United States District Court, D. South Carolina, Charleston Division
Travis Mullis, individually and on behalf of all others similarly situated, Plaintiff,
Wings Over Spartanburg, LLC, Vista Wings, LLC, Aetius Companies, LLC, Aetius Restaurant Holdings, LLC, and Aetius Restaurant Group, LLC, Defendants.
PATRICK MICHAEL DUFFY United States District Judge
matter is before the Court on Plaintiff's motion for
conditional certification (ECF No. 8). For the reasons set
forth herein, Plaintiff's motion is granted in part and
denied in part.
November 7, 2016, Plaintiff commenced this action on behalf
of himself and all others similarly situated, seeking,
inter alia, unpaid minimum wages and unpaid overtime
wages pursuant to the Fair Labor Standards Act
(“FLSA”). Plaintiff is a former bartender for
Wings Over Spartanburg, LLC, and Vista Wings, LLC, and he
seeks recovery from all Defendants, who own and operate a
number of restaurants in the Southeast known as Wild Wing
Cafe (“Wild Wing”).
primarily alleges Defendants used tip pools that violated the
FLSA. Specifically, Plaintiff asserts Defendants paid their
bartenders an hourly wage lower than minimum wage using the
FLSA's Tip Credit provision, 29 U.S.C. § 203(m).
Plaintiff further asserts that while Defendants were paying
less than the statutory minimum wage using the Tip Credit
provision, they required bartenders to contribute portions of
their tips to Wild Wing's tip pools to compensate other
employees. Finally, Plaintiff alleges that some of the
employees who received money from those tip pools were
expeditors who did not qualify to share in the tip pools
because they did not customarily and ordinarily receive tips.
Because these non-tipped employees-the expeditors-did not
customarily and ordinarily receive tips, as required by the
Tip Credit provision, Plaintiff alleges that the tip pools he
and the other potential class members shared with the
expeditors violated the FLSA.
filed his motion for conditional certification on December
21, 2016. The Court granted Defendants' request for an
extension of time to respond, and Defendants ultimately filed
a response in opposition on January 11, 2017. Plaintiff filed
his reply on January 18. Accordingly, this matter is now ripe
the FLSA, employees may institute a collective action against
their employer on behalf of themselves and similarly situated
employees. The FLSA's collective action provision states
[a]n action to recover [unpaid overtime compensation] may be
maintained against any employer (including a public agency)
in any Federal or State court of competent jurisdiction by
any one or more employees for and in behalf of himself or
themselves and other employees similarly situated. 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
29 U.S.C. § 216(b). The mechanism outlined in §
216(b) is designed to facilitate the efficient adjudication
of similar claims by “similarly situated”
employees, permitting the consolidation of individual claims
and the pooling of resources in prosecuting such actions
against their employers. See Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1989); LaFleur v.
Dollar Tree Stores, Inc., 30 F.Supp.3d 463, 467 (E.D.
Va. 2014), reconsideration denied, 2014 WL 2121563
(E.D. Va. May 20, 2014), and motion to certify appeal
denied, 2014 WL 2121721 (E.D. Va. May 20, 2014);
Lynch v. United Servs. Auto. Ass'n, 491
F.Supp.2d 357, 367 (S.D.N.Y. 2007). In deciding whether the
named plaintiffs in an FLSA action are “similarly
situated” to other potential plaintiffs, courts
generally employ a two-stage approach. Purdham v.
Fairfax Cty. Pub. Sch., 629 F.Supp.2d 544, 547 (E.D. Va.
2009) (quoting Parker v. Rowland Express, Inc., 492
F.Supp.2d 1159, 1164 (D. Minn. 2007)); see also Regan v.
City of Charleston, No. 2:13-cv-3046-PMD, 2014 WL
3530135, at *2 (D.S.C. July 16, 2014); Pelczynski v.
Orange Lake Country Club, Inc., 284 F.R.D. 364, 367
(D.S.C. 2012); Simons v. Pryor's, Inc., No.
3:11-cv-792-CMC, 2011 WL 6012484, at *1 (D.S.C. Nov. 30,
2011); MacGregor v. Farmers Ins. Exch., No.
2:10-cv-3088-DCN, 2011 WL 2981466, at *2 (D.S.C. July 22,
first step in this process, which is the subject of the
instant motion, is the “notice, ” or
“conditional certification, ” stage.
Purdham, 629 F.Supp.2d at 547. Here, “a
plaintiff seeks conditional certification by the district
court in order to provide notice to similarly situated
plaintiffs” so that they can “opt-in” to
the collective action. Pelczynski, 284 F.R.D. at
367-68. With regard to this notice phase, “[t]he
Supreme Court has held that, in order to expedite the manner
in which collective actions under the FLSA are assembled,
‘district courts have discretion[, ] in appropriate
cases[, ] to implement . . . § 216(b) . . . by
facilitating notice to potential plaintiffs.'”
Purdham, 629 F.Supp.2d at 547 (quoting
Hoffman-La Roche, Inc., 493 U.S. at 169). At this
stage, the court reviews the pleadings and affidavits to
determine whether the plaintiff has carried his burden of
showing that he is similarly situated to the other putative
class members. Pelczynski, 284 F.R.D. at 368;
Purdham, 629 F.Supp.2d at 547-48. “Because the
court has minimal evidence, this determination is made using
a fairly lenient standard.” Steinberg v. TQ
Logistics, Inc., No. 0:10-cv-2507-JFA, 2011 WL 1335191,
at *1 (D.S.C. Apr. 7, 2011). Plaintiffs must make only
“a modest factual showing sufficient to demonstrate
that they and potential plaintiffs together were victims of a
common policy or plan that violated the law.”
Purdham, 629 F.Supp.2d at 548. If the court
determines that the proposed class members are similarly
situated, the court conditionally certifies the class.
Steinberg, 2011 WL 1335191, at *1. The putative
class members are then notified and afforded the opportunity
to “opt-in, ” and the case proceeds as a
representative action throughout discovery. Id.
(citing Scholtisek v. Eldre Corp., 229 F.R.D. 381,
387 (W.D.N.Y. 2005)); see also Genesis Healthcare Corp.
v. Symczyk, 133 S.Ct. 1523, 1530 (2013) (citation
omitted) (“‘[C]onditional certification' does
not produce a class with an independent legal status, or join
additional parties to the action. The sole consequence of
conditional certification is the sending of court-approved
written notice to employees, who in turn become parties to a
collective action only by filing written consent with the
after the court has conditionally certified the class, the
potential class members have been identified and notified,
and discovery has been completed, “a defendant may then
move to decertify the collective action, pointing to a more
developed record to support its contention that the
plaintiffs are not similarly situated to the extent that a
collective action would be the appropriate vehicle for
relief.” Pelczynski, 284 F.R.D. at 368. At
this optional “decertification stage, ” the court
applies a heightened fact-specific standard to the
“similarly situated” analysis.
Steinberg, 2011 WL 1335191, at *2; see
Pelczynski, 284 F.R.D. At 368. “Courts have
identified a number of factors to consider at this stage,
including (1) disparate factual and employment settings of
the individual plaintiffs; (2) the various defenses available
to defendants that appear to be individual to each plaintiff;
and (3) fairness and procedural considerations.”
Curtis, 2013 WL 1874848, at *3 (internal ...