United States District Court, D. Massachusetts
PAMELA PIKE and SALLY ZISCHKE, individually and as representatives of a proposed collective action, Plaintiffs,
NEW GENERATION DONUTS, LLC, CADETE ENTERPRISES, INC., and JOHN CADETE, individually and in his capacity as manager, Defendants.
MEMORANDUM AND ORDER ON MOTION TO CONDITIONALLY CERTIFY COLLECTIVE ACTION
F. Dennis Saylor IV United States District Judge
This case involves claims by two former managers of Dunkin’ Donuts stores against their former employer for allegedly denying them overtime pay in violation of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 207(a). In October 2012, plaintiffs filed suit in state court as representatives of a proposed class pursuant to Mass. R. Civ. P. 23. Along with the FLSA claim, the complaint alleges that defendants intentionally failed to pay plaintiffs their earned hourly wages as required by the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, and intentionally failed to pay them overtime wages as required by the Massachusetts Fair Minimum Wage Act, Mass. Gen. Laws ch. 151, § 1A. After defendants removed the case to this Court in November 2012, the parties mutually agreed to stay the case pending the outcome of a related matter involving nearly identical claims, Marzuq v. Cadete Enterprises, Inc., 2013 WL 5437034 (D. Mass. Sept. 25, 2013), rev’d, 807 F.3d 431 (1st Cir. 2015). In January 2016, the stay was lifted when the First Circuit issued its opinion in Marzuq. On January 25, 2016, plaintiffs filed notices of consent pursuant to 29 U.S.C. § 256(b) and moved to conditionally certify a collective action pursuant to 29 U.S.C. § 216(b).
Defendants contend that the motion should be denied because, among other reasons, the two-year limitations period for non-willful FLSA violations expired before plaintiffs “commenced” their collective action by filing notices of consent. Plaintiffs contend that the Court should equitably toll the limitations period because the case was stayed. For the following reasons, the motion will be denied.
The facts, which closely resemble those previously considered by this Court and the First Circuit in Marzuq, are taken from the complaint and the plaintiffs’ affidavits. Plaintiff Sally Zischke worked as a Dunkin’ Donuts store manager in Massachusetts from November 2009 to June 2011. (Zischke Aff. ¶ 2). Plaintiff Pamela Pike worked in the same position at a different Dunkin’ Donuts store from March 2011 to May 2011. (Pike Aff. ¶ 2). Both Dunkin’ Donuts stores were franchises owned and operated by two corporate entities-New Generation Donuts, LLC and Cadete Enterprises, Inc.-whose common president is John Cadete.
Pursuant to agreements that they signed with Cadete Enterprises, Pike and Zischke were expected to work “no less than a six day, 48 hour work week.” (Zischke Employment Agreement ¶ 1; Pike Aff. ¶ 3) (emphasis in original). However, plaintiffs contend that they frequently worked seven days and more than 60 hours per week because they were forced to cover the shifts of absent hourly employees. (Pike Aff. ¶ 3; Zischke Aff. ¶ 3). While plaintiffs were formally employed as store managers, the complaint alleges that they spent much of their time serving customers, working the cash registers, making coffee, and cleaning restrooms. (Pike Aff. ¶ 4; Zischke Aff. ¶ 4). The complaint also alleges that plaintiffs had little or no discretion in performing their managerial duties because they were closely supervised by a district manager who had final authority over staffing levels, maintenance, payroll, inventory, and the hiring and firing of hourly employees. (Pike Aff. ¶¶ 5-6; Zischke Aff. ¶¶ 8-14).
Plaintiffs, as managers and not hourly employees, earned weekly salaries and were not paid overtime. (Compl. ¶¶ 27-28; Zischke Employment Agreement ¶ 1). Zischke earned between $650 and $675 per week, and Pike earned $500 per week. (Zischke Aff. ¶ 6; Pike Aff. ¶ 8).
On October 15, 2012, Pike and Zischke filed suit in state court alleging that defendants violated the FLSA, 29 U.S.C. § 207(a), by misclassifying them as exempt employees and refusing to pay them overtime. The complaint also alleged state-law claims for intentionally failing to pay plaintiffs their earned hourly wages as required by the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, and intentionally failing to pay them overtime wages as required by the Massachusetts Fair Minimum Wage Act, Mass. Gen. Laws ch. 151, § 1A. It appears that the plaintiffs pursued all three claims as a proposed class pursuant to Mass. R. Civ. P. 23. (Compl. ¶¶ 10-17, 32, 41, 46) (pleading the Rule 23 requirements of numerosity, commonality, typicality, and adequacy). Plaintiffs did not, however, file notices of consent to pursue a collective action under 29 U.S.C. § 216(b).
Defendants removed the case to this Court on November 30, 2012. On January 16, 2013, the parties filed a joint motion to stay the case pending the outcome of a related action, Marzuq v. Cadete Enterprises, Inc., No. 11-cv-10244-FDS, which was scheduled for a summary judgment hearing in April 2013. The joint motion stated that “[i]n light of the current posture of Marzuq and the relatedness of the issues and claims in the two cases, the [p]arties believe that it is in their best interests and in the interest of judicial economy to stay this matter pending the resolution of summary judgment in Marzuq.” (Docket No. 6 ¶ 4).
After the Court granted summary judgment for the defendants in Marzuq, it lifted the stay on September 30, 2013, and set the matter for a scheduling conference. On October 24, 2013, plaintiffs, represented by predecessor counsel, filed a second joint motion to stay the case. That motion concluded:
On September 25, 2013 the Court in Marzuq ruled on the Defendant[s’] Rule 56 Motion for Summary Judgment dismissing the Plaintiff[s’] FLSA count, a count common to that alleged by the Plaintiff in this action. A final judgment has not been entered.
This matter is now the subject of a Rule 16 scheduling conference to be held on November 8, 2013. The Plaintiffs respectfully suggest that it is in their best interests and the interest of judicial economy to again stay this matter pending the exhaustion of ...