United States District Court, N.D. Texas, Dallas Division
PASCUAL ECOQUIJ-TZEP, and all others similarly situated under 29 USC 216b, Plaintiffs,
HAWAIIAN GRILL also known as MW Hawaiian Grill, Defendant.
MEMORANDUM OPINION AND ORDER
L. HORAN UNITED STATES MAGISTRATE JUDGE.
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.
reasons and to the extent explained below, the Court GRANTS
the motion for class certification.
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)
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.
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
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
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.
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.
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.
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.
replies that, like him, they could still pursue their FLSA
claims under an enterprise coverage theory. See Dkt.
No. 42 at 5-6.