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Whalen v. Degroff Industries, Inc.

United States District Court, N.D. Ohio

November 21, 2017

DEGROFF INDUSTRIES, INC., et al., Defendants.



         Plaintiff Michelle Whalen alleges that Defendants Degroff Industries, Inc., Lavender Farms, LLC, Ronald Larson, and Kim Larson take a portion of restaurant servers' tipped wages in violation of the Fair Labor Standards Act (FLSA).[1] Plaintiff now moves for conditional certification of an FLSA collective action for herself and others similarly situated.[2] Defendants oppose.[3]

         For the reasons below, the Court GRANTS conditional certification.

         I. BACKGROUND

         From September 2012 until September 2017, Plaintiff Whalen worked as a server at Strip Steakhouse, [4] a restaurant owned and operated by Defendants.[5] She states that Defendants deducted at least five dollars from her paychecks.[6] Defendants usually labeled these deductions as “Med Pre Tax” or “Misc (no goal).”[7] Plaintiff Whalen argues that because of these deductions, Defendants have effectively paid her below minimum wage in violation of the FLSA.[8]

         Plaintiff Whalen states that other tipped employees also experienced similar deductions.[9]She states that she had conversations with two other servers about their deductions and has viewed other tipped employees' paychecks.[10] She states that Defendants usually apply these deductions to pay for broken plates or glassware.[11]

         Plaintiff now moves to conditionally certify a collective action of:

All employees who worked for Defendant Strip Steakhouse from October 5, 2014 to the present who were paid minimum wage minus a tip credit and who had a deduction(s) taken from their paycheck in one or more workweeks for “Med Pre Tax, ” or “Misc (no goal).”[12]


         Under 29 U.S.C. § 216(b), a plaintiff employee alleging an FLSA violation can bring a representative action for himself and similarly situated persons. To do so, “1) the plaintiffs must actually be ‘similarly situated, ' and 2) all plaintiffs must signal in writing their affirmative consent to participate in the action.”[13]

         While the FLSA does not define “similarly situated, ” the Sixth Circuit has said that FLSA plaintiffs may proceed collectively when “their claims [are] unified by common theories of defendants' statutory violations, even if the proofs of these theories are inevitably individualized and distinct.”[14]

         The Sixth Circuit uses a two-stage certification process to determine whether a proposed group of plaintiffs is “similarly situated.”[15]

         First, there is the “notice” stage that occurs at the beginning of discovery.[16] At this stage, a plaintiff must make only a “modest factual showing” and needs to show “only that his position is similar, not identical, to the positions held by the putative class members.”[17] Because a district court has limited evidence at this stage, this standard is “fairly lenient, ” and “typically results in ‘conditional certification' of a representative class.”[18]

         The second stage occurs after “all of the opt-in forms have been received and discovery has concluded.”[19] “At the second stage, following discovery, trial courts examine more closely the question of whether particular members of the class are, in fact, similarly situated.”[20]

         III. ANALYSIS

         Plaintiff has met the “modest factual showing” required for conditional certification of the collective action.

         In support of her motion, Plaintiff submits a sample of her 2012-2017 clock-out stubs and paystubs that show Defendants' five-dollar deductions from each of Plaintiff's paychecks for miscellaneous purposes or medical pre-tax.[21] In her declaration, Plaintiff states that she never received medical insurance through Defendants or agreed to any other miscellaneous deductions.[22]

         In the same declaration, Plaintiff Whalen also shows that she has personal knowledge that the proposed collective action members also had five dollars deducted from each of their paychecks. Plaintiff Whalen states she has seen other tipped employees' paychecks, [23] and spoke with two other employees about these deductions.[24]

         Plaintiff's declaration, clock-out stubs, and paystubs are more than sufficient to make a “modest factual showing” that she is “similarly situated” to the putative collective action members.

         Defendants' arguments opposing conditional certification do not succeed.

         First, Defendants argue that Plaintiff has not shown that the five-dollar deductions are an FLSA violation.[25] These arguments, however, concern the merits of Plaintiff's FLSA claim, rather than whether she and the proposed collective action members are “similarly situated.” Such merits arguments are not proper for ...

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