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Kis v. Covelli Enterprises, Inc.

United States District Court, N.D. Ohio

May 16, 2018

ERIN E. KIS, on behalf of herself and all others similarly situated, Plaintiff,
v.
COVELLI ENTERPRISES, INC., Defendant. CHELSEA ROMANO, on behalf of herself and all others similarly situated, Plaintiff,
v.
COVELLI ENTERPRISES, INC., Defendant.

          OPINION & ORDER [Resolving Doc, 29, 39]

          JAMES S. GWIN UNITED STATES DISTRICT JUDGE

         Plaintiff Erin Kis and Plaintiff Chelsea Romano have filed putative collective actions against Defendant Covelli Enterprises, Inc. They allege that Covelli Enterprises violated the Fair Labor Standards Act (FLSA).[1] Plaintiff Kis also makes a claim based on an analogous state law.[2]

         Plaintiffs allege that, as assistant managers at various Panera Bread franchises, they were non-exempt workers under the FLSA and should have been paid at the overtime rate when they worked more than forty hours in a week.[3] They further allege that Covelli owns the Panera franchises where they worked and a number of franchises in other states.[4] And they claim that Covelli fails to properly compensate assistant managers for overtime in all of those locations.[5]

         The Court granted Defendant Covelli's motion to consolidate both cases.[6] The Plaintiffs now move for conditional certification of the following collective action class:

All individuals whom Defendant employs or employed as Panera Bread assistant managers in the United States for three years before this complaint's filing date (“Federal Eligibility Period”) who timely opt into this collective group.[7]

         For the reasons that follow, the Court GRANTS the motion for conditional certification.

         Under 29 U.S.C. § 216(b), an FLSA plaintiff violation can bring a representative action for herself and similarly situated persons where the plaintiffs are actually similarly situated and all have signaled in writing their affirmative consent to participate in the action.”[8]

         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.”[9]

         At this, notice, stage of the proceedings, the Sixth Circuit requires the Plaintiffs to make only a “modest factual showing” that their “position is similar, not identical, to the positions held by the putative class members.”[10] 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.”[11]

         The Plaintiffs in this case have demonstrated that they are similarly situated and pursuing claims against Defendant Covelli based on a common legal theory. The declarations accompanying Plaintiffs' motion for conditional certification indicate that they are or were all assistant managers at one or more Panera Bread restaurants owned by Defendant Covelli.[12] Plaintiffs provide support for their claim that Defendant Covelli operates all its restaurants in a similar fashion with statements from several plaintiffs indicating that they have worked in multiple restaurants and that the restaurants are operated in a similar fashion.[13] And they claim that they were not properly compensated for their overtime hours and set forth allegations to support the claim that they are not exempt from the FLSA's overtime requirements.[14]

         Defendant Covelli protests that it is not the Plaintiffs' employer and, even if it was, Plaintiffs and the other putative class members are properly classified as exempt employees.[15] These arguments, however, generally go to the merits of Plaintiffs case and are not relevant to deciding whether this case should proceed as a collective action.[16]

         It is true that, if the putative class members had many different employers, they would not be similarly situated. But the Plaintiffs point to evidence suggesting that Covelli is, at the very least, a joint employer of the Plaintiffs and putative class members.[17] As joint employers are usually jointly and severally liable for FLSA violations, [18] that is enough to allow for conditional certification.[19] If it becomes apparent at a later stage that Covelli is or was not the class members' employer, it may move for decertification.

         Moreover, the fact that Defendant Covelli has produced evidence that contradicts the Plaintiffs' declarations is irrelevant. That evidence speaks to the credibility of Plaintiffs' evidence, which is not relevant at the conditional certification stage.[20]

         And while Defendant Covelli insists that the Plaintiffs have produced too few declarations, there is no magic number of declarations required ...


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