`
`SHAVITZ LAW GROUP, P.A.
`Gregg I. Shavitz, pro hac vice
`Keith M. Stern, pro hac vice
`1515 S. Federal Hwy
`Boca Raton, Florida 33432
`Telephone: (561) 447-8888
`
`FITAPELLI & SCHAFFER, LLP
`Joseph A. Fitapelli
`Brian S. Schaffer
`Frank J. Mazzaferro
`475 Park Avenue South, 12th Floor
`New York, New York 10016
`Telephone: (212) 300-0375
`
`OUTTEN & GOLDEN LLP
`Justin M. Swartz
`Ossai Miazad
`Melissa L. Stewart
`3 Park Avenue, 29th Floor
`New York, New York 10016
`Telephone: (212) 245-1000
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`MAXCIMO SCOTT, JAY ENSOR, MATTHEW
`MEDINA, EUFEMIA JIMENEZ, KRYSTAL
`PARKER, STACY HIGGS, and CHRISTINA JEWEL
`GATELEY, on behalf of themselves and all others
`similarly situated,
`
`
`Plaintiffs,
`
`
`-against-
`
`
`
`
`
`
`CHIPOTLE MEXICAN GRILL, INC., and
`CHIPOTLE SERVICES, LLC,
`
`
`Defendants.
`
`
`
`12 Civ. 8333 (ALC)(SN)
`
`
`THIRD AMENDED
`CLASS ACTION
`COMPLAINT
`
`
`
`
`
`
`Plaintiffs Maxcimo Scott, Jay Ensor, Matthew Medina, Eufemia Jimenez, Krystal Parker,
`
`Stacy Higgs, and Christina Jewel Gateley (“Plaintiffs”), individually and on behalf of all others
`
`similarly situated, as class representatives, upon personal knowledge as to themselves, and upon
`
`information and belief as to other matters, alleges as follows:
`
`
`
`NATURE OF THE ACTION
`
`1.
`
`This lawsuit seeks to recover overtime compensation and spread-of-hours pay for
`
`Plaintiffs and their similarly situated co-workers, Apprentices and/or Assistant Managers (hereinafter
`
`
`
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`
`
`
`“Apprentices”), who work or have worked for Defendants Chipotle Mexican Grill, Inc. and/or Chipotle
`
`Services, LLC (previously known as Chipotle Mexican Grill Service, Co., LLC), at Chipotle Mexican
`
`Grill Restaurants nationwide (collectively “Chipotle”).
`
`2.
`
`Chipotle is a chain of Mexican style Restaurants known for its natural ingredients
`
`and assembly line production. According to their website, Chipotle considers itself a “fast-
`
`casual” dining establishment, where “customers expect food quality that’s more in line with full-
`
`service restaurants, coupled with the speed and convenience of fast food.”
`
`http://www.chipotle.com/en-us/company/about_us.aspx.
`
`3.
`
`According to Chipotle’s Form 10-K for the fiscal year ending on December 31,
`
`2011, Chipotle operated 1,350 restaurants, employed 2,570 salaried employees and 28,370
`
`hourly employees. For the fiscal year 2011, Chipotle earned approximately $2.27 billion dollars
`
`in revenue.
`
`4.
`
`Chipotle’s restaurants are designed around the concept of an open kitchen, where
`
`employees are constantly engaging customers and preparing meals in front of customers in an
`
`assembly line production.
`
`5.
`
`Chipotle states in its’ 2011 form 10-K that, “All of our restaurant employees are
`
`encouraged to interact with customers no matter their job, whether preparing food or serving
`
`customers…” Chipotle further states that its’ “employees spend hours preparing our food
`
`onsite.”
`
`6.
`
`7.
`
`At Chipotle, Apprentices are required to provide customer service while on duty.
`
`Apprentices spend the majority of their shifts working the assembly line, filling
`
`orders for customers, grilling, operating the cash register, and preparing items for the line
`
`including salsa, guacamole, chopped vegetables and other food items.
`
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`
`
`8.
`
`Regardless of the number of hours worked, Apprentices do not receive overtime
`
`compensation.
