United States District Court, E.D. Michigan, Northern Division
PAUL WESTLEY, individually and on behalf of similarly situated persons, Plaintiffs,
CCK PIZZA COMPANY, LLC and CHRIS SCHLOEMANN, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR FLSA
CONDITIONAL CERTIFICATION AND NOTICE AND GRANTING
DEFENDANTS' MOTION TO FILE SUR-REPLY AND DIRECTING ITS
L. LUDINGTON UNITED STATES DISTRICT JUDGE
November 20, 2018, Plaintiff Paul Westley filed a complaint
against Defendants CCK Pizza Company, LLC and Chris
Schloemann. ECF No. 1. Plaintiff alleges that Defendants have
failed to adequately reimburse Defendants' employees for
their labor in violation of the Fair Labor Standards Act
(“FLSA”) and the Michigan Wage Law. Id.
January 31, 2019, Plaintiff filed a motion for Conditional
Certification and Notice pursuant to the FLSA. ECF No. 13. On
May 24, 2019, Defendants filed a motion to file sur-reply
relating to Plaintiff's motion for FLSA certification and
notice. ECF No. 30. For the following reasons, the motions
will be granted.
to Plaintiff's Amended Complaint,  Defendants CCK
Pizza Company (“CCK”) and Chris Schloemann own
and operate numerous Domino's pizza franchise
stores. PageID.351. Schloemann is an owner,
officer and director of CCK. Id. While in this
capacity, Schloemann implemented the pay rate at issue and
has overseen and enforced CCK's pay practices.
Domino's stores employ delivery drivers primarily to
deliver food items to customers. PageID.352. Defendants
require their drivers to maintain and pay for safe,
legally-operable, and insured automobiles when delivering the
food items. Id. The drivers incur costs for
gasoline, vehicle parts and fluids, repair and maintenance
services, insurance, depreciation, and other expenses while
delivering the food items. Id.
Defendants' delivery drivers were subject to
reimbursement for these costs. PageID.355. Since November 20,
2015,  Defendants have utilized various methods
of reimbursement to account for these expenses. PageID.352.
Plaintiffs allege that none of Defendants' methods have
adequately reimbursed the actual vehicle expenses incurred by
the delivery drivers. Id. Plaintiffs therefore
allege that Defendants have a flawed reimbursement policy
that has resulted in the under reimbursement of all of
Defendants' delivery drivers' actual automobile
expenses. Id. As a result of the flawed
reimbursement policy, the drivers' net wages were
allegedly diminished beneath the federal minimum wage
requirements as required in the FLSA. PageID.354.
employed as a delivery driver with Defendants, Plaintiff was
paid a cash wage of $5.75 per hour, plus a tip
credit. Id. The federal minimum wage
throughout the duration of Plaintiff's employment by
Defendants was $7.25 per hour. 29 U.S.C. § 206(a)(1)(C).
During Plaintiff's employment period, he was reimbursed
at various rates, with a minimum reimbursement of $.29 per
mile. PageID.355. Also during Plaintiff's employment
period, the IRS business mileage rate ranged between $.535
and $.56 per mile. Id. The IRS mileage rate provides
optional “standard mileage rates for taxpayers to use
in computing the deductible costs of operating an automobile
for business, charitable, medical, or moving expense
purposes.” PageID.537. Using the IRS data as a
reasonable approximation of Plaintiff's automobile
expenses, every mile driven by Plaintiff allegedly decreased
his net wages by at least $.245 per mile, or by $.735 per
hour. PageID.355. Plaintiff contends that this decrease in
net wages diminished his wages beneath the federal minimum
Defendants' delivery drivers allegedly shared similar
experiences to those of the Plaintiff: drivers were
“subject to the same reimbursement policy; received
similar reimbursements; incurred similar automobile expenses;
completed deliveries of similar distances and at similar
frequencies; and were paid at or near the federal minimum
wage before deducting unreimbursed business expenses.”
PageID.355. During the entire FLSA statutory period, the IRS
business mileage reimbursement rate ranged between $.535 and
$.575 per mile. PageID.352. Similarly, companies, like AAA,
tasked with studying the cost of owning and operating a
vehicle have determined that the average cost doing so ranged
between $.571 and $.608 during the statutory period.
PageID.352-53. Both figures represent a reasonable
approximation of the average cost of owning and operating a
vehicle to use for delivering food items. PageID.353.
Therefore, the Defendants allegedly failed to reimburse their
delivery drivers at a reasonable approximation of the cost of
owning and operating a vehicle for the purpose of delivering
food items. Id.
low reimbursement rates allegedly were a frequent complaint
of delivery drivers, some of whom discussed their concerns
with management. PageID.356. However, Defendants continued to
reimburse their delivery drivers at a rate lower than the
reasonable approximation of automobile expenses, as
determined by the data above. Id.
amended complaint presents two counts. Count I alleges that
Defendants violated the federal minimum wage as mandated by
the Fair Labor Standards Act. PageID.362-65. Count II states
that Defendants violated Michigan's minimum wage as
mandated by the Michigan Minimum Wage Law. PageID.365-66.
seeks conditional class certification and judicial notice of
a collective action pursuant to the Fair Labor Standards Act,
29 U.S.C. § 216(b). § 216(b) provides that
“an employer who violates the provisions of section 206
or section 207 of this title shall be liable to the employee
or employees affected in the amount of their unpaid wages . .
. .” Id.
216 further provides that an employee may maintain an action
against his employer on behalf of himself and other employees
who 1) are “similarly situated”, and 2)
“consent in writing” to be a part of the
collective action. Comer v. Wal-Mart Stores, Inc.,
454 F.3d 544, 546 (6th Cir. 2006) (quoting 29
U.S.C. § 216(b)). If the plaintiff shows that he is
similarly situated to the other potential plaintiffs, a court
may conditionally certify the collective action by
authorizing notice of the action to the potential plaintiffs
that seeks their requisite consent to opt into the action.
Fisher v. Mich. Bell Telephone Co., 665 F.Supp.2d
819, 824-25 (citing Hoffmann-LaRoche, Inc. v.
Sperling, 493 U.S. 165, 167-68 (1989)).
the proposed class members are similarly situated is analyzed
in two stages. The first stage, also called the “notice
stage, ” takes place “at the beginning of
discovery.” Comer, 454 F.3d at 546. At this
stage, the plaintiff “must show only that his position
is similar, not identical” to the positions of the
other potential plaintiffs to the action. Id. The
plaintiff need only make a “modest factual
showing” or make “substantial allegations”
that he and the other potential plaintiffs were
“victims of a common policy or plan that violated the
law.” White v. MPW Industrial Services, Inc.,
236 F.R.D. 363, 372 (E.D. Tenn. 2006). The courts employ a
“fairly lenient standard” when deciding whether
plaintiffs are similarly situated. Comer, 454 F.3d
at 547. Plaintiff is seeking conditional certification at
this first stage.
second stage of certification occurs post-discovery.
Id. At this stage, the courts employ a
“stricter standard” to reexamine whether
plaintiffs to the action are similarly situated by evaluating
the plaintiffs' factual differences. Id. Using
this evidence, the courts will decide whether to finalize the