BOSTON (LN) — U.S. District Judge Julia E. Kobick denied a motion for conditional certification in an FLSA collective action alleging wage theft and tip retention against a Dartmouth restaurant owner, ruling the plaintiff failed to show other employees were similarly situated to his own claims of unpaid overtime and minimum wage violations.
Dengtao Cao, also known as Phillip Cao, sued Hungry Pot Dartmouth Inc. and its executives, alleging the restaurant failed to pay minimum wage and overtime to certain employees and retained their tips unlawfully.
Cao, who worked as a server at the Korean barbecue and hot pot restaurant from April 17 to April 23, 2024, claimed he was paid entirely in tips. According to the complaint, the defendants told him this was because he is Chinese and they believed him to be undocumented.
The complaint alleged non-Chinese workers were paid base salaries plus tips, while Cao received no base wage. He also claimed the defendants retained $1,601.93 of his $2,314.29 in credit card tips, keeping 30% to 35% of Chinese workers’ tips and 45% of non-Chinese workers’ tips.
Kobick ruled Cao failed to make the requisite factual showing that the proposed collective comprised employees who were similarly situated, noting his affidavit was the only evidence submitted.
The judge held that Cao’s affidavit was insufficient to establish that similarly situated employees were subject to a uniform policy of not receiving minimum wage or overtime and having their tips unlawfully retained.
Cao’s affidavit attested he was not paid overtime but failed to identify any other employee who was similarly denied overtime pay, Kobick wrote.
The judge noted that Cao’s assertion that he “noticed that some of the workers... [at Hungry Pot] experienced the same unfair policies and procedures that [he] went through” was a general assertion that was untied to overtime specifically.
With respect to minimum wage, Kobick held that Cao could not represent all non-exempt Hungry Pot employees regardless of national origin if employees of Chinese descent were treated differently.
The judge noted that Cao’s affidavit revealed a Chinese and Spanish server named Valery was paid a minimum wage, contradicting the claim of a uniform policy involving nonpayment.
As for the tips, Kobick found that Cao’s assertions that manager Huaxin Chen “would have” kept a portion of other servers’ tips did not mean Chen actually did so, as Cao had no personal knowledge or evidence to suggest otherwise.
Cao also admitted he had not shown that other Hungry Pot employees were interested in joining his lawsuit, a factor the judge noted indicated certification was unwarranted.
Kobick cited a 2024 decision in which a judge denied certification where a plaintiff made no showing that even a single other employee had any interest in joining the lawsuit nearly one-and-a-half years after filing.
Cao filed his complaint in July 2024, yet over a year and a half later, he remained the sole plaintiff.