Internet Evidence — Anonymous Postings — Authentication Challenges

Harris v. Chipotle Mexican Grill, Inc., 2014 U.S. Dist. LEXIS 126776 (D. Minn. April 10, 2014):

The above-captioned case comes before the undersigned on Plaintiffs Marcus Harris ("Harris"), Julius Caldwell ("Caldwell"), Demarkus Hobbs ("Hobbs"), and Dana Evenson's ("Evenson") (collectively, "Plaintiffs") Motion for Conditional Collective Action Certification and for Judicial Notice to Class, "Motion for Conditional Certification") [Doc. No. 33]. This matter has been [*2]  referred for the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A), (B), and (C), and District of Minnesota Local Rule 72.1. (Order of Reference) [Doc. No. 74]. This Court heard oral argument on January 24, 2014. (Minute Entry Dated Jan. 24, 2014) [Doc. No. 78]. For the reasons stated below, this Court recommends that the Motion for Conditional Certification be granted in part and denied in part.

I.  BACKGROUND

A.  Factual Background

Plaintiffs, on behalf of themselves and others similarly situated, brought this lawsuit against Defendant Chipotle Mexican Grill, Inc. ("Chipotle") for violations of the Fair Labor Standards Act ("FLSA") and the Minnesota Fair Labor Standards Act. (Consolidated Am. Class Action Compl., "Am. Compl.") [Doc. No. 31 ¶ 1]; see also 29 U.S.C. §§ 201-19; Minn. Stat. §§ 177.21-.35. Plaintiffs allege that Chipotle failed to pay them for all the hours they worked as part of a corporate policy. (Am. Compl. ¶ 28).

Chipotle owns fast food Mexican restaurants throughout the United States, including Minnesota. (Id. ¶ 22). Chipotle employs 30,000 hourly employees across the country. (Id.). Plaintiffs are or were hourly employees of Chipotle who reside in Minnesota. (Id. ¶¶ 2, 18-21); (Decl. of Marcus Harris, "Harris Decl.") [Doc. No. 37 at ¶¶ [*3]  3-4]; (Decl. of Julius Caldwell, "Caldwell Decl.") [Doc. No. 38 at ¶¶ 3-4]; (Decl. of Demarkus Hobbs, "Hobbs Decl.") [Doc. No. 39 at ¶¶ 3-4]; (Decl. of Dana Evenson, "Evenson Decl.") [Doc. No. 40 at ¶¶ 3-4]. Plaintiffs allege that Chipotle has a policy to not pay its hourly employees for all time worked, and to encourage general managers to require off-the-clock work. (Am. Compl. ¶ 25); (Caldwell Decl. ¶ 10); (Evenson Decl. ¶ 10). Specifically, Plaintiffs allege that Chipotle's payroll budgets are set so strictly that they can only be met by employees working off the clock. (Am. Compl. ¶ 26).

Because general managers are awarded if they meet their payroll budgets, general managers understaff each location. (Id. ¶ 27). Through this alleged policy, Chipotle allows, encourages, and directs its hourly employees to perform work without being compensated. (Id. ¶ 28). Chipotle achieves this by requiring employees to punch out before they are finished working, automatically punching employees out, conducting required meetings and trainings and prohibiting hourly employees from punching in for them, and failing to keep appropriate records. (Id. ¶¶ 29-31). Plaintiffs allege that these actions [*4]  take place pursuant to Chipotle's policies and directives from its corporate offices, and that Chipotle is aware that its hourly employees work off the clock. (Id. ¶¶ 32-33). As a result, Plaintiffs allege that Chipotle's policies and conduct have denied hourly employees, such as Plaintiffs and similarly situated hourly employees, overtime and regular wages. (Id. ¶ 34).

B.  Procedural Background

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Plaintiffs filed their Motion for Conditional Certification on October 23, 2013. (Mot. for Conditional Certification). In support, Plaintiffs filed four declarations, one from each of the named Plaintiffs. (Harris Decl.); (Caldwell Decl.); (Hobbs Decl.); (Evenson Decl.). Plaintiffs' counsel also filed an affidavit attaching a proposed notice, a proposed "consent to join" form, and three complaints filed with the Minnesota Department of Labor and Industry ("Minnesota DOLI") by Chipotle employees who claimed they had to work off the clock or were not paid for all hours worked. See (Aff. of Kent M. Williams, "Williams Aff.") [Doc. No. 36 ¶¶ 2-4]. Finally, Plaintiffs filed a notice of consent, stating that Plaintiffs and three other individuals consented to join the action. (Pls.' Notice of Filing Consent to Join Forms Pursuant to the FLSA, 29 U.S.C. § 216(b), "Pls.' Notice of Consent") [Doc. No. 32].

Chipotle responded on December 6, 2013. (Chipotle's Opp'n to Pls.' Mot. for Conditional Certification, "Chipotle's Opp'n") [Doc. No. 49].2 In addition to its memorandum, [*6]  Chipotle filed several declarations and accompanying exhibits. (Decl. of David Gottlieb in Supp. of Chipotle's Opp'n to Pls.' Mot. for Conditional Certification, "Gottlieb Decl.") [Doc. No. 50]; (Decl. of Joel Chrisman in Supp. of Chipotle's Opp'n to Pls.' Mot. for Conditional Certification, "Chrisman Decl.") [Doc. No. 51]; (Mintzer Decl.). Chipotle's supporting exhibits included, inter alia, declarations from the following current Chipotle employees: Jayson Beebe ("Beebe"), Alan Hawkins ("Hawkins"), Jose Hernandez ("Hernandez"), and Angelina Martinez-Herrera ("Martinez-Herrera"). See (Mintzer Decl. ¶¶ 4-6).3

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Finally, Plaintiffs submitted copies of Chipotle's employees' Internet postings regarding being forced to work off the clock. (Ex. D, Attached to Williams Decl.) [Doc. No. 67-4]; see also (Williams Decl. ¶ 9). An anonymous former employee from Peoria, Arizona, posted that he and others were told to work off the clock several times. (Ex. D at 3). But, like the complaints filed in other courts, this posting is not related to off-the-clock work during closing shifts, and therefore does not support Plaintiffs' Motion for Conditional Certification. The two other postings provided by Plaintiffs, in contrast, specifically mention the closing shift. See (Id. at 2, 4). An employee in Victorville, California, anonymously reported that an employee should "[e]xpect to work [*37]  off the clock when closing [g]rill[] or [p]rep." (Id. at 2). David L. Goldberg, who is from Chicago, Illinois, posted that employees must work past 12:30 a.m., but are automatically clocked out at 12:30 a.m. (Id. at 4).

The Internet postings from Victorville and Chicago are a far cry from affidavits based on personal knowledge in terms of reliability. Internet postings are difficult to authenticate as admissible evidence. See Fed. R. Evid. 901(a); Farkarlun v. Hanning, 855 F. Supp. 2d 906, 921-22 (D. Minn. 2012) (ADM/JJK) (discussing plaintiff's failed attempt to authenticate articles and emails reproduced on Internet blogs due to plaintiff's inability to provide evidence that the items were reproduced accurately or that they originated from the sources plaintiff claimed). But because the standard of evidence is lower in a motion for conditional certification than it would be in a motion for summary judgment, this evidence supports Plaintiffs' colorable basis that their off-the-clock work during closing shifts was part of a common policy. See White, 236 F.R.D at 368.

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