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Colon v. EYM Pizza of Illinois, LLC

United States District Court, N.D. Illinois, Eastern Division

October 15, 2019

LINDA COLON, individually and on behalf of similarly situated persons, Plaintiff,
v.
EYM PIZZA OF ILLINOIS, LLC and EDUARDO DIAZ, Defendants.

          MEMORANDUM OPINION AND ORDER

          MARY M. ROWLAND, UNITED STATES DISTRICT JUDGE

         Before the Court is Plaintiff's motion for step-one notice of her Fair Labor Standards Act collective action [23]. For the reasons set forth below, Plaintiff's motion for step-one notice [23] is granted.

         I. Background

         Plaintiff Linda Colon (“Colon”) brings this putative collective action against her former employer, Defendant EYM Pizza of Illinois (“EYM Pizza”) and EYM Pizza owner, Eduardo Diaz (“Diaz”), (collectively “Defendants”), for alleged violations the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et seq. Defendant EYM Pizza operates Pizza Hut franchise restaurants located in Illinois. (Defs' Answer, Dkt. 15). Colon claims that she and other similarly situated current and former delivery drivers were illegally denied lawful minimum wage rates because they were not properly reimbursed for all required expenditures. Colon seeks authorization to send notice to delivery drivers that have been employed by Defendants during the past three years.

         Named Plaintiff Colon was employed by Defendants as a delivery driver for Pizza Hut in Chicago, Illinois during the statutory period and into 2018. (Colon Decl. (Dkt. 23-1, Exh. C) ¶ 1). According to her declaration, her primary job duty was to deliver pizzas and other food items to Pizza Hut customers, and while doing so, she was paid a sub minimum wage hourly rate and as little as $5.00 per hour because Defendants relied on tip credit to comply with their minimum wage obligations. (Id. ¶ 2). Colon believes she is owed additional unreimbursed pay because she was required to maintain and pay for an automobile to use in delivering Pizza Hut's pizzas and other food items, but Pizza Hut's automobile reimbursement rates did not fully reimburse her for the expenses. (Id. ¶¶ 3, 4). Colon states that she knows that there are other hourly-paid Pizza Hut employees who worked under the same conditions. (Id. ¶ 5).

         Opt-in Plaintiff Ezell Jenkins also joined the lawsuit. (Jenkins Decl. (Dkt. 23-1, Exh. D). He worked for Pizza Hut in Peoria, Illinois from approximately 2016 to present. (Id. ¶ 1). During that time, he worked as both a delivery driver and manager. (Id.). Like Colon, Jenkins' primary duty was to deliver pizzas and other food items to Pizza Hut customers, and while doing so, he was paid a sub minimum wage hourly rate and as little as $5.00 per hour. (Id. ¶ 2). His declaration also states that Pizza Hut required him to incur various expenses, including automobile expenses, which were not fully compensated by Pizza Hut's reimbursement policy, and he was compensated as low as $.24 per mile. (Id. ¶¶ 3, 4). In addition to working as a driver, Jenkins worked for a time as a manager and learned that Defendants' pay and other employment policies were not made on an employee-by-employee basis, but broadly and categorically applied. (Id. ¶ 5).

         In addition, an additional notice of consent to be a party plaintiff was filed by Erin Milloy on July 19, 2019. (Dkt. 3-1).

         II. Standard

         Section 216(b) of the FLSA "gives employees the right to bring their FLSA claims through a 'collective action' on behalf of themselves and other 'similarly situated' employees." Alvarez v. City of Chi., 605 F.3d 445, 448 (7th Cir. 2010) (citing 29 U.S.C. § 216(b)). Because FLSA lawsuits cannot proceed as class actions, “they are opt-in representative actions." Schaefer v. Walker Bros. Enterprises, 829 F.3d 551, 553 (7th Cir. 2016). District courts have “wide discretion” in deciding how such collective actions proceed. Alvarez, 605 F.3d at 449 (citing Hoffman-LaRoche v. Sperling, 493 U.S. 165, 170-72 (1989)).

         In this District, courts employ a two-step process. At step one, the conditional certification stage, a plaintiff “must show that there are similarly situated employees who are potential claimants.” See Russell v. Ill. Bell. Tel. Co., 575 F.Supp.2d. 930, 933 (N.D. Ill. 2008). "The conditional approval process is a mechanism used by district courts to establish whether potential plaintiffs in the FLSA collective action should be sent a notice of their eligibility to participate and given the opportunity to opt in to the collective action." Ervin v. OS Rest. Servs., Inc., 632 F.3d 971, 974 (7th Cir. 2011). Plaintiff's burden is to make a "modest factual showing sufficient to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law." Russell, 575 F.Supp.2d. at 933; Bergman v. Kindred Healthcare, Inc., 949 F.Supp.2d 852, 855 (N.D. Ill. 2013) (requiring "modest factual showing of common, unlawful conduct and [] some indication of harm to employees."). To decide whether plaintiffs meet this burden, courts employ a “lenient interpretation” of the term “similarly situated”. Ivery v. RMH Franchise Corp., 280 F.Supp.3d 1121, 1133 (N.D. Ill. 2017).

         To meet the modest factual showing standard, plaintiffs must provide “some evidence in the form of affidavits, declarations, deposition testimony, or other documents to support the allegations that other similarly situated employees were subjected to a common policy that violated the law." Pieksma v. Bridgeview Bank Mortg. Co., LLC, 2016 U.S. Dist. LEXIS 177177, at *1 (N.D. Ill.Dec. 22, 2016) (internal quotations omitted). However, conditional certification is not automatic and to proceed as a collective action, plaintiffs must "demonstrate similarity among the situations of each plaintiff beyond simply claiming that the FLSA has been violated; an identifiable factual nexus that binds the plaintiffs together as victims of a particular violation of the overtime laws generally must be present." Briggs v. PNC Fin. Servs. Grp., Inc., 2016 U.S. Dist. LEXIS 33703, at *2 (N.D. Ill. Mar. 16, 2016) (citations omitted). If plaintiffs can show that other potential plaintiffs are similarly situated, the court may conditionally certify the case as a collective action and allow notice of the case to be sent to similarly situated employees who may then opt in as plaintiffs. Grosscup v. KPW Mgmt., 261 F.Supp.3d 867, 870 (N.D. Ill. 2017).

         Importantly, the merits are not decided at this stage-the court “does not make merits determinations, weigh evidence, determine credibility, or specifically consider opposing evidence presented by a defendant." Bergman, 949 F.Supp.2d at 855-56 (citation omitted). The second step of the two-step process is more stringent; "following the completion of the opt-in process and further discovery, the defendant may ask the Court to reevaluate the conditional certification to determine whether there is sufficient similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial on a collective basis." Russell, 575 F.Supp.2d at 933 (internal quotations and citations omitted).

         III. Analysis

         Defendants object to conditional certification, arguing that (1) Colon's and Jenkins' affidavits are inaccurate and unreliable; (2) Colon has not satisfied the modest factual showing required; and (3) if the class is conditionally certified, the ...


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