                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA



 KOLY CAMARA, et al.,

        Plaintiffs,
                v.                                        Civil Action No. 18-724 (JEB)
 MASTRO’S RESTAURANTS LLC,

        Defendant.


                                 MEMORANDUM OPINION

       From 2015 to 2017, Plaintiff Koly Camara worked as a server at Defendant Mastro’s

Steakhouse here in Washington. He subsequently brought this lawsuit, alleging that the

company’s manner of paying its servers violated the Fair Labor Standards Act and the D.C.

Minimum Wage Revision Act. His allegations focus on Defendant’s use of a so-called “tip

credit” — a method of compensation in which an employer pays its employees a base wage

below the minimum level set by law; this is permissible so long as the employees’ tips ultimately

bring their wages up to the minimum. Here, however, Plaintiff claims that Mastro’s violated the

law by employing a tip-credit system while requiring servers to share tips with employees —

e.g., wine runners and baristas — who did not “customarily and regularly receive tips.” 29

U.S.C. § 203(m)(2)(A). In this opening salvo, Defendant moves to compel arbitration and for

dismissal, and Plaintiff moves for conditional certification of a collective action under the FLSA

and the DCMWRA. Finding merit in Plaintiff’s arguments on both issues, the Court denies

Defendant’s Motion and grants Plaintiff’s.




                                                1
I.     Background

       The Court starts by describing the legal framework that applies to Plaintiff’s lawsuit and

then explains the factual and procedural background of this case.

       A. Legal Background

       For a good while now, federal and local law have required employers to pay their

employees a minimum wage. See Fair Labor Standards Act of 1938 § 6, 29 U.S.C. § 206;

District of Columbia Minimum Wage Revision Act of 1992, D.C. Code § 32-1003. Currently,

the federal minimum wage is $7.25 an hour, while D.C.’s stands at $13.25. See 29 U.S.C.

§ 206(a)(1)(C); D.C. Code § 32-1003(a)(5)(A)(iii).

       These laws make special provision for “tipped employees” — viz., employees who

“customarily and regularly receive more than $30 a month in tips.” 29 U.S.C. § 203(t).

Employers may pay such employees a lower base hourly wage on the understanding that their

tips will bring their total wage up to the minimum. Federal law now requires a base wage of

$2.13; D.C. law $3.89. See 29 U.S.C. § 203(m)(2)(A); D.C. Code § 32-1003(f)(1)(C); see also

123 Am. Jur. Trials 1, § 8 (Sept. 2018). If an employee’s tips do not make up the difference

between the base and minimum wages, the employer must pay the difference. See 29 U.S.C.

§ 203(m)(2)(A); D.C. Code § 32-1003(f)(1). As mentioned at the outset, this arrangement is

known as a tip credit.

       An employer may only avail itself of the tip credit if it informs its employees of the

arrangement and allows them to retain all of their tips, except that an employer may require

employees to pool their tips with other employees who “customarily and regularly receive tips.”

See 29 U.S.C. § 203(m)(2)(A). This exception for tip pooling is at the heart of this case. To

determine whether an employee customarily and regularly receives tips, so as to allow her to




                                                2
share in another’s tips, courts typically look to “the extent of an employee’s customer

interaction.” Montano v. Montrose Rest. Assocs., Inc., 800 F.3d 186, 192–93 (5th Cir. 2015). If

an employer keeps an employee’s tips or requires an employee to share tips with non-tipped

employees, it loses the ability to invoke the tip credit. See 29 U.S.C. § 203(m)(2)(A); see also

Montano, 800 F.3d at 189 & n.6; Ventura v. Bebo Foods, Inc., 738 F. Supp. 2d 1, 7 (D.D.C.

2010). Employees may sue to recover underpaid wages in violation of these requirements under

the Fair Labor Standards Act and the D.C. Minimum Wage Revision Act.

       B. Factual Background

       Given the stage of the proceedings, the Court recites the facts in the light most favorable

to Plaintiff. See Aliron Int’l, Inc. v. Cherokee Nation Indus., Inc., 531 F.3d 863, 865 (D.C. Cir.

2008) (applying summary-judgment standard to motion to compel arbitration); Dinkel v.

MedStar Health, Inc., 880 F. Supp. 2d 49, 52 (D.D.C. 2012) (explaining that at conditional-

certification stage plaintiffs need only offer “modest factual showing” and that court should

refrain from resolving factual disputes) (quoting Myers v. Hertz Corp., 624 F.3d 537, 555 (2d

Cir. 2010)).

       Plaintiff worked as a server at Mastro’s in D.C. from the summer of 2015 to November

2017. See ECF No. 1 (Compl.), ¶ 16. During his time there, the company compensated Camara

and other servers like him using a tip credit, paying them a base hourly wage below the federal

minimum with servers’ tips credited against the remainder of the minimum. Id., ¶¶ 17–18. At

the same time, Mastro’s required servers to pool more than 40% of their tips with other

employees like wine runners, food runners, and baristas. Id., ¶ 19. Certain of those employees,

according to Plaintiff, did not regularly and customarily interact with customers. Id., ¶¶ 20–23.

