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Ecoquij-Tzep v. Grill

United States District Court, N.D. Texas, Dallas Division

June 21, 2017

PASCUAL ECOQUIJ-TZEP, and all others similarly situated under 29 USC 216b, Plaintiffs,
v.
HAWAIIAN GRILL also known as MW Hawaiian Grill, Defendant.

          MEMORANDUM OPINION AND ORDER

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Pascual Ecoquij-Tzep, on his own behalf and on behalf of those similarly situated, brought this putative collection action under 29 U.S.C. § 216(b), a provision of the Fair Labor Standards Act, 28 U.S.C. § 206, et seq. (the “FLSA”), to recover minimum wage and overtime pay. See Dkt. No. 1 (Complaint); Dkt. No. 11 (First Amended Complaint). Plaintiff moves for conditional certification. See Dkt. No. 33.

         For the reasons and to the extent explained below, the Court GRANTS the motion for class certification.

         Background

         Plaintiff Pascual Ecoquij-Tzep was a cashier and server employed on an hourly basis by Defendant Hawaiian Grill from December 3, 2014 through January 25, 2016. Ecoquij-Tzep alleges that he worked an average of 70 hours per week and was paid in lump sum payments regardless of the actual number of hours worked. Ecoquij-Tzep further alleges that he was not paid the extra half-time rate for any overtime hours worked above 40 hours per week and was paid an average effective hourly rate below the applicable minimum wage. See Dkt. No. 11; 29 U.S.C. § 206(a)(1) (minimum wage), § 207(a)(1) (overtime).

         Ecoquij-Tzep brings this lawsuit as a putative collective action under 29 U.S.C. § 216(b). He requests conditional certification and asks the Court to set a date for the parties to confer and submit a second Federal Rule of Civil Procedure 26(f) report to address either a court-authorized notice period, any remaining Phase 1 (class-wide) discovery, Phase 2 (individualized) discovery, and other matters listed in paragraph three of the Court's Initial Scheduling Order [Dkt. No. 23]. See Dkt. No. 33.

         Ecoquij-Tzep describes the proposed class as hourly employees employed by Defendant from March 5, 2013 to the present, including cashiers, servers, and cooks, who were paid a fixed sum regardless of the total hours worked instead of being paid by the hour. Ecoquij-Tzep argues that these employees are similarly situated because Defendant has a common policy or practice to pay hourly employees lump sum payments regardless of the actual number of hours worked, in violation of the FLSA's minimum wage and overtime requirements. See id.

         To support this argument, Ecoquij-Tzep relies on the deposition of Defendant's corporate representative, Shizhong Zhang, who testified that Defendant had a practice of paying fixed sums instead of minimum wage and overtime to certain hourly employees, including cashiers, servers, and cooks. See Dkt. No. 34. Mr. Zhang testified that Ecoquij-Tzep was paid bi-monthly on the first and sixteenth of the month and that he was paid a set amount regardless of the hours he worked. See Id. at 8-9. Mr. Zhang also testified that one or two other cashiers and servers like Ecoquij-Tzep were paid bimonthly, as were the two cooks. See Id. at 11-13. Ecoquij-Tzep also relies on Defendant's response to requests for production, in which Defendant identifies three former “waiters/cashiers, ” “Lorenzo, Johnny and Moises, ” as persons who are similarly situated to Plaintiff. See Id. at 26.

         Defendant objects to Ecoquij-Tzep's request for conditional certification. See Dkt. No. 40. Defendant argues that a class definition based solely on bi-monthly payment is too broad and that cashiers/servers and cooks are not similarly-situated employees because they are in different lines of work and have different job duties, working schedules, and working conditions.

         Defendant also argues that Ecoquij-Tzep fails to show how these hourly wage employees were subject to the same employment practices or common policy as Ecoquij-Tzep. Defendant asserts that it provided W-2s for more than sixty employees who worked or are currently working in the restaurant from 2014 to 2016 and that Ecoquij-Tzep claims there may be possible FLSA violations for only five of them.

         Finally, the parties disagree in their interpretations of the Court's Memorandum Opinion and Order [Dkt. No. 24] and its effect on the request for conditional certification. In that order, the Court concluded that Ecoquij-Tzep's individual coverage allegations are insufficient to state a claim and it dismissed Ecoquij-Tzep's FLSA claim based on individual coverage with prejudice. Dkt. No. 24 at 9.

         Defendant argues that, even if the cashiers/servers and cooks are similarly situated to Ecoquij-Tzep, the Court's Order precludes any FLSA claim because, like Ecoquij-Tzep, the cashiers/servers and cooks could not state a claim for individual coverage. See Dkt. No. 40 at 4-5.

         Ecoquij-Tzep replies that, like him, they could still pursue their FLSA claims under an enterprise coverage theory. See Dkt. No. 42 at 5-6.

         Legal ...


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