Case 1:13-cv-03768-RWS Document 15 Filed 01/22/14 Page 1 of 29

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CHARLES ALLEN, individually and on behalf of all others similarly situated who consent to their inclusion in a collective action, Plaintiff, vs. JOBOS, INC., d/b/a BJ Roosters, a corporation, and ROBERT HAMILL and JOHN MOLINARI, individuals, Defendants. PLAINTIFFS EMERGENCY MOTION, NOTICE OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION, AND REQUEST FOR IMMEDIATE HEARING Pursuant to 29 U.S.C. 216 (b) Fed. R. Civ. P. 65, Plaintiff hereby moves this Court for a temporary restraining order and preliminary injunction, and further requests an immediate hearing pursuant to Local Rule 7.2. Such relief is warranted because Defendants have terminated Jeremy D. Sheffielda putative opt-in plaintiff to this lawsuitas a result of his declared intention to participate in this lawsuit. The purpose of this conduct was for the sole purpose of retaliating against Sheffield and intimidating Defendants other employees to discourage them from participating in this action. Defendants have Civil Action No. 1:13-CV-3768-RWS

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further threatened to file disparaging and false 1099 forms with the Internal Revenue Service against Sheffield and any other employeedancer who chooses to join this collective action. Plaintiff seeks a temporary restraining order and preliminary injunction ordering Defendants and all Defendants officers, agents, servants, employees, attorneys, and all those in active concert with such persons to immediately: 1. Reinstate the employment of putative opt-in plaintiff Jeremy D. Sheffield; 2. Notify (in person, by posting prominently in the workplace, by phone, and by mail) all individuals who have been employed as dancers at BJ Roosters in the 30 days prior to the filing of this Motion that the termination of Sheffield was retaliatory and unlawful, 3. Notify (in person, by posting prominently in the workplace, by phone, and by mail) all individuals who have been employed as dancers at BJ Roosters since November 13, 2013, that Defendants may not retaliate against any individual who chooses to join this putative collective action, and specifically that Defendants may not file disparaging information against them with the Internal Revenue Service or any other government agency;

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4.

Notify (in person, by posting prominently in the workplace, by phone, and by mail) all individuals who have been employed as dancers at BJ Roosters in the 30 days prior to the filing of this Motion that documents purporting to waive their claims in this lawsuit or to alter the terms of their employment do not constitute a valid settlement of legal claims and have no impact on their rights to assert claims in this lawsuit;

5.

Cease and desist communicating, now and in the future, directly with Plaintiff or members of the putative collective about this case, save for communications informing such individuals that they are free to participate in this matter without fear of retaliation or reprisal of any kind, or other communications ordered or approved in advance by the Court;

6.

File any proposed communications with Plaintiff or members of the putative collective with the Court prior to providing same to such individuals; and file sufficient documentation with the Court to demonstrate compliance with the Courts order.

In order to make up for the chilling effects of Defendants retaliatory conduct, Plaintiff additionally seeks an order tolling the running of the statute of limitations for potential opt-in plaintiffs until such time as the Court rules on

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Plaintiffs Motion for Conditional Class Certification and judicial notice is approved or at least until Defendants are able to prove to the Courts satisfaction that all chilling effects of their retaliatory conduct have been fully remedied. Local Rule 7.2 states that [u]pon written motion and for good cause shown, the court may waive the time requirements of this rule and grant an immediate hearing on any matter requiring such expedited procedure. In accordance with this rule, Plaintiff hereby requests an immediate hearing on this issue. MATERIAL FACTS Background From at least the three years prior to the filing of this action and continuing to the present day (the Collective Period), Defendants Jobos, Hamill, and Molinari have owned and operated BJ Roosters, a bar and nightclub located at 2043 Cheshire Bridge Rd NE, Atlanta, Georgia 30324.1 During this time, BJ Roosters has employed many hundreds of young men as go-go dancers who dance throughout the club.2 At all times, Hamill and Molinari have failed to pay any wages whatsoever to any dancers employed at BJ Roosters, as has been attested to by former BJ Roosters bartender and manager Richard Martin, as well as by seven

1 2

See Exhibit A (Affidavit of for BJ Roosters bartender and manager Richard Martin) at 23. See Exhibit A at 5, 8.