Wine runners, for instance, “spend almost all their time working in or near the restaurant’s wine




                                                 3
cellar and have little to no interaction with restaurant customers.” Id., ¶ 21. And baristas “spend

almost all their time working in or near the kitchen and have no interaction with restaurant

customers.” Id., ¶ 23. (Defendant disputes Plaintiff’s allegations about wine runners and

baristas, see ECF No. 18 (Def. Opp.), Exh. A (Declarations), but its disagreements are left for

another day in light of the posture of the case.)

       C. Procedural Background

       Plaintiff filed this lawsuit against Mastro’s on May 25, 2018. See Compl. He alleges

that it violated the FLSA and the DCMWRA when it paid servers using a tip credit while

requiring them to share tips with some employees who do not ordinarily receive tips. Id., ¶¶ 40–

42, 48. Although not at issue in these Motions, Camara also appears to argue that Mastro’s

violated the DCMWRA by failing to pay him for overtime work and the D.C. Wage Payment and

Wage Collection Law for similar reasons. Id., ¶¶ 28–29, 47, 50–57.

       Both parties now seek the Court’s intervention. Defendant has filed a Motion to Compel

Arbitration and for Dismissal. See ECF No. 17. It asserts that Plaintiff previously signed a

binding arbitration agreement and that the Court should therefore compel arbitration and dismiss

the case. Id. Plaintiff has simultaneously filed a Motion for Notice to Similarly Situated

Persons, which the Court refers to as a Motion for Conditional Certification of a Collective

Action. See ECF No. 14. Based on his factual allegations and declarations from servers at other

Mastro’s locations around the country, he asks the Court to certify under the FLSA and

DCMWRA (limited to D.C. servers) a collective action of “[a]ll employees who worked as

servers and received an hourly wage less than $7.25 an hour at any Mastro’s location in the

United States from May 22, 2015 to the present.” ECF No. 21 (Pl. Reply) at 2 (emphasis

omitted).




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II.    Analysis

       As a threshold issue, the parties debate which Motion the Court should address first.

Defendant insists that it should start with the Motion to Compel Arbitration because its resolution

could moot Plaintiff’s Motion. See Def. Mot. at 10–12. Plaintiff rejoins that the Court should

rule first on its Motion for Conditional Certification. See Pl. Reply. at 5. Since the Court denies

Defendant’s Motion, it does not matter in which order the issues are addressed. In any event, the

Court believes it simpler to begin with arbitration before moving on to conditional certification.

       A. Arbitration

       Defendant asks the Court to compel arbitration under the Federal Arbitration Act and

dismiss the case. The Court starts with the applicable legal standard and then turns to the merits.

                   Legal Standard

       The Federal Arbitration Act provides that certain arbitration agreements are “valid,

irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the

revocation of any contract.” 9 U.S.C. § 2. The Act “is a congressional declaration of a liberal

federal policy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp. v. Mercury

Constr. Corp., 460 U.S. 1, 24 (1983). Courts must therefore “‘rigorously enforce’ arbitration

agreements according to their terms.” Am. Express Co. v. Italian Colors Rest., 570 U.S. 228,

233 (2013) (quoting Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985)).

       The Act comes into play, however, only when there is an enforceable arbitration

agreement. Id. (“[A]rbitration is a matter of contract.”). “Accordingly, the first task of a court

asked to compel arbitration . . . is to determine whether the parties agreed to arbitrate that

dispute.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985).




                                                  5
       In undertaking that inquiry, “the appropriate standard of review for the district court is the

same standard used in resolving summary judgment motions pursuant to Fed. R. Civ. P. 56(c).”

Brown v. Dorsey & Whitney, LLP, 267 F. Supp. 2d 61, 67 (D.D.C. 2003) (internal quotation

marks and citation omitted); see also Aliron, 531 F.3d at 865. “As the party seeking to compel

arbitration, Defendant[] must first come forward with evidence sufficient to demonstrate an

enforceable agreement to arbitrate.” Hill v. Wackenhut Servs. Int’l, 865 F. Supp. 2d 84, 89

(D.D.C. 2012) (internal quotation marks and citation omitted). The burden then shifts to Plaintiff

“to raise a genuine issue of material fact as to the making of the agreement, using evidence

comparable to that identified in Fed. R. Civ. P. 56.” Id.; see also Booker v. Robert Half Int’l,

Inc., 315 F. Supp. 2d 94, 99 (D.D.C. 2004).

       A brief refresher on the Rule 56 standard. A fact is “material” if it is capable of affecting

the substantive outcome of the litigation. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.

2006); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott

v. Harris, 550 U.S. 372, 380 (2007). “A party asserting that a fact cannot be or is genuinely

disputed must support the assertion by citing to particular parts of materials in the record.” Fed.

R. Civ. P. 56(c)(1)(A). When a motion for summary judgment is under consideration, “the

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his

favor.” Liberty Lobby, 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir.