`
`9.
`
`10.
`
`Chipotle classifies all Apprentices as “executives” and exempt from overtime pay.
`
`However, Apprentice’s primary duties are food preparation and customer service
`
`and are similar to the duties performed by hourly non-exempt employees.
`
`11.
`
`Apprentices should be classified as non-exempt from the overtime provisions of
`
`the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”) and state wage and hour laws.
`
`12.
`
`Upon information and belief, Chipotle applied the same compensation and
`
`employment policies, practices, and procedures to all Apprentices nationwide.
`
`13.
`
`Plaintiffs bring this action on behalf of themselves and similarly situated current and
`
`former Apprentices nationwide who elect to opt-in to this action pursuant to the FLSA, and
`
`specifically, the collective action provision of 29 U.S.C. § 216(b), to remedy violations of the wage-
`
`and-hour provisions of the FLSA by Chipotle that have deprived Plaintiffs and other similarly situated
`
`employees of their lawfully earned wages.
`
`14.
`
`Plaintiff Maxcimo Scott also brings this action on behalf of himself and all
`
`similarly situated current and former Apprentices who worked in New York pursuant to Federal
`
`Rule of Civil Procedure 23 to remedy violations of the New York Labor Law, Article 6, §§ 190 et
`
`seq., and Article 19, §§ 650 et seq., and the supporting New York State Department of Labor
`
`regulations (collectively, “NYLL”).
`
`15.
`
`Plaintiff Jay Ensor also brings this action on behalf of himself and all similarly
`
`situated current and former Apprentices who worked in Missouri pursuant to Federal Rule of Civil
`
`Procedure 23 to remedy violations of the Missouri Labor Law Rev. Stat. § 290.502 and §
`
`290.505 (collectively, “MLL”).
`
`
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`
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`16.
`
`Plaintiff Matthew Medina also brings this action on behalf of himself and all
`
`similarly situated current and former Apprentices who worked in Colorado pursuant to Federal
`
`Rule of Civil Procedure 23 to remedy violations of C.R.S. 8-4-101, et seq. and Colorado Wage
`
`Order No. 29, 7 C.C.R. 1103-1, et seq. (collectively “Colorado Wage Laws”).
`
`17.
`
`Plaintiffs Eufemia Jimenez and Christina Jewel Gateley also bring this action on
`
`behalf of themselves and all similarly situated current and former Apprentices who worked in
`
`Illinois pursuant to Federal Rule of Civil Procedure 23 to remedy violations of Illinois Minimum
`
`Wage Law, 820 Ill. Comp. Stat. § 105/1, et seq., the Illinois Wage Payments and Collections Act,
`
`820 Ill. Comp. Stat. §§ 115/1, et seq., and their implementing regulations, 56 Ill. Admin. Code
`
`§§ 210.100 through 300.850 (collectively, “Illinois Wage Laws”).Plaintiff Krystal Parker also
`
`brings this action on behalf of herself and all similarly situated current and former Apprentices
`
`who worked in North Carolina pursuant to Federal Rule of Civil Procedure 23 to remedy
`
`violations of North Carolina’s Wage and Hour Act, N.C. Gen. Stat. § 95-25.1, et seq., and
`
`implementing regulations, 13 N.C. Admin. Code 12.0300, et seq. (collectively, “North Carolina
`
`Wage Laws”).
`
`18.
`
`Plaintiff Stacy Higgs also brings this action on behalf of herself and all similarly
`
`situated current and former Apprentices who worked in Washington pursuant to Federal Rule of
`
`Civil Procedure 23 to remedy violations of Washington’s Minimum Wage Act, Rev. Code Wash.
`
`§§49.46.005, et seq.; Washington’s Industrial Welfare Act, Rev. Code Wash. §§49.12.005, et
`
`seq.; Washington’s Wage Rebate Act, Rev. Code Wash. §§49.52.050, et seq.; and Washington
`
`Administrative Code §§296-126-092 (collectively, “Washington Wage Laws”).