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former BJ Roosters dancers.3 On November 13, 2013, Plaintiff Charles Allen filed a lawsuit against Jobos, Inc. (the corporate identity of BJ Roosters), Hamill, and Molinari in a putative collective action on behalf of all employeedancers of BJ Roosters to recover unpaid wages for the previous three years.4 On January 19, 2014, Plaintiff Allen filed a Motion for Conditional Class Certification, supported by affidavits from six former BJ Roosters dancers and one former BJ Roosters bartender and manager.5 Putative Opt-In Plaintiff Jeremy D. Sheffield Jeremy D. Sheffield has been employed as a dancer at BJ Roosters for the past five years, since February 2009.6 Upon learning of this putative collective FLSA action, Sheffield contacted the law firm of Smith Collins, LLC in midJanuary 2014 to discuss the possibility of becoming an opt-in plaintiff.7 Although Sheffield desired to become an opt-in Plaintiff, he did not immediately opt in to the lawsuit out of fear that he would be terminated if Defendants Hamill and Molinari found out he had done so.8

See Exhibit A at 9; see also, Exhibit B (Affidavits of seven current and former BJ Roosters dancers). 4 See Doc-1 (Complaint). 5 See Doc-12 (Plaintiffs Motion for Conditional Class Certification) and attached exhibits. The seven affidavits referenced in fn. 2 include an affidavit from Jeremy Sheffield, which was not included as one of the six exhibits in Plaintiffs Motion for Conditional Class Certification. 6 See Exhibit C (Affidavit of Jeremy D. Sheffield) at 2. 7 See Exhibit C at 3. 8 See Exhibit C at 17.

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Sheffields fear of retaliation was well-founded. Days earlier, on January 8, 2014, Defendant Robert Hamill had told Sheffield that he and Molinari ha[d] been collecting names of dancers who join the lawsuit and that they intend to . . . file false disparaging information with the Internal Revenue Service against all dancers who join the lawsuit.9 In the same conversation, Hamill also told Sheffield that only the lawyers would actually make any money off of the dancers lawsuit, and that the dancers who previously sued the Atlanta strip club Onyx in a collective action ended up owing the Internal Revenue Service the entire amount of their settlement awards, plus an additional $6,000 each.10 Hamill has told the same thing to numerous other current dancers at BJ Roosters in an attempt to intimidate them and discourage them from joining this action.11 Retaliation Against Sheffield On Sunday, January 19, 2014, Sheffield arrived at BJ Roosters for his regular Sunday day shift.12 After completing his day shift, taking a break, and returning for the night shift, Sheffield was approached by BJ Roosters DJ and supervisor Shane Smith, who told Sheffield to go into the office to see Defendant John Molinari.13 In the office, Sheffield encountered Defendant Molinari and

See Exhibit C at 15. See Exhibit C at 16. 11 See Exhibit C at 16. 12 See Exhibit C at 4. 13 See Exhibit C at 4.
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another individual he believed to be an accountant or attorney.14 First, Molinari and the other individual discussed how the club had reclassified all dancers as employees rather than independent contractors, and would begin to pay them $2.13 per hour, plus tips.15 They also explained, however, that they would continue to charge the dancers $30 per shift for the privilege of working, as they have done in the past.16 Molinari then asked Sheffield to sign a Dispute Resolution Agreement (hereinafter Arbitration Agreement), which is attached to Sheffields Affidavit as Attachment 1.17 This Arbitration Agreement states that: [as] a condition of continued employment/contractor status . . . [the] employee/contractor acknowledges and agrees that any controversy or claim arising out of or relating to employees or contractors employment/engagement, termination of employment or contract, or written employment or contract agreement with the Company . . . shall be settled by arbitration pursuant to the Federal Arbitration act.18 The Arbitration Agreement further provides that [i]t is further agreed that the employee/contractor will bring any claims in their individual capacity only and the parties will not engage in class or collective actions. ....
14 15

See Exhibit C at 5. See Exhibit C at 5. 16 See Exhibit C at 5; see also Doc-4-1 (First Amended Complaint) at 12. 17 See Exhibit C at 6; see also Exhibit C, Attachment 1 (Dispute Resolution Agreement). 18 See Exhibit C, Attachment 1 (emphasis added).

