Cremeens v. The City of Montgomery

Filing 26

MEMORANDUM OPINION AND ORDER as follows: (1) The 14 Motion to Facilitate class Notice Pursuant to 29 U.S.C. § 216(b) is GRANTED and this case is CONDITIONALLY CERTIFIED as a collective action; (2) The City is DIRECTED to furnish to Cremeens th e names and addresses of all members of the conditionally certified collective action as further set out; (3) It is hereby ORDERED that the proposed notice is APPROVED; (4) Plaintiff is hereby required to file all Consents to Become Party Plaintiffs in this lawsuit by no later than May 15, 2009; and (5) The parties are advised that any motions relating to requests that the collective action be decertified must be filed by the deadline provided in the Uniform Scheduling Order for dispositive motions. Signed by Hon. Chief Judge Mark E. Fuller on 3/11/2009. (cb, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION G A R Y CREMEENS, individually and on b e h a lf of others similarly situated, P L A IN T IF F , v. T H E CITY OF MONTGOMERY, D EFEN D A N T. ) ) ) ) ) ) C A S E NO.: 2:08cv546-MEF ) ) ) (WO- Do Not Publish) )

M E M O R A N D U M OPINION AND ORDER T h is cause is before the Court on the Motion to Facilitate Class Notice Pursuant to 29 U .S .C . § 216(b) filed on August 22, 2008 (Doc. # 14). BACKGROUND P la in tif f Gary Cremeens ("Cremeens") filed this action against the Defendant City of M o n tg o m e ry ("the City") pursuant to 29 U.S.C. § 201, the Fair Labor Standards Act (h e re in a f te r "FLSA"). The City employed Cremeens as an Arson Investigator. According to Cremeens, the City had a policy of not paying overtime compensation to Arson In v e stig a to rs at the required rate of time and one-half until more than one hundred-twelve (1 1 2 ) hours were worked during a pay period. This policy was in effect throughout C re m e e n s ' employment with the City, and it is believed to still be in effect. Cremeens f u rth e r contends that there are other similarly-situated individuals who were or are also e m p lo ye d by the City as Arson Investigators. Cremeens asks this Court to: (1) conditionally c e rtify this action as a collective action; (2) order the requested identification of potential opt-

in s ; and (3) approve the proposed Notice of Lawsuit and Consent to Become a Party Plaintiff; au tho rize the issuance of notice to be mailed to all present and former Arson Investigators w h o worked for the City within the three years prior to the filing of the Complaint informing th e m of their rights to participate as opt-in plaintiffs in this action; and set a deadline by w h ic h Cremeens is required to file all Consents to Become a Party Plaintiff. The City has filed a brief opposition to the motion. In this submission, the City admits th a t former and present Lieutenants in the City of Montgomery's Fire Department's Division o f Fire Investigations are similarly situated to Cremeens and the other individuals who have f iled consents to become party plaintiffs: Lt. L. Coleman and Lt. A.D. Campbell. The City a rg u e s that the proposed class of potential plaintiffs is limited to eleven and therefore joinder is not impracticable. Additionally, the City argues that these employees are, however, all e x e m p t from application of the requirements of mandatory time and a half pay because they are employees engaged in fire protection activities as defined in 29 U.S.C. § 203(y). D IS C U S S IO N S e c tio n 216(b) of the Fair Labor Standards Act authorizes a plaintiff seeking relief to bring a "collective action" on behalf of similarly situated persons subject to the re q u ire m e n t that any person who wishes to become a part of the collective action must file a written consent in the court in which such action is brought. See, e.g., 29 U.S.C. § 216(b); D a v is v. Charoen Pokphand (USA), Inc., 303 F. Supp. 2d 1272, 1274 (M.D. Ala. 2004). A d is tric t court may in some circumstances facilitate notice to potential participants in the

