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Farrow v. Ammari of Louisiana, Ltd.

United States District Court, E.D. Louisiana

June 29, 2017


         SECTION "B"(3)


         Before the Court are several motions filed by the parties.

         The first is “Defendant's Motion for Partial Summary Judgment.” Rec. Doc. 46. Plaintiff timely filed a memorandum in opposition. Rec. Doc. 86. Defendant then requested (Rec. Doc. 93), and was granted (Rec. Doc. 95), leave to file a reply memorandum (Rec. Doc. 96).

         The second is Plaintiff's “Motion for Equitable Tolling of Statute of Limitations.” Rec. Doc. 47. Defendant timely filed a memorandum in response. Rec. Doc. 67. Plaintiff then requested (Rec. Doc. 69), and was granted (Rec. Doc. 77), leave to file a reply memorandum (Rec. Doc. 78).

         The third is “Defendant's Motion for Protective Order.” Rec. Doc. 61. Plaintiff timely filed a memorandum in response. Rec. Doc. 80. Defendant then requested (Rec. Doc. 83), and was granted (Rec. Doc. 84), leave to file a reply memorandum (Rec. Doc. 85).

         For the reasons discussed below, IT IS ORDERED that Defendant's motion for partial summary judgment (Rec. Doc. 46) is GRANTED IN PART.

         IT IS FURTHER ORDERED that Plaintiff's motion to equitably toll the statute of limitations (Rec. Doc. 47) is DENIED.

         IT IS FURTHER ORDERED that Defendant's motion for a protective order (Rec. Doc. 61) is GRANTED IN PART.


         As previously discussed, this case arises out of Rieneke E. Farrow's (“Plaintiff”) employment as a waiter at various restaurants owned and operated by Ammari of Louisiana, Ltd. (“Defendant”). Farrow filed this suit on behalf of herself and all others similarly situated under the Fair Labor Standards Act (“FLSA”) and various state laws for, among other things, unpaid minimum wages, overtime wages, and tips. Rec. Doc. 1 at ¶¶ 2, 5, 9. She claims that Defendant willfully violated the FLSA's minimum wage provisions by failing to keep accurate records of hours and tips, not informing employees in advance that a tip credit would be applied, and not permitting employees to retain all of the tips they received. Id. at ¶ 11. Further, Plaintiff alleges that Defendant improperly calculated her and other employees' overtime pay rate and that Defendant had a policy of unlawfully deducting wages for mistakes and customer walkouts. Id. at ¶¶ 30-42. Plaintiff claims that approximately fifty other current and former waiters suffered from the same unlawful conduct; she consequently sought conditional certification of a collective action. Id. at ¶ 10; Rec. Doc. 11-1 at 2-5.

         On May 25, 2016, this Court denied conditional class certification because Plaintiff's allegations that Defendant's practices “applied uniformly to all tips and waiters in all restaurants, ” were supported only by Plaintiff's personal paystubs from one of Defendant's restaurants. Rec. Doc. 23 at 6. In other words, Plaintiff “failed to identify any other potential plaintiffs, failed to obtain affidavits from any potential plaintiffs, and failed to provide evidentiary support for the existence of a widespread plan or policy.” Id. at 7.

         On April 10, 2017, two former employees consented to join the litigation. Rec. Docs. 42-43. On May 19, 2017, four more individuals filed notices to opt-in. Rec. Docs. 70-73. Accordingly, Plaintiff re-urged her motion for class certification. Rec. Doc. 97. That motion is set for submission on July 5, 2017. Id.


         Without admitting to a violation of the FLSA, Defendant maintains that any alleged violation was not committed willfully and therefore that Plaintiff's claims are subject to a two-year statute of limitations. Rec. Doc. 46 at 1.

         Plaintiff responds that “Defendant is willful because it knew or recklessly turned a blind eye to a policy implemented in the company that required employees to clock off to avoid paying overtime and still required the employees to continue working off the clock without pay.” Rec. Doc. 86 at 2.

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P. 56(c)). See also TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue exists if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant must point to “portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, ' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323. If and when the movant carries this burden, the non-movant must then go beyond the pleadings and present other evidence to establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         However, “where the non-movant bears the burden of proof at trial, the movant may merely point to an absence of evidence, thus shifting to the non-movant the burden of demonstrating by competent summary judgment proof that there is an issue of material fact warranting trial.” Lindsey v. Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). Conclusory rebuttals of the pleadings are insufficient to avoid summary judgment. Travelers Ins. Co. v. Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).

         Under the FLSA, any action

for unpaid minimum wages, unpaid overtime compensation, or liquidated damages . . . may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued . . . .

29 U.S.C. § 255(a); see also § 256 (which provides that a collective or class action commences under the FLSA when the complaint is filed if the person is named as a party plaintiff in the complaint or “on the subsequent date on which such written consent is filed in the court in which the action was commenced”). Plaintiff bears the burden of demonstrating willfulness by showing that an employer “knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” Steele v. Leasing Enters., Ltd., 826 F.3d 237, 248 (5th Cir. 2016) (citing Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 552 (5th Cir. 2009); Cox v. Brookshire Grocery Co., 919 F.2d 354, 356 (5th Cir. 1990)) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)). “For example, employers act willfully when they know their pay structures violate the FLSA or ignore complaints brought to their attention.” Mohammadi v. Nwabuisi, 605 F. App'x 329, 332 (5th Cir. 2015) (citations omitted). A violation is not necessarily willful simply because it was negligent or unreasonable. Id. (citing Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1416 (5th Cir. 1990)); see also Mohammadi, 605 F. App'x at 332 (“For example, an employer that acts without a reasonable basis for believing that it was complying with the FLSA is merely negligent, as is an employer that, without prior notice of an alleged violation, fails to seek legal advice regarding its payment practices”) (citations, alterations, and quotation marks omitted). To that end, “[m]ere knowledge of the FLSA and its potential applicability does not suffice . . . .” Zannikos v. Oil Inspectors (U.S.A.), Inc., 605 F. App'x 349, 360 (5th Cir. 2015) (citations omitted); see also Chicca v. St. Luke's Episcopal Health Sys., 858 F.Supp.2d 777, 791 (S.D. Tex. 2012) (“The only basis for Chicca's claim of willfulness is that Defendant knew about the FLSA, knew of Plaintiff's job responsibilities, and improperly classified him. Such a charge is not enough to show willfulness.”).

         Here, Defendant propounded the following interrogatory on Plaintiff:

Identify each and every fact that supports your allegation that Defendant's failure to pay minimum wage and overtime compensation was arbitrary, willful, intentional and/or not in good faith.

Rec. Doc. 46-8 at 7. Plaintiff responded “See Complaint §§11-13.” Id. Paragraph 11 of the complaint merely alleges, in a conclusory fashion, that Defendant “intentionally, willfully, and repeatedly harmed plaintiff and the FLSA Collective by engaging in a pattern, practice, and/or policy of violating the FLSA and committing conversion of their tips.” Rec. Doc. 1 at ¶ 11. Paragraphs 12 and 13 are wholly irrelevant to this issue.

         Further, during Plaintiff's deposition, the following exchange took place:

Q. Okay. You claim that defendant has intentionally and willfully violated the F.L.S.A. What are you basing that allegation on?
A. What is the F.L.S.A.?
Q. . . . Let me ask it differently . . . You claim that they intentionally failed to pay you minimum wage.
. . .
Q. And what do you base that on?
. . .
A. Mainly they had been paying minimum wage correctly and then ...

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