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By entering into this Agreement, the parties have waived any right which may exist for a trial by jury and have expressly agreed to resolve any disputes covered by this Agreement through the arbitration process described herein.19 In response to Defendant Molinaris presentation of the Arbitration Agreement, Sheffield stated that he was considering joining the present putative collective action and could not sign the Arbitration Agreement without first consulting his attorney.20 Sheffield then asked Molinari if he would be fired for refusing to sign the Arbitration Agreement, to which Molinari smirked and replied, not for that reason.21 Sheffield very reasonably believes this was meant by Molinari to suggest that Molinari intended to lie about the reason for Sheffields termination.22 Sheffield then requested that he be allowed to finish the tax forms he had begun to fill out, but Molinari and the other individual took the forms away from him.23 Sheffield then asked if he could go back to work and Molinari said that he could.24 After Sheffield left the office, went to the back of the club to change, and returned to the dance floor, Molinari approached him and asked why are you doing this?25 Sheffield replied that he believed Hamill and Molinari had been

19 20

See Exhibit C, Attachment 1 (emphasis added). See Exhibit C at 8. 21 See Exhibit C at 9. 22 See Exhibit C at 9. 23 See Exhibit C at 10. 24 See Exhibit C at 10. 25 See Exhibit C at 11.

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breaking the law by not paying wages to the dancers employed at BJ Roosters, and that he did not believe it was fair that former dancers who joined the lawsuit would be compensated while he would not, especially after five years of work.26 At that point, Defendant Molinari told Sheffield that he could no longer work at the club without signing the Arbitration Agreement, and sent Sheffield home before he could work his scheduled Sunday night shift.27 Sheffield filed his consent to opt-in to this putative collective action the following day.28 As attested to by Sheffield in his Affidavit, his employment at BJ Roosters is his sole source of income.29 He has already lost significant income from his missed shift, and will lose much more if not reinstated immediately.30 His termination from BJ Roosters will soon cause him enormous financial hardship, including rendering him unable to make child support payments.31 In the past five years Sheffield has worked at BJ Roosters, he has never had any disciplinary problems, has never received a written or oral reprimand, and has never been given any reason to believe that his job performance is deficient in any way.32 In short, there is no non-discriminatory and non-retaliatory basis for his

26 27

See Exhibit C at 11. See Exhibit C at 12. 28 See Doc-13 (Plaintiffs Notice of Consent Filing by Jeremy D. Sheffield). 29 See Exhibit C at 13. 30 See Exhibit C at 13. 31 See Exhibit C at 13. 32 See Exhibit C at 2.

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termination.33 Molinaris only reasons for terminating Sheffield to retaliate against Sheffield for asserting his rights against Defendants under the Fair Labor Standards Act and to intimidate other current dancers from joining this putative collective action.34 Defendants retaliatory acts do not end with Sheffields termination. Both BJ Roosters DJ and supervisor Shane Smith, as well Defendant Robert Hamill himself, have informed Sheffield of Hamills and Molinaris intent to file false and disparaging information with the Internal Revenue Service against any current or former BJ Roosters dancer who joins in this collective action.35 This threat is intended as retaliation against Plaintiff Allen and all opt-in plaintiffs, and to intimidate all putative opt-in plaintiffs from joining this lawsuit.36 All dancers in the club are aware of this threat and have discussed their fear of joining this collective action due to those threats.37 This threat has been coupled with the earlier-mentioned representations to Sheffield and other dancers regarding the outcome of an earlier FLSA action against the Atlanta strip club Onyx, 38 a case that was before this very Court.39

33 34

See Exhibit C at 14. See Exhibit C at 14. 35 See Exhibit C at 15. 36 See Exhibit C at 18. 37 See Exhibit C at 18. 38 See Exhibit C at 16. 39 Clincy et al v. Galardi South Enterprises, Inc., 1:09-CV-02082-RWS (N.D. Ga. 2009) (Story, J.).

