Dancers Sue BJ Roosters: Emergency Motion

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. Civil Action No. 1:13-CV-3768-RWS

JOBO’S, INC., d/b/a BJ Roosters, a corporation, and ROBERT HAMILL and JOHN MOLINARI, individuals,

Defendants.

PLAINTIFF’S 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.

Sheffield—a putative opt-in plaintiff to this lawsuit—as 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

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

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further threatened to file disparaging and false 1099 forms with the Internal

Revenue Service against Sheffield and any other employee–dancer 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,



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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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 Court’s 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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Plaintiff’s Motion for Conditional Class Certification and judicial notice is

approved or at least until Defendants are able to prove to the Court’s 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 Jobo’s, 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 See Exhibit A (Affidavit of for BJ Roosters bartender and manager Richard Martin) at ¶ 2–3. 2 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 Jobo’s, Inc. (the corporate identity of BJ Roosters), Hamill, and

Molinari in a putative collective action on behalf of all employee–dancers 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 mid-

January 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

3 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 (Plaintiff’s 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 Plaintiff’s 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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Sheffield’s 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

9 See Exhibit C at ¶ 15. 10 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 Sheffield’s 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 employee’s or contractor’s 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 See Exhibit C at ¶ 5. 15 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 Molinari’s 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 Sheffield’s

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 See Exhibit C, Attachment 1 (emphasis added). 20 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 See Exhibit C at ¶ 11. 27 See Exhibit C at ¶ 12. 28 See Doc-13 (Plaintiff’s 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 Molinari’s 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 Sheffield’s termination. Both BJ

Roosters DJ and supervisor Shane Smith, as well Defendant Robert Hamill

himself, have informed Sheffield of Hamill’s and Molinari’s 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 See Exhibit C at ¶ 14. 34 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 FLSA’s 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 See Exhibit C at ¶ 18. 41 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

statute’s 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 FLSA’s 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 Int’l 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 employee’s activity and

the employer’s 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 Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342–43 (11th Cir. 2000). 50 Id. (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 208–09 (10th Cir.1997)). 51 Id. (citing Reich v. Davis, 50 F.3d 962, 965–66 (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, 237–38 (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 Sheffield’s 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 employer–club where several dancers

were suspended and told their could no longer work as a result of filing a collective

53 Charles v. Burton, 169 F.3d 1322, 1329 (11th Cir. 1999). 54 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 Sheffield’s 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 ¶ 8–9; Exhibit B7 at 8–9. 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 Sheffield’s 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. Sheffield’s 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 ¶ 8–9; Exhibit B7 at 8–9. 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. Sheffield’s 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

employer’s 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 Sheffield’s 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 Sheffield’s 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 Sheffield’s 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

67 595 F. Supp. 2d 240, 262 (S.D.N.Y. 2008). 68 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 Sheffield’s 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 Sheffield’s 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 Sheffield’s reinstatement, or

by any other relief presently sought. In fact, the public interest weighs heavily in

favor of Sheffield’s 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 Sheffield’s

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 Sheffield’s 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


24

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 action—November 13,

2013—that 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 dancer–employees, 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

Court’s order. 72 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;



Roosters in the 30 days prior to the filing of this Motion that the

termination of Sheffield was retaliatory and unlawful,



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;



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 Court’s order.

Respectfully submitted this 22nd day of January 2014.

Smith Collins, LLC 8565 Dunwoody Place Building 15, Suite B Atlanta, GA 30350 [email protected]

/s/ W. Anthony Collins, Jr. W. Anthony Collins, Jr. Georgia Bar No. 141712

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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[email protected] 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. Civil Action No. 1:13-CV-3768-RWS

JOBO’S, 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

PLAINTIFF’S 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:


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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 [email protected]

This 22nd day of January 2014.

Smith Collins, LLC 8565 Dunwoody Place Building 15, Suite B Atlanta, GA 30350 [email protected] (770) 378-1408

/s/ W. Anthony Collins, Jr. W. Anthony Collins, Jr. Georgia Bar No. 141712

Merritt & Fletcher, LLC 1265 West Spring St., Ste. A Smyrna, GA 30080 [email protected]

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

Attorneys for Plaintiff


Documents

Dancers Sue BJ Roosters: Emergency Motion