2006). The nonmoving party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits, declarations, or other

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

See Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In ruling on a




                                                  6
motion for summary judgment, the Court must “eschew making credibility determinations or

weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

                   Analysis

       The central question for the Court is whether Plaintiff agreed to be bound by the

arbitration agreement Defendant attaches to its Motion or one substantially identical to it. See

Def. Mot., Exh. A (Arbitration Agreement). The parties agree that this question is governed by

D.C. contract law and resolved under the summary-judgment standard discussed above. But

that’s about all they agree on. Mastro’s insists that Plaintiff assented to the arbitration

agreement, even though it cannot produce a document bearing his signature. See Def. Mot. at 6–

10. Plaintiff, on the other hand, attests that he never saw the agreement, never signed it, and

never otherwise agreed to arbitrate any disputes he might have with Mastro’s. See ECF No. 23

(Pl. Opp.), Exh. 1 (Declaration of Koly Camara), ¶ 3.

       The Court starts by considering whether Mastro’s has met its initial burden of showing

that Camara assented to an arbitration agreement. Finding that to be the case, the Court then

considers whether Plaintiff has offered evidence creating a genuine dispute of material fact as to

the issue of his agreement. Concluding that he has, the Court need not consider his back-up

argument that any agreement is unenforceable as a matter of D.C. law.

                       a. Defendant’s Evidence

       Mastro’s musters the following evidence that Plaintiff agreed to pursue any claims

against it only in arbitration. First, it declares that since June 2015, “it has been Defendant’s

policy to require all employees to execute” arbitration agreements like the one attached to its

Motion. See Def. Mot., Exh. B (First Declaration of Laura Jasso), ¶ 4. Consistent with that

policy, it says that “virtually every Washington, D.C. Mastro’s employee has signed an




                                                  7
individual Arbitration Agreement.” Def. Mot., Attach. 1 (Declaration of Stephen Carcamo), ¶ 3.

Mastro’s reasons that, because it required employees to sign such agreements and most

employees did sign such agreements, Plaintiff must also have signed one. See Def. Mot. at 4, 7.

Second, Mastro’s internal database that tracks compliance with the company’s arbitration policy

shows that Plaintiff signed an arbitration agreement. See First Jasso Decl., ¶ 7. Third, Mastro’s

suggests that Camara impliedly agreed to arbitration by continuing to work at the restaurant after

the arbitration program was rolled out. See ECF No. 25 (Def. Reply) at 3–8.

       This evidence satisfies Defendant’s initial burden of showing that Plaintiff assented to an

arbitration agreement. Taken together, the company’s general arbitration policy and its internal

data could lead a reasonable jury to find that he agreed to arbitrate disputes with Mastro’s. The

burden thus shifts to Camara to show a genuine dispute of material fact.

                      b.   Plaintiff’s Evidence

       Camara contests Defendant’s position on each front, contending that he never expressly

or impliedly agreed to arbitrate disputes with Mastro’s. As to the question of express agreement,

he declares under penalty of perjury that he “did not see [the arbitration] agreement when [he]

worked at Mastro’s, did not sign it, and [] never agreed to its terms.” Camara Decl., ¶ 3. Even

though it has found and produced arbitration agreements signed by other employees, see Def.

Reply, Exhs. A & B, Mastro’s has been unable to locate any for Camara. See Carcamo Decl.,

¶ 8. Neither has it offered evidence of any specific communication between the restaurant and

Plaintiff concerning the agreement.

       This is a prototypical dispute of fact. On the one side is Camara’s sworn statement that

he never saw, signed, or otherwise assented to an arbitration agreement. On the other is Mastro’s

general arbitration policy and the notation by an unnamed manager in an internal database. And




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that dispute is material insofar as it determines whether the parties had a meeting of the minds as

to an arbitration agreement.

       Defendant’s only possible rejoinder is that the dispute is not genuine — i.e., that no

reasonable jury could side with Camara on this question. See Def. Reply at 6. In that vein, the

company states that Camara fails to “support his assertions with ‘affidavits, declarations, or other

competent evidence.’” Id. (quoting Wackenhut, 865 F. Supp. 2d at 89). This argument would

have been better left in the meat locker. Camara submitted a sworn declaration specifically

denying that he had signed an arbitration agreement; the declaration is competent and persuasive

evidence on the question of his assent. When faced with a specific and sworn denial on the one

hand, and an internal company directive and the absence of a signed contract on the other, a

reasonable jury would have good reason to side with Camara. The dispute over whether Plaintiff

expressly assented to arbitrate disputes with Mastro’s is therefore genuine.

       Yet Defendant also maintains that Camara impliedly agreed to arbitration. In support of

this position, the steakhouse looks to the Supreme Court’s recent decision in Epic Systems Corp.

v. Lewis, 138 S. Ct. 1612 (2018). There, the Court held that the National Labor Relations Act

did not affect the enforceability of arbitration agreements in employment contracts. Id. at 1619.