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As far as Sheffield is aware, he is the only dancer currently employed at BJ Roosters who has not yet signed the Arbitration Agreement.40 Sheffield has been told by many current dancers that they would like to join the lawsuit. However, these current dancers have been successfully intimidated by the actions of Hamill and Molinari.41 ARGUMENT The FLSAs anti-discrimination/anti-retaliation provision states: It shall be unlawful for any person . . . to . . . in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter.42 The FLSA grants employees the right to injunctive relief to redress violations of 215(a)(3).43 To obtain the extraordinary and drastic remedy of a preliminary injunction,44 a movant must ordinarily demonstrate: 1. a substantial likelihood of success on the merits of the underlying case; 2. irreparable harm in the absence of an injunction;

40 41

See Exhibit C at 18. See Exhibit C at 18. 42 29 U.S.C. 215(a)(3). 43 Bailey v. Gulf Coast Transp., Inc., 280 F.3d 1333, 1337 (11th Cir. 2002). 44 Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir. 1985).

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3.

the harm suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction issued; and

4.

an injunction would not disserve the public interest.45

In the context of injunctive relief authorized by an employment statute, however, movants need not prove the irreparable injury factor, which is presumed by the statutes violation.46 I. Sheffield is Substantially Likely To Succeed on the Merits of His Retaliation Claim A. Elements of a Retaliation Claim

The Supreme Court requires the FLSAs anti-retaliation provisions to be read broadly.47 A broad construction of 215(a)(3) ensures that an employer cannot create an atmosphere of intimidation and prevent[s] employees attempts to secure their rights under the Act from taking on the character of a calculated risk. 48. In addition to requiring a showing that the party asserting the claim is a current or former employee protected by the FLSA, a retaliation claim pursuant to 215(a)(3) has three elements: (1) the claimant engaged in activity protected
45

Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246-47 (11th Cir. 2002). 46 United States v. Hayes Intl Corp., 415 F.2d 1038, 1045 (5th Cir. 1969). 47 Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960). 48 Id.

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under the FLSA; (2) the claimant subsequently suffered adverse action by the employer; and (3) a causal connection exists between the employees activity and the employers adverse action.49 If the employer asserts a legitimate reason for the adverse action, the plaintiff may attempt to show that the proffered reason is pretextual.50 To show causation, the plaintiff must prove that the adverse action would not have been taken but for the assertion of FLSA rights.51 B. Sheffield is an Employee, Not an Independent Contractor

To determine whether an employer/employee relationship exists for purposes of the FLSA, courts in the Eleventh Circuit look to the economic realities of the relationship between the putative employee and the putative employer. The central question is the degree to which the putative employee is, in reality, economically dependent upon the alleged employer.52 The Eleventh Circuit has identified seven factors that are relevant to the joint employment inquiry, including: (1) the putative employer's power, directly or indirectly to direct, control, or supervise the work; (2) the putative employer's power to hire or fire, modify the employment conditions, or determine the pay rates or methods of pay for the workers; (3) the degree of permanency and duration
49 50

Wolf v. Coca-Cola Co., 200 F.3d 1337, 134243 (11th Cir. 2000). Id. (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 20809 (10th Cir.1997)). 51 Id. (citing Reich v. Davis, 50 F.3d 962, 96566 (11th Cir.1995)). 52 See, e.g., Rutherford Food Corp. v. McComb, 331 U.S. 722, 730, 67 S.Ct. 1473, 1477 (1947); Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996); and Hodgson v. Griffin & Brand of McAllen, Inc., 471 F.2d 235, 23738 (5th Cir. 1973).

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of the parties' relationship; (4) whether the workers perform skilled or unskilled work; (5) whether the workers perform a task that is an integral part of the putative employer's overall business; (6) whether the putative employer owned or controlled the premises where the work occurred; and (7) whether the putative employer undertook responsibilities ordinarily performed by employers.53 No single factor is determinative, and each factor should be given weight according to how much light it sheds on the nature of the economic dependence of the putative employee on the employer.54 Courts considering the question of whether adult entertainers employed in situations similar to putative opt-in plaintiff Sheffields situation have uniformly concluded that such individuals are employees pursuant to the FLSA.55 Most significantly, this Court in Clincy v. Galardi South Enterprises, Inc., granted a motion for a preliminary injunction and reinstated several dancers who were retaliated against and terminated by their employerclub where several dancers were suspended and told their could no longer work as a result of filing a collective

