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Ortiz-Alvarado v. Gomez

United States District Court, D. Minnesota

August 13, 2014

VINICIO ORTIZ-ALVARADO, NOEL SALOMON MENA, and JUAN CARLOS MENA, on behalf of themselves and all other individuals similarly situated, Plaintiffs,
v.
JEOVANI GOMEZ, et al., Defendants.

Charlie R. Alden, Thompson Hall Santi Cerny & Dooley, and Matthew J. Gilbert, Gilbert Law Office PLLC, Counsel for Plaintiffs.

Martin D. Kappenman, Seaton, Peters & Revnew, P.A., Counsel for Defendants.

MEMORANDUM OF LAW & ORDER

MICHAEL J. DAVIS, Chief District Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiffs' Motion for Conditional Class Certification, Court Authorized Notice, and Tolling of Statute of Limitations [Docket No. 31] and on Defendants' Motion to Supplement the Record [Docket No. 58]. The Court heard oral argument on August 1, 2014.

II. BACKGROUND

A. Factual Background

1. General Background

Defendants Jeovani Gomez and Marcos Gomez are brothers who operate a number of restaurants in Minnesota and possibly other states. (Alden Aff. ¶¶ 2-4.) The Gomez brothers hired Plaintiffs Vinicio Ortiz-Alvarado, Noel Salomon Mena, and Juan Carlos Mena to work in their restaurants. (Alden Aff., Ex. 1, Ortiz-Alvarado Aff. ¶ 2; Alden Aff., Ex. 2, N. Mena Aff. ¶ 2; Alden Aff., Ex. 3, J. Mena Aff. ¶ 2.) Plaintiffs' responsibilities included cleaning dishes, taking orders from customers, serving customers, preparing food in the kitchen, and other responsibilities to operate the restaurant. (Ortiz-Alvarado Aff. ¶¶ 3-4; N. Mena Aff. ¶¶ 4-5; J. Mena Aff. ¶¶ 3-4.) Plaintiffs claim that they consistently worked uncompensated overtime hours at the direction of Defendants.

2. Plaintiff Vinicio Ortiz-Alvarado

In approximately 2001, Plaintiff Vinicio Ortiz-Alvarado was hired to work at El Loro in Burnsville, Minnesota. (Ortiz-Alvarado Aff. ¶ 2.) Ortiz-Alvarado started working as a dishwasher and then became a server when it was discovered he spoke English. (Id. ¶ 3.) Ortiz-Alvarado also prepared food prior to the start of meal service, cleaned up after meal service, entered food orders, and served customers. (Id. ¶ 4.) Because of his ability to speak English, Ortiz-Alvarado was also required to order food and liquor and perform some payroll duties. (Id. ¶¶ 5-7.) The payroll duties consisted of deleting employees' hours that had gone beyond 35 hours in a given week from the computer system maintained for the restaurant. (Id. ¶ 7.) At Jeovani Gomez's direction, Ortiz-Alvarado would physically delete the correctly clocked hours, and re-write the total as some amount around 35 hours. (Id. ¶ 8.)

The Gomez brothers asked Ortiz-Alvarado to recruit immigrants as employees at their restaurants. (Id. ¶ 10.) Although Ortiz-Alvarado informed potential employees that they would not receive overtime, they still accepted the Gomez brothers' conditions because of their desperation for work. (Id. ¶ 11.)

Ortiz-Alvarado opines that the practice of writing off hours applied to all restaurants owned by the Gomez brothers. (Ortiz-Alvarado Aff. ¶ 11.) Ortiz-Alvarado also noticed that the few Caucasian employees, who were generally hostesses at the restaurants, never had their hours reduced. (Id. ¶¶ 14-15.) Jeovani Gomez told Ortiz-Alvarado that he should not write off the Caucasian employees' hours because they might report that they were not being paid overtime. (Id. ¶16.)

