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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

SOUTH BEND DIVISION 

JASON HEUBERGER, individually, 

and on behalf of others similarly situated, 

 Plaintiff, 

 v. 

HARRY L. SMITH d/b/a/ “MY-TRE 

GLAMMA MANAGEMENT,” 

DESTINY MGT, INC., and DIAMOND 

PROPOERTIES MGMT, INC., 

 Defendants. 

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Case No. 3:16-CV-386-JD-JEM 

MEMORANDUM OPINION AND ORDER 

 This is an action brought under the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. § 

201 et seq., and the Indiana Minimum Wage Law (the “IMWL”), Ind. Code § 22-2-2-1 et seq.,

by Plaintiff Jason Heuberger (“Plaintiff”) against his employer, Mr. Harry Smith d/b/a My-Tre 

Glamma Management (“Glamma”), and two other companies, Destiny MGT, Inc. (“Destiny”) 

and Diamond Properties MGMT, Inc. (“Diamond”). [DE 1] Mr. Smith is the president of both 

Destiny and Diamond. [DE 24-1 ¶ 8] Between them, Defendants own and operate a total of 

nineteen McDonald’s restaurants in Indiana. [DE 18-3] 

 Plaintiff alleges that Defendants violated the FLSA (Count I) and the IMWL (Count II) 

by failing to pay him and similarly situated employees for their attendance at and participation in 

a mandatory orientation session. [DE 1 ¶¶ 1, 15, 31-50] Plaintiff further alleges that Defendants 

violated the FLSA (Count III) and the IMWL (Count IV) by deducting a “crew uniform clothing 

fee” of $2.00 from his and similarly situated employees’ paychecks, which reduced the 

employees’ wages to below the minimum wage level. [DE 1 ¶¶ 2, 21, 23, 51-73] 

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 Pending before the Court are two motions, filed only two days apart from one another: 

Defendants’ Partial Motion to Dismiss Plaintiff’s Complaint (the “MTD”) [DE 15]; and 

Plaintiff’s Motion for Conditional Collective Action Certification Pursuant to 29 U.S.C. § 216(b) 

(the “§ 216(b) Motion”). [DE 18] Specifically, Defendants move to dismiss Counts II, III, and IV 

of Plaintiff’s complaint pursuant to Fed. R. Civ. P. Rule 12(b)(6). [DE 15] Destiny and Diamond 

further move to dismiss the complaint in its entirety as it relates to them, pursuant to Fed. R. Civ. 

P. Rule 12(b)(1) for lack of standing. At the same time, Plaintiff requests that this Court certify 

subclasses of employees who participated in the alleged unpaid mandatory orientation, and 

whose wages were reduced by the crew uniform deductions. 

 At the outset, Plaintiff admits that his state law claims under Counts II and IV are moot. 

[DE 25 at 1 n. 1] Therefore, the Court will dismiss those claims with prejudice and confine its 

analysis below to the remaining issues.1

 

 

                                                            

1

 The Court notes that it would have dismissed Counts II and IV regardless of Plaintiff’s concession. 

Claims for minimum wage and overtime compensation cannot be raised under both the IMWL and the 

FLSA because the FLSA is the exclusive remedy for enforcing rights created under that federal statute. 

See Parker v. Schilli Transp., 686 N.E.2d 845, 851 (Ind. Ct. App. 1997), trans. denied (addressing 

overtime compensation claims). The IMWL states, in pertinent part, that the term “employer ... shall not 

include any employer who is subject to the minimum wage provisions of the federal Fair Labor Standards 

Act....” Ind. Code § 22-2-2-3. “Thus, as a general matter, the Indiana Minimum Wage Law does not apply 

to employers subject to the FLSA.” Cox v. Gannett Company, Inc., 2016 WL 3165613, at *2 (S.D. Ind. 

June 7, 2016). 

 Under the FLSA, an “employer” is defined broadly as “any person acting directly or indirectly in the 

interest of the employer in relation to an employee.” 29 U.S.C. § 203. Here, there is no question that 

Glamma is an “employer” under the FLSA. Plaintiff, for one, alleges as much: “Defendants [including 

Glamma] are collectively the joint employers of Plaintiff ... under the FLSA’s broad definitions of 

‘employer.’” [DE 1 ¶ 11] (emphasis added). He also incorporates this allegation in his state law claims. 

[DE 1 ¶¶ 41, 64] See Shivers v. Miller Beach Terrace, Inc., No. 2:11-cv-204, 2012 U.S. Dist. LEXIS 

55804, at *2 (N.D. Ind. Apr. 18, 2012) (dismissing IMWL claim brought alongside FLSA claim where 

plaintiff alleged employer was subject to the FLSA and incorporated that allegation into state law claim). 

Moreover, Defendants admit that they are “employers” under the FLSA in their MTD. [DE 16 at 10] 

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FACTUAL BACKGROUND

 Defendants Glamma, Destiny, and Diamond, own and operate a total of nineteen 

McDonald’s franchise restaurants in Indiana. [DE 1 ¶ 1; DE 18-3; DE 24-1] Mr. Harry Smith 

owns and operates ten of these restaurants under the business name “My-Tre Glamma 

Management.” [DE 24-1 ¶ 3] Six of Glamma’s restaurants are located in Elkhart, Indiana, while 

the remaining four are located in Middlebury, Goshen, and Wakarusa, Indiana. Id. Mr. Smith is 

also the president of both Destiny and Diamond. Id. ¶ 8. Destiny owns and operates one of the 

remaining nine restaurants, and Diamond owns and operates the other eight. [DE 18-3; DE 24-1 

¶¶ 6-7] None of the restaurants owned and operated by either Destiny or Diamond are located in 

Elkhart. Id. Plaintiff alleges that Defendants, together, form a “single employer” or “single 

integrated enterprise” and that they are “joint employers” because they jointly operate this chain 

of restaurants, and maintain interrelated operations, centralized control of labor, common 

management, common ownership, and common financial control. [DE 1 ¶ 11] 

In or about February 2016, Plaintiff was hired to work at one of these McDonald’s 

restaurants, located at 130 N. Main Street, Elkhart, Indiana. [DE 1 ¶ 12; DE 24-1 ¶ 2] This 

restaurant is owned and operated by Glamma. [DE 18-3] Around the time of his hire, Plaintiff 

was required to participate in an unpaid orientation session at one of the six Glamma-owned 

McDonald’s restaurants in Elkhart.2

 [DE 18-1 ¶ 4; DE 24-1, Exh. A] Plaintiff alleges that 

Defendants required their other hourly-paid employees to undergo this same unpaid orientation 

as a condition of employment. [DE 1 ¶ 14] Plaintiff’s orientation generally consisted of filling 

out paperwork and going over his employer’s policies. [DE 18-1 ¶ 6] At all times relevant, 

                                                            

2

 Defendants note a potential discrepancy as to where Plaintiff participated in this orientation – either at 

the 130 N. Main Street location or at 3429 S. Main Street, Elkhart, Indiana. [DE 24-7] But either way, 

Plaintiff’s orientation occurred at one of the six Elkhart McDonald’s owned and operated by Glamma. 

[DE 18-3] 

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Plaintiff alleges that Defendants paid him and other employees the exact federal minimum wage 

of $7.25 per hour. [DE 1 ¶ 19] 

On or about May 1, 2016, the manager of the 130 N. Main Street restaurant, Amy Powers 

[DE 18-3], gave Plaintiff and other employees a memorandum, which stated that starting that 

same day, a $2.00 crew uniform clothing fee would be deducted from every paycheck. [DE 1 ¶ 

20; DE 18-1 ¶ 8, Exh. B] That memorandum was entitled, “MY-TRE GLAMMA 

MANAGEMENT UNIFORM CONTRACT.” [DE 1 ¶ 20; DE 18-1, Exh. B] Plaintiff claims that, 

because he is paid at precisely the federal minimum wage, these deductions have caused his net 

wages to fall below the minimum wage. [DE 1 ¶ 21; DE 18-1 ¶ 9] Plaintiff further alleges that 

“[a]ll of Defendants’ other hourly-paid minimum wage employees had similar experiences to 

those of Plaintiff” because “[t]hey are subject to the same ‘crew uniform clothing fee.’” [DE 1 ¶ 

23] Plaintiff’s own paychecks, however, indicate that no such deductions were ever taken from 

his wages. [DE 16-1; DE 24-1, Exh. E] 

Plaintiff brings this case as an “opt-in” collective action, and makes the following 

collective allegations regarding himself and all of Defendants’ other hourly-paid employees: they 

have worked as hourly-paid employees for Defendants; they have been required to undergo two 

hours of mandatory “orientation” training for Defendants as a condition of their employment; 

they have not been paid for that orientation; they are and/or were paid the minimum wage; and 

they have been subjected to the same “crew uniform clothing fee,” which decreases their net pay 

below minimum wage. [DE 1 ¶¶ 28, 30] 

It is against the backdrop of these facts that the Court conducts its analysis. 

