Hogan v. Allstate Beverage Company, Inc.

Filing 87

OPINION AND ORDER directing that: (1) Plaintiff Floyd Hogan, Jr.'s 67 motion for conditional class certification and to provide notice is granted; (2) Defendant Allstate Beverage Company, Inc.'s 70 motion to reconsider is denied; (3) Co unsel for plaintiff Hogan and defendant Allstate Beverage Company, Inc. shall submit a joint proposal to the court by February 1, 2013, for providing the requested notice of this collective action to similarly situated persons; and (4) This cause is referred to the United States Magistrate Judge for the development of a plan for providing the requested notice. Signed by Honorable Judge Myron H. Thompson on 12/4/12. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

FLOYD HOGAN, JR., et al.,
Plaintiffs,
v.
ALLSTATE BEVERAGE
COMPANY, INC., d/b/a
Gulf Distributing,
Defendant.

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CIVIL ACTION NO.
2:10cv390-MHT
(WO)

OPINION AND ORDER
Plaintiff Floyd Hogan, Jr. brings this action under
the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201219, on behalf of himself and others similarly situated,
alleging that his employer, defendant Allstate Beverage
Company, Inc. (d/b/a Gulf Distributing), violated the
FLSA by failing to pay overtime wages for work over 40
hours

per

week.

The

jurisdiction

of

the

court

is

properly invoked pursuant to 29 U.S.C. § 216(b) (FLSA)
and 28 U.S.C. § 1331 (federal question).
This case is now before the court on Hogan’s motion
for

conditional

class

certification,

and

Allstate’s

motion to reconsider an earlier order adding parties to
the case.

For the reasons that follow, the court will

grant Hogan’s motion and deny Allstate’s.

I. BACKGROUND
A.
Allstate is a beverage distributor in the State of
Alabama.
Montgomery.

The

company

Hogan

maintains

worked

for

the

warehouse for a bit over a year.

a

warehouse

company

in

in
its

He started as a

“Selector” and was compensated on a salary basis at a
rate of $ 475 per week.

He was later promoted to

“Assistant Load Crew Supervisor” and his weekly salary
was raised to $ 525.1

In both positions, his work

activities included selecting and fulfilling orders from
the warehouse and operating the forklift.
the “second shift” (the night shift).

Hogan worked

Allstate regularly

1. While Allstate contends that Hogan’s title was
“Assistant Load Crew Supervisor,” Hogan states that it
was only “Assistant Supervisor.”
2

required Hogan to work overtime (over 40 hours per week)
for which he was not compensated; his pay was limited to
the weekly salary.
Hogan contends that his compensation on a salary
basis regardless of the number of hours worked violated
the FLSA requirement of time-and-a-half compensation for
overtime

hours.

provides

that

“no

The

relevant

employer

section

shall

employ

of

the

any

of

FLSA
his

employees ... for a workweek longer than forty hours
unless

such

employee

receives

compensation

for

his

employment in excess of [40 hours] at a rate not less
than one and one-half times the regular rate at which he
is employed.”

29 U.S.C. § 207(a)(1).

Allstate admits

that Hogan was entitled to such overtime pay when he
worked as a Selector, but denies that he was entitled to
it during his time as an Assistant Load Crew Supervisor.
As Allstate explains, the FLSA exempts some employees
from the overtime compensation requirement, including
certain managers.

See 29 U.S.C. § 213.

3

Allstate argues

that Hogan’s job as an Assistant Load Crew Supervisor
fits squarely within the exemption and that, thus, the
company was within its rights to pay him on a salary
basis without overtime compensation while he held that
position.

B.
Hogan instituted this lawsuit seeking damages for
unpaid overtime compensation several years ago.

Early in

the litigation, a dispute developed between Hogan and his
counsel that, along with other matters, significantly
complicated and delayed the speedy disposition of the
lawsuit.2 After Hogan switched to new counsel, the course
of the lawsuit took a turn.

Rather than seeking to

recover on only his own behalf, Hogan now sought recovery
on behalf of himself and other workers in the Allstate
2. This history is discussed in more detail in the
court’s earlier opinion denying Allstate’s motion to
enforce settlement and dismiss. See Hogan v. Allstate
Beverage Co., Inc., 821 F. Supp. 2d 1274 (M.D. Ala. 2011)
(Thompson, J.).
It is unnecessary to recount these
events in greater detail here.
4

warehouse who were similarly denied overtime pay.