Mastro’s extracts from the decision an additional holding: that employees impliedly agree to

binding arbitration when they remain in their position after receiving notice of their employer’s

new arbitration policy. See Def. Reply at 6–7. Defendant reasons that Camara should be found

to have done the same. Once again, the Court disagrees: Mastro’s chars both Epic and its

purported application to this case.

       To start, Epic did not decide any question about the formation of arbitration agreements

by implied assent. It is true that Justice Ginsburg noted in dissent her concern that the arbitration




                                                  9
agreement in one of the underlying cases was not properly formed because it was not bilateral.

See 138 S. Ct. at 1636 n.2. But the implied-assent issue was not before the Court, which took as

a given that the plaintiffs had agreed to pursue their claims in arbitration. See Petition for Writ of

Certiorari for Defendant-Appellant, Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2016) (No. 16-

285) (limiting question presented to whether an arbitration agreement is enforceable

notwithstanding the NLRA); Brief in Opposition to Certiorari for Plaintiff-Appellee, id.

(declining to expand question presented or cross-petition for review). Of course, a decision “is

not a binding precedent” on an issue not pressed by the parties or passed on by the Court. See

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952); see also Waters v.

Churchill, 511 U.S. 661, 678 (1994) (explaining that past decisions “cannot be read as

foreclosing an argument that they never dealt with”).

       Even if Mastro’s were right that Epic made new law on what constitutes an arbitration

agreement, that decision would offer little aid. In Epic, as mentioned, the plaintiff received an

email telling him that if he continued working there, he would be deemed to have accepted an

arbitration agreement. No such email apparently exists in this case, nor is it clear that a

comparable message could have been sent, since Camara may have begun working for Mastro’s

contemporaneously with the rollout of the arbitration policy. The upshot: Mastro’s offers no

evidence that Plaintiff was aware of the arbitration agreement, and Camara avers that he was not.

Implied assent would come into play only if the employee were aware (or, at a minimum,

constructively aware) that his continued employment would have as a consequence an agreement

to arbitrate. See Restatement (Second) of Contracts § 19(2) (1981) (“The conduct of a party is

not effective as a manifestation of his assent unless he intends to engage in the conduct and

knows or has reason to know that the other party may infer from his conduct that he assents.”);




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Nicosia v. Amazon.com, Inc., 834 F.3d 220, 232 (2d Cir. 2016) (holding that party only bound to

arbitration agreement if she had “notice of [its] existence”); see also Bailey v. Fed. Nat’l Mortg.

Ass’n, 209 F.3d 740, 746 (D.C. Cir. 2000) (explaining that parties must manifest a “distinct

intention to be bound” by agreement). Plaintiff has introduced evidence to the contrary, so there

is, at the very least, a genuine dispute of material fact over whether he impliedly assented to any

arbitration agreement.

        One final note of caution to Defendant on this issue. In its Reply Brief, the company

makes the following statement:

                Here, Plaintiff agreed to submit his claims to arbitration because he
                saw the “agreement when [he] worked at Mastro’s,” signed it, and
                had “reason to believe,” that he agreed to arbitrate any claims
                through his continued employment with Mastro’s. (See Pl’s Br.
                (ECF No. 23) at 3.)

Def. Reply at 4. The statement quotes Plaintiff’s brief to suggest that he saw and signed the

arbitration agreement. Yet the quoted sections of Plaintiff’s brief say precisely the opposite. See

Pl. Opp. at 3 (emphasizing that plaintiff “did not see that agreement” and “did not sign it”)

(quoting Camara Decl., ¶ 3). Parties must be careful not to misrepresent the assertions and

arguments of their opponent, particularly on such a fundamental point. The Court trusts such

errors will not recur.

                                          *      *       *

        As there is a genuine dispute of material fact over whether Plaintiff agreed to pursue all

claims against Mastro’s through arbitration, the Court will deny the Motion to Compel

Arbitration. In doing so, it notes that Defendant has also challenged on similar grounds the

presence in this case of other servers who have filed notices to become party Plaintiffs. See ECF

No. 28 (Def. Surreply). Since the action will continue with Camara as named Plaintiff and given




                                                 11
that briefing has hardly been had as to the new party Plaintiffs, the Court will not address at this

point whether those other servers must go to arbitration. Defendant can raise the matter down

the road.

       B. Conditional Certification

       Not satisfied with suing only for his own benefit, Plaintiff also seeks to litigate his Fair

Labor Standards Act and D.C. Minimum Wage Revision Act claims on behalf of others who are

similarly situated. He thus moves the Court to enter an order providing notice of the action to

“[a]ll employees who worked as servers and received an hourly wage less than $7.25 an hour at

any Mastro’s location in the United States from May 22, 2015 to the present.” Pl. Reply at 2.

The DCMWRA claim, needless to say, is restricted to servers in the District of Columbia.

                   Legal Standard

       Employees who assert violations of the FLSA’s and DCMWRA’s minimum-wage

provisions may bring actions on their own behalf and that of “other employees similarly

situated” in a collective action. See 29 U.S.C. § 216(b); see also D.C. Code § 32-1308(a)(1)(C).