 

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DISCUSSION 

I. Plaintiff’s § 216(b) Motion 

Plaintiff is essentially asking the Court to certify two subclasses of employees who 

worked at Defendants’ restaurants. The first subclass relates to Plaintiff’s allegations that 

Defendants failed to pay new employees for attending the mandatory orientation session (the 

“orientation subclass”). For these claims, Plaintiff proposes that “all current and former hourlypaid workers who worked at Defendants’ McDonald’s restaurants within the prior three years” 

be certified together. [DE 18 at 1] Second, with regard to his claims that Defendants paid their 

employees less than the minimum wage by deducting wages as part of a crew uniform fee, 

Plaintiff requests certification of “all current and former hourly-paid workers who worked at 

Defendants’ McDonald’s restaurants for the exact ... minimum wage rate ... at any time since 

May 1, 2016” (the “uniform deduction subclass”). Id. 

a. Collective Actions and the FLSA 

The FLSA requires employers to pay wages of at least $7.25 per hour to each of their 

employees. 29 U.S.C. § 206(a)(1)(C). Under 29 U.S.C. § 216(b), an employee may bring an 

action to recover unpaid minimum wages on “behalf of himself . . . and other employees 

similarly situated.” 29 U.S.C. § 216(b). This is known as a “collective action.” Harkins v. 

Riverboat Services, Inc., 385 F.3d 1099, 1101 (7th Cir. 2004). However, no current or former 

aggrieved employee may be a party plaintiff to a collective action “unless he gives his consent in 

writing to become such a party and such consent is filed in the court in which such action is 

brought.” 29 U.S.C. § 216(b). 

 Collective actions brought under the FLSA are fundamentally different than class actions 

under Fed. R. Civ. P. Rule 23. See Biddings v. Lake County, No. 2:09-cv-38, 2009 WL 2175584, 

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at *2 (N.D. Ind. July 15, 2009). Plaintiffs in a collective action must “opt-in” to the action to be 

bound by a judgment while plaintiffs in a Rule 23 class action must “opt-out.” See id. (citing 

King v. Gen. Elec. Co., 960 F.2d 617, 621 (7th Cir. 1992); Woods v. New York Life Ins. Co., 686 

F.2d 578, 580 (7th Cir. 1982)). Because of the “opt-in” requirement, a representative plaintiff in 

a collective action must be able to inform other individuals who may have similar claims that 

they may join his lawsuit. See Biddings, 2009 WL 2175584, at *2 (citing Austin v. CUNA Mut. 

Ins. Soc’y, 232 F.R.D. 601, 605 (W.D. Wis. 2006)). 

 Section 216(b) does not explicitly provide for court-ordered notice. 29 U.S.C. § 216(b). 

However, in appropriate cases, district courts have the discretion to implement § 216(b) by 

facilitating notice to potential plaintiffs. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 

169-70, 110 S. Ct. 482, 107 L. Ed. 2d 480 (1989). In fact, “trial court involvement in the notice 

process is inevitable in cases with numerous plaintiffs where written consent is required by 

statute, [and therefore] it lies within the discretion of the court to begin its involvement early, at 

the point of the initial notice, rather than at some later time.” Id. at 171. Such court-authorized 

notice serves the broad, remedial purpose of the FLSA and is in line with the court’s interest in 

managing its docket, so long as the court takes care to avoid the appearance of judicial 

endorsement of the merits of the action. Id. at 172-74. 

 Not only is the FLSA without instructions as to when courts should exercise their 

discretion and authorize notice to potential plaintiffs, it also does not define the term “similarly 

situated.” Biddings, 2009 WL 2175584, at *2. “In this circuit, district courts generally follow a 

two-step inquiry when certifying collective actions. In the first step, the Court must determine 

whether to conditionally certify an action as a collective action.” Williams v. Angie’s List, Inc., 

No. 1:16-cv-878, 2017 WL 1546319, at *2 (S.D. Ind. Apr. 27, 2017). “The sole consequence of 

conditional certification is the sending of court-approved written notice to employees, who in 

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turn become parties to a collective action only by filing written consent with the court.” Genesis 

Healthcare Corp. v. Symczyk, 569 U.S. 66, 133 S. Ct. 1523, 1530, 185 L. Ed. 2d 636 (2013) 

(internal citations omitted). 

At the first step, the Court considers “whether the representative plaintiff has shown that 

she is similarly situated to the potential class plaintiffs.” Austin, 232 F.R.D. at 605. The FLSA 

does not define the term “similarly situated” or instruct judges when to exercise their discretion 

and authorize notice to potential plaintiffs. District courts in this circuit typically apply the 

following analysis: to be similarly situated at the first step, the plaintiff needs to make only a 

modest factual showing that he and the potential plaintiffs were victims of a common policy or 

plan that violated the law. See, e.g., Bradley v. Arc of N.W. Ind., Inc., No. 2:14-cv-204, 2015 WL 

2189284, at *2 (N.D. Ind. May 11, 2015) (citing Allen v. The Payday Loan Store of Ind., Inc., 

No. 2:13-cv-262, 2013 WL 6237852, at *1 (N.D. Ind. Dec. 3, 2013)); see also Camilotes v. 

Resurrection Health Care Corp., 286 F.R.D. 339, 345 (N.D. Ill. 2012). The Court analyzes the 

pleadings and any affidavits to determine whether that modest showing is made. Knox v. Jones 

Group, 208 F. Supp. 3d 954, 958 (S.D. Ind. 2016). 

If the Court conditionally certifies a collective action and authorizes notice to potential 

participants, it proceeds to the second step in the certification process at the close of discovery 

and after the opt-in process is completed. Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845, 848 

(N.D. Ill. 2008); Austin, 232 F.R.D. at 605. At that stage, the defendant can move to dismiss the 

“opt-in” plaintiffs in light of the record developed during discovery. Biddings, 2009 WL 

2175584, at *3. 

 

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i. Plaintiff is not “similarly situated” to the proposed uniform deduction 

subclass. 

The Court will address and dispense with the second of Plaintiff’s proposed subclasses 

first. Plaintiff offers only two pieces of evidence in support of his request that the Court certify 

the proposed uniform deduction subclass. First, Plaintiff submits the memorandum given to him 

and other employees by his manager on or about May 1, 2016, which states that, starting that 

same day, “a $2.00 crew uniform clothing fee ... will be deducted every paycheck.” [DE 18-1 ¶ 

8, Exh. B]. Second, Plaintiff attests that “the deductions for ‘crew uniform clothing fees’ have 

caused [his] net wages to fall below the federal and Indiana minimum wage.” [DE 18-1 ¶ 9] 

(emphasis added). The effect of Plaintiff’s second statement, in particular, is to claim that those 

deductions were in fact taken out of his paychecks. Plaintiff makes this statement without 

attaching any of his paychecks. 

 Plaintiff’s paychecks, however, attached to Defendants’ opposition to the § 216(b) 

Motion, paint a different picture. [DE 24-1, Exh. E] These paychecks cover consecutive pay 

periods from February 14, 2016, Plaintiff’s first pay period [DE 18-1 ¶ 2], through the middle of 

September 2016.3

 [DE 24-1, Exh. E] As indicated by these paychecks, no deductions – let alone 

a “crew uniform clothing fee” – were ever subtracted from Plaintiff’s wages. Id. Plaintiff was 

paid at the minimum wage rate of $7.25 per hour during each of these twelve pay periods, and 

additionally earned overtime pay at the rate of $10.875 per hour during four of them. Id. 

