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Honaker v. Wright Bros. Pizza, Inc.

United States District Court, S.D. Ohio, Eastern Division

January 13, 2020

SCOTT HONAKER, On behalf of himself and those similarly situated, Plaintiff,
WRIGHT BROS. PIZZA, INC., et al., Defendants.

          Deavers Magistrate Judge.

          OPINION & ORDER


         This matter is before the Court on the Plaintiffs' unopposed Motion to Conditionally Certify an FLSA Collective Action and to Authorize Notice (“Motion to Conditionally Certify”). (ECF No. 10). For the reasons set forth below, Plaintiffs' Motion to Conditionally Certify is GRANTED.

         I. BACKGROUND

         A. Factual Background

         Plaintiffs Scott and Rhonda Honaker worked as Wright Bros. Pizza delivery drivers. (ECF No. 10 at 3-4). They filed this action on behalf of themselves and similarly situated employees consisting of delivery drivers at at least five Wright Bros. Pizza locations in Ohio. (Id.) According to Plaintiffs, Defendants' reimbursement policy was inadequate and violated the Fair Labor Standards Act (“FLSA”) because it did not cover all of Plaintiffs' driving expenses, who are paid at or close to minimum wage. (Id. at 4). Specifically, they argue that Defendants “neither tracked and paid for their delivery drivers' actual expenses, nor reimbursed their drivers at the IRS rate” pursuant to 29 C.F.R. § 531.35 and the DOL Handbook § 30c15(a). (Id. at 4-5). In addition, Plaintiffs allege Defendants paid delivery drivers less than minimum wage in violation of FLSA by counting some of their tips to make up the difference between their hourly wages and minimum wage. (Id. at 6-7).

         B. Procedural History

         Plaintiffs commenced this collective action against Defendants on November 27, 2018, alleging that they violated the Fair Labor Standards Act (“FLSA”), the Ohio Constitution, Article II, Section 34a, the Ohio Minimum Fair Wage Standards Act, Ohio Revised Code Section 4113.15, and Ohio Revised Code Section 2307.60. (ECF No. 1). On January 11, 2019, Plaintiffs filed their Motion to Conditionally Certify. (ECF No. 10). On November 18, 2019, Defendants filed a Notice of Non-Opposition to Plaintiffs' Motion to Conditionally Certify and Send Notice and attached the Parties' joint proposed notice form. (ECF No. 22; ECF No. 22 Ex. 1).


         A court may certify an FLSA collective action brought “by any one or more employees for and in behalf of… themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Similarly situated employees are permitted to “opt into” the collective action. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). The lead plaintiff bears the burden to show that the proposed class members are similarly situated to the lead plaintiff. O'Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009), abrogated on other grounds by Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 669 (2016). Plaintiffs seeking to certify a collective action under the FLSA face a lower burden than plaintiffs seeking class certification under Federal Rule of Civil Procedure 23. Id. District courts conduct a two-phase inquiry to determine whether plaintiffs are similarly situated: conditional and final certification. Frye v. Baptist Mem'l Hosp., Inc., 495 Fed.Appx. 669, 671 (6th Cir. 2012).

         In the conditional-certification phase, conducted at the beginning of the discovery process, named plaintiffs need only make a “modest factual showing” that they are similarly situated to proposed class members. Waggoner v. U.S. Bancorp, 110 F.Supp.3d 759, 764 (N.D. Ohio 2015) (quoting Comer, 454 F.3d at 547). The standard at the first step is “fairly lenient . . . and typically results in ‘conditional certification' of a representative class.” Comer, 454 F.3d at 547 (quoting Morisky v. Pub. Serv. Elec. & Gas Co., 111 F.Supp.2d 493, 497 (D.N.J. 2000)). Courts generally consider factors such as “employment settings, individual defenses, and the fairness and procedural impact of certification.” Frye, 495 Fed.Appx. at 672 (citing O'Brien, 575 F.3d at 584). Plaintiffs are similarly situated “when they suffer from a single, FLSA-violating policy, and when proof of that policy or of conduct in conformity with that policy proves a violation as to all the plaintiffs.” O'Brien, 575 F.3d at 585. Showing a “unified policy” of violations is not required. Id. at 584. The named plaintiff “need only show that his position is similar, not identical, to the positions held by the putative class members.” Lewis v. Huntington Nat'l Bank, 789 F.Supp.2d 863, 867-68 (S.D. Ohio 2011) (alteration omitted); see also Comer, 454 F.3d at 546-57.

         At this stage, a court “does not generally consider the merits of the claims, resolve factual disputes, or evaluate credibility.” Waggoner, 110 F.Supp.3d at 765 (citing Swigart v. Fifth Third Bank, 276 F.R.D. 210, 214 (S.D. Ohio 2011)). In determining conditional certification, courts have considered “whether potential plaintiffs were identified; whether affidavits of potential plaintiffs were submitted; and whether evidence of a widespread . . . plan was submitted.” Castillo v. Morales, Inc., 302 F.R.D. 480, 486 (S.D. Ohio 2014) (quoting H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999)). If conditional certification is granted, “plaintiffs are permitted to solicit opt-in notices, under court supervision, from current and former employees.” Cornell v. World Wide Bus. Servs. Corp., No. 2:14-CV-27, 2015 WL 6662919, at *1 (S.D. Ohio Nov. 2, 2015).

         At the second stage, the final certification phase, conducted after the conclusion of discovery, courts “examine more closely the question of whether particular members of the class are, in fact, similarly situated.” Comer, 454 F.3d at 547. At this stage, the court has much more information on which to base its decision of whether the proposed plaintiffs are similarly situated and, “as a result, it employs a stricter standard.” Id. (alteration, quotation marks, and citation omitted).

         III. ...

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