He

invoked

as

the

FLSA

“collective

action”

mechanism

providing a right to seek such collective recovery.

See

29 U.S.C. § 216(b).
Hogan now alleged that he and co-workers who worked
the second shift were regularly required to “clock out”
(to indicate on company records that they were no longer
working) at certain times, and then to stay at the
warehouse

and

assist

others

respective assigned duties.

in

completing

their

As such, one worker would

not be permitted to leave until all workers’ tasks were
completed.
the

company

Consequently, the time cards maintained by
were

misleading

and

did

not

accurately

reflect the hours that Hogan and his co-workers were
actually required to work.

Like him, his co-workers were

paid a regular weekly salary that did not account for the
undocumented overtime hours the company required.
Hogan asks the court to certify this case as a
collective action under the FLSA and to join 15 of his

5

former co-workers to the case as co-plaintiffs.

Each of

the 15 submitted signed forms to the court stating that
they were employed by Allstate, currently or in the past,
and have claims against the company that are factually
similar to Hogan’s.

One of the 15, Myles J. Willis,

provided the court with more detailed factual assertions
than

those

others.

contained

in

the

forms

submitted

by

the

He stated that he worked at the warehouse during

the second shift and, like Hogan and other second-shift
workers, was also paid a standard weekly salary despite
being required to work overtime.

He claims that, when he

inquired into overtime compensation, his supervisor, Don
Watson, falsely stated that federal law prohibited the
company from paying overtime wages.
The court granted Hogan’s request to add the 15 coworkers to the case, noting that the court “assumes that
[Allstate] has no objection” and providing that, “if it
does, it must file the objection seven days from the date
of this order.”

Order (Doc. No. 68).

6

Despite adding

Hogan’s co-workers to the case, the court did not at that
time rule on Hogan’s request to certify the case as a
collective action.
C.
Allstate asks the court to reconsider its decision to
add Hogan’s 15 co-workers to the case, arguing that it
was improper to do so before certifying the case as a
collective action, and, thus, those co-workers should be
dismissed.

Moreover, Allstate contends that the court

should now deny Hogan’s request to certify the case as a
collective action and rather require Hogan to proceed
alone.

Hogan now asks the court to issue conditional

certification and allow his former co-workers to remain
in the case.

II. LEGAL STANDARD
The

FLSA

authorizes

a

worker

seeking

unpaid

compensation to bring a so-called “collective action” on
behalf of himself and “similarly situated” workers with

7

similar claims.

29 U.S.C. § 216(b); see also Garner v.

G.D. Searle Pharms. & Co., 802 F. Supp. 418, 420 (M.D.
Ala. 1991) (Thompson, C.J.).

Unlike traditional class

actions under Rule 23 of the Federal Rules of Civil
Procedure (which will bind all members of the class
whether they voluntarily opted to participate in the
litigation or not),3 the FLSA collective action is “optin”; that is, workers are bound by the lawsuit’s result
only

if

they

submitting

affirmatively

written

consents

decide
to

the

to

participate

court.

Hipp

by
v.

Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1216 (11th
Cir. 2001).

Courts have adopted a two-tiered procedure

to, first, identify potential workers who would like to
opt-in and give them notice of their ability to do so,
and, second, to subsequently provide the court with the
facts

necessary

to

decide

whether

those

workers

are

“similarly situated” to the initial plaintiffs (which is
3.
See, e.g., Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 173 (1974) (“[T]he judgment [in a class
action], whether favorable or not, will bind all class
members [who did] not request[] [to be] exclu[ded].”).
8

required

under

the

FLSA

for

participating

in

the

collective action rather than proceeding separately under
individual suits):
“The
[district
court’s]
first
determination is made at the so-called
‘notice stage.’
At the notice stage,
the district court makes a decision-usually based only on the pleadings and
any
affidavits
which
have
been
submitted--whether notice of the action
should be given to potential class
members.
“Because the court has minimal evidence,
this determination is made using a
fairly lenient standard, and typically
results in ‘conditional certification’
of a representative class.
If the
district court ‘conditionally certifies'
the class, putative class members are
given notice and the opportunity to
‘opt-in.’
The action proceeds as a
representative
action
throughout
discovery.
“The second determination is typically
precipitated
by
a
motion
for
‘decertification’
by
the
defendant
usually filed after discovery is largely
complete and the matter is ready for
trial.
At this stage, the court has
much more information on which to base
its decision, and makes a factual
determination on the similarly situated
question.
If
the
claimants
are
9

