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Rosario v. Compass Group, USA, Inc.

United States District Court, D. Connecticut

February 5, 2016

CARLA ROSARIO, individually and on behalf of other similarly situated individuals, Plaintiffs,


Michael P. Shea, U.S.D.J.

Plaintiff claims that her former employer, the Eurest Dining Services Division of Defendant Compass Group, USA, Inc., failed to pay her time-and-a-half for overtime hours worked in excess of 40 hours per week in violation of federal law. Plaintiff seeks to proceed as a “collective” on behalf of a nationwide group of allegedly “similarly situated” assistant manager (“AM”) employees described in her second amended complaint. (“SAC, ” ECF No. 39.) Because Plaintiff has failed to make even a modest factual showing that the AMs are “similarly situated, ” Plaintiff’s motion for conditional certification (ECF No. 41) is DENIED without prejudice.


Carla Rosario (the “Plaintiff”) brings this action against the Eurest Dining Services Division (“Eurest”) of Defendant Compass Group, USA, Inc. (“Compass”), a national food service company headquartered in Charlotte, North Carolina. (SAC ¶ 6.) According to Compass, Eurest “provides foodservice management and support services to clients in a variety of settings, including cafeterias, food courts, and other foodservice operations at corporate offices, corporate campuses, manufacturing plants, casinos, and other facilities.” (Declaration of Marcel White (“White Decl.”), ECF No. 43-10 ¶ 5.) “Over 200 individuals have worked as AMs in the Eurest Dining Services division since August 2012, ” and they “perform a wide variety of functions at approximately 227 of the 1, 900 Eurest Dining Services division locations.” (ECF No. 43 at 7 (citing White Decl., ECF No. 34-10).)

Rosario brings this action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), to recover unpaid overtime pay allegedly owed to her and other similarly situated AMs who, she alleges, were misclassified as “exempt” from overtime requirements. (SAC ¶ 1.) Rosario worked as an AM for a café at the Mohegan Sun Casino in Montville, Connecticut (SAC ¶ 3), from January 2014 through August 2014.[1] (Id. ¶ 11.) Like all AMs, Rosario was classified as exempt from overtime laws and paid on a salary basis. (Id. ¶ 14.) Rosario was scheduled to work from 11 p.m. until 9 a.m. five days per week, or approximately 50 hours per week. (Id. ¶¶ 12-13.) Rosario alleges that she and all other AMs “spend well over 50% of their time performing non-exempt manual labor, including: counting stock, cashiering, producing food, cooking on the line, stocking, baking, replenishing the salad and soup bar and washing dishes” (id. ¶ 15; Declaration of Carla Rosario (“Rosario Decl.”) ¶ 8), and that such “manual labor is the primary duty of [AMs].” (SAC ¶ 16.) Rosario also alleges that all AMs “share a common job description” (id. ¶ 17), and “are subject to common corporate policies and procedures.” (Id. ¶ 18.) She submitted the following documents purporting to show that Eurest “is centrally controlled and uniformly operated”: the “About Us” page of the Compass website (Exhibit A), the Compass Salaried Associate Handbook (Exhibit D), the Compass Persons with Disabilities Policy (Exhibit E), the Compass Family and Medical Leave Policy (Exhibit F), the Compass “Speak Up” Policy (Exhibit G), Rosario’s Acknowledgement of Receipt of Compass’s Zero Tolerance Discrimination and Harassment Policy & 2013 Employment Policies (Exhibit H), and the Compass Memorandum on Open Communication Process (Exhibit I). (Plaintiff’s Memorandum (“Pl. Br.”), ECF No. 41 at 3.) Rosario alleges that AMs do not “exercise discretion or independent judgment on matters of significance” (SAC ¶ 19), and “do not have the authority to hire or fire other employees” without the approval of Compass’s Human Resources Department. (Id. ¶ 20.)

