Gay v. Honda Manufacturing of Alabama, LLC

Filing 1

MEMORANDUM OPINION AND ORDER directing the Clerk to Sever Cases. Signed by Judge Virginia Emerson Hopkins on 7/19/2012. (JLC)

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2012 Sep-21 PM 01:12
2012 Jul-19 AM 09:51
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
CEDRIC D. BURROUGHS, et al.,
Plaintiffs,
v.
HONDA MANUFACTURING OF
ALABAMA, LLC,
Defendant.

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MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION AND PROCEDURAL HISTORY
This lawsuit arises under the Fair Labor Standards Act (“FLSA”) against

Honda Manufacturing of Alabama, LLC (“HMA”). The named plaintiffs in this
action are Cedric Burroughs (“Mr. Burroughs”), Eddie Caldwell (“Mr. Caldwell”),
and Angela Blake (“Ms. Blake”) (collectively, “Plaintiffs”). On April 6, 2009, the
court conditionally permitted Plaintiffs to proceed as a collective action under the
FLSA. (Doc. 67).
Pending before the court is HMA’s Motion To Decertify the Collective Action
and Dismiss Opt-In Plaintiffs’ Claims (the “Motion”) (Doc. 154) filed on September
6, 2011. The parties have filed numerous materials in support of and in opposition

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to the Motion. (See Docs. 155, 158-164, 166, 172-76, 180-84).
While this Motion was pending, a similar request for relief was decided in
HMA’s favor by another district judge of this court on March 29, 2012, in the lawsuit
of Briggins v. Honda Manufacturing of Alabama, LLC, et al. (hereinafter “Briggins”),
No. 1:08-CV-1861-KOB, (Doc. 166) (N.D. Ala. Mar. 29, 2012). See Briggins, Doc.
166 at 2 (“The court concludes that such collective action trial would be
unmanageable and, more fundamentally, that the plaintiffs in this case are not
‘similarly situated’ to each other for the purpose of establishing liability under the
FLSA.”)).
On May 2, 2012, the court entered a show cause order in this litigation with
respect to the decertification ruling in Briggins:
The court has studied the Motion and all related materials
preliminarily, including the Briggins opinion and agrees with the
decertification analysis contained therein. While the undersigned is
certainly not bound by Briggins, it is appropriate for this court to
consider adopting the opinion as applicable persuasive authority.
Accordingly, Plaintiffs are ORDERED to SHOW CAUSE no later than
May 21, 2012, why the facts material to this lawsuit (as supported with
pinpointed citations to the evidentiary record) are appreciably different
or distinguishable from those at issue in Briggins such that the Briggins
decertification decision should not persuasively apply here.
(Doc. 185 at 2 (emphasis added)).
Pursuant to this show cause order, Plaintiffs filed their response (Doc. 188) on

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May 24, 2012. The court then entered an order requiring HMA to file a reply (Doc.
189), which it did on June 28, 2012. (Doc. 193). Accordingly, the Motion is under
submission and for the reasons explained below is GRANTED.
II.

COLLECTIVE ACTION STANDARDS
Section 206(d) of the FLSA provides:
No employer having employees subject to any provisions of this section
shall discriminate, within any establishment in which such employees
are employed, between employees on the basis of sex by paying wages
to employees in such establishment at a rate less than the rate at which
he pays wages to employees of the opposite sex in such establishment
for equal work on jobs the performance of which requires equal skill,
effort, and responsibility, and which are performed under similar
working conditions, except where such payment is made pursuant to (i)a
seniority system; (ii) a merit system; (iii) a system which measures
earnings by quantity or quality of production; or (iv) a differential based
on any other factor other than sex.

