United States District Court, D. Colorado
BELICE PLIEGO on her own behalf and on behalf of all others similarly situated, Plaintiff,
LOS ARCOS MEXICAN RESTAURANTS, INC., d/b/a Los Arquitos Mexican Restaurant, Los Arquitos, Los Arquitos, Inc., Los Arcos, Inc. and Los Arcos Mexican Restaurant, AMR-LONE TREE, INC., d/b/a Los Arcos Mexican Restaurant, AMR-WESTLAND, INC., JUAN LUEVANO, IGNACIO LUEVANO, RAMON LUEVANO, SANDRA LUEVANO, and LIZ LUEVANO, Defendants.
Kathleen M. Tafoya United States Magistrate Judge
This matter is before the court on the “Plaintiff’s Motion to Proceed as a Collective Action, for Court Authorized Notice and for Disclosure of the Names, Addresses and Dates of Employment of the Potential Opt-in Plaintiffs” [Doc. No. 2] (“Mot.”) filed June 17, 2014. Defendants filed a Response on July 27, 2015 [Doc. No. 67] and Plaintiff replied on July 30, 2015 [Doc. No. 68]. In their Response, Defendants stipulate to the relief requested by Plaintiff except for certain requests to modify the Notice to be sent to the putative collective class members including that the Notice be clarified that potential plaintiffs are not obligated to accept Ms. Pliego’s choice of counsel and that the Notice need only be provided in one pay envelope of current employees and not be posted in the restaurants.
Jurisdiction is proper under 28 U.S.C. § 1331 (federal question), 29 U.S.C. § 216(b) (Fair Labor Standards Act), and 28 U.S.C. § 1367 (supplemental).
II. STANDARD OF REVIEW
This case involves alleged violations of the wage provisions of the Fair Labor Standards Act (“FLSA” or “the Act”). The plaintiffs seek to pursue a collective action under the Act on behalf of themselves and other similarly situated current and former employees of the defendants, Los Arcos Mexican Restaurants, Inc., d/b/a Los Arquitos Mexican Restaurant, Los Arquitos, Los Arquitos, Inc., Los Arcos, Inc. and Los Arcos Mexican Restaurant, AMR-Lone Tree, Inc., d/b/a Los Arcos Mexican Restaurant, AMR-Westland, Inc., Juan Luevano, Ignacio Luevano, Ramon Luevano, Sandra Luevano, and Liz Luevano (collectively “Los Arcos Defendants”). Section 216(b) of the FLSA provides the exclusive means of bringing such class-wide claims to redress alleged violations of the FLSA. See 29 U.S.C.A. § 216(b); Brown v. Money Tree Mortgage, Inc., 222 F.R.D. 676, 678–79 (D. Kan. 2004). Contrary to the procedures governing a typical class action under Rule 23, plaintiffs who wish to participate in a FLSA collective action must opt-in to the action. See 29 U.S.C. § 216(b) (“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.”); In re American Family Mutual Insurance Co. Overtime Pay Litigation, 638 F.Supp.2d 1290, 1298 (D. Colo. 2009).
A collective action under the FLSA may be maintained only by and among employees who are “similarly situated.” The Tenth Circuit has adopted a two-step analysis governing this determination. At the initial “notice stage, ” the trial court must determine whether plaintiffs have made “substantial allegations that the putative class members were together the victims of a single decision, policy, or plan.” Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001), cert. denied, 122 S.Ct. 2614 (2002) (citation and internal quotation marks omitted). The court makes this determination relying on the allegations of the complaint and any affidavits filed by Plaintiff. Brown, 222 F.R .D. at 680. Certification at this step is conditional, and the standard of proof “is a lenient one that typically results in class certification, ” allowing notice to be sent to the putative class members and discovery to be undertaken. Id. at 679.
After discovery is complete, the second, or “decertification, ” stage occurs. At that point, the court applies a much stricter standard to determine whether class members are similarly situated and, consequently, whether the action should continue as a collective action. In making that determination, the court must evaluate, inter alia, “the disparate factual and employment settings of the individual plaintiffs; the various defenses available to defendants which appear to be individual to each plaintiff; fairness and procedural considerations; and whether plaintiffs made any required filings before instituting suit.” Brown, 222 F.R.D. at 679 (citing Thiessen, 267 F.3d at 1103).
In her Complaint (“Compl.”) [Doc. No. 1], Plaintiff alleges that, “Defendants refused to pay their hourly employees overtime wages for hours worked beyond forty each workweek.” (Compl. at ¶ 2). Plaintiff further alleges that, “[t]hough Defendants’ hourly employees regularly worked more than 40 hours per week, Defendants refused to pay them overtime premiums.” Id. at ¶ 19. Plaintiff goes on to allege that, “[r]ather than pay overtime premiums to their hourly employees, Defendants paid their hourly employees at their regular hourly rates for hours worked beyond forty each workweek, ” id. at ¶ 20, and that “Defendants subjected all their hourly employees to this policy of refusing to pay overtime wages for overtime hours worked.” Id. at 22.
In her affidavit attached to the Motion, Plaintiff Pliego states that she worked as a server and head server for Defendants from approximately February 15, 2007 through November 15, 2013. (Mot., Ex. 1, Pliego Declaration, ¶ 3.) Plaintiff Pliego states that she “worked overtime hours for Defendants throughout [her] tenure of employment” and that she was never paid overtime premiums “for the hours beyond forty (40)” that she worked in any given work week. Id. at ¶ 4. Plaintiff Pliego also states that Defendants never paid overtime premiums to any of their hourly employees, basing her knowledge on conversations she had with other hourly employees throughout her employment with Defendants including with: 1) Elizabeth Esther Martinez, a fellow Los Arcos server, who confirmed to Plaintiff that she too worked overtime hours and was not paid overtime rates; 2) Ariel LNU, a cook from the Westminster location who also told Plaintiff that he was not paid overtime rates for overtime hours worked at Los Arcos; and, 3) Rodolfo LNU, an hourly employee who also told Plaintiff that he was not paid overtime premiums for overtime hours work at Los Arcos. Id. at ¶ 5.
A. Certification of Collective
The plaintiff seeks conditional certification under the first step of the two step analysis described in Thiessen. The plaintiff’s burden now is merely to present “substantial allegations ” that all members of the putative class were subject to a single decision, policy or plan. See Thiessen, 267 F.3d at 1102 (emphasis added). Looking solely to the allegations of the complaint and the affidavit of plaintiff Belice Pliego, this court finds and concludes that plaintiffs have satisfied the minimal burden necessary to the conditional certification of a collective action under § 216(b). Plaintiff makes substantial allegations that all of the putative class members were together the victims of Defendants’ policy of refusing to pay their employees overtime wages for overtime hours worked. Plaintiff provides evidence confirming that all Defendants’ hourly employees are similarly situated in that they were uniformly subject to Defendants’ unlawful refusal to pay their employees overtime premiums. The plaintiff's allegations, if true, show that current and/or former employees of the defendants are similarly situated, as that term is used in § 216, and subject to a single uniform policy or practice with regard to ...