similarly situated, the district court
allows the representative action to
proceed to trial. If the claimants are
not similarly situated, the district
court decertifies the class, and the
opt-in plaintiffs are dismissed without
prejudice. The class representatives–[that is,] the original plaintiffs-proceed to trial on their individual
claims.”
Id. at 1218 (quoting Mooney v. Aramco Servs. Co., 54 F.3d
1207, 1213-14 (5th Cir. 1995)); see also Dybach v. Dep’t
of

Corr.,

(“Before

942

F.2d

[certifying

1562,
a

1567-68

class

and

(11th
ordering

Cir.

1991)

notice

to

potential opt-in plaintiffs,] the district court should
satisfy itself that there are other employees of the
department-employer who desire to ‘opt-in’ and who are
‘similarly

situated’

with

respect

to

their

job

requirements and with regard to their pay provisions.”);
Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d
1240,

1243

district

n.2

courts

(11th
in

Cir.

our

2003)

circuit

two-tiered approach.”).

10

Hipp,

the

utilized

the

(“Since
have

Although this case was filed two years ago, it is,
unfortunately, still at the “notice” stage.

The parties

have indicated that they are waiting for this court’s
decision on conditional certification to proceed with
discovery.

Therefore,

the

court

must

look

to

the

pleadings and affidavits that the parties have submitted
to determine whether Hogan has satisfied his burden of
showing that conditional certification is warranted. See
Smith v. Tradesmen Int'l, Inc., 289 F. Supp. 2d 1369,
1372 (S.D. Fla. 2003) (King, J.) (“[P]laintiffs ... have
the

burden

of

demonstrating

a

reasonable

basis

for

crediting their assertions that aggrieved individuals
exist in the broad class that they propose, and the
district

court's

exercised

with

power

to

discretion

authorize

notice

and

in

only

must

be

appropriate

cases.”) (punctuation omitted) (citing Haynes v. Singer
Co., Inc., 696 F.2d 884, 886-87 (11th Cir. 1983)).
At the “notice” stage, plaintiffs must make only a
“modest

factual

showing”

that

currently

unidentified

others are “similarly situated” to the named plaintiffs.
11

Hunter v. Sprint Corp., 346 F. Supp. 2d 113, 117 (D.D.C.
2004) (Bates, J.) (quoting Flores v. Lifeway Foods, Inc.,
289 F. Supp. 2d 1042, 1045 (N.D. Ill. 2003) (Norgle,
J.)); see also Anderson v. Cagle’s, Inc., 488 F3d 945,
953 (11th Cir. 2007) (noting that at the first stage, the
standard is “fairly lenient”); cf. Holt v. Rite Aid
Corp., 333 F. Supp. 2d 1265, 1270 (M.D. Ala. 2004)
(Albritton,

S.J.)

(“[A]

plaintiff

must

make

some

rudimentary showing of commonality ... beyond the mere
facts

of

job

duties

and

pay

provisions.”).

The

“similarly situated” requirement is somewhat “elastic”;
it is not overly “stringent.”

Grayson v. K Mart Corp.,

79 F.3d 1086, 1095 (11th Cir. 1996).

Plaintiffs need not

establish a “unified policy, plan, or scheme” to show
that they are similarly situated to persons who may optin.

Id.

Plaintiffs and potential opt-in plaintiffs

“need show only that their positions are similar, not
identical.”

Id. at 1096 (quotation marks omitted). In

the

of

absence

a

concrete

definition

of

“similarly

situated,” see Morgan v. Family Dollar Stores, Inc., 551
12

F.3d 1233, 1259-60 (11th Cir. 2008) (“[W]e have not
adopted

a

precise

definition

of

[‘similarly

situated’].... [W]e [have] explained what the term does
not mean–-not what it does.”), courts have looked to a
variety

of

factors,

including

job

title;

geographic

location; the temporal proximity of the FLSA violations
alleged;

the

nature

and

decisional

source

of

any

contested policies and practices; and the similarity of
treatment given to the various plaintiffs and potential
opt-in plaintiffs by the defendant.
Supp. 2d at 1372.