53 54

Charles v. Burton, 169 F.3d 1322, 1329 (11th Cir. 1999). Antenor at 928-33. 55 See especially Reich v. Circle C. Investments Ltd., 998 F.2d 324, 329 (5th Cir. 1993) (We reject the defendants' creative argument that the dancers are mere tenants who rent stages, lights, dressing rooms, and music from Circle C.); see also Harrell v. Diamond A Entertainment, Inc., 992 F. Supp. 1343, 1347-48 (M.D. Fla. 1997); Reich v. Priba Corp., 890 F. Supp. 586 (N.D. Tex. 1995) (whether dancer was employee under FLSA); Martin v. Priba Corp., 1992 WL 486911 (N.D. Tex.) (whether dancer was employee under FLSA); Martin v. Circle C Investments, Inc., 1991 WL 338239 (W.D. Tex.).

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action under the FLSA.56 As in the Galardi case, even a cursory examination of the claims contained in the affidavits of Sheffield and other BJ Roosters dancers convincingly shows that an employment situation existed and exists. 1. Defendants Had the Power to Direct, Control, or Supervise Sheffields Work

As has been shown in the affidavits of seven former BJ Roosters dancers (including Sheffield), Defendants controlled the work of dancers by:
!

Setting the schedules of all dancers, which were enforced with fines and threat of termination for arriving late, leaving early, or missing a shift;57

Controlling whether dancers could entertain customers in V.I.P. rooms;58 Controlling the rates dancers charged customers for entertainment in V.I.P. rooms;59

Controlling dancers attire with the threat of fines;60 Imposing fines for non-compliance with various other club rules;61 and

56

Clincy v. Galardi South Enterprises, Inc., 1:09-CV-02082-RWS, Order Granting Preliminary Injunction at *2 (Sept. 2, 2009 N.D. Ga. 2009) (Story, J.). 57 See Exhibit A at 6; 11; see also Exhibit B1 at 8; Exhibit B2 at 9; Exhibit B3 at 9; Exhibit B4 at 9; Exhibit B5 at 9; Exhibit B6 at 89; Exhibit B7 at 89. 58 See Exhibit B1 at 11; Exhibit B2 at 12; Exhibit B3 at 12; Exhibit B4 at 12; Exhibit B5 at 12; Exhibit B6 at 11; Exhibit B7 at 11. 59 See Exhibit B1 at 12; Exhibit B2 at 12; Exhibit B3 at 12; Exhibit B4 at 12; Exhibit B5 at 12; Exhibit B6 at 12; Exhibit B7 at 12. 60 See Exhibit B1 at 10; Exhibit B2 at 11; Exhibit B3 at 11; Exhibit B4 at 11; Exhibit B5 at 11; Exhibit B6 at 10; Exhibit B7 at 10. 61 See Exhibit B1 at 13; Exhibit B2 at 13; Exhibit B3 at 13; Exhibit B4 at 13; Exhibit B5 at 13; Exhibit B6 at 13; Exhibit B7 at 13.

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Collecting fees from dancers the greater of $30 or 10% of tips from each dancer per shift worked.62 2. Defendants Had the Power to Hire, Fire, and Modify Sheffields Employment Conditions and Determine his Pay Rates and Method of pay

Defendants have at all times had the authority to suspend or terminate dancers who do not work the schedule set by Defendants.63 In fact, and as will be established by testimony at an emergency hearing, Defendants have at all times had the authority to suspend or terminate dancers for any reason whatsoever. 3. Defendants Relationship with Sheffield was Permanent or Long-Term

Sheffield has continuously worked at BJ Roosters as a dancer for five years, until the very day he refused to waive his rights to join the present putative collective action.64 4. Sheffields work is unskilled

As will be established through testimony at an emergency hearing, neither Sheffield nor any other dancer at BJ Roosters has special training qualifying them for employment as a dancer. Any dancing skills that BJ Roosters dancers may have do not rise to the level of skilled labor. Sheffield was hired without an audition,

62

See Exhibit B1 at 13; Exhibit B2 at 13; Exhibit B3 at 13; Exhibit B4 at 13; Exhibit B5 at 13; Exhibit B6 at 13; Exhibit B7 at 13. 63 See Exhibit B6 at 89; Exhibit B7 at 89. 64 See Exhibit C at 2, 12.