Although a more lenient standard applies at this early stage, “when presented with 

evidence which contradicts [Plaintiff’s] claim” that Defendants had a practice and policy that 

                                                            

3

 The attached paychecks cover the entirety of Plaintiff’s employment with Glamma up to the filing of 

Defendants’ opposition to the § 216(b) Motion. The pay period for the most recent paycheck ended on 

September 10, 2016, with a paydate of September 19, 2016. [DE 24-1, Exh. E] Plaintiff’s next pay period 

presumably ran from September 11, 2016, until September 24, 2016, with a paydate approximately nine 

days thereafter. Defendants filed their opposition on September 26, 2016. [DE 24] 

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violated the FLSA by deducting uniform fees, the Court “‘will not stick its head in the sand and 

ignore that evidence.’” Williams, 2017 WL 1546319, at *3 (quoting Hawkins v. Alorica, 287 

F.R.D. 431, 441 (S.D. Ind. 2012)). It would be a waste of the Court’s and the litigants’ time to 

notify a class “only to later determine that the matter should not proceed as a class action 

because the class members are not similarly situated.” Id. Here, the authenticated paychecks 

clearly demonstrate that Plaintiff is not a member of the class which he wishes to represent; he 

and the potential plaintiffs are not “similarly situated” because no crew uniform deductions were 

actually taken from his paychecks. [DE 24-1 ¶ 22, Exh. E] Thus, he has not made a “modest 

factual showing that he and the other employees to whom notice is to be sent were victims of a 

common policy or plan that violated the law,” Allen, 2013 WL 6237852, at *1, and the Court 

will deny his request to certify the uniform deduction subclass. See Weil v. Metal Techs., Inc., 

No. 2:15-cv-16, 2016 U.S. Dist. LEXIS 8100, at *27 (S.D. Ind. Jan. 25, 2016) (denying 

collective action certification for employees who had unpaid lunch breaks of twenty minutes or 

less where time records showed that named plaintiffs never took a lunch break of twenty minutes 

or less and therefore they were not harmed by the policy at issue); Strait v. Belcan Eng’g Grp., 

Inc., 911 F. Supp. 2d 709, 731 (N.D. Ill. 2012) (denying collective action certification where 

named plaintiffs failed to identify any negative vacation recouped from their pay, any instances 

of forced leave without pay as to them, or improper furlough adjustments to their pay despite 

basing arguments for collective action on these theories).

ii. The proposed orientation subclass is overbroad. 

 The Court turns next to Plaintiff’s proposed orientation subclass, and finds that it, as 

drafted, is overly broad. A proposed FLSA collective class can be overly broad. See e.g., Moss v. 

Putnam Cnty. Hosp., No. 2:10-cv-28, 2010 WL 2985301, at *2 (S.D. Ind. July 21, 2010) 

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(limiting the proposed collective class to include only those plaintiffs compensated under the 

relevant overtime policy). Yet it is important to keep in mind that certification of a collective 

class is less demanding than certification of a class action under Rule 23, and does not require, 

“that the named representative’s claims have the same essential characteristics as a class at large 

to achieve the initial certification.” Swarthout v. Ryla Teleservices, Inc., No. 4:11-cv-21, 2011 

WL 6152347, at *5 (N.D. Ind. Dec. 12, 2011) (citing Brickel v. Bradford-Scott Data Corp., No. 

1:09-cv-58, 2010 WL 145348, at *1 (N.D. Ind. Jan. 11, 2010)). Plaintiff need only provide the 

minimal showing that some identifiable factual or legal nexus binds the various claims of the 

class members in a way that hearing the claims together promotes judicial efficiency and 

comports with the broad remedial policies underlying the FLSA in order to justify notice at this 

stage of the proceedings. See Boyd v. Jupiter Aluminum Corp., No. 2:05-cv-227, 2006 WL 

1518987, at * 5 (N.D. Ind. May 31, 2006). Despite this lenient standard, Plaintiff has failed to 

make a minimal showing of a nexus that “binds together” employees of Glamma with those of 

Destiny and Diamond. 

To support his argument for certifying the orientation subclass, Plaintiff only offers his 

own affidavit and the orientation checklist provided to him by his employer. [DE 18-1, Exh. A] 

In or about February 2016, Plaintiff was hired to work at a McDonald’s restaurant located at 130 

N. Main Street in Elkhart, Indiana. [DE 18-1 ¶ 2] That restaurant is owned and operated by 

Glamma; it is not owned or operated by either Destiny or Diamond. [DE 18-3] Plaintiff does not 

allege that he ever worked at any of the locations operated by Destiny or Diamond. Around the 

time of his hire, Amy Powers, general manager of the 130 N. Main Street restaurant, presented 

Plaintiff with an orientation checklist and informed Plaintiff that he had to complete the 

orientation program, which consisted of filling out paperwork and going over his employer’s 

policies. [DE 18-1 ¶¶ 4-6; 18-3] Plaintiff maintains he was not paid for this two-hour orientation. 

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Id. ¶ 6. The orientation was conducted at another Glamma location, 3429 S. Main Street, Elkhart, 

Indiana.4

 [DE 18-3; 24-1] 

 Plaintiff argues broadly that his motion is supported by “Defendants’ own form 

documents,” which facially reflect a policy “not to pay for training [of] their employees.” [DE 18 

at 10] (emphasis added). However, Plaintiff offers no evidence to support his assertion that all 

three defendants implemented this policy. Indeed, Plaintiff’s own affidavit states, “I was required 

to participate” in unpaid training, and that Amy Powers “told me that I had to complete 

‘Orientation.’” [DE 18-1 ¶ 4] (emphasis added). Plaintiff makes no mention of whether any other 

employees, let alone those working at Destiny and Diamond locations, underwent the same 

orientation. Similarly, Plaintiff does not attest to whether other hourly-paid employees even 

received the orientation checklist, which undermines his argument that it is a corporate form 

document imposing a mandatory practice across the board to employees of all three Defendants: 

“Amy Powers, store manager, presented me with a memo regarding ‘Orientation’ ....” [DE 18-1 

¶ 4] (emphasis added). The orientation checklist does not indicate that it applies to or is used by 

all three Defendants, and the only information it contains relating to any of the three Defendants 

is the location of the orientation itself – a Glamma-owned restaurant. [DE 18-1, Exh. A] Thus, 

this is not the situation in which corporate documents evidence a “company-wide” application of 

unlawful policies across all three Defendants, as Plaintiff argues. Cf. Ravenell v. Avis Budget Car 

Rental, LLC, No. 08-cv-2113, 2010 WL 2921508, at *4 (E.D.N.Y. July 19, 2010) (certifying 

collective action where documents used nationwide by collective defendants revealed that all 

shift managers, “wherever located, were treated as part of a category of similarly situated 

                                                            

4

 The copies of the orientation checklist provided by Plaintiff cut off this location at the bottom of the 

page. [DE 1-2; 18-1, Exh. 3] 

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employees”) (emphasis added). The Court will therefore amend the proposed orientation 

subclass to exclude employees of Destiny and Diamond.

iii. The evidence supports certification of a limited version of the 

proposed orientation subclass. 

Though lenient, the “modest factual showing” standard is not a mere formality. Biddings, 

2009 WL 2175584, at *3 (citing Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045-46 

(N.D. Ill. 2003) (evidence of defendant’s payment practice concerning two out of fifty 

employees, without more, did not provide modest factual showing that the employer had a 

common policy or plan to violate the FLSA). The requisite showing may be accomplished by 

providing an affidavit, declaration, or other support beyond mere allegations in order to make a 

minimal showing of other similarly situated employees subjected to a common policy. Id. But, a 

plaintiff cannot rely on allegations alone to make the required “modest factual showing,” unless 

the defendant admits that other similarly situated employees exist. Id. (citation omitted). 

Here, even though Plaintiff does not attest as to whether any other employees at the 

Glamma McDonald’s were required to attend orientation, Mr. Smith, d/b/a Glamma and 

president of Destiny and Diamond, clarifies the scope of this practice. Mr. Smith’s affidavit 

explains that “individuals seeking employment at one of the six My-Tre Glamma McDonald’s 

located in Elkhart, Indiana are asked to attend a pre-hire ‘orientation’ at ... 3429 South Main 

Street....” [DE 24-1 ¶ 9] Only those applicants seeking employment at these six locations are 

given the orientation checklist and are required to attend this orientation. Id. ¶¶ 10-11. 

Individuals applying for positions at any of the other restaurants owned and operated by 

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Defendants do not attend this orientation and are not provided the orientation checklist.5 Id. ¶ 

15. 

 Mr. Smith’s admissions provide enough evidence at this stage to support a finding that 

Plaintiff and similarly situated hourly-paid workers at the six Glamma McDonald’s in Elkhart, 

Indiana, were subject to a common policy or plan that allegedly violates the FLSA – or more 

specifically, that those Glamma employees were not paid for participating in the mandatory 

orientation. Accordingly, given that Plaintiff’s proposed collective action concerns similarly 

situated individuals and common issues of fact and law, and given the Court’s interest in judicial 

efficiency and avoiding inconsistent results in related matters, the Court finds that a factual 

showing sufficient to satisfy step one has been met by Plaintiff as to this limited subclass. 

Consistent with the evidence, the Court will certify a subclass that includes only those hourlypaid workers at the six Glamma restaurants located in Elkhart, Indiana.6

b. Proposed Collective Action Notice and Consent Form 

Once a collective action is conditionally approved, “the court has managerial 

responsibility to oversee the joinder of additional parties to assure that the task is accomplished 

in an efficient and proper way.” Hoffmann-La Roche, 493 U.S. at 170-71. 