“This unique cause of action . . . is not subject to the numerosity, commonality, and typicality

rules of a class action under Rule 23.” Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C.

2004); see also Castillo v. P & R Enterprises, 517 F. Supp. 2d 440, 444 (D.D.C. 2007).

        Although the D.C. Circuit has not yet spoken on the issue, “[c]ourts in this Circuit and

others have settled on a two-stage inquiry for determining when a collective action is

appropriate” under the FLSA. Dinkel v. MedStar Health, Inc., 880 F. Supp. 2d 49, 52 (D.D.C.

2012). Courts have applied the same two-stage analysis to certification decisions under the

DCMWRA. See Stephens v. Farmers Restaurant Group, 291 F. Supp. 3d 95, 105–06 (D.D.C.




                                                 12
2018); Castillo, 517 F. Supp. 2d at 445 n.3. As the parties assume the standards are the same, see

Pl. Mot. at 14–15 & Def. Opp. at 26 n.5, this Court follows suit.

        At the first stage, “the court mak[es] 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.” Myers v. Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010)

(emphasis added) (citations omitted); see also Dinkel, 880 F. Supp. 2d at 52–53 (collecting

cases). This stage requires only a “modest factual showing sufficient to demonstrate that

[named] and potential plaintiffs together were victims of a common policy or plan that violated

the law.” Chase v. AIMCO Props., L.P., 374 F. Supp. 2d 196, 200 (D.D.C. 2005). “Such a

showing, as an initial matter, satisfies the FLSA requirement that putative class members be

similarly situated to the plaintiffs, . . . and is ordinarily based mostly on the parties’ pleadings and

affidavits.” Encinas v. J.J. Drywall Corp., 265 F.R.D. 3, 6 (D.D.C. 2010) (internal quotations

omitted); see also Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1214 n.8 (5th Cir. 1995),

overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). If a plaintiff can

make this showing, a court will conditionally certify the class. While the Court uses the term

“conditional certification” in this Opinion, the certification is nothing more than “the district

court’s exercise of the discretionary power . . . to facilitate the sending of notice to potential class

members.” Myers, 624 F.3d at 555 n.10. At the second stage, defendants may move at the close

of discovery to decertify the conditional class if the record establishes that the plaintiffs are not,

in fact, similarly situated. See Castillo, 517 F. Supp. 2d at 445.

        The bar for a plaintiff at the first stage of the process is not high. See, e.g., Morgan v.

Family Dollar Stores, Inc., 551 F.3d 1233, 1261 (11th Cir. 2008) (describing plaintiff's burden as

“not particularly stringent,” “fairly lenient,” “flexible,” and “not heavy”) (internal quotation




                                                  13
marks and citations omitted); Dinkel, 880 F. Supp. 2d at 52 (describing “a low standard of proof

because the purpose of this first stage is merely to determine whether ‘similarly situated’

plaintiffs do in fact exist”) (internal citations omitted); McKinney, 585 F. Supp. 2d at 8 (“The

court employs a lenient standard in making this determination.”). Indeed, all that is needed is

“some evidence, ‘beyond pure speculation,’ of a factual nexus between the manner in which the

employer's alleged policy affected [a plaintiff] and the manner in which it affected other

employees.” Symczyk v. Genesis HealthCare Corp., 656 F.3d 189, 193 (3d Cir. 2011) (internal

citation omitted), rev’d on other grounds, 569 U.S. 66 (2013). “Plaintiffs need show only that

their positions are similar, not identical, to the positions held by the putative class members.”

Grayson v. K Mart Corp., 79 F.3d 1086, 1096 (11th Cir. 1996) (internal quotation marks and

citation omitted). During the second stage, a court’s inquiry is typically more searching. See,

e.g., Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 51 (3d Cir. 1989) (at second stage,

courts examine whether all putative class members “(1) [were] employed in the same corporate

department, division and location; (2) advanced similar claims . . . ; and (3) sought substantially

the same form of relief”), overruled on other grounds by Starceski v. Westinghouse Elec. Corp.,

54 F.3d 1089 (3d Cir. 1995).

                   Analysis

       The question of conditional certification in this case turns on whether Plaintiff is

similarly situated to other Mastro’s servers who were paid a base hourly wage below the federal

minimum. The Court first addresses Camara’s allegation on this point before turning to

Defendant’s arguments about the various differences between Plaintiff and other Mastro’s

servers. After explaining why it finds conditional certification appropriate, the Court last

addresses a separate issue related to the scope of notice to putative Plaintiffs.