See Smith, 289 F.

However, such general factors provide

little concrete guidance; the court’s decision must be
the result of a fact-intensive inquiry.

See Thiessen v.

Gen. Elec. Capital Corp., 267 F.3d 1095, 1105 (10th Cir.
2001) (referring to the Eleventh Circuit's approach to
similarly situated determinations as “ad hoc”).

III. DISCUSSION
There is no question that Hogan has demonstrated that
“there are other employees of [Allstate] who desire to
13

‘opt-in’” to this case.

Dybach, 942 F.2d at 1567.

Fifteen such persons have already presented themselves
and asked that this court allow them to join the case.
Therefore, the court turns to whether those persons (and
other

as-of-yet

unidentified

situated” to Hogan.

persons)

are

“similarly

Id. at 1567-68.

Hogan has established (to the degree necessary at
this stage) that the 15 co-workers who have already been
joined are similarly situated to himself, and there may
be others who are also.

Hogan has alleged that, in

Allstate’s warehouse, management routinely required him
and other second-shift workers to stay overtime without
compensation.

He contends that there was a general

policy of mandating that workers “clock out” but stay at
the warehouse to assist colleagues in completing their
duties.

These persons all work in the same warehouse, at

the same time, and for the same managers, and were
allegedly underpaid pursuant to the same policy.

These

facts were shown by multiple affidavits, and Allstate
presented no evidence to the contrary.
14

Hogan and the 15

co-workers

who

have

already

been

joined

are

plainly

similarly situated, and Allstate makes little attempt to
argue otherwise.
The company does, however, contend that, unless Hogan
comes forward with detailed descriptions of the warehouse
duties required of his and his co-workers’ jobs, he has
not satisfied his burden.

That argument misconceives the

“fairly lenient” standard that applies at this stage,
which Hogan has easily met.

Anderson, 488 F.3d at 953.

Hogan has met his burden by showing that he and coworkers all worked in the Montgomery warehouse during the
night shift; they all did those tasks necessary for the
ordinary functioning of the warehouse; and lastly, they
all stayed overtime, as they were made to do, while they
assisted co-workers in completing their assigned tasks.
Hogan does not have to show that his job duties were
identical to his co-workers’; if their respective duties
differed in some aspects (for example, some operated
forklifts while some operated other machinery), they may
nevertheless be similarly situated for purposes of the
15

FLSA collective action.

See Grayson, 79 F.3d at 1096

(plaintiffs in a collective action “need show only that
their positions are similar, not identical”) (quotation
marks omitted).

Moreover, because Hogan and the others

allege that they were required to assist one another
during overtime hours, it is clear that Hogan is alleging
that, at least during those times (the tail end of the
second shift), their duties were in fact identical.

That

showing is sufficient for now.
Allstate next argues that, because the case was
initially brought as an individual action (and Hogan’s
complaint was styled as such), the case should not be
permitted to become a collective action without first
requiring that the complaint be amended to allege the
existence
explicitly.

of

similarly

situated

opt-in

plaintiffs

While it is true that Hogan’s first counsel

styled the complaint for an individual action, quite some
time has elapsed since Hogan’s replacement counsel have
indicated their intent to proceed as a collective action.
There have been numerous filings to that effect from as
16

early as August 2010–-over two years ago–-and Allstate
has not objected until now.

The company cannot be said

Cf. Robbins v. Oklahoma, 519 F.3d

to have lacked notice.

1242, 1248 (10th Cir. 2008) (“Context matters in notice
pleading.

Fair

case....

A

notice

simple

...

depends

negligence

on

action

the

type

of

on

an

based

automobile accident may require little more than the
allegation that the defendant negligently struck the
plaintiff

with

his

car

while

crossing

a

particular

highway on a specified date and time.”) (quotation marks
and citation omitted).
The court finds it of little import that notice of
intent to pursue collective action in this case was
provided in numerous filings subsequent to the complaint,
rather than the complaint itself.