`
`
`
`
`
`
`
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`
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`
`
`THE PARTIES
`
`
`Plaintiffs
`
`Maxcimo Scott
`
`19. Maxcimo Scott (“Scott”) is an adult individual who is a resident of Bronx, New
`
`York.
`
`20.
`
`From in or around 2007 until 2009 Scott was employed by Defendants as a Crew
`
`Member at the Chipotle located at 9 Saint Marks Place, New York, New York 10003 (“St.
`
`Marks”).
`
`21.
`
`From in or around 2009 to October 17, 2011, Scott was employed by Defendants
`
`as an Apprentice at the St. Marks Chipotle.
`
`22.
`
`As an Apprentice, Scott frequently performed the functions of an hourly Crew
`
`member on the line.
`
`23.
`
`Scott frequently worked more than 40 hours per week with an average of 50 to 55
`
`hours per week.
`
`24.
`
`Pursuant to Chipotle’s policy and pattern or practice, Chipotle did not pay Scott
`
`premium overtime pay when he worked as an Apprentice for their benefit in excess of 40 hours
`
`in a workweek.
`
`25.
`
`Pursuant to Chipotle’s policy and pattern or practice, Chipotle did not pay Scott
`
`spread-of-hours pay when the length of his workday was greater than 10 hours.
`
`26.
`
`27.
`
`Scott is a covered employee within the meaning of the FLSA and the NYLL.
`
`A written consent form for Scott was filed as an attachment to the original Class
`
`Action Complaint.
`
`
`
`
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`
`
`Jay Ensor
`
`28.
`
`Jay Ensor (“Ensor”) is an adult individual who is a resident of Kansas City,
`
`Missouri.
`
`29.
`
`From in or around May 2010 until July 2010, Ensor was employed by Defendants
`
`as an Apprentice at the Chipotle located at 15100 West 119th Street, Olathe, Kansas 66062.
`
`30.
`
`From in or around July 2010 to March 2011, Ensor was employed by Defendants
`
`as an Apprentice at the Chipotle located at 306 South 9th Street, Columbia, Missouri 65201.
`
`31.
`
`From in or around March 2011 until June 2011, Ensor was employed by
`
`Defendants as an Apprentice at the Chipotle located at 2540 Broadway Bluffs Drive, Columbia,
`
`Missouri 65201.
`
`32.
`
`As an Apprentice, Ensor frequently performed the functions of an hourly Crew
`
`member on the line.
`
`33.
`
`Ensor frequently worked more than 40 hours per week with an average of 50 to
`
`60 hours per week.
`
`34.
`
`Pursuant to Chipotle’s policy and pattern or practice, Chipotle did not pay Ensor
`
`premium overtime pay when he worked as an Apprentice for their benefit in excess of 40 hours
`
`in a workweek.
`
`35.
`
`36.
`
`Ensor is a covered employee within the meaning of the FLSA and the NYLL.
`
`A written consent form for Ensor was previously filed with the Court.
`
`Matthew Medina
`
`37. Matthew Medina (“Medina”) is an adult individual who is a resident of
`
`Lakewood, Colorado.
`
`
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`
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`38.
`
`From in or around April 2013 until in or around October 2013, Medina was
`
`employed by Defendants as an Apprentice at the Chipotle located at 145 Union Blvd.,
`
`Lakewood, CO 80228.
`
`39.
`
`As an Apprentice, Medina frequently performed the functions of an hourly Crew
`
`member on the line.
`
`40. Medina frequently worked more than 40 hours per week with an average of 50 to
`
`55 hours per week.
`
`41.
`
`Pursuant to Chipotle’s policy and pattern or practice, Chipotle did not pay Medina
`
`premium overtime pay when he worked as an Apprentice for their benefit in excess of 40 hours
`
`in a workweek.
`
`42. Medina is a covered employee within the meaning of the FLSA and the Colorado
`
`Wage Laws.
`
`43.
`
`A written consent form for Medina was previously filed with the Court.
`
`Eufemia Jimenez
`
`44.
`
`Eufemia Jimenez (“Jimenez”) is an adult individual who is a resident of Chicago,
`
`Illinois.
`
`45.