29 U.S.C. § 206(d).
The Court of Appeals for the Eleventh Circuit has endorsed a two-step
approach to determining whether to certify a collective action under Section 216(b):
The 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 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
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notice and the opportunity to “opt-in.” The action proceeds as a
representative action throughout discovery.
Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001) (quoting
Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995)).1 “Because the
court has minimal evidence [during the first stage], this determination is made using
a fairly lenient standard, and typically results in ‘conditional certification’ of a
representative class.” Hipp, 252 F.3d at 1218.
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 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-i.e. the original plaintiffs-proceed
to trial on their individual claims.

In Dybach v. State of Fla. Dep’t of Corrections, 942 F.2d 1562 (11th Cir.
1991), the Eleventh Circuit set forth a two-part test for determining whether a
collective action under the FLSA should be conditionally certified. The two judicial
inquiries for the court to make are: (i) whether there are other employees of the
employer who wish to “opt-in;” and (ii) whether these employees are “similarly
situated” with respect to both there job duties and their pay. Dybach, 942 F.2d at
1567-68; see also Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240,
1247-49 (11th Cir. 2003) (detailing differences between collective actions under
FLSA and class actions under Rule 23).
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Hipp, 252 F.3d at 1218.2
Plaintiffs bear the burden of demonstrating a “reasonable basis” for their
contention that collective action status is appropriate. Grayson v. K-Mart Corp., 79
F.3d 1086, 1097 (11th Cir. 1996) (citing Haynes v. Singer Co., Inc., 696 F.2d 884,
887 (11th Cir. 1983)). Also, “[t]he decision to create an opt-in class under § 216(b),
like the decision on class certification under Rule 23, remains soundly within the
discretion of the district court.” Hipp, 252 F.3d at 1219.
The Supreme Court has identified the main benefits of a collective action under
§ 216(b):
A collective action allows . . . plaintiffs the advantage of lower
individual costs to vindicate rights by the pooling of resources. The
judicial system benefits by efficient resolution in one proceeding of
common issues of law and fact arising from the same alleged . . .
activity.
Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170, 110 S. Ct. 482, 486, 107 L.
Ed. 2d 480 (1989). Separate from determining the similarly situated issue, other
district courts have “balance[d] these putative benefits against any prejudice to the
defendant and any judicial inefficiencies that may result from allowing plaintiffs to

Although Hipp involved a collective action brought under the Age
Discrimination in Employment Act of 1967, the Eleventh Circuit has made clear that
the analysis set forth in that case applies with equal force to FLSA collective actions.
Cameron-Grant , 347 F.3d at 1243 n.2 (11th Cir. 2003).
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proceed collectively.” Bayles v. American Medical Response of Colorado, Inc., 950
F. Supp. 1053, 1067 (D. Colo. 1996); see id. (“Further, regardless of the potential
benefits, plaintiffs still must meet their burden of showing that they are similarly
situated.”).
III.

ANALYSIS
Based upon the substantially similar nature of the material FLSA facts in

