United States District Court, E.D. Wisconsin
ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR
CONDITIONAL CERTIFICATION AND COURT-AUTHORIZED NOTICE (DKT.
PAMELA PEPPER United States District Judge
the court is the plaintiff's motion for issuance of a
step-one notice of the plaintiff's collective action
pursuant to §216(b) of the Fair Labor Standards Act. For
the reasons explained below, the court will grant in part the
Cousins Submarines, Inc. d/b/a Cousins Subs
(“Cousins”) employed the plaintiff from November
2009 through December 2015. Decl. of Amanda Nuchell, Dkt. No.
13, ¶3. During that time, she worked at two Cousins
restaurants, one located at 530 W. Sunset Drive, Waukesha,
Wisconsin (the “Sunset Drive restaurant”), and
another located at 10716 W. Oklahoma Avenue, West Allis,
Wisconsin (the “Oklahoma Avenue restaurant”).
Id., ¶3. Beginning sometime in 2013, the
plaintiff held the position of Assistant Manager, and Cousins
paid her an hourly rate of between $9.00 to $10.00 for the
hours she worked. Id. at 7. She alleges that Cousins
regularly scheduled her to work at or near forty hours in a
workweek. Id., ¶9. The plaintiff asserts in her
complaint, and swears in her declaration, that Cousins
permitted her (and members of the proposed Wisconsin Class)
to work more than forty hours in a workweek (as a result of
picking up additional shifts or working before or after the
scheduled start or end of a shift), and that Cousins failed
to pay her (and members of the potential class) overtime
compensation when they did. Dkt. No. 1, ¶¶22-26;
Dkt. No. 13, ¶¶9-10.
support of her motion for conditional class certification,
the plaintiff filed declarations from two former hourly
assistant managers at Cousins' locations where the
plaintiff also worked, Jennifer Watry and Mary Kuenzi. Dkt.
Nos. 14-15. Watry worked at the Sunset Drive restaurant. Dkt.
No. 14, ¶3. Kuenzi worked at the Sunset Drive and
Oklahoma Avenue restaurants, and at another restaurant
located at 8538 W. Brown Deer Road, Milwaukee, Wisconsin (the
“Northridge restaurant”). Dkt. No. 15, ¶3.
plaintiff's immediate supervisor was the General Manager
of the restaurant where she worked. Dkt. No. 13, ¶4.
General Managers reported to a District Manager; Ron Willman
was the District Manager of the restaurants where the
plaintiff worked. Id., ¶5. The plaintiff and
the former assistant managers swear that the general managers
responsible for the Cousins' stores in the geographic
area and the district manager confirmed that Cousins'
practice was not to pay overtime compensation for all hours
worked over forty when questioned by the hourly Assistant
Managers. Id., ¶12; Dkt. Nos. 14,
¶¶10-11; Dkt. No. 15, ¶¶10-11. The
assistant managers declare that they were told to
“clock out and work or not work at all, ” dkt.
no. 13, ¶12, that their overtime hours “would be
added to [the] next paycheck at [the employee's] straight
time rate, ” dkt. no. 14, ¶11, or that
Cousins' policy was not to pay “overtime
compensation unless an employee exceeded forty hours worked
in both workweeks in a bi-weekly pay period.” Dkt. No.
15, ¶11. Neither the General Managers nor Area
Supervisor Ron Willman took any additional steps to ensure
that the hourly Assistant Managers had been properly paid for
all overtime work hours after being questioned about such pay
by the hourly Assistant Managers. Dkt. No. 13, ¶12; Dkt.
No. 14, ¶11 (as to Willman); Dkt. No. 15, ¶11 (as
to general manager Jamie Dundin).
plaintiff filed her pay stub and timesheets for the period
November 1, 2015 through November 14, 2015. Dkt. No. 13,
Exhs. A-C. During those two weeks, the plaintiff worked 42.60
hours in the first workweek and 42.95 hours in the second-a
total of 85.55 hours. Cousins paid the plaintiff, however,
for only eighty hours of work at $10.00 per hour-her
straight-time rate. Dkt. No. 13, ¶11; Dkt. No. 13-1, Ex.
A. The plaintiff alleges that Cousins underpaid her
“for 5.55 hours of overtime compensation during that
pay period.” Dkt. No. 18, at 15.
STANDARD OF REVIEW
collective action under § 216(b) differs from a class
action under Federal Rule of Civil Procedure 23 in that Rule
23 binds class members unless they opt out, whereas
collective action members are bound under § 216(b) only
if they opt in to the action by providing their written
consent.” Franks v. MKM Oil, Inc., 2012 WL
3903782, at *9 (N.D. Ill. Sept. 7, 2012) (citing Ervin v.