                                                            

5

 These restaurants include the four Glamma restaurants not located in Elkhart, the one restaurant owned 

and operated by Destiny, and the eight restaurants owned and operated by Diamond. [DE 24-1 ¶¶ 3, 6-7] 

6

 In light of the Court’s ruling on Defendants’ MTD, especially with regard to the standing issues 

surrounding Destiny and Diamond, the Court notes that Plaintiff may later seek to modify the 

conditionally certified class should the progression of the case permit. See Myers v. Hertz Corp., 624 F.3d 

537, 557 (2d Cir. 2010) (citing Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1241-43 (11th Cir. 

2008) (noting that district court denied two motions to facilitate nationwide notice to potential plaintiffs 

prior to certifying a FLSA collective action on plaintiffs’ third motion); In re Initial Pub. Offering Sec. 

Litig., 483 F.3d 70, 73 (2d Cir. 2007) (“District courts have ample discretion to consider (or to decline to 

consider) a revised class certification motion after an initial denial.”)). 

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In examining and approving any proposed notice, the Court must be careful to avoid the 

appearance of “judicial sponsorship” or a “judicial imprimatur.” Id. at 174; Biddings, 2009 WL 

2175584, at *4; see also Woods v. N.Y. Life Ins. Co., 686 F.2d 578, 581 (7th Cir. 1982). Because 

of this, the Court will order that the case caption be removed from the notice and that the notice 

instead be placed on Plaintiff’s attorneys’ letterhead. See Alexander v. Caraustar Indus., No. 11-

c-1007, 2011 U.S. Dist. LEXIS 68865, at *8 (N.D. Ill. June 27, 2011) (ordering same). However, 

Plaintiff may still include the case number and title on the notice. Id. 

 Plaintiff here requests that the Court order notice of this collective action be sent to all 

members of the approved class, as now revised, and that the opt-in period run 90 days from the 

mailing of the notice. [DE 18 at 14-15] Plaintiff further requests that the notice be posted in the 

break rooms at all of Defendants’ restaurants, id., although now this proposal is limited to 

posting the notices in all six Elkhart McDonald’s locations owned and operated by Glamma. 

Presumably to identify and contact members of the relevant class, Plaintiff wishes to compel 

production of their names, addresses, dates of employment, and social security numbers. The 

Court will limit Plaintiff’s requests as follows: 

 Defendants argue that plaintiff’s request to require posting of the notice in the 

restaurants’ breakrooms is not only unnecessary, as the notices will already be mailed to a group 

of individuals that includes current employees, but also risks miscommunicating to their 

employees that they endorse the lawsuit. [DE 24 at 22-23] Other than describing this practice as 

“routine,” [DE 18 at 14], Plaintiff offers no reason why posting is necessary, and accordingly his 

request that the Court order Defendants to post notice will be denied. See Alexander, 2011 U.S. 

Dist. LEXIS 68865, at **8-9; see also Howard v. Securitas Sec. Servs., No. 08-c-2746, 2009 WL 

140126, at *9 (declining to order the defendant to post notice “absent evidence that the mailing 

of notices is ineffective”); cf. Gomez v. H & R Gunlund Ranches, Inc., No. CV F 10-1163, 2010 

USDC IN/ND case 3:16-cv-00386-JD-JEM document 30 filed 09/07/17 page 14 of 33
15 

WL 5232973, at *11-12 (E.D. Cal. Dec. 16, 2010) (authorizing posting of notices where 

potential class members were migrant workers who may be difficult to reach by direct mail). 

 The opt-in period will run 60 days from the mailing of Plaintiff’s notice, rather than 90 

days as requested by Plaintiff. This is not a case that presents a nationwide class of patients 

necessitating a longer opt-in period. Rather, the class here is limited only to those employees of 

six McDonald’s restaurants, all of which are located in Elkhart, Indiana. “The length of the optin period is within the Court’s discretion.” Campbell v. Advantage Sales & Mktg., LLC, No. 

1:09-cv-01430, 2010 WL 4386793, at *4 (S.D. Ind. Oct. 28, 2010) (citing Hoffmann-La Roche, 

493 U.S. at 170). Unlike in Campbell, however, where the plaintiffs claimed to have a class of 

over 5,000 potential plaintiffs, Plaintiffs here offer no reason for their 90-day proposal other than 

that 90 days is the “standard” operating procedure for district courts. [DE 25 at 8] But courts 

have approved opt-in periods ranging from 30 days to 120 days. See Campbell, 2010 WL 

4386793, at *4 (comparing cases). Given that a relatively small class will likely be noticed here, 

the Court concludes that a 60-day opt-in period is appropriate. See Nehmelman v. Penn Nat’l 

Gaming, Inc., 822 F. Supp. 2d 745, 765 (N.D. Ill. 2011) (concluding 60-day period was 

reasonable given “relatively small number of potential class members”); Smallwood v. Ill. Bell 

Tel. Co., 710 F. Supp. 2d 746, 753 (N.D. Ill. 2010) (noting 60-day opt-in period “provide[d] 

ample opportunity for prospective class members to opt-in”); Shiner v. Select Comfort Corp., 

No. 09-c-2630, 2009 WL 4884166, at *5 (allowing for 60-day opt-in period); Brand v. Comcast 

Corp., No. 12-cv-1122, 2012 WL 4482124, at *9 (N.D. Ill. Sept. 26, 2012) (same). The Court 

also suggests that the parties confer and identify a cutoff date once the notices have been mailed 

in order to prevent confusion. 

 To facilitate this noticing, Glamma will provide the names, addresses, and dates of 

employment of potential plaintiffs within thirty (30) days of this order, based on the Court’s 

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16 

definition of the collective class. However, the Court will not compel production of social 

security numbers, which constitute highly sensitive and private information. See Brand, 2012 

WL 4482124, at *9 (denying request for potential plaintiffs’ social security numbers, citing 

individual privacy concerns); Blakes v. Ill. Bell Tel. Co., No. 11-cv-336, 2011 WL 2446598, at 

*8 (N.D. Ill. June 15, 2015) (same). “[P]roviding sensitive personal data such as a social security 

number is not to be done lightly,” Blakes, 2011 WL 2446598, at *8, and the Court sees no reason 

to compel production of potential plaintiffs’ social security numbers. The Court further notes that 

Plaintiff did not respond to Defendants’ arguments against providing this data in his reply brief 

in support of his § 216(b) Motion. [DE 25] 

 The parties are directed to confer and draft a notice that complies with the contents of this 

order and to submit said draft to the Court for approval prior to the notice’s issuance. 

II. Defendants’ Partial Motion to Dismiss 

Although the Court denies certain aspects of Plaintiff’s § 216(b) Motion, his leftover 

individual claims “remain unaffected as the suit reverts to an individual suit on his behalf.” 

Strait, 911 F. Supp. 2d at 735 (citing Alvarez v. City of Chicago, 605 F.3d 445, 450 (7th Cir. 

2010)). Specifically, Plaintiff is left with his individual claims in Counts II, III, and IV against all 

Defendants, and his claim in Count I against Destiny and Diamond. 

Defendants move to dismiss Counts II, III, and IV of Plaintiff’s complaint pursuant to 

Fed. R. Civ. P. Rule 12(b)(6). [DE 15] Destiny and Diamond further move to dismiss the 

complaint in its entirety as it relates to them, pursuant to Fed. R. Civ. P. Rule 12(b)(1) for lack of 

standing. Id. As discussed above, the Court will dismiss as concededly moot Counts II and IV 

against all Defendants. For the reasons stated below, the Court will further dismiss Count III of 

the complaint as to all Defendants for failure to state a claim upon which relief can be granted, 

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17 

and will dismiss Count I of the complaint as levied against Destiny and Diamond due to 

Plaintiff’s lack of standing. 

a. Standards 

Rule 12(b)(1) authorizes dismissal of claims over which the Court lacks subject matter 

jurisdiction. In analyzing a motion to dismiss, the Court must accept as true all well-pled factual 

allegations and must draw all reasonable inferences in favor of the plaintiff. Long v. Shorebank 

Dev. Corp., 182 F.3d 548, 554 (7th Cir. 1999). Further, “[t]he district court may properly look 

beyond the jurisdictional allegations of the complaint and view whatever evidence has been 

submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Id. 

(citations omitted). The burden of establishing proper federal subject matter jurisdiction rests on 

the party asserting it, which in this case is Mr. Heuberger. Muscarello v. Ogle Cnty. Bd. of 

Comm’rs, 610 F.3d 416, 425 (7th Cir. 2010). 