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c o lle c tiv e action. See, e.g., Dybach v. Florida Dep't of Corr., 942 F.2d 1562, 1567 (11th Cir. 1 9 9 1 ); Davis, 303 F. Supp. 2d at 1275; Horne v. United Servs. Auto Ass'n, 279 F. Supp. 1 2 3 1 , 1233 (M.D. Ala. 2003). "The power to authorize notice must, however, be exercised w ith discretion and only in appropriate cases." Horne, 279 F. Supp. 2d at 1233 (citing H a y n e s v. Singer Co., 696 F.2d 884, 886 (11th Cir.1983)). Before intervening in the notice p ro c e d u re , the district court should satisfy itself that there are other em p lo yee s of the [employer (1)] who desire to "opt-in" and [(2)] w h o are `similarly situated' with respect to their job re q u ire m e n ts and with regard to their pay provisions. Dybach, 942 F.2d at 1567; Davis, 303 F. Supp. 2d at 1275. Where, as here, there is sufficient evidence that other similarly-situated employees d e sire to "opt-in," a district court is authorized to conditionally certify a collective action and p a rtic ip a te in notice to potential members of the action. The Court is not aware of any a u t h o r ity that grafts the numerosity requirement of a Federal Rule of Civil Procedure 23 class a c tio n onto the requirements of a collective action such as the one Cremeens seeks. Indeed, w h ile this City argues that this numerosity requirement must be and is not met, it offers no lega l authority whatsoever for this position. On the basis of the record before it, the Court c o n c lu d e s that plaintiffs have carried their burden of demonstrating that other similarlys itu a t e d employees exist who desire to opt-in to the collective action proposed by Plaintiffs. In opposing Plaintiffs' motion, the City has not argued that there are not other e m p lo ye e s who desire to opt-in; nor has it argued that the potential opt-ins are not similarly 3

s itu a t e d with respect to their job requirements and with regard to their pay provisions. I n s te a d , the City essentially argues that such certification would be a waste of time because n e ith e r Cremeens, nor the putative opt-ins can establish a violation of the FLSA. The City h a s cited no legal authority whatsoever in support of its implicit contention that this is an a p p ro p ria te ground for challenging a motion for conditional certification of a collective a c tio n . Indeed, as this Court has previously explained, "the class-notification stage is not the tim e to resolve the merits of an FLSA suit." Davis, 303 F. Supp. 2d at 1277 n.6. Moreover, th e City's arguments have not persuaded the Court that this is a case in which conditional c e rtif ic a tio n and notice are inappropriate. Accordingly, the Motion to Facilitate Class Notice Pursuant to 29 U.S.C. § 216(b) ( D o c . # 14) filed on August 22, 2008 (Doc. # 14) is due to be GRANTED. It is hereby O R D E R E D as follows: (1 ) the Motion to Facilitate Class Notice Pursuant to 29 U.S.C. § 216(b) (Doc. # 14) is GRANTED and this case is CONDITIONALLY CERTIFIED as a collective action. (2 ) The City is DIRECTED to furnish to Cremeens immediately, if it has not already d o n e so, the names and addresses of all members of the conditionally certified collective a c tio n . All information regarding the potential opt-in plaintiffs must be delivered to counsel f o r Plaintiff by no later than thirty (30) days after the date of this Memorandum Opinion and O rde r. (3 ) As the City has not made any objection to the content of the notice to the class of

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p o te n tia l opt-in plaintiffs conditionally certified proposed by Cremeens, it is hereby O R D E R E D that the proposed notice is APPROVED. (4) Counsel for Plaintiff is hereby AUTHORIZED to issue notice to all present and f o rm e r Arson Investigators who worked for the City of Montgomery within the three year p e rio d prior to the filing of this lawsuit informing them of their rights to participate in this a c tio n as opt-in plaintiffs. (5) Plaintiff is hereby required to file all Consents to Become Party Plaintiffs in this la w s u it by no later than May 15, 2009. (6 ) The parties are advised that any motions relating to requests that the collective a c tio n be decertified must be filed by the deadline provided in the Uniform Scheduling Order f o r dispositive motions. DONE this the 11th day of March, 2009. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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