`
`From in or around October 2011 through in or around February 2012, Jimenez
`
`was employed by Defendants as an Apprentice at the Chipotle located at 2809 North Ashland
`
`Avenue, Chicago, IL 60657.
`
`46.
`
`As an Apprentice, Jimenez frequently performed the functions of an hourly Crew
`
`member on the line.
`
`47.
`
`Jimenez frequently worked more than 40 hours per week with an average of 55 to
`
`60 hours per week.
`
`
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`
`
`48.
`
`Pursuant to Chipotle’s policy and pattern or practice, Chipotle did not pay
`
`Jimenez premium overtime pay when she worked as an Apprentice for their benefit in excess of
`
`40 hours in a workweek.
`
`49.
`
`Jimenez is a covered employee within the meaning of the FLSA and the Illinois
`
`Wage Laws.
`
`50.
`
`A written consent form for Jimenez was previously filed with the Court.
`
`Christina Jewel Gateley
`
`51.
`
`Christina Jewel Gateley (“Gateley”) is an adult individual who is a resident of
`
`Glendale Heights, Illinois.
`
`52.
`
`From in or around May 2010 through in or around February 2011, Gateley was
`
`employed by Defendants as an Apprentice at the Chipotle located in Bloomingdale, IL.
`
`53.
`
`From in or around February 2011 through in or around April 2011, Gateley was
`
`employed by Defendants as an Apprentice at the Chipotle located in La Grange, IL.
`
`54.
`
`As an Apprentice, Gateley frequently performed the functions of an hourly Crew
`
`member on the line.
`
`55.
`
`Gateley frequently worked more than 40 hours per week with an average of 55 to
`
`65 hours per week.
`
`56.
`
`Pursuant to Chipotle’s policy and pattern or practice, Chipotle did not pay Gateley
`
`premium overtime pay when she worked as an Apprentice for their benefit in excess of 40 hours
`
`in a workweek.
`
`57.
`
`Gateley is a covered employee within the meaning of the FLSA and the Illinois
`
`Wage Laws.
`
`58.
`
`A written consent form for Gateley was previously filed with the Court.
`
`
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`- 8 -
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`
`
`Krystal Parker
`
`59.
`
`Krystal Parker (“Parker”) is an adult individual who is a resident of Charlotte,
`
`North Carolina.
`
`60.
`
`From in or around October 2012 through in or around January 2013, Parker was
`
`employed by Defendants as an Apprentice at the Chipotle located at 9335 N. Tryon St. Suite
`
`101, Charlotte, North Carolina, 28262.
`
`61.
`
`As an Apprentice, Parker frequently performed the functions of an hourly Crew
`
`member on the line.
`
`62.
`
`Parker frequently worked more than 40 hours per week with an average of 60 to
`
`65 hours per week.
`
`63.
`
`Pursuant to Chipotle’s policy and pattern or practice, Chipotle did not pay Parker
`
`premium overtime pay when she worked as an Apprentice for their benefit in excess of 40 hours
`
`in a workweek.
`
`64.
`
`Parker is a covered employee within the meaning of the FLSA and the North
`
`Carolina Wage Laws.
`
`65.
`
`A written consent form for Parker was previously filed with the Court.
`
`Stacy Higgs
`
`66.
`
`Stacy Higgs (“Higgs”) is an adult individual who is a resident of Vancouver,
`
`Washington.
`
`67.
`
`From in or around February 2012 through in or around July 2012, Higgs was
`
`employed by Defendants as an Apprentice at the Chipotle located at 4120 196th St SW #150,
`
`Lynnwood, WA 98036.
`
`
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`
`
`68.
`
`As an Apprentice, Higgs frequently performed the functions of an hourly Crew
`
`member on the line.
`
`69.
`
`Higgs frequently worked more than 40 hours per week with an average of 50 to
`
`60 hours per week.
`
`70.
`
`Pursuant to Chipotle’s policy and pattern or practice, Chipotle did not pay Higgs
`
`premium overtime pay when she worked as an Apprentice for their benefit in excess of 40 hours
`
`in a workweek.
`
`71.
`
`Higgs is a covered employee within the meaning of the FLSA and the Washington
`
`Wage Laws.
