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Nuchell v. Cousins Submarines Inc.

United States District Court, E.D. Wisconsin

February 28, 2017



          HON. PAMELA PEPPER United States District Judge

         Before 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 plaintiff's motion.


         Defendant 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.

         In 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.

         The 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).

         The 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.


         “A 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 discovery.”).

         At the 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).

         If the 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 555.

         “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)).

         III. ANALYSIS

         A. The Plaintiff Has Made a Modest Factual Showing that ...

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