OS Rest. Servs., Inc., 632 F.3d 971, 976 (7th Cir.
2011)). The majority of courts in this circuit follow a
two-step process to determine whether an FLSA lawsuit should
proceed as a collective action. E.g., Brabazon
v. Aurora Health Care, Inc., No. 10-CV-714, 2011 WL
1131097, at *2 (E.D. Wis. Mar. 28, 2011) Franks,
2012 WL 3903782, at *9. At step one, the court makes a
conditional certification; at step two, the court makes a
final certification. Blakes v. Ill. Bell Tel. Co.,
2013 WL 6662831, at *4 (N.D. Ill.Dec. 17, 2013)
(“District courts typically follow a two-step process .
. . involving conditional certification of a class
pre-discovery followed by a second look at whether collective
treatment is appropriate after the parties have engaged in
first step, it is the plaintiff's burden to make a
“modest factual showing sufficient to demonstrate that
[she] and potential plaintiffs together were victims of a
common policy or plan that violated the law.”
Russell v. Ill. Bell Tel. Co., 575 F.Supp.2d 930,
933 (N.D. Ill. 2008) (quoting Flores v. Lifeway Foods,
Inc., 289 F.Supp.2d 1042, 1045 (N.D. Ill. 2003)).
“The ‘modest factual showing' cannot be
satisfied simply by ‘unsupported assertions, ' but
it should remain a low standard of proof because the purpose
of this first stage is merely to determine whether
‘similarly situated' plaintiffs do in fact
exist.” Myers v. Hertz Corp., 624 F.3d 537,
555 (2d Cir. 2010)(citations omitted). It requires
“some evidence, beyond pure speculation, of a factual
nexus between the manner in which the employer's alleged
policy affected her and the manner in which it affected other
employees.” Zavala v. Wal Mart Stores, Inc.,
691 F.3d 527 at n. 4 (3d Cir. 2012) (quotation omitted);
see also Molina v. First Line Sol'ns LLC, 566
F.Supp.2d 770, 786 (N.D. Ill. 2007) (“Unless defendant
admits in its answer or briefs that other similarly situated
employees exist, plaintiffs cannot rely on their allegations
alone to make the required modest factual showing.”).
The plaintiff may present factual support in the form of
affidavits, declarations, deposition testimony, or other
documents in order to demonstrate some “factual nexus
between the plaintiff and the proposed class or a common
policy that affects all the collective members.”
Nehmelman v. Penn Nat'l Gaming, Inc., 822
F.Supp.2d 745, 750 (N.D. Ill. 2011).
plaintiff satisfies her step-one burden, the court issues a
notice to prospective plaintiffs who may wish to opt in to
the case. After the discovery period closes, the case moves
to the second step. At that time, on a more developed
evidentiary record, the court determines “whether the
plaintiffs who have opted in are in fact ‘similarly
situated' to the named plaintiffs, ” which would
allow the “collective action” to proceed. If the
record shows that the opt-in plaintiffs are not similarly
situated to the plaintiff, the action may be
‘decertified' and the opt-in plaintiffs' claims
may be dismissed without prejudice.” Myers, 624 F.3d at
the second stage, the court considers (1) whether the
plaintiffs share similar or disparate factual and employment
settings; (2) whether the various affirmative defenses
available to the defendant would have to individually applied
to each plaintiff; and (3) fairness and procedural
concerns.” Strait v. Belcan Eng'g Grp.,
Inc., 911 F.Supp.2d 709, 718 (N.D. Ill. 2012) (quotation
omitted). This stage is where the certification bears more of
a resemblance to the Rule 23 class certification standard.
See Espenscheid v. DirectSat USA, LLC, 705 F.3d 770,
772 (7th Cir. 2013)). “[I]t is not until the conclusion
of the opt-in process and class discovery ‘that the
court more rigorously reviews whether the representative
plaintiff and the putative claimants are in fact similarly
situated so that the lawsuit may proceed as a collective
action.' ” Tamas v. Family Video Movie Club,
Inc., 2013 WL 4080649, at *3 (N.D. Ill. Aug. 13, 2013)
(quoting Smallwood v. Ill. Bell Tel. Co., 710
F.Supp.2d 746, 750 (N.D. Ill. 2010)).
The Plaintiff Has Made a Modest Factual Showing that