Kathleen Rigert opted-in to the proposed collective action on April 17, 2015 (ECF No. 15) and Jennifer Horne opted-in on April 22, 2015. (ECF No. 20.) According to their sworn declarations, Rigert has worked as an AM at the Credit Suisse Bank Café in Morrisville, North Carolina, since January 2014. (Declaration of Kathleen Rigert (“Rigert Decl.”), ECF No. 41-11 ¶ 3.) She works from 6 am until 8 or 9 pm five days per week, is paid a salary, and is classified as exempt. (Rigert Decl., ECF No. 41-11 ¶¶ 4, 6.) Horne worked as an AM at the American Express Service Center in Plantation, Florida, from November 2008 until January 2013. (Declaration of Jennifer Horne (“Horne Decl.”), ECF No. 41-12 ¶ 3.) She worked about ten hours a day, five days per week, or approximately 50 hours per week (id. ¶ 4); was paid a salary; and was classified as exempt. (Id. ¶ 5.) Rigert alleges that she “spend[s] well over 50% of [her] time performing non-exempt manual labor, including: counting stock, cashiering, serving food on the line, stocking, replenishing the salad and soup bar, sweeping, and wiping counters.” (Rigert Decl., ECF No. 41-11¶ 9.) Horne claims that she spent at least 70% of her time performing much of the same non-exempt manual labor, as well as “producing food, cooking on the line, . . . baking, . . . and washing dishes.” (Horne Decl., ECF No. 41-12 ¶ 6.) Although Rigert and Horne admit that they performed some management duties, they claim that such tasks were low-level, such as minor discipline, generally directing employees, “and being a source of low level training and information” for subordinates. (Horne Decl., ECF No. 41-12 ¶ 8; Rigert Decl., ECF No. 41-11 ¶ 13.) The opt-ins further allege that they did not perform management and non-management tasks simultaneously. (Horne Decl., ECF No. 41-12 ¶ 7; Rigert Decl., ECF No. 41-11 ¶ 12.)

Rosario submitted a detailed job description for her position as the AM/Manager on Duty (“MOD”) at Mohegan Sun Casino. (Pl.’s Ex. J.) In their declarations, Rosario and both opt-ins claim that the MOD job description “accurately describes the majority of [their] duties” as AMs. (Rosario Decl., ECF No. 41-2 ¶ 16; Horne Decl., ECF No. 41-12 ¶ 12; Rigert Decl., ECF No. 41-11 ¶ 18.) All three allege that they performed the following non-management tasks: participating in food preparation, preservation, service safety, sanitation, and portion control; “[k]eep[ing] display equipment clean and free of debris during meal service”; “[c]leaning equipment”; “[c]lean[ing] workstation thoroughly before leaving the area for other assignments”; “[s]erv[ing] customers quickly”; and “[c]lean[ing] up spills . . . immediately.” (Rosario Decl., ECF No. 41-2 ¶ 17, Horne Decl., ECF No. 41-12 ¶ 13; Rigert Decl., ECF No. 41-11 ¶19.) Finally, both opt-ins and Rosario allege that their “non-management tasks are the most important tasks” they perform as AMs. (Rosario Decl., ECF No. 41-2 ¶ 18; Horne Decl., ECF No. 41-12 ¶ 14; Rigert Decl., ECF No. 41-11 ¶ 20.)

The deposition testimony of Rosario, Horne, and Rigert, however, provided greater detail about their duties, and painted a much more nuanced overall picture than their declarations. For example, Horne testified that AM duties varied “based on the staffing at a particular location” and “based on who the manager was for that location.” (Horne Tr. at 245.) Horne’s position involved tasks-such as analyzing financial statements, paying invoices, processing payroll, marketing, scheduling, and clerical work-that other AMs, like Rosario, did not do. (Horne Tr. at 115-25; Rosario Tr. at 125 (“I had nothing to do with payroll.”).) In fact, Horne’s manager asked her to create a job description for her position “because . . . there was technically no job description.” (Horne Tr. at 60; Def.’s Opp. Br. Ex. 13.) Rigert testified that she has never seen a document detailing the duties of her position, and that to learn what duties she actually performed, one would have to ask her. (Rigert Tr. at 116-17.) Rosario testified that Bethany McMahon, one of the AMs at Mohegan Sun, “did payroll and some administrative tasks. I’m not sure all what they were, ” while Rosario did not do payroll. (Rosario Tr. at 237-38.) McMahon had her own office, and spent most of her time there. (Id.)