Briggins with those at issue here, the court adopts the decertification decision in
Briggins as persuasive authority and concludes, in its discretion, that Plaintiffs have
not carried their second stage similarly situated burden and that, additionally, upon
balancing the competing interests, collective adjudication of this dispute is no longer
appropriate. In particular, the court finds that Plaintiffs’ response to the show cause
order does not establish any appreciable factual distinctions between the Briggins
record and this one, such that the decertification analysis utilized in Briggins should
somehow be disregarded or discounted by this court.
Instead, the court agrees with Briggins that the material differences among the
various positions, zones, and departments that this FLSA lawsuit presents “will make
it impractical to ‘resolve any significant issues on a class wide basis’” and that “[t]his
impracticality becomes even more apparent when considering the individual defenses
that the defendant can assert in this case.” (Doc. 166 at 31).
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Additionally, the court is not persuaded by Plaintiffs’ record-keeping
arguments as grounds for opposing the Motion. The Supreme Court’s burden-shifting
decision in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S. Ct. 1187, 90
L. Ed. 1515 (1946), overturned on other grounds by statute as recognized in
McKenna v. Champion Int’l Corp., 747 F.2d 1211, 1214 (8th Cir. 1984) (“Congress
passed the Portal Act to overturn the effect of Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946), in which the Supreme Court
held that certain preliminary and incidental activities not previously considered part
of a compensable workday were subject to FLSA’s minimum-wage and overtime
provisions.”), does not suggest, much less bind, this court to find that a “reasonable
basis” for continuing the collective action status of this lawsuit exists.
Critically, Anderson simply is not a decertification decision, but instead arises
out of the context of potential FLSA liability when an employer’s records evidencing
the hours worked by and compensation paid to its employees are lacking:
When the employer has kept proper and accurate records the
employee may easily discharge his burden by securing the production of
those records. But where the employer’s records are inaccurate or
inadequate and the employee cannot offer convincing substitutes a more
difficult problem arises. The solution, however, is not to penalize the
employee by denying him any recovery on the ground that he is unable
to prove the precise extent of uncompensated work. Such a result would
place a premium on an employer’s failure to keep proper records in
conformity with his statutory duty; it would allow the employer to keep
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the benefits of an employee’s labors without paying due compensation
as contemplated by the Fair Labor Standards Act. In such a situation we
hold that an employee has carried out his burden if he proves that he has
in fact performed work for which he was improperly compensated and
if he produces sufficient evidence to show the amount and extent of that
work as a matter of just and reasonable inference. The burden then
shifts to the employer to come forward with evidence of the precise
amount of work performed or with evidence to negative the
reasonableness of the inference to be drawn from the employee’s
evidence. If the employer fails to produce such evidence, the court may
then award damages to the employee, even though the result be only
approximate.
Anderson, 382 U.S. at 687-88, 66 S. Ct. at 1192 (emphasis added). Plaintiffs’
reliance upon other FLSA record-keeping opinions to counter HMA’s decertification
efforts is similarly misplaced.
In sum, this lawsuit contains a myriad of individualized inquiries coupled with
a dearth of proof on commonality, e.g., an HMA plan, policy, or practice that is
uniformly applied and well-suited for collective treatment. Consequently, akin to
Briggins, this court discretionarily discontinues this case’s conditional collective
course.
IV.

CONCLUSION
Accordingly, the Motion is GRANTED, and the collective action previously

permitted to proceed conditionally is HEREBY DECERTIFIED. Relatedly and
consistent with guidance from Hipp as well as the FLSA decertification procedures

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followed by this court in Collins v. Family Dollar Stores, Inc. (hereinafter “Collins”),
No. 7:04-CV-0553-VEH, (Doc. 240) (N.D. Ala. Dec. 11, 2006), all the claims of the
opt-in plaintiffs are HEREBY DISMISSED WITHOUT PREJUDICE to the right
of each opt-in plaintiff to pay the required filing fee and initiate his or her own
separate action against HMA no later than August 20, 2012. Collins, (Doc. 240 at 12). If any dismissed opt-in plaintiff fails to file his or her own lawsuit and pay the
required filing fee on or before August 20, 2012, then such person will forego the
opportunity to pursue any FLSA claims against HMA that form the basis of this
litigation. (Id. at 2).
The court further concludes, consistent with its decertification order in Fox v.
Tyson Foods, Inc. (hereinafter Fox), No. 4:99-CV-1612-VEH, (Doc. 602) (N.D. Ala.
Nov. 15, 2006), that there are variations among Plaintiffs’ work assignments and
claims such that collective adjudication of them is also inappropriate. Fox, (Doc. 602
at 1). For example, while Mr. Burroughs has worked as a production employee for
the same shift in the same zone of Assembly Frame within Building 1 or Line 13 for
his entire career at HMA (Doc. 155 at 45; Doc. 56 ¶ 11; Doc. 163-6 at 7 at 18-19;

