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Spencer v. Macado's, Inc.

United States District Court, W.D. Virginia, Lynchburg Division

September 27, 2019

Jeffrey Spencer, Jr., et al., Plaintiffs,
Macado’s, Inc., et al., Defendants.



         This matter is before the Court on Plaintiffs’ motion for conditional class certification with notice to potential plaintiffs. (Dkt. 109, 110). Plaintiffs, current and former servers and bartenders at Defendants Macado’s restaurants (“Macado’s”), brought this action under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. As explained below, the Court will grant Plaintiffs’ motion for conditional class certification and instruct Macado’s to provide notice to putative class members.


         Plaintiffs Jeffrey Spencer, Cheyenne Williams, and Travis Hostetter are current and former employees of Macado’s Lynchburg, Virginia location. (Dkt. 105 ¶¶ 1, 6–8). They receive both an hourly wage and tips. Id. ¶¶ 6–8. Plaintiffs are or were paid by Macado’s as tipped employees, receiving a wage below the federal minimum wage for untipped employees. Id. ¶ 52. Plaintiffs allege that Macado’s maintained a policy of staffing restaurants with fewer employees than necessary. Id. ¶ 13. In turn, this policy of understaffing required Plaintiffs (1) to perform unrelated non-tip-producing tasks while clocked-in as tipped employees (“dual jobs”), (2) to perform related non-tip-producing tasks for more than twenty percent of their work time while clocked-in as tipped employees (“side work”), and (3) to perform work “off the clock” before their scheduled shifts. Id. ¶ 13.

         On August 1, 2018, the Court granted in part Macado’s first motion to dismiss, dismissing without prejudice Plaintiffs’ “dual jobs” and “off the clock” claims, primarily because Plaintiffs had not provided sufficient factual specificity about how much time was spent on unrelated non-tip producing tasks and how frequently Plaintiffs were required to perform “off the clock” work. (Dkt. 88, 89). Plaintiffs’ “side work” claim survived. Id.

         Plaintiffs subsequently amended their complaint, bringing all three claims again, and adding factual allegations to correct the pleading deficiencies identified in the Court’s prior opinion. (Dkt. 105). Macado’s moved to dismiss Plaintiffs’ “dual jobs” and “off the clock” claims, (Dkt. 106), and on July 8, 2019, the Court denied this motion as to both counts. (Dkt. 142).

         Plaintiffs now move for conditional certification of a class of Macado’s employees. Specifically, the three named plaintiffs seek to represent a class consisting of all “other similarly situated Hourly-Paid Tipped Employees, classified as ‘bartenders and servers’” who are or were employees of Macado’s, Inc. during the applicable statute of limitations period under the FLSA. (Dkt. 110 at 1–2).

         In addition to certifying the above class, Plaintiffs ask the Court to (1) require Macado’s to provide Plaintiffs with the names, residential addresses, phone numbers, social security numbers, and employment history of all putative class members during the last 3 years; (2) require Macado’s to post Court-approved notice to putative class members at all Macado’s locations, enclose such notices in paystubs, and mail such notice to all putative class members; (3) order that the statute of limitations be tolled for the putative class as of the date the motion is granted, except with respect to individuals who have already opted in to the class; and (4) require that opt-in plaintiffs’ consent to join forms be deemed “filed” on the date they are postmarked. Id. at 2. Defendant opposes Plaintiffs’ motion in its entirety. (Dkt. 122). The Court will conditionally certify Plaintiffs’ proposed class, grant equitable tolling for putative opt-in plaintiffs, and order most of the notice mechanisms sought by Plaintiffs.

         Conditional Certification

         i. Legal Standard

         Section 216(b) of the FLSA “allows a plaintiff alleging a violation of the statute to bring suit on his own behalf or on behalf of other employees who are similarly situated.” Long v. CPI Sec. Systems, Inc., 292 F.R.D. 296, 298 (W.D. N.C. 2013). “[T]here are two requirements for the certification of a FLSA collective action: (1) the members of the proposed class must be ‘similarly situated, ’ and (2) the class members must ‘opt-in’ by filing their consent to suit.” Id.

         Courts in the Fourth Circuit “typically follow a two-step approach when deciding whether the named plaintiffs are similarly situated to potential plaintiffs for the purposes of certifying the collective action.” Long, 292 F.R.D. at 298. “At the first stage, the court makes a preliminary determination whether to conditionally certify the class based upon the limited record before the court.” Id. “[T]his initial inquiry proceeds under a ‘fairly lenient standard’ and requires only ‘minimal evidence, ’” id., such as “factual evidence by affidavits or other means, ” Essame v. SSC Laurel Operating Co. LLC, 847 F.Supp.2d 821, 825 (D. Md. 2012). See also Romero v. Mountaire Farms, Inc., 796 F.Supp.2d 700, 705 (E.D. N.C. 2011) (“The standard for conditional certification is fairly lenient and requires nothing more than substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.”). “The primary focus in this inquiry is whether the potential plaintiffs are ‘similarly situated with respect to the legal and, to a lesser extent, the factual issues to be determined.’” Romero, 796 F.Supp. at 705 (quoting De Luna–Guerrero v. N. Car. Grower’s Assoc., 338 F.Supp.2d 649, 654 (E.D. N.C. 2004)). “Put another way, the touchstone at this stage is merely whether Plaintiffs have demonstrated some factual nexus connecting them to other potential plaintiffs as victims of an unlawful policy.” LaFleur v. Dollar Tree Stores, Inc., No. 2:12-cv-00363, 2012 WL 4739534, at *4 (E.D. Va. Oct. 2, 2012). In assessing whether conditional certification is appropriate, “the Court does not resolve factual disputes, decide substantive issues on the merits, or make credibility determinations.” Adams v. Citicorp Credit Servs., Inc., 93 F.Supp.3d 441, 454 (M.D. N.C. 2015). “If the class is conditionally certified, the court typically authorizes plaintiffs’ counsel to provide the putative class members with notice of the lawsuit and their right to opt-in.” Romero, 796 F.Supp.2d at 705.

         The Court proceeds to stage two if the defendant files a motion for decertification, usually after discovery is virtually complete. Long, 292 F.R.D. at 299 (quoting Choimbol v. Fairfield Resorts, Inc., 475 F.Supp.2d 557, 563 (E.D. Va. 2006)). “Accordingly, throughout the second stage, courts apply a heightened fact specific standard to the ‘similarly situated’ analysis.” Id. “Upon a determination that the plaintiffs established the burden of proving they are ‘similarly situated, ’ the collective action proceeds to trial.” Id. “On the contrary, if the court determines that the plaintiffs are in fact, not ‘similarly situated, ’ the class is decertified and the original plaintiffs may proceed on their individual claims.” Id.

         Lastly, the FLSA does not define the term “similarly situated, ” and the Fourth Circuit has not clarified the term’s meaning.[1] However, courts in this circuit maintain that “[p]utative class members are ‘similarly situated’ for purposes of 216(b) if they ‘raise a similar legal issue as to coverage, exemption, or nonpayment of minimum wages or overtime arising from at least a manageably similar factual setting with respect to their job requirements and pay provisions.’” Romero v. Mountaire Farms, Inc., 796 F.Supp.2d 700, 705 (E.D. N.C. 2011) (quotation and citation omitted). “There must be sufficient reason to believe that there are issues common to the proposed class that are central to the disposition of the FLSA claims and that such common issues can be substantially adjudicated without consideration of facts unique or particularized as to each class member.” LaFleur v. Dollar Tree Stores, Inc., No. 2:12-cv-00363, 2012 WL ...

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