Rosario filed her original Collective Action Complaint on February 19, 2015 (ECF No. 1), her first amended complaint on June 15, 2015 (ECF No. 31), and the SAC on June 29, 2015. (ECF No. 39.) Rosario filed a motion to conditionally certify a collective action on June 30, 2015, seeking to certify a collective action on behalf of all AMs who worked at Eurest within the last three years. (ECF No. 41.) Compass filed its opposition brief on August 10, 2015. (ECF No. 43.) Rosario filed a reply brief on August 24, 2015 (ECF No. 45), and Compass filed a sur-reply on September 2, 2015 (ECF No. 49), with the Court’s permission. (See ECF No. 44.)


The FLSA prohibits employers from employing an employee “for a workweek longer than forty hours unless such employee receives compensation for his employment” in excess of forty hours “at a rate not less than one and one-half times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). Several categories of employees are exempt from this requirement, however, including “any employee employed in a bona fide executive, administrative, or professional capacity.” Id. § 213(a)(1). “Executive” and “administrative” employees are “[c]ompensated on a salary basis at a rate of not less than $455 per week.” 29 C.F.R. §§ 541.100(a)(1), 541.200(a)(1). An “executive” employee’s “primary duty is management of the enterprise in which the employee is employed or of a customarily recognized department or subdivision thereof.” Id. § 541.100 (a)(2). An “executive” “customarily and regularly directs the work of two or more other employees” and either “has the authority to hire or fire other employees” or her “suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees are given particular weight.” Id. § 541.100 (a)(3)-(4). An “administrative” employee’s “primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers, ” and her role “includes the exercise of discretion and independent judgment with respect to matters of significance.” Id. § 541.200 (a)(2)-(3).

A plaintiff may bring an action to recover for violations of the FLSA on behalf of herself and “other employees similarly situated.” 29 U.S.C. § 216(b). “[S]uch a joint, or collective, action requires potential plaintiffs to opt in to the suit in order to benefit from any judgment.” Neary v. Metro. Prop. & Cas. Ins. Co., 517 F.Supp.2d 606, 618 (D. Conn. 2007) (quotation marks omitted) (citing 29 U.S.C § 216(b)). “[D]istrict courts ‘have discretion, in appropriate cases, to implement [§ 216(b)] . . . by facilitating notice to potential plaintiffs’ of the pendency of the action and of their opportunity to opt-in as represented plaintiffs.” Myers v. Hertz Corp., 624 F.3d 537, 554 (2d Cir. 2010) (quoting Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989)). The Second Circuit has cited with approval the two-step method that district courts in this Circuit use to determine whether to exercise such discretion. Myers, 624 F.3d at 554-55.

The first step involves the court making an initial determination to send notice to potential opt-in plaintiffs who may be “similarly situated” to the named plaintiffs with respect to whether a FLSA violation has occurred. The court may send this notice after plaintiffs make a “modest factual showing” that they and potential opt-in plaintiffs “together were victims of a common policy or plan that violated the law.” In a FLSA exemption case, plaintiffs accomplish this by making some showing that “there are other employees . . . who are similarly situated with respect to their job requirements and with regard to their pay provisions, ” on which the criteria for many FLSA exemptions are based, who are classified as exempt pursuant to a common policy or scheme. The “modest factual showing” cannot be satisfied simply by “unsupported assertions, ” but it should remain a low standard of proof because the purpose of this first stage is merely to determine whether “similarly situated” plaintiffs do in fact exist. At the second stage, the district court will, on a fuller record, determine whether a so-called “collective action” may go forward by determining if the plaintiffs who have opted in are in fact “similarly situated” to the named plaintiffs. The action may be “de-certified” if the record reveals that they are not, and the opt-in plaintiffs’ claims may be dismissed without prejudice.

Id. at 555 (internal citations omitted). See also Glatt v. Fox Searchlight Pictures, Inc., No. 13-4478-CV, 2016 WL ...

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