Mogollan v. La Abundancia Bakery & Restaurant Inc.

Background

Angel Mogollan brought a proposed collective and class action against La Abundancia Bakery & Restaurant Inc., several other La Abundancia-related entities, Monica Ferrerosa, Ruben Rojas, and later-added entities. He asserted claims under the Fair Labor Standards Act and New York Labor Law for unpaid overtime and minimum wages, as well as alleged failures to provide required wage notices and wage statements. The plaintiffs alleged that the La Abundancia locations operated as one integrated enterprise.

The court had previously conditionally certified a group limited to non-exempt employees at La Abundancia #2. It denied certification as to the other five locations at that time but allowed discovery that could support a renewed request. The plaintiffs later submitted deposition testimony and declarations, and they renewed their motion to conditionally certify a collective covering all La Abundancia locations. They also renewed a request for discovery before seeking class certification under Rule 23 of the Federal Rules of Civil Procedure.

Conditional Collective Certification

At the first stage of an Fair Labor Standards Act collective action, the plaintiffs had to make a modest factual showing that they and other workers were similarly situated—that is, that they were affected by a common policy or plan that may have violated the law. The court emphasized that it would not resolve factual disputes, decide the ultimate merits, or determine witness credibility at this stage.

The court found sufficient evidence that the seven La Abundancia locations operated as a single integrated enterprise for purposes of conditional certification. The evidence addressed shared operations, common management, common ownership or financial control, and centralized labor policies. Among other things, employees and managers worked at multiple locations; the locations shared supplies, banking, accounting, timekeeping, payroll, and employee materials; and Rojas had authority over hiring, firing, raises, and vacation decisions across the locations.

The court also found enough evidence that employees at the different locations were similarly situated. Testimony from employees described possible unpaid overtime or unpaid pre-shift work, and the court found that testimony consistent with the plaintiffs’ allegations. Although defendants submitted declarations contradicting the plaintiffs’ evidence, the court held that those disputes could not defeat certification at this preliminary stage.

The court therefore granted conditional certification of a group consisting of all non-exempt employees—including cooks, food preparers, dishwashers, porters, bussers, food runners, delivery persons, counterpersons, helpers, and wait staff—employed at each La Abundancia location on or after April 12, 2012. The court stated that defendants could later seek to remove the group from collective treatment if further discovery showed that the workers were not similarly situated.

Notice and Equitable Tolling

The plaintiffs asked the court to extend the statute of limitations through equitable tolling, a doctrine that can extend a filing deadline in rare circumstances. The court did not determine whether equitable tolling applied to any individual plaintiff because it could not yet decide whether the required conditions had been met.

The court nevertheless allowed notice to be sent to potential collective members employed at the La Abundancia locations since December 18, 2015, three years before the first motion for conditional certification. The court stated that defendants could later challenge whether individual plaintiffs’ claims were timely.

Class Discovery and Disposition

The court granted the renewed request for pre-certification class discovery and expanded it beyond La Abundancia #2 to all La Abundancia locations. Defendants were ordered to produce, within 30 days, payroll records, time records, wage-and-hour notices, wage statements, tip-credit notices, and tip records for all non-exempt employees employed after April 12, 2012. The parties also had to meet and confer about the notice and jointly submit a proposed fact-discovery schedule within seven days.

Judge Stewart D. Aaron’s order granted both the renewed motion for conditional collective certification and the renewed motion for class discovery.