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Fuentes v. Compadres, Inc.

United States District Court, D. Colorado

May 9, 2018

JAIME FUENTES, in his individual capacities and on behalf of others similarly situated, Plaintiff,



         This matter is before the Court on the Recommendation of United States Magistrate Michael E. Hegarty (Doc. # 133), wherein he recommends that this Court grant in part and deny in part Plaintiff's Motion for the Production of Contact Information and Judicial Notice (Doc. # 94) and Motion to Equitably Toll the State of Limitations (Doc. # 95). The parties timely filed objections to portions of the Recommendation. (Doc. ## 134, 135, 136.) Based on this Court's thorough review, the Court adopts the Recommendation for the following reasons.

         I. BACKGROUND[1]

         On March 23, 2018, this Court dismissed various defendants in this case. The remaining defendants are comprised of restaurants in Colorado as well as the alleged owners or managers of the restaurants: Compadres Inc., Tequilas Thornton Number 6, LLC, Jose Raigoza De Jesus Garcia, and Rodrigo Sanchez (Defendants, collectively). Plaintiff worked as a waiter and bartender at the restaurants from October 24, 2016 to February 22, 2017. Plaintiff alleges that, during this time, Defendants failed to pay him overtime, retained tips for management, failed to provide adequate notice related to the tip credit, and over-reported his tips on his pay stubs.

         Plaintiff accordingly commenced this lawsuit on behalf of himself and others similarly situated, bringing claims against Defendants under the Fair Labor Standards Act (FLSA) and the Colorado Wage Claim Act (CWCA). Plaintiff now seeks an order (1) requiring Defendants to provide him a list of putative collective action members and their contact information, (2) approving and authorizing the dissemination of his proposed Notice and Consent to Join Forms, and (3) granting his request to toll the FLSA's statute of limitations from the date he effectuated service of the Complaint. Plaintiff also contends that conditional certification of a collective action pursuant to § 216(b) of the FLSA “is not actually necessary” at this stage in the proceedings.

         Magistrate Judge Hegarty recommends that this Court grant in part and deny in part these requests. Specifically, Magistrate Judge Hegarty recommends that this Court:

• conditionally certify the collective action under the long-standing two-step certification process and limit the putative classes to bartenders, servers, and cooks, rather than “all non-management employees” as Plaintiff requests;
• order Defendants to provide Plaintiff a list of putative class members and their contact information;
• order the parties to confer and construct mutually-agreed upon Notice and Consent to Join Forms, taking into account the Court's proposed revisions; and
• allow the FLSA claims to be equitably tolled from the date Plaintiff's tolling motion was filed-October 31, 2017.

         The parties timely objected to portions of these recommendations.

         In particular, Plaintiff objects to (1) this Court utilizing the collective certification process outlined in § 216 of the FLSA; (2) Magistrate Judge Hegarty's proposed limitation of the collective to bartenders, servers, and cooks; and (3) Magistrate Judge Hegarty's proposed revisions to the Notice and Consent to Join Forms. Plaintiff also states that he “reiterates” his arguments regarding equitably tolling the statute of limitations but “understand[s] [Magistrate] Judge Hegarty's logic for the October date as well.” (Doc. # 136 at 12.) Defendants object to (1) including the phrase “who worked for Defendants” in the proposed class definitions; (2) ordering Defendants to provide Plaintiff with “any and all other contact information” for putative class members; and (3) permitting Notice to be posted on social media platforms.[2]

         With respect to these objections, the Court reviews the Recommendation de novo. In so doing, this Court “may accept, reject, or modify the recommended disposition[.]” Fed.R.Civ.P. 72(b)(3). With respect to the portions of the Recommendation that have not been challenged, the Court reviews for clear error based on its “considerable discretion.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (the district court may review a magistrate judge's conclusion under any standard it deems appropriate).


         The Court begins by reviewing Magistrate Judge Hegarty's collective certification analysis under § 216 of the FLSA and the Parties objections thereto.