3. Plaintiff Noel Salomon Mena

In approximately September 2009, Plaintiff Noel Salomon Mena was hired to work at El Azteca in Plymouth, Minnesota. (N. Mena Aff. ¶ 2.) Noel Salomon also worked at El Toro in Champlin, Minnesota. (Id. ¶ 3.) In June 2011, he moved to El Toro in Robbinsdale, Minnesota. (Id.) He was hired as a dishwasher, but became a cook after some time. (Id. ¶ 4.) While Noel Mena would work ten hours per day, generally for six or seven days per week, he was paid a flat rate of $800 for every two weeks of work. (Id. ¶¶ 5-6.) If Noel Mena received a check for more than $800, Jeovani Gomez required him to cash his check at the bank and bring back any cash beyond $800. (Id. ¶ 7.) Noel Mena would clock in approximately 90 minutes after he started work, would clock in two hours after his lunch break had ended, and was often required to work on weekends without recording those hours. (Id. ¶¶ 8-9.) He clocked in at the times that Jeovani Gomez or the restaurant management directed. (Id. ¶ 8.)

Noel Mena observed that other co-workers were also clocking in late and failing to report hours. (N. Mena Aff. ¶ 10.) He noted that when he stopped working for El Azteca in late 2013, Jeovani Gomez asked him on his way out how he would tell people he was paid. (Id. ¶ 11.) When he responded by saying he was "salaried, " Jeovani Gomez told him he had to tell people he was paid hourly. (Id.)

4. Plaintiff Juan Carlos Mena

In 2008, Plaintiff Juan Carlos Mena was hired to work at El Potrillo, which later changed its name to El Toro, in Burnsville, Minnesota. (J. Mena Aff. ¶ 2.) He started working as a dishwasher, but became a busboy, and then a waiter. (Id. ¶ 3.) While he started work at 9:00 a.m. on Monday through Thursday, Jeovani Gomez instructed him and other employees to punch in at 10:30 a.m. (Id. ¶ 4.) Juan Carlos Mena would take a break from 3:00 to 5:00 p.m. and punch out at 7:00 or 7:30 p.m., as instructed by Jeovani Gomez, but would continue to work until 9:00 or 10:00 p.m. (Id. ¶¶ 5-6.) On Fridays and Saturdays, he would work the same hours, except that he would work until 11:00 p.m. or 12:00 a.m. (Id. ¶ 8.) Jeovani Gomez explained to Juan Carlos Mena and other employees that he did not pay overtime or compensate for all hours worked because "the restaurant is in hard times." (Id. ¶¶ 9-10.) Juan Carlos Mena also observed other co-workers clocking in late, and clocking out early, to make sure their hours did not reach overtime. (Id. ¶ 11.) He worked in excess of 60 or 70 hours each week, but either reduced his own hours by incorrectly clocking in and out, or others wrote off any hours over 35. (Id. ¶ 12.)

5. Witness Luis Ramirez

On July 18, 2014, Defendants filed a motion to supplement the record to include the deposition testimony of Luis Ramirez. Ramirez's deposition occurred on June 11, 2014. Ramirez worked for Jeovani Gomez and Marco Gomez at El Loro in Crystal and Burnsville, El Rey Azteca in Chanhassen and Waconia, El Azteca in Anoka and Plymouth, and El Toro in St. Paul and Robbinsdale. (Kappenman Aff., Ex. A, Ramirez Dep. 11-14, 24-25.) Ortiz-Alvarado was his supervisor at El Toro in Robbinsdale. (Id. 28.) Ramirez claimed that Ortiz-Alvarado would order employees to work after they had already punched out. (Id. 33.) Ramirez testified that Ortiz-Alvarado pressured him to join the current lawsuit and offered him money to join the lawsuit. (Id. 15.)

Ramirez also testified that he encountered Ortiz-Alvarado at a bar and Ortiz-Alvarado was accompanied by gang members. (Id. 52-53.) Ramirez further testified that Ortiz-Alvarado tried to hit him and threatened to have his friends beat up Ramirez if he failed to support Ortiz-Alvarado in this lawsuit. (Id. 53). Ramirez testified that he was ...


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