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Fitzwater v. Cole

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

November 28, 2018

MIKE COLE, SR, et al., Defendants.



         This action is before the Court on the “Motion for Expedited Court-Supervised Notice to the Putative Class and for Conditional Certification” (Doc. 31), and separate supporting memorandum brief (Doc. 32), filed by Plaintiff Wendy Fitzwater. The Defendants have timely filed a response (Doc. 35) in opposition to the motion, and Fitzwater has timely filed a reply (Doc. 36) to the response. The undersigned heard oral argument regarding the motion at a telephonic scheduling conference with counsel for the parties held November 16, 2018. The Defendants have supplemented their briefing (see Doc. 48) in accordance with the matters discussed at the conference, Fitzwater has filed a response (Doc. 50) to that supplement, and the Defendants have moved to strike the response as untimely (see Doc. 51).

         Fitzwater's complaint alleges violations of, and proposes to bring a collective action under, the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”).[1]

The FLSA authorizes collective actions against employers accused of violating the FLSA. 29 U.S.C. § 216(b). Section 216(b) provides that “[a]n 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.” 29 U.S.C. § 216(b). Thus, to maintain a collective action under the FLSA, plaintiffs must demonstrate that they are similarly situated. See Anderson v. Cagle's, 488 F.3d 945, 952 (11th Cir. 2007).
Participants in a § 216(b) collective action must affirmatively opt into 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. Albritton v. Cagle's, 508 F.3d 1012, 1017 (11th Cir. 2007).
Because similarly situated employees must affirmatively opt into the litigation, the decision to certify the action, on its own, does not create a class of plaintiffs. Rather, the “existence of a collection action under § 216(b) ... depend[s] on the active participation of other plaintiffs.” Cameron-Grant v. Maxim Healthcare Servs. Inc., 347 F.3d 1240, 1249 (11th Cir.2003) (“Under § 216(b), the action does not become a ‘collective' action unless other plaintiffs affirmatively opt into the class by giving written and filed consent.”). The benefits of a collective action “depend on employees receiving accurate and timely notice ... so that they can make informed decisions about whether to participate.” See Hoffmann- La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S.Ct. 482, 486, 107 L.Ed.2d 480 (1989). Therefore, the importance of certification, at the initial stage, is that it authorizes either the parties, or the court itself, to facilitate notice of the action to similarly situated employees. Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001). After being given notice, putative class members have the opportunity to opt-in. The action proceeds throughout discovery as a representative action for those who opt-in. See id.
The key to starting the motors of a collective action is a showing that there is a similarly situated group of employees. See Anderson, 488 F.3d at 953; Hipp, 252 F.3d at 1217.
While not requiring a rigid process for determining similarity, [the Eleventh Circuit] ha[s] sanctioned a two-stage procedure for district courts to effectively manage FLSA collective actions in the pretrial phase. The first step of whether a collective action should be certified is the notice stage. Anderson, 488 F.3d at 952-53; Hipp, 252 F.3d at 1218. Here, a district court determines whether other similarly situated employees should be notified…This first step is also referred to as conditional certification since the decision may be reexamined once the case is ready for trial. Albritton, 508 F.3d at 1014 (discussing Hipp's first stage as “conditionally certifying the collective action”); Anderson, 488 F.3d at 952 (stating district court certified collective action, “but only conditionally, ” noting the possibility of later decertifying once discovery is substantially over).
The second stage is triggered by an employer's motion for decertification. Anderson, 488 F.3d at 953. At this point, the district court has a much thicker record than it had at the notice stage, and can therefore make a more informed factual determination of similarity. Id. This second stage is less lenient, and the plaintiff bears a heavier burden.

         Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1258-61 (11th Cir. 2008) (footnotes omitted). Fitzwater's present motion invokes the two-stage procedure described above and moves for stage-one conditional certification of the following putative class: “All current and former employees of Big Mike's Steakhouse for whom Defendants claimed a ‘tip credit' by paying them a direct hourly wage of less than $7.25 per hour for any work week since September 10, 2015.” (Doc. 31 at 1).

         In response, the Defendants point out that in April 2018, after Fitzwater filed this action on March 21, 2018, but before the Defendants were served with the complaint in late May and early June, compare (Doc. 1) with (Docs. 6 - 12, 15), the Wage and Hour Division of the U.S. Department of Labor (“DOL”) initiated an audit of the Defendants' payroll practices. (See Doc. 35 at 3). The DOL issued its determinations to the Defendants on August 22, 2018, “including a settlement demand requiring payment of back wages and other elements of compensation, including properly calculated overtime and other elements of compensation, to all current and former employees, with the sole exception of Plaintiff Fitzwater. The Agency's determination and settlement demand included loss of Defendants' ‘tip credit' due to a tip pooling arrangement that was deemed not compliant with the FSLA.” (Id.). The DOL did not assess liquidated damages after determining no willful conduct on the part of the Defendants. (Id. at 4). Fitzwater was excluded from the DOL's payment compensation roster due to the DOL's policy of not representing employees who are represented by counsel and have claims pending in court. (Id.). The roster did include former employee Carlissa Phillips (id.), to date the only opt-in plaintiff (see Doc. 33).

         The Defendants assert that they have agreed to pay the DOL's settlement demand for all current and former employees on the compensation roster and have transmitted settlement payments “to all current and former employees with the exception of Plaintiff Fitzwater and Ms. Carlissa Phillips.” (Doc. 35 at 5). The Defendants request that the Court exercise its inherent power to control its docket by staying this case to allow for the DOL settlement process to conclude. In reply, Fitzwater opposes the request for a stay.

         Briefing on the present motion closed after October 4, 2018 (see Doc. 34). In their supplemental response, filed November 19, 2018, the Defendants further represent that as of that date, of the 69 employees to whom the DOL directed notice of the settlement proceedings, settlement payments have been distributed to all 69 employees, 68 out of the 69 have accepted the settlement payments, and 64 of the 68 who accepted payments have returned executed WH-58 form claim releases.[2][3]

         “[U]nder [28 U.S.C.] section 216(c), the Secretary of Labor is authorized to supervise payment to employees of unpaid wages owed to them. An employee who accepts such a payment supervised by the Secretary thereby waives his right to bring suit for both the unpaid wages and for liquidated damages, provided the employer pays in full the back wages.” Lynn's Food Stores, Inc. v. U.S. By & Through U.S. Dep't of Labor, Employment Standards Admin., Wage & Hour Div., 679 F.2d 1350, 1353 (11th Cir. 1982). “For there to be a valid waiver section 216(c) simply requires (a) that the employee agree to accept the payment which the ...

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