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and although some dancers were hired after performing at an amateur night, this was not a strict requirement and hiring practices were highly inconsistent. 5. Sheffields Work is an Integral Part of Defendants Business

As will be established through testimony at an emergency hearing, the dancers who perform through the premises at BJ Roosters are the business primary attraction, and distinguishes the club from most other bars and night clubs catering to a gay male clientele. BJ Roosters could not remain in business as it currently exists without the work of the dancers employed there. 6. Defendants Own or Control the Premises Where the Work Occurred

It is unknown whether or not Defendants own the commercial property where BJ Roosters is located. However, as will be established through testimony at an emergency hearing, no other business operates on the premises and the property appears to be under the sole control of Defendants. 7. Defendants Undertook Tasks Ordinarily Performed by Employers

As has been shown in the affidavits of several dancers and as will be further shown through testimony at an emergency hearing, Defendants have undertaken the following tasks ordinarily performed by employers:
!

Hiring and firing; Holding staff meetings;

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Setting dancers schedules; Imposing punishments through fines, suspension, or termination for violations of club rules;

Monitoring dancers tip proceeds; Directing dancers to perform on the bar on set rotations; and Mandating specific attire for dancers to wear while working.

These tasks were frequently and regularly undertaken by Defendants Hamill, Molinari, and their managers and supervisors with respect to BJ Roosters dancers. These actions the very type of strict controls that are indicative of an employment relationship. In short, no reasonable argument can be made that Sheffield or any other BJ Roosters dancers were anything other than employees of Defendants, and not independent contractors. In this case, every factor established in this Circuit as indicating an employment relationship weighs in favor of finding an employment relationship here.65 C. Sheffield Engaged in Activity Protected Under the FLSA

29 U.S.C. 215(a)(3) prohibits employers from discharging or discriminating against any employee who has filed a complaint regarding violations of the FLSA, has instituted proceedings regarding violations of the

65

See Charles v. Burton, 169 F.3d at 1329.

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FLSA, or has testified or is about to testify in any such proceeding. Here, Sheffield (1) made a direct complaint to his employer, Defendant Molinari, about the employers violation of the FLSA, (2) told his employer that he was considering opting in to an already filed putative collective action, (3) told his employer that he had obtained legal counsel, and (4) told his employer that he would not waive his rights under the FLSA to vindicate his claims against his employer. The Supreme Court has established that To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection. This standard can be met . . . by oral complaints, as well as by written ones.66 Here there can be no serious doubt that Sheffields complaint was sufficiently clear and detailed to qualify as an oral complaint protected under 215(a)(3). Sheffield directly addressed Defendants failure to pay minimum wage, commented on the illegality of Defendants actions, and referenced an already-filed FLSA action against Defendant to boot. Furthermore, it is clear that Sheffields actions were protected inasmuch as he was about to testify in a proceeding brought under the FLSA. One highly analogous case is Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 262

66

Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335, 2011 U.S. LEXIS 2417 (2011).

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(S.D.N.Y. 2008), where the district court found retaliation after a large number of delivery men were terminated for their intention to pursue an FLSA complaint.67 In that case, The [employers] learned about the intention of some of their deliverymen to pursue FLSA claims just as a group of deliverymen at another establishment had recently done and as a result they gathered the men together, offered them increased wages if they agreed not to pursue such claims, and warned them that they would be fired if they did not abandon their litigation plans. The [employers] then acted on their threat, terminating the deliverymen when none was willing to sign the paper that [the employer] was holding up, a document that we infer constituted a waiver of claims.68 Importantly, the district court noted that [t]he actions of the plaintiffs in organizing to file a lawsuit are certainly protected activities.69 The present situation stands in stark contrast to that in Miller v. Health Servs. for Children Found., where a retaliation claim failed because the employee had made no reference to the FLSA or her legal rights . . . [nor] possible legal action and there was thus nothing to connect her supposed complaint to the assertion of protected rights.70 There can be little question that Sheffields actions were protected under 215(a)(3). His oral complaint was clear and detailed, specifically referencing FLSA litigation currently pending against his employer. Sheffield indicated that he
67 68

595 F. Supp. 2d 240, 262 (S.D.N.Y. 2008). Id. at 262. 69 Id. at 263. 70 630 F. Supp. 2d 44, 50 (D.D.C. 2009).

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was considering taking legal action against his employer via the FLSA. That Sheffield did not opt in to the putative collective action until the following day is immaterial; it was his specific refusal to waive his right to join said action that resulted in his termination. D. Sheffield Suffered Adverse Action by Defendants