Building 1 or Line 1 has produced the Honda Odyssey and occasionally the
Ridgeline. (Doc. 161-1 (Linda Bailey Decl.) ¶ 3).
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Doc. 62-5 ¶ 4), according to the complaint,4 Ms. Blake’s employment as a production
worker has been primarily in Building 2 or Line 2.5 (Doc. 56 ¶ 12). As the
Administration Division Manager for HMA explains although the Vehicle Quality,
Engine Assembly, and Production Materials Control departments have a single
department manager, each HMA production line is “separately managed and
organized . . . .” (Doc. 161-1 ¶ 5).
Additionally, while like Mr. Burroughs, Mr. Caldwell has been in Building 1
(Doc. 56 ¶ 13; Doc. 62-6 ¶ 4), he has worked in two different zones within Assembly
Frame and has testified differently than Mr. Burroughs about HMA’s practices and
procedures with respect to management of the workload within these zones. (See,
e.g., Doc. 155 at 45-46 (contrasting Mr. Burroughs’ working through lunch
allegations with no similar allegations made by Mr. Caldwell);6 id. (contrasting Mr.
Burroughs’s 10-12 minute pre-shift allegations with those of Mr. Caldwell, whose

The court has been unable to locate any declaration or deposition testimony
from Ms. Blake that has been filed into the record. (See Docs. 158, 173, 173-1, 1732). Ms. Blake’s “Consent to Join Suit As Party Plaintiff” is part of the record, but this
document does not identify the HMA department(s) and/or zone(s) in which she has
worked. (Doc. 56 at 17).
4

Building 2 or Line 2 has produced the Pilot and periodically, the Odyssey and
Accord. (Doc. 161-1 ¶ 3).
5

(See also Doc. 163-6 at 20 at 70-72; id. at 72 (“If you’re on a process make
sure that process is completed before you leave it [for lunch].”)).
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deposition testimony indicated that the time spent on pre-shift efforts depends upon
the specific process being performed and also revealed that his personal restrictions
prevented him from performing several processes)).7 Accordingly, Plaintiffs’ claims
are subject to individualized determinations and are properly adjudicated in separate
lawsuits.
The clerk is, therefore, DIRECTED to sever the causes of Mr. Caldwell and
Ms. Blake from this lawsuit, which will remain pending for Mr. Burroughs. Fox,
(Doc. 602 at 2). The clerk is to electronically copy the second amended complaint
(Doc. 56) and the answer (Doc. 59) filed in 1:08-CV-1239-VEH to the docket of the
severed cases. Fox, (Doc. 602 at 2). Each severed plaintiff is to pay the filing fee for
his or her severed case before August 20, 2012. Id. If any severed plaintiff fails to
pay the filing fee as provided above, the said case will be dismissed with prejudice.
Id.
The clerk is further DIRECTED to assign the severed cases to the undersigned
judge but to withhold drawing a case assignment card for the undersigned judge for
such cases until the court can meet as a whole and decide the appropriate allocation
(See also Doc. 163-6 at 15-16 at 53-54 (estimating time spent by Mr.
Burroughs doing pre-shift work); Doc. 163-9 at 28 at 102 (Mr. Caldwell’s agreeing
that “what needs to be done to start the process depends on the process”); id. at 12 at
41 (Mr. Caldwell’s indicating that there are 10-15 processes in rear suspension that
he does not perform due to his restrictions)).
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of case assignment credit. Fox, (Doc. 602 at 2). The litigation of Plaintiffs’ severed
claims will proceed in conformance with the most recent scheduling order (Doc. 115)
entered in this case on November 30, 2010, as further modified on May 6, 2011, by
the court’s CM/ECF margin entry. Finally, the severed cases shall be consolidated
for discovery purposes under 1:08-CV-1239-VEH, and all motions and other
documents are to be filed in that litigation. Fox, (Doc. 602 at 2).
DONE and ORDERED this the 19th day of July, 2012.

VIRGINIA EMERSON HOPKINS
United States District Judge

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