There is no question

that the complaint adequately pleads Hogan’s individual
claim, and Allstate has not argued otherwise; therefore,
when the lawsuit was first filed, Allstate had notice
that

the

warehouse

compensation
were

being

practices
challenged.
17

at

its

See

Montgomery

Compl.

¶

12

(comparing Allstate’s compensation for Hogan, who worked
the second shift, to compensation for “employee[s] who
had the same position as Hogan [and worked] the first
shift”).
suffer

There is no reason to think that Allstate would

unfair

collective

prejudice

action

if

case

proceeds

Hogan

without

the

first

adding

as

to

a

the

complaint a terse reference to the warehouse managers’
compensation policy applying to his co-workers as well as
himself.

Cf. Hassenflu v. Pyke, 491 F.2d 1094, 1095 (5th

Cir. 1974)4 (“[P]arties should not be punished for their
counsel's

neglect

circumstances.

except

in

extreme

and

unusual

Dismissal of a complaint with prejudice

is a drastic remedy.”); Des Isles v. Evans, 225 F.2d 235,
236

(5th

Cir.

1955)

(“The

[Federal

Rules

of

Civil

Procedure] have for their primary purpose the securing of
speedy and inexpensive justice in a uniform and well

4. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all of the decisions of the
former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
18

ordered manner; they were not adopted to set traps and
pitfalls

by

way

of

technicalities

for

unwary

litigants.”); United States v. Garrison, 963 F.2d 1462,
1465 (11th Cir. 1992) (construing procedural rules to
avoid creating a “trap for the unwary litigant”).

The

court declines the invitation to impose the sort of
technical pleading requirements that the Federal Rules of
Civil Procedure eschew.

See Fed. R. Civ. P. 8(d)-(e)

(“No technical form is required....

Pleadings must be

construed so as to do justice.”); see also Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure
§ 1286 (3d ed.) (“One of the most important objectives of
the federal rules is that lawsuits should be determined
on their merits and according to the dictates of justice,
rather than in terms of whether or not the averments in
the paper pleadings have been artfully or inartfully
drawn.”).
In sum, the court holds that Hogan has sufficiently
shown the existence of similarly situated co-workers who
would like to opt in to this litigation, and the court
19

refuses to dismiss the 15 who have already done so. If
discovery

subsequent

to

this

order

reveals

other

similarly situated workers, they may also elect to opt
in.

Of course, should discovery reveal that plaintiffs

are in fact materially dissimilar (which Allstate has not
yet

attempted

reflects

no

to

show),

prejudgment

declassification.

the
on

court’s
a

decision

potential

today

motion

for

See Hipp, 252 F.3d at 1216.5
*

*

*

Accordingly, it is ORDERED that:

5. Allstate also asks the court to disregard (wholly
or in part) affidavits that Hogan and Willis submitted in
support of collective-action certification. But Allstate
cites no law to support exclusion of the affidavits. The
court thinks that it may properly consider the evidence
for the limited purpose of deciding whether the firststage requirements for certifying a collective action
have been met. Fisher v. Ciba Specialty Chemicals Corp.,
238 F.R.D. 273, 279 (S.D. Ala. 2006) (Steele, J.) (“[T]he
Federal Rules of Evidence are not stringently applied at
the class certification stage because of the preliminary
nature of such proceedings. Courts confronted with Rule
23 issues may consider evidence that may not ultimately
be admissible at trial.”); see also Eisen, 417 U.S. at
178 (the class certification decision is “of necessity
... not accompanied by the traditional rules and
procedures applicable to civil trials”).
20

(1)

Plaintiff

Floyd

Hogan,

Jr.’s

motion

for

conditional class certification and to provide notice
(Doc. No. 67) is granted;
(2)

Defendant

Allstate

Beverage

Company,

Inc.’s

motion to reconsider (Doc. No. 70) is denied;
(3)

Counsel

for

plaintiff

Hogan

and

defendant

Allstate Beverage Company, Inc. shall submit a joint
proposal to the court by February 1, 2013, for providing
the

requested

notice

of

this

collective

action

to

similarly situated persons; and
(4) This cause is referred to the United States
Magistrate

Judge

for

the

development

of

a

plan

providing the requested notice.
DONE, this the 4th day of December, 2012.

/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE

for