United States District Court, N.D. Illinois, Eastern Division
LINDA COLON, individually and on behalf of similarly situated persons, Plaintiff,
EYM PIZZA OF ILLINOIS, LLC and EDUARDO DIAZ, Defendants.
MEMORANDUM OPINION AND ORDER
M. ROWLAND, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's motion for step-one notice of
her Fair Labor Standards Act collective action . For the
reasons set forth below, Plaintiff's motion for step-one
notice  is granted.
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.
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).
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.
addition, an additional notice of consent to be a party
plaintiff was filed by Erin Milloy on July 19, 2019. (Dkt.
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
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).
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).
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).
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 ...