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                       a. Plaintiff’s Showing

       Camara says that other servers are subject to the same unlawful employment practices he

challenges in this case, and that they are thus similarly situated to him. In particular, he says that

Mastro’s maintained (1) “a common policy and practice of paying the hourly tipped minimum

wage to servers”; (2) “a common policy and practice of requiring servers to put approximately

42–45% of the tips they received into a ‘tip pool’ to be shared with other employees including

wine runners, food runners, bartenders, bussers, and baristas”; and (3) “a common policy and

practice of certain participants in the tip pool not having customary and regular interaction with

restaurant customers as part of their job duties.” Pl. Mot. at 10. He backs those allegations up

with sworn declarations from servers at a number of different Mastro’s locations around the

country. See, e.g., Pl. Mot., Attachs. 2–5 (Server Declarations). The Court finds, as a result, that

Plaintiff has easily made the “modest factual showing sufficient to demonstrate that [named] and

potential plaintiffs together were victims of a common policy or plan that violated the law.”

Chase, 374 F. Supp. 2d at 200.

                       b. Defendant’s Objections

       Defendant’s principal objection to certification appears to be its position that it does not

in fact maintain an unlawful tip pool. See Def. Opp. at 2–12 (taking issue with Plaintiff’s factual

allegations). It attaches to its Opposition numerous declarations of other Mastro’s servers to that

effect. Id., Exh. A. For example, it submits a declaration from Sebastian Acosta, a server at its

New York City location, who states that wine runners do interact routinely with customers. Id.

(Declaration of Sebastian Acosta), ¶ 6. It also offers a declaration from server Erin Berryhill at

its D.C. restaurant, who avers that wine runners and server assistants regularly interact with

customers there. Id. (Declaration of Erin Berryhill), ¶¶ 4–7.




                                                  15
       This argument and these declarations offer little meat. At the conditional-certification

stage, district courts are advised to “refrain from resolving factual disputes and deciding matters

going to the merits.” Freeman v. MedStar Health Inc., 187 F. Supp. 3d 19, 23 (D.D.C. 2016); see

also Dinkel, 880 F. Supp. 2d at 53 (explaining that named plaintiffs need only present “some

evidence, beyond pure speculation, of a factual nexus between the manner in which the

employer’s alleged policy affected them and the manner in which it affected other employees”).

All Mastro’s declarations do is dispute Plaintiff’s allegations on the merits. Acosta’s declaration,

for example, merely contradicts a declaration Plaintiff submitted from Daniel Pena. See Pl.

Mot., Attach. 3 (Declaration of Daniel Pena), ¶ 4. Pena says that wine runners in the New York

location “had little or no interaction with restaurant customers.” Id. Berryhill’s declaration does

the same for Camara’s own allegations about the D.C. restaurant. See Compl., ¶¶ 20–23. Such

factual disputes are left for another day.

       Mastro’s remaining briefing is somewhat scattershot, but it appears to identify three

purported differences between Camara and other servers that preclude conditional certification,

none of which the Court finds persuasive.

       (i). It first suggests that Camara is not similarly situated with servers at Mastro’s other

restaurant locations. See Def. Opp. at 11, 16, 19. The only differences it points out, however,

are (1) the percentage of servers’ tips placed in the tip pool (from 40 to 50% depending on

location), and (2) the level of interaction wine runners and baristas have with customers. Id. at

16–18. The first difference is immaterial to conditional certification and the second is illusory.

       In asserting that the differences in the percentage of tips placed in the tip pool preclude

certification, Mastro’s forgets that Plaintiff needs “show only that [his] position[] [is] similar, not

identical, to the positions held by the putative class members.” Grayson, 79 F.3d at 1096. A




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minor difference in tip-pool percentage thus does not make conditional certification

inappropriate. In fact, as far as the Court can tell, the particular percentage of tips placed in the

pool does not even affect whether Mastro’s violated the FLSA or the DCMWRA — it matters

only in calculating damages. The Supreme Court has upheld the certification of classes — a

higher bar than collectives — with far more wide-ranging and difficult damages calculations.

See Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1046–47 (2016) (approving use of

representative sample for purposes of proving classwide liability and calculating damages).

       As to the interaction between wine runners and customers, Mastro’s fixates on what it

says are “gross” inconsistencies among three of Plaintiff’s declarations that it says show that

servers are not similarly situated. See Def. Opp. at 16–18. Here’s what the declarations said:

Pena, the New York server, averred that servers would retrieve wine from wine runners “at a

meeting point outside of the view of customers.” Id. at 17 (quoting Pena Decl., ¶ 4). Mary Still,

a Chicago server, declared that servers obtain wine from wine runners at “a meeting point

outside of the view of customers, such as near the point of sales system or the main bar.” Id.

(quoting Mary Still Decl., ¶ 4). Cory Warfield, also in Chicago, stated that servers get wine from

wine runners at a “meeting point ‘like the bar or the point of sales terminal.’” Id. at 18 (quoting

Cory Warfield Decl., ¶ 5). Mastro’s asserts that the declarations are inconsistent — e.g., the bar

is within the view of customers — and thus show that servers across locations are not similarly

situated. See Def. Opp. at 17–18.