`
`72.
`
`A written consent form for Higgs was previously filed with the Court.
`
`Defendants
`
`Chipotle Mexican Grill, Inc.
`
`73.
`
`Chipotle Mexican Grill, Inc. has owned and/or operated the Chipotle restaurants
`
`during the relevant period.
`
`74.
`
`Chipotle Mexican Grill, Inc. is a foreign business corporation organized and
`
`existing under the laws of Delaware.
`
`75.
`
`Upon information and belief, Chipotle Mexican Grill, Inc.’s principal executive
`
`office is located at 1401 Wynkoop Street, Suite 500, Denver, Colorado, 80202.
`
`76.
`
`Chipotle Mexican Grill, Inc. is a covered employer within the meaning of the
`
`FLSA and the NYLL, and, at all times relevant, employed Plaintiffs and similarly situated
`
`employees.
`
`77.
`
`At all times relevant, Chipotle Mexican Grill, Inc. maintained control, oversight,
`
`and direction over Plaintiffs and similarly situated employees, including timekeeping, payroll,
`
`and other employment practices that applied to them.
`
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`78.
`
`Chipotle Mexican Grill, Inc. applies the same employment policies, practices, and
`
`procedures to all Apprentices at the Chipotle restaurants, including policies, practices, and
`
`procedures with respect to the payment of overtime compensation and spread-of-hours pay.
`
`79.
`
`Upon information and belief, at all times relevant, Chipotle Mexican Grill, Inc.’s
`
`annual gross volume of sales made or business done was not less than $500,000.00.
`
`Chipotle Services, LLC
`
`80.
`
`Chipotle Services, LLC (previously known as Chipotle Mexican Grill Service, Co.,
`
`LLC) has employed the employees who worked or continue to work at Chipotle restaurants
`
`during the relevant period.
`
`81.
`
`Chipotle Services, LLC is a limited liability company organized under the laws of
`
`Colorado.
`
`82.
`
`Upon information and belief, Chipotle Services, LLC’s offices are located at 1401
`
`Wynkoop Street, Suite 500, Denver, Colorado, 80202.
`
`83.
`
`At all times relevant, Chipotle Services, LLC (previously known as Chipotle
`
`Mexican Grill Service, Co., LLC) has been the corporate entity listed on Plaintiffs’ paychecks
`
`and W-2 forms.
`
`84.
`
`Chipotle Services, LLC is a covered employer within the meaning of the FLSA
`
`and the NYLL, Colorado Wage Laws, Illinois Wage Laws, Missouri Wage Laws, North Carolina
`
`Wage Laws, Washington Wage Laws, and, at all times relevant, employed Plaintiffs and
`
`similarly situated employees.
`
`85.
`
`At all times relevant, Chipotle Services, LLC maintained control, oversight, and
`
`direction over Plaintiffs and similarly situated employees, including timekeeping, payroll, and
`
`other employment practices that applied to them.
`
`
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`86.
`
`Chipotle Services, LLC applies the same employment policies, practices, and
`
`procedures to all Apprentices at the Chipotle restaurants, including policies, practices, and
`
`procedures with respect to the payment of overtime compensation and spread-of-hours pay.
`
`87.
`
`Upon information and belief, at all times relevant, Chipotle Services, LLC’s
`
`annual gross volume of business done was not less than $500,000.00.
`
`JURISDICTION AND VENUE
`
`88.
`
`This Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and
`
`1337, diversity jurisdiction pursuant to 28 U.S.C. § 1332, and supplemental jurisdiction over
`
`Plaintiffs’ state law claims pursuant to 28 U.S.C. § 1367.
`
`89.
`
`In addition, the Court has jurisdiction over Plaintiffs’ claims under the FLSA
`
`pursuant to 29 U.S.C. § 216(b).
`
`90.
`
`The amount in controversy in this matter exceeds the sum or value of $5,000,000,
`
`exclusive of interest and costs.
`
`91.
`
`At least one member of the proposed class is a citizen of a state different from that
`
`of at least one Defendant.
`
`92.
`
`93.