Sheffield was terminated by Defendants, clearly the prohibited act of discharge referenced in 29 U.S.C. 215(a)(3). E. Defendants Adverse Action Was a Result of Sheffields Protected Actions

Sheffield had worked at BJ Roosters for the previous five years prior to his termination. His termination occurred immediately after Sheffield complained about Defendants violations of the FLSA and stated his intent to join this putative collective action. Any argument by Defendants that Sheffields termination was not the result of those protected acts cannot seriously be considered as truthful. II. Sheffield Will Suffer Irreparable Harm in the Absence of an Injunction As Sheffield has already attested to, his employment at BJ Roosters is his sole source of income, will soon cause him enormous financial hardship, and will prevent him from making required child support payments. Even if this were not sufficient to show irreparable harm in the absence of an injunction, no such showing of irreparable harm is even required. In this Circuit,

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Where . . . the statutory rights of employees are involved and an injunction is authorized by statute . . . the usual prerequisite of irreparable injury need not be established . . . in such a case, irreparable injury should be presumed from the very fact that the statute has been violated.71 III. The Harm Suffered by Sheffield in the Absence of an Injunction Will Exceed the Harm Suffered by Defendants if the Injunction is Issued Sheffield has been employed as a dancer at BJ Roosters for the past five years. He has absolutely no record of misconduct or discipline. It is difficult to imagine that any harm at all would be suffered by Defendants if Sheffield is reinstated. The harm to Sheffield if he is not reinstated, however, would be severe. IV. An Injunction Would Not Disserve the Public Interest The public interest would not be disserved by Sheffields reinstatement, or by any other relief presently sought. In fact, the public interest weighs heavily in favor of Sheffields reinstatement. If injunctive relief is not granted in situations such as this, employees will be faced with the impossible situation of losing their livelihood in order to vindicate their rights under the FLSA. This would completely undermine the purposes of the FLSA and would essentially nullify it as regards current employees. V. Other Relief Sought As will be shown through testimony at an emergency hearing, dancers currently employed at BJ Roosters are aware of the reason for Sheffields
71

Mitchell v. Hayes International Corp., 415 F.2d at 1045.

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termination, confirming the dancers earlier fears of termination and other retaliation. Defendants have demonstrated that they will go to great lengths to prevent their current dancers from joining this lawsuit. It is therefore necessary that this Court take immediate corrective action to mitigate the chilling effects of Defendants actions so that the purposes of the FLSA may be served. And all BJ Roosters dancers have a legal right to make an uncoerced decision as to whether they want to vindicate their rights and recover the wages that Defendants have denied them for many years. First and foremost, Defendants should be required to notify all dancers who have been employed at BJ Roosters within the past 30 days prior to the filing of this Motion that Sheffield was terminated illegally and in retaliation for legally protected actions. Apart from seeing Sheffields employment reinstated, this remedy would will go far towards remedying the chilling effects of Defendants actions. It will also reassure other dancers that they will not suffer similar retaliation. Second, Defendants should also be required to inform all dancers who have employed at BJ Roosters within the past 30 days that Defendants Arbitration Agreement is unconscionable and unenforceable, as has been recently established

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under similar facts in the Northern District of Alabama in an Memorandum Opinion attached as Exhibit D.72 Third, Defendants should further be required to notify all dancers who have been employed at BJ Roosters since the institution of this actionNovember 13, 2013that Defendants may not retaliate against them by filing disparaging and false information against them with any government agency. Finally, because Defendants have demonstrated their intent to retaliate against and intimidate their danceremployees, Defendants should be required to cease and desist all communications, now and in the future, directly with Plaintiff or other members of the putative collective about this case, save for communications informing such individuals that they are free to participate in this matter without fear of retaliation or reprisal of any kind, or other communications ordered or approved in advance by the Court. They should further be ordered to file any proposed communications with Plaintiff or members of the putative collective with the Court prior to providing same to such individuals, and file sufficient documentation with the Court to demonstrate compliance with the Courts order.
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See Billingsley et al. v. Citi Trends, Inc., 4:12-CV-0627-KOB, Memorandum Opinion (May 29, 2013 N.D. Ala. 2013) (declaring an arbitration agreement signed by employees who were potential opt-in plaintiffs to a collective FLSA action, the court declared the agreement procedurally and substantively unconscionable, the court stated: the court finds it cannot approve employer conduct like that involved in this case specifically targeting only potential class members during a critical juncture in this case with the definite goal of undercutting the Congressional intent behind the collective action process.).