       This argument is not ready to come of the grill. Even if the particular meeting point were

different in New York from Chicago and D.C. and even if customers might see wine runners near

the bar, that would be consistent with declarants’ (and Plaintiff’s) averment that wine runners in

all locations did not regularly interact with customers. The declarations thus fully support




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Plaintiff’s allegation that servers at Mastro’s restaurants nationwide, like Camara in D.C.,

participate in a tip pool that includes employees who do not regularly interact with customers.

More generally, Defendant’s attacks on the servers’ credibility are misdirected, for “the Court

does not resolve factual disputes, decide substantive issues going to the ultimate merits or make

credibility determinations” at this stage of the proceedings. Summa v. Hofstra Univ., 715 F.

Supp. 2d 378, 384 (E.D.N.Y. 2010) (emphasis added) (citation omitted).

       Before moving on, it is worth noting what arguments Mastro’s does not make about its

different restaurant locations. The company does not maintain, for example, that its restaurants

are independently run or that they maintain varying employment and personnel practices. Just

the opposite. It describes all Mastro’s restaurants as adhering to the same “approach to service,”

which focuses on using a team of employees to address customers’ needs. See Def. Opp. at 4;

id., Attach. 2 (Second Declaration of Laura Jasso), ¶ 6. When discussing the question of

arbitration, it likewise affirms that the company’s employment policies extend to its restaurants

nationwide. Id. at 24–25. Such national policies, of course, make it more difficult for Mastro’s

to claim that differences among its restaurants preclude conditional certification.

       (ii). Defendant next asserts that Camara is not similarly situated to other servers who

have signed arbitration agreements. The Court concludes that any difference among putative

collective members as to arbitration agreements does not defeat the Motion.

       The majority of district courts to have addressed the issue have determined that the fact

that some employees “have signed arbitration agreements does not preclude conditional

certification” as to all employees. See Maddy v. General Elec. Co., 59 F. Supp. 3d 675, 685 n.7

(D.N.J. 2014); Romero v. La Revise Assocs., LLC, 968 F. Supp. 2d 639, 646–47 (S.D.N.Y. 2013)

(“The arbitration agreements do not create any differences between [named plaintiff] and the




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proposed plaintiffs with respect to claims that defendants have violated the FLSA. That is, the

validity vel non of the agreements is unrelated to any claims of a violation of the FLSA. Under

this reasoning, the existence of differences between potential plaintiffs as to the arbitrability of

their claims should not act as a bar to the collective action analysis.”); see also, e.g., Garcia v.

Chipotle Mexican Grill, Inc., 2016 WL 6561302, at *9 (S.D.N.Y. Nov. 4, 2016) (“[I]ssues of fact

surrounding arbitration agreements are properly resolved at the second stage of the two-step

inquiry.”); Taylor v. Pilot Corp., 2016 WL 4524310, at *3 (W.D. Tenn. Mar. 3, 2016); but see

Longnecker v. Am. Express Co., 2014 WL 4071662, at *7 (D. Ariz. Aug. 18, 2014) (concluding

to the contrary); Fischer v. Kmart Corp., 2014 WL 3817368, at *7 (D.N.J. Aug. 4, 2014) (same).

        The Court is persuaded by the decisions of the majority of courts. At least in the

circumstances of this case, in which the named Plaintiff has not signed an arbitration agreement

and questions of fact remain about the existence and validity of other arbitration agreements, the

Court will not prematurely limit the dissemination of notice. See Dinkel, 880 F. Supp. 2d at 52

(noting that “district courts have considerable discretion in managing the process of joining

similarly situated employees in a manner that is both orderly and sensible”); see also Myers, 624

F.3d at 555 n.10 (explaining that conditional certification is case-management tool within district

court’s discretion). After discovery, the Court may decide to exclude servers who have signed

arbitration agreements from this action or separate them into a different collective. See Krstic v.

J.R. Contracting & Envtl. Consulting, 2011 WL 1042732, at *7 (D.N.J. Mar. 16, 2011). That is

what the second stage of certification proceedings is typically for. See Symczyk, 656 F.3d at 193

(explaining that court at second stage must make “conclusive determination as to whether each

plaintiff who has opted in to the collective action is in fact similarly situated to the named

plaintiff”). For now, in showing that he “and potential plaintiffs together were victims of a




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common policy or plan that violated the law,” Chase, 374 F. Supp. 2d at 200, Camara has done

all he is required to do.

        (iii). Finally, Mastro’s suggests that individual factual determinations as to liability

preclude conditional certification. See Def. Mot. at 12. The only individual factual

determinations it mentions, though — apart from those already discussed — center around the

duties of wine runners and baristas. Its concern in that respect is overdone. Because Plaintiff is

a server and seeks only to represent other servers, variations among other Mastro’s employees

only matter to the extent they affect the restaurant’s liability as to servers. And, variations

among wine runners and baristas within one restaurant will not affect Mastro’s liability as to

servers under the FLSA and DCMWRA: If a single wine runner or barista does not regularly

interact with customers but joins a location’s tip pool, Mastro’s will presumably have

contravened the Acts. Neither do such intra-restaurant variations appear to matter for purposes

of calculating damages, which do not depend on individual facts about non-tipped employees.