`
`Plaintiffs’ claims involve matters of national or interstate interest.
`
`Citizenship of the members of the proposed class is dispersed among a substantial
`
`number of states.
`
`94.
`
`Upon information and belief, greater than two-thirds of the members of all
`
`proposed plaintiff classes in the aggregate are not citizens of the same state.
`
`95.
`
`Upon information and belief, Defendant Chipotle Mexican Grill, Inc. resides in
`
`Delaware.
`
`96.
`
`Upon information and belief, Defendants are subject to personal jurisdiction in
`
`
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`
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`New York.
`
`97.
`
`This Court is empowered to issue a declaratory judgment pursuant to 28 U.S.C.
`
`§§ 2201 and 2202.
`
`98.
`
`Venue
`
`is proper
`
`in
`
`the Southern District of New York pursuant
`
`to
`
`28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claims
`
`occurred in this district.
`
`
`
`COLLECTIVE ACTION ALLEGATIONS
`
`99.
`
`Plaintiffs bring the First Cause of Action, an FLSA claim, on behalf of themselves
`
`and all similarly situated persons who have worked as Apprentices at Chipotle restaurants
`
`nationwide, who elect to opt-in to this action (the “FLSA Collective”).
`
`100. Defendants are liable under the FLSA for, inter alia, failing to properly compensate
`
`Plaintiffs and other similarly situated Apprentices.
`
`101. Consistent with Defendants’ policy and pattern or practice, Plaintiffs and the
`
`members of the FLSA Collective were not paid premium overtime compensation when they
`
`worked beyond 40 hours in a workweek.
`
`102. All of the work that Plaintiffs and the members of the FLSA Collective have
`
`performed has been assigned by Defendants, and/or Defendants have been aware of all of the
`
`work that Plaintiffs and the FLSA Collective have performed.
`
`103. As part of its regular business practice, Defendants have intentionally, willfully, and
`
`repeatedly engaged in a pattern, practice, and/or policy of violating the FLSA with respect to
`
`Plaintiffs and the members of FLSA Collective. This policy and pattern or practice includes, but is
`
`not limited to:
`
`(a)
`
`willfully failing to pay its employees, including Plaintiffs and the members of the
`FLSA Collective, premium overtime wages for hours that they worked in excess
`
`
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`
`
`of 40 hours per workweek;
`
`
`
`(b)
`
`(c)
`
`willfully misclassifying Plaintiffs and the members of the FLSA collective as
`exempt from the protections of the FLSA; and
`
`willfully failing to record all of the time that its employees, including Plaintiffs
`and the members of the FLSA Collective, have worked for the benefit of
`Defendants.
`
`
`104. Defendants are aware or should have been aware that federal law required them to pay
`
`Plaintiffs and the members of the FLSA Collective overtime premiums for hours worked in excess of
`
`40 per workweek.
`
`105. Plaintiffs and the members of the FLSA Collective perform or performed the
`
`same primary duties.
`
`106. Defendants’ unlawful conduct has been widespread, repeated, and consistent.
`
`107. There are many similarly situated current and former Apprentices who have been
`
`underpaid in violation of the FLSA who would benefit from the issuance of a court-supervised
`
`notice of this lawsuit and the opportunity to join it.
`
`108. This notice should be sent to the FLSA Collective pursuant to 29 U.S.C. § 216(b).
`
`109. Those similarly situated employees are known to Defendants, are readily
`
`identifiable and can be located through Defendants’ records.
`
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`NEW YORK CLASS ACTION ALLEGATIONS
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`110. Plaintiff Scott brings the Second and Fourth Causes of Action, NYLL claims,
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`under Rule 23 of the Federal Rules of Civil Procedure, on behalf of himself and a class of
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`persons consisting of:
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`All persons who work or have worked as an Apprentice
`and/or Assistant Manager and similar employees at
`Chipotle restaurants in New York between November 15,
`2006 and the date of final judgment in this matter (the
`“New York Rule 23 Class”).