         A. Two Step Certification Process

         Plaintiff first urges the Court to reject Magistrate Judge Hegarty's approach to preliminary certification under § 216 and instead adopt the “permissive joinder standard” set forth in Turner v. Chipotle Mexican Grill, Inc., 123 F.Supp.3d 1300 (D. Colo. 2015) (Kane, J.). (Doc. # 136 at 6.) Pursuant to Turner, Plaintiff argues that § 216 conditional certification is unnecessary at this stage in the proceedings, and this Court should only decide “which individuals' contact information should be produced, and how the notice to be distributed should read.” (Id.) The Court disagrees and overrules Plaintiff's objection.

         Despite the Turner decision, this Court is bound by long-standing Tenth Circuit precedent mandating the application of the two-step conditional certification process for collective actions brought under the FLSA. See, e.g., Thiessen v. General Electric Capital Corporation, 267 F.3d 1095, 1105 (10th Cir. 2001). Accordingly, the Court declines to apply Turner and adheres to the two-step processes outlined by Magistrate Judge Hegarty.

         B. Class Definitions

         Next, the Parties challenge Magistrate Judge Hegarty's proposed class definitions, which are:

Minimum Wage Claims Class: All current and former servers and bartenders who worked for Defendants at any time on or after October 31, 2014, who were required to clock out then engage in ‘side work' and/or cleaning activities and who were not paid the minimum wage because management improperly retained collected tips for themselves; and
Overtime Claims Class: All current and former servers, bartenders, and cooks who worked for Defendants at any time on or after October 31, 2014 and who worked more than forty hours per week without payment of one-and-one-half times their regular rate for those hours worked over forty in a workweek.

         1. Plaintiff's Objection

         Plaintiff argues that “all non-management employees” should receive notice of this case, not just servers, bartenders, and cooks.[3] This Court disagrees.

         Plaintiff bears the burden of presenting this Court with “substantial allegations” demonstrating that all members of a putative class were subject to a single decision, policy or plan. See Thiessen, 267 F.3d at 1102. Plaintiff's Complaint, along with the declarations submitted with the underlying motion, provide this Court with sufficient allegations to support conditionally certifying classes of servers, bartenders, and cooks. Indeed, Plaintiff (a bartender and cook) submitted his own declaration highlighting alleged overtime and minimum wage violations; he also submitted two other declarations-made by co-workers (both cooks)-that adequately detail overtime allegations. In addition, Plaintiff's Second Amended Complaint contains allegations that he and others in his situation-i.e. servers and bartenders-were underpaid.

         However, Plaintiff's allegations are limited to servers, bartenders, and cooks. They are therefore insufficient to support a class of “all non-management employees.” See Avendano v. Averus, Inc., No. 14-CV-01614-CMA-MJW, 2015 WL 1529354, at *6 (D. Colo. Mar. 31, 2015) (limiting the class definition because Plaintiff's Complaint and declarations contained insufficient evidence to support a broader class.); see Hobbs v. Tandem Envtl. Solutions, Inc., No. 10-1204-KHV, 2011 WL 484194, at *2 (D.Kan. Feb. 7, 2011) (“[P]laintiffs make no allegations of company-wide policies or practices. Rather, all of plaintiffs' allegations are against TESCO and [one particular supervisor] together, and therefore cannot extend beyond [that supervisor's] scope of authority-the [single] Wichita district . . . . The Court therefore limits plaintiffs' proposed class to TESCO office cleaners employed by its Wichita branch.”).

         The Court also disagrees with Plaintiff's contention that the following phrases in the class definitions are “confusing”: references to “side work and/or cleaning activities”; “management improperly retained collected tips”; and “who worked more than forty hours per week without payment of one-and-one-half times their regular rate.” These phrases are not confusing or misleading; they are simply definite and objective. Referencing instead individuals who may have been “paid improperly” or who “think there might be something wrong with how [they were] paid, ” as Plaintiff suggests, would inadequately define the criteria for membership. Indeed, a class must be “sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member”; it must also be “adequately defined [such that] its members can be ascertained by reference to objective criteria.” Maez v. Springs Auto. Grp., LLC, 2010 WL 2010965, at *1 (D. Colo. May 19, 2010); Buycks-Roberson v. Citibank Federal Savings Bank, 162 F.R.D. 322, 328-29 ...

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