In reviewing a motion to dismiss for failure to state a claim upon which relief can be 

granted under Rule 12(b)(6), the Court construes the complaint in the light most favorable to the 

plaintiff, accepts the factual allegations as true, and draws all reasonable inferences in the 

plaintiff’s favor. Reynolds v. CB Sports Bar, Inc., 623 F.3d 1143, 1146 (7th Cir. 2010). A 

complaint must contain only a “short and plain statement of the claim showing that the pleader is 

entitled to relief.” Fed. R. Civ. P. 8(a)(2). That statement must contain sufficient factual matter, 

accepted as true, to state a claim for relief that is plausible on its face, Ashcroft v. Iqbal, 556 U.S. 

662, 678 (2009), and raise a right to relief above the speculative level. Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). However, a plaintiff’s claim need only be plausible, not 

probable. Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 935 (7th Cir. 2012). 

Evaluating whether a plaintiff’s claim is sufficiently plausible to survive a motion to dismiss is 

USDC IN/ND case 3:16-cv-00386-JD-JEM document 30 filed 09/07/17 page 17 of 33
18 

“‘a context-specific task that requires the reviewing court to draw on its judicial experience and 

common sense.’” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (quoting 

Iqbal, 556 U.S. at 678). 

b. Plaintiff’s Wages Were Not Reduced by any Crew Uniform Deductions 

Similar to his request to certify the proposed uniform deduction subclass, Plaintiff’s 

individual claim for unpaid minimum wages – based on the allegation that Defendants deducted 

$2.00 from each of his paychecks – fails. Defendants twice attach Plaintiff’s current paychecks 

for each pay period he worked to their filings, and the documents demonstrate that no deductions 

– let alone any deductions for a crew uniform fee – were ever subtracted from Plaintiff’s wages. 

[DE 16-1; DE 24-1, Exh. E] Plaintiff earned a wage of $7.25 per hour during each of the pay 

periods from February 2016 through August 2016, and additionally earned overtime pay at the 

rate of $10.875 per hour during several of them. [DE 16-1] Plaintiff also received a raise in 

August 2016 – during the pendency of this lawsuit – to $8.00 per hour. [DE 24-1, Exh. E] 

The parties hotly dispute whether the Court may consider these documents that lie 

outside the boundaries of the complaint. The Court can and will take these paychecks into 

account in reaching its determination as to Count III. It is well settled that documents attached to 

a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s 

complaint and are central to his claim, and that the Court may consider those documents in 

analyzing the motion to dismiss without converting it into one for summary judgment. 188 LLC 

v. Trinity Industries, Inc., 300 F.3d 730, 735 (7th Cir. 2002). The policy of this exception that 

allows the Court to consider documents outside the four corners of the complaint, is to “prevent a 

plaintiff from evading dismissal under Rule 12(b)(6) simply by failing to attach a [document] 

that proves his claim has no merit.” Sa’Buttar Health & Med., P.C. v. Tap Pharm., Inc., No. 03-

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19 

c-4074, 2004 WL 1510023, at *3 (N.D. Ill. July 2, 2004) (citing Tierney v. Vahle, 304 F.3d 734, 

738 (7th Cir. 2002)). The case at bar presents the very scenario contemplated by this policy. 

Here, contrary to Plaintiff’s claim in his opposition to the MTD [DE 20 at 12], the paychecks are 

explicitly referenced in the complaint and are central to his claim that deductions have been 

taken from his wages as part of a crew uniform fee. [DE 1 ¶¶ 2, 8] (“Since May 1, 2016 

Defendants also have been deducting $2.00 from each of their minimum wage employee’s

paychecks to pay for each employee’s uniform items ...;” “Plaintiff’s paychecks from his 

employment, referenced herein....”) (emphasis added). 

Plaintiff also argues in opposition that, because the paychecks have not been 

authenticated, the Court should not consider them.7

 [DE 20 at 12-13] The cases cited by Plaintiff 

trace the “concededly authentic” language in Tierney, 304 F.3d at 738. See United States v. 

Miller, 2015 U.S. Dist. LEXIS 21088, at *3 (N.D. Ind. Feb. 23, 2015) (cited by Plaintiff and 

citing Santana v. Cook Cnty. Bd. of Review, 679 F.3d 614, 619 (7th Cir. 2012)) (cited by Plaintiff 

and citing Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009))). According to these cases, 

this language, originally included as dicta in Tierney, has subsequently morphed into a 

requirement that courts can only consider documents outside the pleadings on a Rule 12(b)(6) 

motion if those items are “concededly authentic.” The purpose of the “concededly authentic” 

requirement is “to prevent consideration on a motion to dismiss of a document that ‘require[s] 

discovery to authenticate or disambiguate.’” Archer v. Chisolm, 188 F. Supp. 3d 866, 879 n. 10 

(E.D. Wisc. 2016) (citing Tierney, 556 F.3d at 739). 

                                                            

7

 The set of paychecks attached to Defendants’ opposition to the § 216(b) Motion were authenticated by 

Mr. Smith. [DE 24-1 ¶ 22] But, as explained herein, the Court does not need his authentication in order to 

consider the set of paychecks attached to Defendants’ MTD. 

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20 

That said, however, there is a distinction between documents that are “unauthenticated” 

and “inauthentic” that should not be overlooked. In Hecker, for example, the court approved the 

district court’s consideration of documents outside the complaint on defendant’s Rule 12(b)(6) 

motion that were “concededly authentic” along the lines of Tierney. 556 F.3d at 582. In doing so, 

the Hecker court rejected plaintiffs’ analogy to Travel Over the World v. Kingdom of Saudi 

Arabia, 73 F.3d 1423 (7th Cir. 1996), because in that case, plaintiffs actually contested the 

authenticity of the document that defendants wanted to use, whereas in Hecker, they did not. 556 

F.3d at 582. Thus, the documents in Hecker were “concededly authentic.” 

Here, Plaintiff does not contest the authenticity of the paychecks and gives the Court no 

good reason to question their authenticity. Plaintiff only argues that they “have not been 

authenticated.” [DE 20 at 12] Therefore, the Court will consider the paychecks attached to 

Defendants’ MTD. See ABN AMRO, Inc. v. Capital Int’l, Ltd., No. 04-c-3123, 2007 WL 845046, 

at *11 (N.D. Ill. Mar. 16, 2007) (considering documents central to plaintiff’s claims where 

plaintiff argued that documents were unauthenticated but did not assert that they were 

inauthentic); Sa’Buttar, 2004 WL 1510023, at *3 (considering contract attached to motion to 

dismiss and dismissing breach of contract claim where nonmovant claimed the contract was 

unauthenticated but did not argue the document was inauthentic). Because the paychecks 

demonstrate that no deductions were taken from Plaintiff’s minimum wages for crew uniform 

fees or otherwise, Plaintiff has failed to sufficiently state a plausible claim for unpaid minimum 

wages under this theory. Iqbal, 556 U.S. at 678. Count III is therefore dismissed with prejudice 

as to all Defendants. 

c. Plaintiff Lacks Standing as to Destiny and Diamond 

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21 

Defendants argue that Plaintiff lacks standing to bring his individual claims against 

Destiny and Diamond.8

 [DE 16] In response, Plaintiff contends that he has adequately alleged 

that Defendants together form a “single employer” or “single integrated enterprise” and that they 

are “joint employers” such that he has standing to sue all three entities. [DE 20] For the reasons 

stated herein, the Court finds that Plaintiff lacks standing to bring his individual claims against 

either Destiny or Diamond. 

In every case, the plaintiff has the burden of establishing the three elements of standing: 

that “(1) [he or she] has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) 

actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the 

challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the 

injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. 

Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S. Ct. 693, 145 L. Ed. 2d 610 (2000) (citing Lujan 

v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)). To meet 

this burden and to survive a challenge to standing under Rule 12(b)(1), a plaintiff must plead 

sufficient factual allegations, taken as true, that “plausibly suggest” each of these elements. Silha 

v. ACT, Inc., 807 F.3d 169, 174 (7th Cir. 2015). “[T]o bring a valid case, a plaintiff must allege 

that a defendant—the very defendant sued—has somehow wronged her in a legally cognizable 

way.” Payton v. Cnty. of Kane, 308 F.3d 673, 678 (7th Cir. 2002). 

Under the FLSA, alleged employees’ “injuries are only traceable to, and redressable by, 

those who employed them.” Berger v. Nat’l Collegiate Athletic Ass’n, 843 F.3d 285, 289 (7th 

Cir. 2016) (quoting Roman v. Guapos III, Inc., 970 F.Supp.2d 407, 412 (D. Md. 2013)). The 

                                                            

8

 Destiny and Diamond moved to dismiss all Counts against them for lack of standing, but because 

Counts II, III, and IV will be dismissed with prejudice, the only relevant Count remaining for this 

standing argument is Count I. 