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`111. Excluded from the New York Rule 23 Class are Defendants, Defendants’ legal
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`representatives, officers, directors, assigns, and successors, or any individual who has, or who at
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`any time during the class period has had, a controlling interest in Defendants; the Judge(s) to
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`whom this case is assigned and any member of the Judges’ immediate family; and all persons
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`who will submit timely and otherwise proper requests for exclusion from the New York Rule 23
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`Class.
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`112. The members of the New York Rule 23 Class are so numerous that joinder of all
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`members is impracticable.
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`113. Upon information and belief, the size of the New York Rule 23 Class is at least
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`100 individuals. Although the precise number of such employees is unknown, the facts on which
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`the calculation of that number depends are presently within the sole control of Defendants.
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`114. Defendants have acted or has refused to act on grounds generally applicable to the
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`New York Rule 23 Class, thereby making appropriate final injunctive relief or corresponding
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`declaratory relief with respect to the New York Rule 23 Class as a whole.
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`115. Common questions of law and fact exist as to the New York Rule 23 Class that
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`predominate over any questions only affecting them individually and include, but are not limited
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`to, the following:
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`(a)
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`(b)
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`(c)
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`(d)
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`whether Defendants violated NYLL, Articles 6 and 19, and the supporting New
`York State Department of Labor regulations;
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`whether Defendants failed to compensate Plaintiff Scott and the New York Rule
`23 Class for hours worked in excess of 40 hours per workweek;
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`whether Defendants misclassified Plaintiff Scott and the New York Rule 23
`Class;
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`whether Defendants failed to keep true and accurate time and pay records for all hours
`worked by Plaintiff Scott and the New York Rule 23 Class, and other records
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`required by the NYLL;
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`(e)
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`(f)
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`(g)
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`(h)
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`whether Defendants failed to provide Plaintiff Scott and the New York Rule 23
`Class spread-of-hours pay when the length of their workday was greater than 10
`hours;
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`whether Defendants failed to furnish Plaintiff Scott and the New York Rule 23
`Class with an accurate statement of wages, hours worked, rates paid, and the gross
`wages as required by the NYLL;
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`whether Defendants’ policy of failing to pay workers was instituted willfully or
`with reckless disregard of the law; and
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`the nature and extent of class-wide injury and the measure of damages for those
`injuries.
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`116. The claims of Plaintiff Scott are typical of the claims of the New York Rule 23
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`Class he seeks to represent.
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`117. Plaintiff Scott and all of the New York Rule 23 Class members work, or have
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`worked, for Defendants as Apprentices at Chipotle.
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`118. Plaintiff Scott and the New York Rule 23 Class members enjoy the same statutory
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`rights under the NYLL, including to be paid for all hours worked, to be paid overtime wages and
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`spread-of-hours pay. Plaintiff Scott and the New York Rule 23 Class members have all
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`sustained similar types of damages as a result of Defendants’ failure to comply with the NYLL.
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`Plaintiff Scott and the New York Rule 23 Class members have all been injured in that they have
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`been under-compensated due to Defendants’ common policies, practices, and patterns of
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`conduct.
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`119. Plaintiff Scott will fairly and adequately represent and protect the interests of the
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`members of the New York Rule 23 Class. Plaintiff Scott understands that as class representative,
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`he assumes a fiduciary responsibility to the class to represent its interests fairly and adequately.
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`Plaintiff Scott recognizes that as class representative, he must represent and consider the interests
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`of the class just as he would represent and consider his own interests. Plaintiff Scott understands
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`that in decisions regarding the conduct of the litigation and its possible settlement, he must not
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`favor his own interests over the class. Plaintiff Scott recognizes that any resolution of a class
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`action must be in the best interest of the class. Plaintiff Scott understands that in order to provide
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`adequate representation, he must be informed of developments in litigation, cooperate with class
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`counsel, and testify at deposition and/or trial. Plaintiff Scott has retained counsel competent and
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`experienced in complex class actions and employment litigation. There is no conflict between
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`Plaintiff Scott and the New York Rule 23 members.
