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Callaway v. DenOne LLC

United States District Court for the Northern District of Ohio

March 8, 2019, Decided; March 8, 2019, Filed

CASE NO. 1:18-cv-1981

Opinion

OPINION & ORDER

[Resolving Docs. 23, 28, 31, 33, 34]

JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

Plaintiff brings this putative collective action alleging that Defendants violated the Fair Labor Standards Act ("FLSA") by paying her a sub-minimum wage. She now moves to conditionally certify a collective action1 and for leave to amend her complaint.2

Defendants move for partial judgment on the pleadings.3 They also move to strike consent forms, for a protective order, and for sanctions.4 Finally, Defendants move for a stay of proceedings pending the resolution of Plaintiff's certification motion and Defendants' motion for judgment on the pleadings.5

For the following reasons, the Court CONDITIONALLY CERTIFIES [*2]  a collective action and APPROVES Plaintiff's proposed notice and procedures. The Court GRANTS IN PART AND DENIES IN PART Plaintiff's motion to amend the complaint. The Court also DENIES Defendants' motion for partial judgement on the pleadings, DENIES Defendants' motion to strike Plaintiff's consent forms, for a protective order, and for sanctions. Finally, the Court DENIES Defendants' motion to stay proceedings.

I. Background

Defendants DenOne, LLC, Nelda LLC, and Erick Martinez own and operate an Ohio Denny's restaurant franchise. For twenty-five years, Plaintiff Barbara Callaway has worked as a server at a Defendant-run Denny's restaurant in Independence, Ohio.6

Plaintiff Callaway states that Defendants pay her $4.15 an hour.7 She also states that she has worked overtime and that Defendants currently pay her a $7.80 per hour overtime rate.8 She also alleges that Defendants did not notify her that she was being paid under the FLSA tip-credit provision.9

Plaintiff Callaway alleges that Defendants require her and other servers to perform various non-tipped duties. She claims her non-tipped duties include filling condiment caddies, cutting fruit, wiping down tables, sweeping floors, restocking [*3]  food and dry goods, washing dishes, and rolling silverware. Additionally, Plaintiff says that servers are required to prepare side and entrée salads, prepare and plate desserts, make milkshakes, bake biscuits, cut fruit, and prepare specialty pancake creams.10 Further, Plaintiff states that she is required to prepare online carryout and delivery orders in response to phone, web, and internet application orders.11 She states that the tips for these orders are paid to drivers instead of servers. Finally, Plaintiff states that she and other servers regularly perform detail cleaning tasks, such as: cleaning window sills, light fixtures and blinds; sweeping, vacuuming and mopping floors; dusting laps, light fixtures and blinds; cleaning and restocking the expo line; cleaning soda and juice machines; and cleaning and polishing steel surfaces throughout he restaurant.12 Plaintiff estimates that that these non-tipped duties are "at least fifty percent" of working time.13

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2019 U.S. Dist. LEXIS 37732 *; 2019 WL 1090346

BARBARA CALLAWAY, on behalf of herself and all others similarly situated, Plaintiff, vs. DENONE LLC, et al., Defendants.

Prior History: Callaway v. Denone LLC, 2019 U.S. Dist. LEXIS 9245 (N.D. Ohio, Jan. 18, 2018)

CORE TERMS

tipped, servers, Defendants', restaurant, notice, DENIES, deference, occupation, collective action, regulation, declaration, employees, alleges, cleaning, opt-in, certification, non-tipped, similarly situated, join, partial, amend, misleading, tip-credit, pleadings, sanctions, Lawsuit, prepare, tasks, protective order, minimum wage