©2024 Seyfarth Shaw LLP Developments in Equal Pay Litigation | 33 The nature and extent of the evidence provided in support of conditional certification will often determine the outcome. But the burden is not high; just a few declarations from named or putative plaintiffs and a few policy documents will often suffice.249 For example, in O’Neil v. Bloomin’ Brands Inc.,250 a former manager and managing partner at two locations of a nationwide restaurant chain, along with three opt-in plaintiffs, alleged that she and similarly-situated female employees were paid less than their male colleagues in the same positions. They sought conditional certification of a state-wide collective action of all female managers and managing partners at each of four restaurant brands owned and operated by the same employer and, among other things, equitable tolling of putative opt-ins’ claims.251 The court applied a relatively higher standard to deciding the issue of conditional certification, a so-called “modest plus” standard, which is sometimes applied in cases where the parties have already completed some significant discovery, as was the case here.252 The plaintiffs supported their claim with four affidavits from female managers who worked at two different restaurant chains, each of which alleged gender-based pay discrimination, as well as their own testimony of having witnessed such discrimination against other female managers.253 They also introduced evidence of common compensation practices, such as “compensation ranges” that the employer established for its restaurants and “Manager Hiring Guidelines.”254 In response, the employer introduced testimony from its Senior Vice President of Human Resources and regional Joint Venture Partners, who oversee individual brands within a specified geographic region, who said that the employer’s guidelines and other compensation policies do not mandate any particular pay decisions. The court rejected this argument, holding that, “even if JVPs are allowed to (and do) deviate from the guidelines, the guidelines still show that [employer] exerts influence over its many restaurants.”255 Moreover, the court held that plaintiffs had put forward evidence to show that the proposed collective action was sufficiently similarly situated to warrant conditional certification: “As already noted, [plaintiff] submitted several affidavits from managers at different of Defendants’ restaurants, and she further brings forward evidence of [employer] job postings that show extensive overlap between the job duties of a ‘Managing Partner,’ ‘Restaurant Manager,’ and ‘Senior Manager’ at locations in Illinois, Michigan, and Indiana.. . . These documents show that [plaintiff] at least arguably performed similar duties as a manager and a managing partner during her employment with [employer restaurant chain] as other employees with those titles, satisfying her more lenient burden at the first step of the certification inquiry.”256 The court held this was sufficient to meet even the “modest plus” standard and conditionally certified the proposed collective action. The court then denied Plaintiff’s requests for equitable tolling of putative opt-ins’ claims to account for the time it took the parties and the court to brief and decide conditional certification, because “the ordinary lapse of time between briefing and ruling,” does not constitute “an extraordinary circumstance” warranting tolling. However, the court did equitably toll the limitations period from the date of its decision, holding that the “imposition of a delay, tilts slightly in favor of equitable tolling,” because it was “partially but not entirely within [the parties’] control,” and because “Defendants will not be unfairly prejudiced because [plaintiff’s] complaint included collective allegations when she first filed it at the inception of this case.”257 Similarly, in Spatz v. Lee’s Summit R-7 School District,258 a group of Field Technology Specialists, Elementary School Principals, and Elementary School Assistant Principals of a school district sought 249 See, e.g., Bertroche v. Mercy Physician Assocs., Inc., No. 18-cv-59-CJW, 2018 WL 4107909, at *3 (N.D. Iowa Aug. 29, 2018) (granting conditional certification, holding that the plaintiff was not required to show at that stage that the wage disparity was due to discrimination, nor that other potential plaintiffs are “similarly situated”; rather, it was enough merely to show that other potential plaintiffs exist who may have been discriminated against based on their gender, which defendants’ own data showed). 250 O’Neil v. Bloomin’ Brands Inc., No. 22-cv-4851, 2023 WL 8802826 (N.D. Ill. Dec. 19, 2023). 251 Id. at *1. 252 Id. at *4. 253 Id. 254 Id. at *5. 255 Id. 256 Id. 257 Id.at *8. 258 Spatz v. Lee’s Summit R-7 Sch. Dist., No. 4:20-cv-448-RK, 2021 WL 5625408 (W.D. Mo. Nov. 30, 2021).
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