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`120. A class action is superior to other available methods for the fair and efficient
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`adjudication of this litigation. The members of the New York Rule 23 Class have been damaged
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`and are entitled to recovery as a result of Defendants’ violations of the NYLL, as well as their
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`common and uniform policies, practices, and procedures. Although the relative damages
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`suffered by individual New York Rule 23 Class members are not de minimis, such damages are
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`small compared to the expense and burden of individual prosecution of this litigation. The
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`individual plaintiff lacks the financial resources to conduct a thorough examination of
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`Defendants’ timekeeping and compensation practices and to prosecute vigorously a lawsuit
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`against Defendants to recover such damages. In addition, class litigation is superior because it
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`will obviate the need for unduly duplicative litigation that might result in inconsistent judgments
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`about Defendants’ practices.
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`121. This action is properly maintainable as a class action under Federal Rule of Civil
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`Procedure 23(b)(3).
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`MISSOURI CLASS ACTION ALLEGATIONS
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`122. Plaintiff Ensor brings the Third Cause of Action, a MLL claim, under Rule 23 of
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`the Federal Rules of Civil Procedure, on behalf of himself and a class of persons consisting of:
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`All persons who work or have worked as an Apprentice
`and/or Assistant Manager and similar employees at
`Chipotle restaurants in Missouri between February 13,
`2011 and the date of final judgment in this matter (the
`“Missouri Rule 23 Class”).
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`123. Excluded from the Missouri Rule 23 Class are Defendants, Defendants’ legal
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`representatives, officers, directors, assigns, and successors, or any individual who has, or who at
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`any time during the class period has had, a controlling interest in Defendants; the Judge(s) to
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`whom this case is assigned and any member of the Judges’ immediate family; and all persons
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`who will submit timely and otherwise proper requests for exclusion from the Missouri Rule 23
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`Class.
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`124. The members of the Missouri Rule 23 Class are so numerous that joinder of all
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`members is impracticable.
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`125. Upon information and belief, the size of the Missouri Rule 23 Class is at least 50
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`individuals. Although the precise number of such employees is unknown, the facts on which the
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`calculation of that number depends are presently within the sole control of Defendants.
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`126. Defendants have acted or has refused to act on grounds generally applicable to the
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`Missouri Rule 23 Class, thereby making appropriate final injunctive relief or corresponding
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`declaratory relief with respect to the Missouri Rule 23 Class as a whole.
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`127. Common questions of law and fact exist as to the Missouri Rule 23 Class that
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`predominate over any questions only affecting them individually and include, but are not limited
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`to, the following:
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`(a)
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`(b)
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`whether Defendants violated MLL § 290.502 and § 290.505;
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`whether Defendants failed to compensate Plaintiff Ensor and the Missouri Rule
`23 Class for hours worked in excess of 40 hours per workweek;
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`(c)
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`(d)
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`whether Defendants misclassified Plaintiff Ensor and the Missouri Rule 23 Class;
`and
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`the nature and extent of class-wide injury and the measure of damages for those
`injuries.
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`128.
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`The claims of Plaintiff Ensor are typical of the claims of the Missouri Rule 23
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`Class he seeks to represent.
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`129. Plaintiff Ensor and all of the Missouri Rule 23 Class members work, or have
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`worked, for Defendants as Apprentices at Chipotle.
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`130. Plaintiff Ensor and the Missouri Rule 23 Class members enjoy the same statutory
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`rights under the MLL, including to be paid for all hours worked and to be paid overtime wages.
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`Plaintiff Ensor and the Missouri Rule 23 Class members have all sustained similar types of
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`damages as a result of Defendants’ failure to comply with the MLL. Plaintiff Ensor and the
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`Missouri Rule 23 Class members have all been injured in that they have been under-compensated
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`due to Defendants’ common policies, practices, and patterns of conduct.
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`131. Plaintiff Ensor will fairly and adequately represent and protect the interests of the
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`members of the Missouri Rule 23 Class. Plaintiff Ensor understands that as class representative,
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`he assumes a fiduciary responsibility to the class to represent its interests fairly and adequately.
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`Plaintiff Ensor recognizes that as class representative, he must represent and consider the
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`interests of the class just as he would represent and consider his own interests. Plaintiff Ensor
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`understands that in decisions regarding