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FLSA defines “employer” as “any person acting directly or indirectly in the interest of an 

employer in relation to an employee.” 29 U.S.C. § 203(d). An “employee,” in turn, is defined as 

“any individual employed by an employer,” id. § 203(e)(1), and “employ” means “to suffer or 

permit to work.” Id. § 203(g). Consistent with these broad definitions, “[t]he Supreme Court has 

instructed courts to construe the terms ‘employer’ and ‘employee’ expansively under the FLSA.” 

Vanskike v. Peters, 974 F.2d 806, 807 (7th Cir. 1992) (citing Nationwide Mut. Ins. Co. v. 

Darden, 503 U.S. 318, 326, 112 S. Ct. 1344, 117 L. Ed. 2d 581 (1992); Rutherford Food Corp. v. 

McComb, 331 U.S. 722, 730, 67 S. Ct. 1473, 91 L. Ed. 1772 (1947)). 

i. Plaintiff fails to allege that Destiny and Diamond are liable as 

“joint employers” of Glamma. 

Plaintiff alleges that Defendants together are “joint employers” such that they may be 

sued together. [DE 1 ¶ 11] The FLSA premises liability on an employer-employee relationship. 

29 U.S.C. § 206(a). But, “[t]here is no suggestion in the language of the [FLSA] that an 

employer is responsible to other employers’ employees unless, of course, there is a joint 

employer relationship.” Villareal v. El Chile, Inc., 776 F. Supp. 2d 778, 794 (N.D. Ill. 2011) 

(citing 29 C.F.R. § 791.2). “Two or more employers may jointly employ someone for the 

purpose of the FLSA.” Karr v. Strong Detective Agency, Inc., 787 F.2d 1205, 1207 (7th Cir. 

1986); see also 29 C.F.R. § 791.2. For a joint-employer relationship to exist, each alleged 

employer must exercise control over the working conditions of the employee. See Moldenhauer 

v. Tazewell-Pekin Consol. Commc’ns Ctr., 536 F.3d 640, 644 (7th Cir. 2008) (quoting Moreau v. 

Air France, 343 F.3d 1179, 1182 (9th Cir. 2003)).9

                                                            

9

 While Moldenhauer involved review of an action under the Family Medical Leave Act (the “FMLA”), 

the court applied the FLSA standard for determining joint employer status, because the pertinent 

regulation in the FLSA mirrored that in the FMLA. 536 F.3d at 644. 

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Under the Department of Labor’s regulations: 

Where the employee performs work which simultaneously benefits two or more 

employers, or works for two or more employers at different times during the 

workweek, a joint employment relationship generally will be considered to exist 

in situations such as: 

(1) where there is an arrangement between the employers to share the 

employee’s services, such as to interchange employees; or 

(2) where one employer is acting directly or indirectly in the interest of the 

other employer (or employers) in relation to the employee; or 

(3) where the employers are not completely disassociated with respect to 

the employment of a particular employee and may be deemed to share 

control of the employee, directly or indirectly, by reason of the fact 

that one employer controls, is controlled by, or is under common 

control with the other employer. 

29 C.F.R. § 791.2(b); see also Cuff v. Trans States Holdings, Inc., 768 F.3d 605, 608 (7th Cir. 

2014). 

In a joint employer scenario, multiple entities are considered to be the “joint employer” 

of an employee, even though that employee may have worked for only one of those entities. 

Take affiliated companies A, B, and C, for example. An employee may have only worked at 

company A, in which case A is the employee’s employer for FLSA purposes. If certain 

circumstances exist, however, then B and C can also be considered employers of the employee 

under the FLSA, together with A. In that case, A, B, and C are the “joint employers” of the 

employee and may all be liable for alleged FLSA violations. 

“Because status as an ‘employee’ for purposes of the FLSA depends on the totality of 

circumstances rather than on any technical label, courts must examine the ‘economic reality’ of 

the working relationship.” Vanskike, 974 F.2d at 808 (citations omitted). To examine this 

“economic reality,” courts look at several factors to determine whether multiple entities form a 

“joint employer” of an employee who worked for only one of those entities. To use the above 

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24 

example, those factors include whether the putative employers, companies B and C: (1) had the 

power to hire and fire A’s employees; (2) supervised and controlled employee work schedules or 

conditions of payments for A’s employees; (3) determined the rate and method of payment for 

A’s employees; and (4) maintained employment records of A’s employees. See Moldenhauer, 

536 F.3d at 644 (applying the factors from Bonnette v. California Health and Welfare Agency, 

704 F.2d 1465, 1470 (9th Cir. 1983), a FLSA case).10

The Seventh Circuit has not yet addressed the factors a court should consider in 

determining joint employment under the FLSA, so the Court will look to the test articulated by 

the Ninth Circuit in Bonnette and applied by the Seventh Circuit in Moldenhauer, to guide its 

analysis, in keeping with other district courts within this Circuit. See Morgan v. SpeakEasy, LLC, 

625 F. Supp. 2d 632, 650 (N.D. Ill. 2007) (finding Bonnette appropriate to determine joint 

employer status in the FLSA context).11 

Plaintiff does not allege that he ever worked for either Destiny or Diamond, or that he 

worked at one of their locations. In fact, he does not allege that he ever worked at any 

McDonald’s location other than the one for which he was hired to work at. Plaintiff’s own 

allegations make clear that his employer was My-Tre Glamma Management, as evidenced by his 

                                                            

10 While expressed in the Court’s example above, the four Bonnette factors are “whether the alleged 

employer (1) had the power to hire and fire employees, (2) supervised and controlled employee work 

schedules or conditions of payment, (3) determined the rate and method of payment, and (4) maintained 

employment records.” 704 F.2d at 1470. 

11 On at least one occasion, the Seventh Circuit has declined to apply Bonnette, but only under casespecific circumstances. See Vanskike, 974 F.2d at 808-10 (declining to apply Bonnette in deciding 

whether a prisoner can plausibly be said to be “employed”). In Vanskike, the court explained that 

Bonnette might not be helpful “in the situation presented” because Bonnette’s factors are “particularly 

appropriate where (as in Bonnette itself) it is clear that some entity is an ‘employer’ and the question is 

which one.” Id. at 809 (emphasis added). Bonnette focuses on whether there is enough control over an 

individual to classify him as an employee, but in Vanskike, the court was faced with the opposite problem: 

whether too much control over an individual – in that case, an inmate – jeopardized the employeremployee relationship. Id. at 810. Thus, Bonnette is applicable here, where it is clear that Plaintiff is 

employed, but questions remain as to which Defendants actually employ him for FLSA purposes. 

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25 

paychecks and the documents he received by his employer. [DE 1 ¶ 8; DE 1-2; DE 1-3; DE 16-1] 

Plaintiff’s paychecks issued from Defendant “Harry Leonard Smith Jr My-Tre Glamma 

Management,” not from Destiny or Diamond, or from any alleged parent company controlling all 

three Defendants. [DE 16-1] Furthermore, the very title of the crew uniform deduction 

memorandum Plaintiff received is “MY-TRE GLAMMA UNIFORM CONTRACT,” [DE 1-3] 

and the orientation checklist indicates orientation took place at a Glamma-owned restaurant [DE 

1-2; DE 24-1, Exh. A] Plaintiff admits he received these policies “at his place of employment.” 

[DE 1 ¶ 8] 

Plaintiff makes no specific allegations against Destiny or Diamond. Instead, he attempts 

to rope them in by repeatedly pleading in the collective, when his own allegations and 

documentation indicate that the policies and practices he seeks to challenge – mandatory unpaid 

orientation and the crew uniform deduction – were, at most, those of his employer, Glamma, not 

those of “Defendants.” And as a result, Plaintiff lacks standing against Destiny and Diamond 

because he cannot allege that the three Defendants together maintained control over his hiring, 

supervision, or payment such that they might be considered a “joint employer” under Bonnette 

and Moldenhauer. 

ii. Plaintiff’s alternative “enterprise” theory is misplaced. 

Plaintiff alternatively argues that Defendants are included in the FLSA’s definition of 

“employer” because, together, they form a “single employer” or “single integrated enterprise,” 

rendering them jointly liable for violations of the statute. [DE 1 ¶ 11; DE 20] The parties cannot 

agree on the applicable Seventh Circuit standard for evaluating this theory, and their discordance 

only amplifies the Court’s discussion below regarding conflation of FLSA coverage and FLSA 

liability. 

