The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court is plaintiff's motion to compel and for sanctions.
For the reasons explained below, the motion is granted in part and denied
Plaintiff, Epifanio Cisneros, brought suit (on his own behalf and on
behalf of others similarly situated) against defendants Jinny Beauty
Supply Co. ("Jinny") and Ok Sung Choe, an individual, alleging violation
of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the "FLSA"),
and the Portal-to-Portal Act, 29 U.S.C. § 251 et seq. (Count I); willful
violation of the FLSA (Count II); and violation of the Illinois Minimum
Wage Law, 820 ILCS § 105/1 et seq. (Count IV). Plaintiff also seeks to
collect liquidated damages pursuant to the FLSA (Count III). The
that defendants, who are beauty supply distributors, failed to pay
overtime wages to plaintiff and other similarly situated employees.
The FLSA allows for "collective actions" to be maintained for alleged
violations of the statute as follows:
An action to recover the liability prescribed in
[certain sections of title 29] may be maintained
against any employer (including a public agency) . .
. by any one or more employees for and in behalf of
himself or themselves and other employees similarly
situated. No employee shall be a party plaintiff to
any such action unless he gives his consent in writing
to become such a party and such consent is filed in
the court in which such action is brought.
29 U.S.C. § 216(b). This "opt-in" requirement preempts the class action
procedure outlined in Federal Rule of Civil Procedure 23. See King v.
General Elec. Co., 960 F.2d 617
, 621 (7th Cir. 1992).
Plaintiff has filed a motion to give notice to similarly situated
persons. The motion was not fully briefed because the parties were
attempting to agree on the scope of notice. During the parties'
discussions, a discovery issue arose and led to the instant motion to
Plaintiff asserts that defendants failed to display a notice explaining
employees' rights to overtime pay under the FLSA, as required by
29 C.F.R. § 516.4. According to plaintiff, the practical effect of the
failure to display this notice is the equitable tolling of the FLSA
statute of limitations. Plaintiff seeks to compel defendants to produce a
witness regarding whether
the notice was displayed, pursuant to Rule 30(b)(6) of the Federal
Rules of Civil Procedure.
Defendants argue that they need not produce a Rule 30(b)(6) witness for
two reasons: 1) equitable tolling does not apply to the FLSA statute of
limitations; and 2) Cisneros, whose claim was timely filed, is not
"similarly situated" to plaintiff's who would invoke equitable tolling,
nor could those plaintiff's' claims be managed in a collective action.
Defendants also contend that plaintiff cannot represent any other
plaintiff's because his claim is de minimis.
We agree with our colleague in this district that an employer's failure
to post the notice required by 29 C.F.R. § 516.4 tolls the FLSA statute
of limitations until an employee acquires a general awareness of his
rights under the FLSA. See Cortez v. Medina's Landscaping, No. 00 C
6320, 2002 WL 31175471 (N.D. Ill. Sept. 30, 2002) (Gottschall, J.).
Moreover, we reject defendants' argument that Cisneros is not "similarly
situated" to plaintiff's who would invoke equitable tolling. The
difference in the applicable limitations periods is not one that
overrides the basic similarity of plaintiff's substantive claim and the
possible substantive claims of other plaintiff's the alleged failure to
pay them overtime wages. The difference is not one that would affect
plaintiff's motivation or ability to adequately represent these other
plaintiff's, nor do we believe that plaintiff's' claims would
be unmanageable as a collective action. Furthermore, we reject
defendants' de minimis argument.
Accordingly, plaintiff's motion to compel defendants to produce a Rule
30(b)(6) witness regarding the display of a notice regarding employees'
rights to overtime pay is granted. Plaintiff's motion for sanctions is
denied because defendants' position was "substantially justified," that
is, it had a reasonable basis. See Fed.R.Civ.P. 37(a)(4); Pierce v.
Underwood, 487 U.S. 552, 565-66 (1988) (construing the phrase
"substantially justified"). Although we agree with Judge Gottschall's
opinion in Cortez on the issue of equitable tolling, there does not appear
to be any Seventh Circuit case law directly on point, and case law from
other circuits is sparse.
Plaintiff's motion to compel defendants to produce a Rule 30(b)(6)
witness on the issue of defendants' display of the FLSA notice is
granted. The deposition shall be taken by February 26, 2004. A status
hearing is set for March 10, 2004, at which time plaintiff's motion to
give notice to similarly situated persons will be discussed.
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