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VI.

Conclusion Wherefore, Plaintiff requests that this Court: 1. Reinstate the employment of putative opt-in plaintiff Jeremy D. Sheffield; 2. Notify (in person, by posting prominently in the workplace, by phone, and by mail) all individuals who have been employed as dancers at BJ Roosters in the 30 days prior to the filing of this Motion that the termination of Sheffield was retaliatory and unlawful, 3. Notify (in person, by posting prominently in the workplace, by phone, and by mail) all individuals who have been employed as dancers at BJ Roosters since November 13, 2013, that Defendants may not retaliate against any individual who chooses to join this putative collective action, and specifically that Defendants may not file disparaging information against them with the Internal Revenue Service or any other government agency; 4. Notify (in person, by posting prominently in the workplace, by phone, and by mail) all individuals who have been employed as dancers at BJ Roosters in the 30 days prior to the filing of this Motion that documents purporting to waive their claims in this lawsuit or to alter the terms of their employment do not constitute a valid settlement of

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legal claims and have no impact on their rights to assert claims in this lawsuit; 5. Cease and desist communicating, now and in the future, directly with Plaintiff or members of the putative collective about this case, save for communications informing such individuals that they are free to participate in this matter without fear of retaliation or reprisal of any kind, or other communications ordered or approved in advance by the Court; 6. File any proposed communications with Plaintiff or members of the putative collective with the Court prior to providing same to such individuals; and file sufficient documentation with the Court to demonstrate compliance with the Courts order.

Respectfully submitted this 22nd day of January 2014. /s/ W. Anthony Collins, Jr. W. Anthony Collins, Jr. Georgia Bar No. 141712

Smith Collins, LLC 8565 Dunwoody Place Building 15, Suite B Atlanta, GA 30350 wicollin@hotmail.com Merritt & Fletcher, LLC 1265 West Spring St., Ste. A Smyrna, GA 30080

/s/ James R. Fletcher II James R. Fletcher II Georgia Bar No. 232541

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jim@MerrittFletcher.com Attorneys for Plaintiff

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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION CHARLES ALLEN, individually and on behalf of all others similarly situated who consent to their inclusion in a collective action, Plaintiff, vs. JOBOS, INC., d/b/a BJ Roosters, a corporation, and ROBERT HAMILL and JOHN MOLINARI, individuals, Defendants. L.R. 7.1 CERTIFICATION & CERTIFICATE OF SERVICE I hereby certify that this document has been prepared with one of the font and point selections approved by the court in LR 5.1 or, if type written, that the brief does not contain more than 10 characters per inch of type. This document was prepared in Times New Roman 14 point font. I further hereby certify that on the date signed below, I electronically filed PLAINTIFFS EMERGENCY MOTION AND NOTICE OF MOTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION AND REQUEST FOR IMMEDIATE HEARING PURSUANT TO LOCAL RULE 7.2 with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorneys of record: 28 Civil Action No. 1:13-CV-3768-RWS

Case 1:13-cv-03768-RWS Document 15 Filed 01/22/14 Page 29 of 29

James Larry Stine Wimberly, Lawson, Steckel, Schneider & Stine, P.C. Lenox Towers, Suite 400 3400 Peachtree Road, NE Atlanta, GA 30326-1107 404-365-0900 jls@wimlaw.com This 22nd day of January 2014. /s/ W. Anthony Collins, Jr. W. Anthony Collins, Jr. Georgia Bar No. 141712

Smith Collins, LLC 8565 Dunwoody Place Building 15, Suite B Atlanta, GA 30350 wicollin@hotmail.com (770) 378-1408 Merritt & Fletcher, LLC 1265 West Spring St., Ste. A Smyrna, GA 30080 jim@MerrittFletcher.com

/s/ James R. Fletcher II James R. Fletcher II Georgia Bar No. 232541

Attorneys for Plaintiff

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