, sometimes as few as two, three, or four.” Lemming v. Sec. Forces, Inc., No. 8:10-CV-1469-T-23AEP, 2010 WL 5058532, at *1 (M.D. Fla. Dec. 6, 2010) (citing Brooks v. A. Rainaldi Plumbing, Inc., 2006 WL 3544737 (M.D. Fla. Dec. 8, 2006); Tyler v. Payless Shoe Source, Inc., No. 2:05-CV-33F(WO), 2005 WL 3133763, at *1 (M.D. Ala. Nov. 23, 2005)). “Even a single affidavit or consent to join submitted by another individual stating that they are similarly situated and wish to join the suit is enough to bring the Plaintiff's contentions above pure speculation.” Brooks, 2006 WL 3544737, at *2 (citing Guerra v. Big Johnson Concrete Pumping, Inc., No. 05-14237-CIV, 2006 WL 2290512 (S.D. Fla. May 17, 2006)). Accordingly, the evidence Miller has presented satisfies her lenient ...

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