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Red Lobster, Olive Garden Workers Take Pay Fight To 7th Circ.

Red Lobster, Olive Garden Workers Take Pay Fight To 7th Circ.


Source: Law360

By Gail Sullivan

October 13, 2015


A proposed class of workers at Darden Restaurant Inc., the company that runs Olive Garden and once ran Red Lobster, is asking the Seventh Circuit to overturn an Illinois federal judge’s dismissal of claims by a lead plaintiff following his refusal to certify the class.


The notice of appeal filed Friday comes after U.S. District Judge Samuel Der-Yeghiayan in September dismissed lead plaintiff Demiko McCaster’s claim that she didn’t get paid for accrued vacation when she left her job at Red Lobster, after McCaster and her former employer told the judge they had agreed on a settlement. The details of the settlement have not been made public.


“The court was advised that the parties have reached a settlement of the remaining individual claim that provides for dismissal with prejudice of plaintiff Demiko D. McCaster’s claims, without waiver of appellate rights that plaintiff may possess regarding the class certification order in this action,” Judge Der-Yeghiayan’s Sept. 11 order said.


Judge Der-Yeghiayan in March tossed a similar claim filed by the other lead plaintiff, Jennifer Clark, a former Olive Garden employee. He agreed with Darden that Clark wasn’t eligible for vacation benefits as a part-time employee and granted partial summary judgment, removing Clark as a representative of the class.


Judge Der-Yeghiayan also ruled in March that the proposed class didn’t hold up because the court would have to decide, on a worker-by-worker basis, whether prospective class members had a valid claim that they were deprived of vacation pay when they left their jobs.


The judge found that the plaintiffs lacked a common question because Darden had a variety of policies at its restaurants – which also include Bahama Breeze and Seasons 52 – that changed over time, and managers of the various restaurants carried out the policies in a variety of ways.


The proposed class of Illinois restaurant workers intends to appeal the rulings tossing the named plaintiffs’ claims and denial of class certification, according to court documents. A memorandum in support of the appeal has not been filed.


McCaster and Clark filed suit in 2013, aiming to represent a class of employees who have left their jobs at Darden’s restaurants in Illinois since Dec. 11, 2003,  and who didn’t receive payouts on accrued vacation benefits. They claimed Darden violated the Illinois Wage and Payment Collection Act by failing to include that pay in employees’ final paychecks.


McCaster said she worked as an hourly employee at a Red Lobster restaurant in Chicago during three separate stints during the proposed class period. Clark worked as an hourly employee at an Olive Garden restaurant in Bloomingdale at two different times, according to their motion.


They claimed that roughly 1,800 people worked at those two restaurants during the proposed class period, and of those, more than 1,200 didn’t receive payments for their accrued vacation hours in their final checks.


The suit also named as a defendant Darden subsidiary GMRI Inc.


Counsel and representatives for the parties didn’t respond Tuesday to requests for comment.


The plaintiffs are represented by Douglas M. Werman and Maureen A. Salas of Werman Salas PC and by Jamie G. Sypulski.


Darden and GMRI are represented by Gerald L. Maatman Jr., Jennifer A. Riley, Matthew J. Gagnon and Ashley C. Workman of Seyfarth Shaw LLP.


The case is McCaster et al v. Darden Restaurants Inc. et al., case number 1:13-cv-08847, in the U.S. District Court for the Northern District of Illinois.