United States District Court, E.D. Louisiana
RIENEKE E. FARROW
AMMARI OF LOUISIANA, LTD.
ORDER AND REASONS
the Court are several motions filed by the parties.
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).
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.
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).
reasons discussed below, IT IS ORDERED that
Defendant's motion for partial summary judgment (Rec.
Doc. 46) is GRANTED IN PART.
IS FURTHER ORDERED that Plaintiff's motion to
equitably toll the statute of limitations (Rec. Doc. 47) is
IS FURTHER ORDERED that Defendant's motion for a
protective order (Rec. Doc. 61) is GRANTED IN
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
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.
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.
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.
DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT
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.
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.
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).
“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).
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
Defendant propounded the following interrogatory on
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
during Plaintiff's deposition, the following exchange
Q. Okay. You claim that defendant has intentionally and
willfully violated the F.L.S.A. What are you basing that
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