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O'Brien v. Ed Donnelly Enterprises

November 30, 2006

TERESEA O'BRIEN, ET AL., PLAINTIFFS,
v.
ED DONNELLY ENTERPRISES, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Smith

Magistrate Judge King

OPINION AND ORDER

Teresea O'Brien and Dallas Prater ("Plaintiffs") filed this action on behalf of themselves and a putative class under the Fair Labor Standards Act, 29 U.S.C. §201 et seq. ("FLSA"). Plaintiffs allege that they, and those similarly situated to them, were not paid the minimum hourly wage and overtime compensation due them in connection with their employment at two McDonald's facilities in Bellefontaine, Ohio. Plaintiffs also assert state law claims under O.R.C. Chapters 4111 and 4113, and claims under the common law of Ohio. This matter is currently before the Court on Defendants' Motion to Decertify this Action as a Collective Action (Doc. 106). For the reasons that follow, Defendants' motion is GRANTED.

I. FACTUAL BACKGROUND

On February 2, 2004, Plaintiffs filed the Complaintin this action. An Amended Complaint was since filed, which identifies the two named Plaintiffs as hourly employees who were not exempt from the overtime and hourly wage laws of the United States and of the State of Ohio. (Doc. 43, Am. Compl. at ¶ 15). It is alleged that Defendants "intentionally altered the hourly time records pertaining to Plaintiffs' actual hours of work in order to reduce the number of Plaintiffs' reported hours and in order to pay Plaintiffs less in wages and/or overtime than they were entitled to receive." Id. at¶ 14. The two named Plaintiffs seek to bring the action under the FLSA as a collective action on behalf of a class of similarly-situated persons. Id. at ¶ 20.

On April 4, 2004, Plaintiffs filed a motion requesting that the Court conditionally certify the putative class and to authorize notice to be sent to potential class members of their ability to "opt-in" to this collective action. (Doc. 34). Plaintiffs alleged that the putative class "was reasonably believed to number over 100 persons." (Am. Compl. at ¶ 19). The Court granted Plaintiffs' motion to conditionally certify the putative class on November 8, 2004. (Doc. 38).

On December 15, 2004, the Court approved the form of the notice that was to be sent to the putative plaintiffs. (Doc. 41). Notice was subsequently sent to the putative plaintiffs and, currently, this action consists of two named plaintiffs and eight individuals who have formally consented to opt-in: Teresea O'Brien, Dallas Prater, Debbie Brunke, Jill Wagner-Puff, Jessica West, Stevie LeVan, Ben Wallace, Chad Lawson, Nathan Buscher, Derrick Kinchen. (Docs. 45-51).

On January 10, 2006, Defendants filed a motion to modify the case schedule to permit them the opportunity to file a motion to decertify the conditionally certified class. (Doc. 99). On January 20, 2006, this Court granted that motion and permitted Defendants to file a motion to decertify the conditionally certified class by January 31, 2006, and permitted the parties to file dispositive motions within forty five (45) days from the date this Court ruled on the motion for class decertification. (Doc. 103).

On January 31, 2006, Defendants filed Defendants' Motion to Decertify (Doc. 106), and on February 24, 2006, Plaintiffs filed Plaintiff's Memorandum in Opposition to "Defendants' Motion to Decertify this Action as a Collective Action." (Doc. 112). On March 9, 2006, Defendants filed Defendants' Reply Memorandum in Support of their Motion to Decertify this Action as a Collective Action. (Doc. 115).

II. DISCUSSION

To recover unpaid overtime compensation and/or unpaid minimum wage under the FLSA, §216(b) provides that employees, under certain circumstances, may collectively sue an employer. Specifically, §216(b) states:

Any employer who violates [the minimum wage or maximum hours provisions of this title] shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages . . . . An action to recover [such] liability may be maintained . . . in any . . . court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.

Determining whether a collective action is the appropriate means for prosecuting an action is left to the Court's discretion. See, e.g., Glass v. IDS Fin. Servcs., Inc., 778 F.Supp. 1029, 1081 (D. Minn. 1991); Smith v. Heartland Automotive Services, Inc., 2005 U.S. Dist. LEXIS 32696, *9 (D. Minn. 2005).

To proceed as a "collective action" pursuant to § 216(b) of the FLSA, Plaintiffs must demonstrate that they are "similarly situated" to the employees they seek to notify of the suit. To determine whether the plaintiffs have made this showing, "[c]courts have generally adopted a two-tiered certification approach . . . ." Harrison v. McDonald's Corp., 411 F. Supp.2d 862, 864-65, (S.D. Ohio 2005) (J. Holschuh); see also Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987) (adopting two-tiered approach); Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208 (11th Cir. 2001).*fn1 "The preliminary certification is intended to provide notice and opportunity to opt in." Smith v. Lowe's Home Ctrs., 236 F.R.D. 354, *7, 2006 U.S. Dist. LEXIS 26686, (S.D. Ohio May 5, 2006) (M.J. King). The named plaintiff's burden at this stage is "fairly lenient," and requires only "a modest factual showing" that he or she is similarly situated to the other employees sought to be notified. Harrison, 411 F. Supp.2d at 865 (citing Olivo v. GMAC Mortgage Corp., 374 F. Supp.2d 545, 548 (E.D. Mich. 2004)). "Thus, employees ...


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