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Plaintiff advocates for a four-factor test to determine whether separate entities constitute 

an integrated enterprise or single employer: “(1) interrelations of operations; (2) common 

management; (3) centralized control of labor relations; and (4) common ownership and financial 

control.” Naperville Ready Mix v. NLRB, 242 F.3d 744, 752 (7th Cir. 2001). Plaintiff cites to 

numerous cases in his opposition to the MTD to support his argument that he has “alleged facts 

sufficient to support a plausible claims for liability under either a ‘single integrated enterprise’ or 

‘single employer’ theory.” [DE 20 at 5] Unfortunately for Plaintiff, most of the cases he cites in 

support concern who is an “employer” for purposes of other employment laws, such as the 

National Labor Relations Act (the “NLRA”); the Labor-Management Relations Act (the 

“LMRA”), the Employee Retirement Income Security Act (“ERISA”), or the Family Medical 

Leave Act (the “FMLA”).12 None of these cases interpret the FLSA; indeed, Naperville Ready 

Mix itself is an NLRA case. As discussed above, the bottom line is that FLSA liability is 

predicated on an employee-employer relationship. Plaintiff must allege sufficient facts in his 

complaint that each of the other Defendants – Destiny and Diamond – qualify as his employer, 

either singularly or jointly with Glamma. He has failed to do so, and his allegations indicate that 

he only ever worked for Glamma.

Plaintiff does cite two cases that have applied the “single employer” or “single integrated 

enterprise” theory of liability in the FLSA context as a means of including employers who did 

                                                            

12 See Lippert Tile Co. v. Int’l. Union of Bricklayers & Allied Craftsmen, Dist. Council of Wis., 724 F.3d 

939 (7th Cir. 2013) (LMRA); Moriarty v. Svec, 164 F.3d 323 (7th Cir. 1998) (NLRA and ERISA); 

Esmark, Inc. v. NLRB, 887 F.2d 739 (7th Cir. 1989) (NLRA); Kaufman v. CRST Lincoln Sales, Inc., 2001 

U.S. Dist. LEXIS 79914 (N.D. Ind. Jun. 24, 2011) (FMLA and ERISA); Trustee of Chi. Reg’l. Council of 

Carpenters Pension Fund v. Central Rug & Carpet Co., 2012 U.S. Dist. LEXIS 16889 (N.D. Ill. Feb. 10, 

2012) (ERISA); Chi. Reg’l. Council of Carpenters Pension Fund v. McGreal Constr., Inc., 2012 U.S. 

Dist. LEXIS 167373 (N.D. Ill. Nov. 26, 2012) (LMRA and ERISA); Chi. Reg’l. Council of Carpenters 

Pension Fund v. FAC Constr. & Design, Inc., 2011 U.S. Dist. LEXIS 145411 (N.D. Ill. Dec. 15, 2011) 

(ERISA). 

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27 

not employ the plaintiff. But these cases can be distinguished. In Creech v. P.J. Wichita, the 

plaintiff provided far more detail than here, alleging sufficient facts as to how various Papa 

John’s pizza stores were centrally managed, and described the shared policies regarding pay of 

deliver drivers at all locations. No. 16-2312, 2016 U.S. Dist. LEXIS 122027, **7-9 (D. Kan. 

Sept. 8, 2016). And the factual scenario in Sanchez is wholly distinguishable. In Sanchez, 

plaintiffs filed suit against one corporate defendant and its individual owners, and then entered 

settlement talks with all defendants. No. 14-cv-04611, 2015 U.S. Dist. LEXIS 93782, *3 (N.D. 

Ill. July 20, 2015). Settlement talks fell through, and so defendants registered a new corporation 

to take over the other’s business in a brazen effort to insulate the other’s assets from the 

litigation, including using the same signs with the new name covering the old, employing the 

same individuals, and utilizing the same office equipment, labor management, and staff. Id. at 

**3-4. When plaintiffs amended the complaint to include this new company, defendants moved 

to dismiss and lost. See id. The Sanchez court saw through defendants’ maneuver, and 

determined the two entities a “single employer” – indeed, they were more or less the exact same 

company, but for a name change. Id. 

Creech and Sanchez are not binding, but regardless, it is important to note that these 

cases did not apply established concepts of FLSA liability. Instead, they transferred concepts 

from the contexts of labor relations and employment discrimination to the FLSA’s employeremployee relationship. See Creech, 2016 U.S. Dist. LEXIS 122027, *7 n. 15 (attributing fourfactor standard to a discrimination case under the Americans with Disabilities Act); Sanchez, 

2015 U.S. Dist. LEXIS 93782, *9 (citing an NLRA case for the “single employer” standard); see 

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also Roman, 970 F. Supp. 2d at 414-15 (distinguishing district court opinions cited by plaintiffs 

based on this same flaw).13 

Roman v. Guapos III, Inc., a FLSA decision from the United States District Court for the 

District of Maryland that has been repeatedly cited within the Seventh Circuit, is markedly 

similar to this case. In Roman, named busboys and waiters brought a collective FLSA action for 

unpaid minimum wage and overtime. See generally, 970 F. Supp. 2d 407. Plaintiffs sued five 

separately incorporated restaurants all owned by the same individual. Id. at 409-410. However, 

the three named plaintiffs were employed at only one of those five restaurants, and did not allege 

that they ever worked at any of the other locations. Id. Like here, plaintiffs claimed that the 

restaurants together formed a “single employer” or “single integrated enterprise,” and cited a 

host of cases in support, all of which the court distinguished for the same reasons this Court has 

discussed immediately above. Id. at 414-15. The Roman court essentially rejected the notion that 

the “single employer” or “single integrated enterprise” theory of liability applies to FLSA cases, 

and instead reiterated that “every circuit has applied some variation of the Bonnette test, which 

correctly evaluates the relationship between employee and alleged employer, not between 

employer and non-employer.” Id. at 415. 

In dismissing the named plaintiffs’ claims against the restaurants for which they did not 

work, the Roman court also discussed a similar case from the United States District Court for the 

District of Massachusetts, Cavallaro v. UMass Memorial Health Care, Inc., 971 F. Supp. 2d 139 

(D. Mass. 2013): 

                                                            

13 The Court is not persuaded by Defendants’ arguments for applying the multifactor test from Sec’y of 

Labor v. Lauritzen, 835 F.2d 1529 (7th Cir. 1987). In Callahan v. City of Chicago, the Seventh Circuit 

“rejected the application of Lauritzen’s multifactor test when the alleged employee’s suit didn’t ‘require a 

choice between employment and independent-contractor status.’” Berger, 843 F.3d at 291 n. 3 (quoting 

Callahan v. City of Chicago, 813 F.3d 658, 662 (7th Cir. 2016)). The instant matter does not involve the 

need to determine whether Plaintiff was an employee or an independent contractor. 

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Plaintiff was a registered nurse who worked at the UMass Memorial 

Medical Center (“UMass”). She brought an FLSA collective action on behalf of 

13,000 similarly situated hourly employees against UMass, its subsidiary medical 

facilities, and individual corporate officers, which she alleged were “related 

organizations with common membership, governing bodies, trustees, officers, and 

benefit plans,” that had a centralized payroll system, centralized website, and 

system-wide employee-benefit plans, all overseen by a single Board of Trustees. 

Cavallaro alleged that the multiple defendants failed to compensate plaintiff and 

the collective for hours worked. Cavallaro did not allege that hospitals other than 

UMass employed her, but alleged that they were part of a single, integrated 

enterprise, and thus constituted a “joint employer” who is liable under the FLSA. 

The court found that plaintiff lacked standing because she failed to satisfy 

the traceability and redressability requirements. The court applied the Bonnette

factors to determine whether the other hospitals were her “employer.” The court 

found that plaintiff's complaint provided no basis for finding that an employeremployee relationship existed and therefore plaintiff lacked standing to assert 

claims against all the corporate defendants except UMass, her actual employer. 

Similar to Cavallaro, Plaintiffs allege that a multi-entity enterprise is 

operating as a cohesive unit whose policies have violated the FLSA. But the 

Plaintiffs in this case have the same fatal flaw as Ms. Cavallaro: they have not 

demonstrated the required employer-employee relationship necessary to establish 

that their injuries are fairly traceable to the Corporate Defendants, nor that a 

favorable decision against the Corporate Defendants would redress Plaintiffs’ 

alleged injuries. Cavallaro, 971 F.Supp.2d at 146, 2013 WL 360405, at *4 

(“Inclusion of class allegations does not relieve a plaintiff of the requirement that 

she allege that she personally suffered an injury, fairly traceable to the challenged 

action of the defendants.”) (citing Warth v. Seldin, 422 U.S. 490, 502, 95 S. Ct. 

