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Mullis v. Wings Over Spartanburg, LLC

United States District Court, D. South Carolina, Charleston Division

February 27, 2017

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

         This 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.


         On 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”).

         Plaintiff 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.


         Plaintiff 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 for consideration.


         Under 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 that:

[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 brought.

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.[1] 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, 2011).

         The 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 court.”).

         Second, 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 ...

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