See Montano v. Montrose Restaurant Assocs., Inc., 800 F.3d 186, 189 & n.6 (5th Cir. 2015)

(noting that damages would be equal to difference between base wage and minimum wage plus

amount of tips plaintiff contributed to unlawful tip pool).

        While one might imagine that wine runners’ and baristas’ duties could vary among

different restaurants, thus requiring factual determinations about Mastro’s liability to servers by

location, the Court has already explained why any such variations are illusory. See supra at 16–

18. Indeed, the steakhouse has affirmed that it takes the same approach to service in all of its

restaurants. See Second Jasso Decl., ¶ 6. Because Defendant fails to identify any other

differences among servers that would require individual adjudication, the Court rejects its




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conclusory assertion that the need for individual factual determinations precludes conditional

certification.

                        c. Notice

        The only remaining issues concern the scope of notice to putative collective members.

        First, Mastro’s briefly asserts that notice should not issue to servers in all of its

restaurants in the United States because it “does not own or operate all Mastro’s restaurant

locations in the United States.” Def. Opp. at 9. It is not entirely clear what Defendant is arguing

on this score. Insofar as Mastro’s suggests that servers at certain restaurants are not “employed”

by Defendant, such that it would not be liable for any FLSA or DCMWRA violations, such

questions are properly addressed at the second stage of certification. See, e.g. Rivera v. Power

Design, Inc., 172 F. Supp. 3d 321, 327 (D.D.C. 2016) (collecting cases). Plaintiff has offered

sufficient unrebutted evidence that Mastro’s employs servers at all of its locations to satisfy the

“modest showing that plaintiffs must make at the conditional certification stage.” Id. To the

extent it means that servers at the Mastro’s locations it supposedly does not own or operate are

not similarly situated to servers like Camara who work at a location it does own and operate, that

assertion flies in the face of its declaration that all its restaurants take the same approach to

service. See Second Jasso Decl., ¶ 6. Finally, insofar as Mastro’s disputes its ability to facilitate

such notice, the Court is unpersuaded. Defendant has obtained declarations from employees at

the locations it suggests it does not fully own or operate — viz., the Chicago and Pittsburgh

locations — and seeks to enforce arbitration agreements involving employees at those locations.

See Second Jasso Decl., ¶¶ 8–10. The company thus has enough control over those restaurants

to obtain putative Plaintiffs’ contact information and provide it to Camara in this action. Cf.




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Rivera, 172 F. Supp. 3d at 330 (rejecting defendants’ argument that they should not be required

to provide putative Plaintiffs’ contact information because it was in the hands of a subcontractor).

       Second, Mastro’s argues that it should not be required to disclose putative Plaintiffs’

social-security numbers or phone numbers. See Def. Opp. at 26–27. When deciding whether to

require disclosure of potential plaintiffs’ information, courts balance “plaintiffs’ need” for the

information “against the privacy interests of the current and former employees.” Gieseke v. First

Horizon Home Loan, 2007 WL 445202, at *3 (D. Kan. Feb. 7, 2007). Upon consideration of that

balance, the Court agrees that disclosure of social-security numbers is unnecessary at this stage

of the proceedings because it could compromise putative Plaintiffs’ privacy without any

countervailing benefit. See Delaney v. Geisha NYC, LLC, 261 F.R.D. 55, 60 (S.D.N.Y. 2009).

(Even Camara concedes in his Reply that such information is not necessary at this point. See Pl.

Reply at 15.) Telephone numbers are a different matter. While this information is private, it

does not pose the same confidentiality concerns as social-security numbers; it is also highly

useful in contacting putative Plaintiffs. Because “Defendant[] raises no special concerns” about

disclosing this information, the Court finds that “the balance favors requiring Defendant[] to

provide phone numbers.” Ayala v. Tito Contractors, 12 F. Supp. 3d 167, 172 (D.D.C. 2014).

Mastro’s does not contest Plaintiff’s other discovery requests associated with providing notice,

including its request for email addresses, mailing addresses, and employment IDs. See Pl. Mot.

at 13. The Court, accordingly, need not question the propriety of such disclosures.

       The Court will therefore order notice of this action be provided consistent with this

Opinion to “[a]ll employees who worked as servers and received an hourly wage less than $7.25

an hour at any Mastro’s location in the United States from May 22, 2015 to the present.” Pl.

Reply at 2. In connection with this Notice, Defendant shall provide Plaintiff with the full names,




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telephone numbers, mailing addresses, email addresses, and employee IDs for all putative

Plaintiffs. As both parties agree, the notice period shall be sixty days.

III.   Conclusion

       For the reasons given in this Opinion, the Court will deny Defendant’s Motion to Compel

Arbitration and grant Plaintiff’s Motion for Conditional Certification of a Collective Action

under the FLSA and DCMWRA. A separate Order so stating will issue this day.

                                                              /s/ James E. Boasberg
                                                              JAMES E. BOASBERG
                                                              United States District Judge
Date: October 24, 2018




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