2197, 45 L. Ed. 2d 343 (1975)). 

Roman, 970 F. Supp. 2d at 415-16 (citations omitted). The Court agrees with the logic and 

holdings of Roman and Cavallaro. The four Bonnette factors, as used to determine whether 

multiple entities are a “joint employer” for FLSA liability purposes, establish the proper analysis 

to determine whether a plaintiff has standing to sue entities apart from his immediate employer. 

Issues of whether an “enterprise” exists in the FLSA context, on the other hand, are more 

relevant to the issue of coverage under the statute, not liability.14

                                                            

14 While the FLSA does extend coverage to “enterprises,” 29 U.S.C. §§ 203(r), (s), “the finding of an 

enterprise is relevant only to the issue of coverage. Liability is based on the existence of an employerUSDC IN/ND case 3:16-cv-00386-JD-JEM document 30 filed 09/07/17 page 29 of 33
30 

Plaintiff here has not demonstrated the “required employer-employee relationship 

necessary to establish that [his] injuries are fairly traceable” to Destiny or Diamond, nor that a 

favorable decision against Destiny or Diamond would redress his alleged injuries. Roman, 970 F. 

Supp. 2d at 415-16. Therefore, Plaintiff’s individual15 claim against Destiny and Diamond in 

Count I will be dismissed, without prejudice, for lack of standing.16 

                                                            

employee relationship.” Cornell v. CF Center, LLC, 410 Fed. Appx. 265, 267 (11th Cir. 2011) (quoting 

Patel v. Wargo, 803 F.2d 632, 637 (11th Cir. 1986)); Chao v. A-One Medical Servs., Inc., 346 F.3d 908, 

917 (9th Cir. 2003) (same). 

 The parties somewhat conflate FLSA coverage and FLSA liability in their papers. See Richardson v. 

Help at Home, LLC, No. 17-cv-60, 2017 WL 2080448, at *2 (N.D. Ill. May 15, 2017) (explaining the 

difference between “enterprise” as it relates to coverage and “joint employer” as it relates to liability); see 

also Villareal, 776 F. Supp. 2d at 793 (“Whether a group of companies constitute a single enterprise for 

FLSA coverage and whether they are liable as joint employers under 29 U.S.C. § 207 are technically 

separate issues.”). 

 Congress broadened the scope of the FLSA in 1961 to add enterprise coverage, which focuses on the 

nature of the employer’s business. 1 Rothstein et al., Employment Law § 4:2 (5th ed. 2014). Under the 

FLSA’s enterprise coverage, as opposed to individual employee coverage, “all employees of a covered 

enterprise are automatically covered [under the FLSA] without regard to the duties of each individual 

worker.” Id. Whether multiple entities constitute “joint employers” for FLSA liability purposes, on the 

other hand, revolves around allegations that “two or more entities or individuals are statutory employers 

of the same workers at the same time and therefore [are] jointly responsible for compliance with the 

FLSA.” Id. 

15 Although the Court has already addressed Plaintiff’s § 216(b) Motion, it is important to note that 

Plaintiff would not have been able to use putative plaintiffs to bring in Destiny and Diamond under the 

prediction that a future collective of uncertain composition will include employees of these two entities. 

Roman, 970 F. Supp. 2d at 416 (citing Lucas v. BMS Enters., Inc., No. 3:09-cv-2159-D, 2010 WL 

2671305, at *3 (N.D. Tex. July 1, 2010) (In an FLSA case, plaintiffs “allege standing to sue the ... 

defendants on the basis that members of the putative class were employed by those defendants, and 

accordingly suffered the same injury as did plaintiffs. That basis is inadequate to allege standing.”); 

Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013) (“When the case is a class action lawsuit, the named 

class representatives ‘must allege and show that they personally have been injured, not that injury has 

been suffered by other, unidentified members of the class to which they belong.’”) (quoting Blum v. 

Yaretsky, 457 U.S. 991, 1001 n. 13, 102 S .Ct. 2777, 73 L. Ed. 2d 534 (1982))). 

16 The Court need not address Defendants’ MTD pertaining to Count I against Destiny and Diamond 

under Rule 12(b)(6) for failure to state a claim. As already explained, that count is deficient as to Destiny 

and Diamond. Even assuming arguendo that Plaintiff’s proposed four-factor test from Naperville Ready 

Mix governs whether the three Defendants can be considered a “joint employer,” Plaintiff offers no 

allegations in support thereof other than a bare recitation of those factors: “Defendants jointly operate a 

chain of McDonald’s franchise stores and maintain interrelated operations, centralized control of labor 

relations, common management and common ownership and financial control.” [DE 1 ¶ 11] Such 

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CONCLUSION 

Plaintiff’s Combined Motion for Conditional Collective Action Certification 

 For the reasons stated herein, Plaintiffs’ § 216(b) Motion [DE 18] to conditionally certify 

Count I of Plaintiff’s complaint is hereby CONDITIONALLY GRANTED, and the Court 

provisionally deems the FLSA claims in Count I a collective action. However, the Court limits 

this conditional certification to include only those employees who worked for one of the six 

McDonald’s restaurants owned and operated by Defendant Glamma in Elkhart, Indiana. The 

Court thereby excludes from this conditional certification any employees who only worked at the 

four Glamma restaurants not located in Elkhart, the one restaurant owned and operated by 

Destiny, and the eight restaurants owned and operated by Diamond. The Court defines the 

conditionally approved collective class as follows: 

Present and former hourly-paid workers at any McDonald’s restaurant operated by 

Harry L. Smith d/b/a “My-Tre Glamma Management” and located in Elkhart, 

Indiana, at any time between [THREE YEARS PRIOR TO THE DATE OF 

MAILING] and the present. 

 Plaintiff Jason Heuberger shall conditionally serve as the class representative of the 

conditionally certified collective class, and be represented by current counsel of record. 

 The Court hereby DENIES Plaintiff’s § 216(b) Motion to conditionally certify Count III 

of Plaintiff’s complaint as a collective action. 

 The Court hereby DENIES as moot Plaintiff’s § 216(b) Motion to conditionally certify 

Counts II and IV. 

 

                                                            

allegations will not survive a motion to dismiss pursuant to Rule 12(b)(6). Brooks v. Ross, 578 F.3d 574, 

581 (7th Cir. 2009) (On a motion to dismiss for failure to state a claim, a district court need not accept as 

true legal conclusions, or threadbare recitals of the elements of a cause of action, supported by mere 

conclusory statements.); see also Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555-56. 

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Notice to Potential Plaintiffs 

The Court ORDERS the Defendant, Harry L. Smith d/b/a My-Tre Glamma 

Management, to provide Plaintiff’s counsel with a list, in electronic format and within 

thirty (30) days of this Order, containing the names of all potential plaintiffs who have 

worked during the time frame specified immediately above. The list shall include each 

individual’s full name, home address, and dates of employment. The information provided 

by Defendant is to be given to Plaintiff’s counsel only, and may only be used as needed for 

this litigation. 

The Court further ORDERS that: (1) the case caption be removed from the Notice 

and that the Notice instead be placed on Plaintiff’s attorneys’ letterhead; (2) the opt-in 

period shall run sixty (60) days from date on which the Notice is mailed; and (3) the parties 

shall confer and draft a Notice that complies with this Order and submit said draft to the 

Court for approval within thirty (30) days from the date of this Order. No Notice shall be 

issued prior to the Court’s approval. The Court also recommends that the parties confer and 

agree upon a closing date for the opt-in period once the Notice has been mailed. 

The Court hereby DENIES Plaintiff’s request that Defendant be compelled to post the 

Notice in the breakrooms of the relevant restaurants; and the Court hereby DENIES Plaintiff’s 

request that Defendant provide him with the social security numbers of potential plaintiffs. 

Defendants’ Partial Motion to Dismiss

 For the reasons stated herein, the Court GRANTS Defendants’ Partial Motion to Dismiss 

Plaintiff’s Complaint [DE 15] as to Plaintiff’s remaining individual claims. It is hereby: 

ORDERED that Counts II and IV be DISMISSED as moot, and with prejudice in their 

entirety and as to all Defendants; and it is further 

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ORDERED that Count III be DISMISSED with prejudice in its entirety and as to all 

Defendants; and it is further 

ORDERED that Count I be DISMISSED without prejudice as to Defendants Destiny 

MGT, Inc., and Diamond Properties MGMT, Inc; and it is further 

ORDERED that Plaintiff may file an amended complaint within thirty (30) days of this 

Order. 

SO ORDERED. 

ENTERED: September 7, 2017 

 /s/ JON E. DEGUILIO______ 

 Judge 

 United States District Court 

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