Walker et al v. Jefferson County Board of Education et al

Filing 43

MEMORANDUM OPINION. Signed by Judge R David Proctor on 3/22/2016. (AVC)

FILED
2016 Mar-22 PM 01:48
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

DARRYL WALKER, et al.,
Plaintiffs,
v.
JEFFERSON COUNTY BOARD OF
EDUCATION, et al.,
Defendants.

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Case No.: 2:13-CV-524-RDP

MEMORANDUM OPINION
This case is before the court on Plaintiffs Amended Renewed Motion for Conditional
Class Certification and Issuance of Court Supervised Notice to All Others Similarly Situated to
“Opt In” Pursuant to Rule 216(b) of the Fair Labor Standards Act. (Doc. # 40).
I.

Introduction
Plaintiffs are a group of ten (10) so-called 240-day employees either currently or

formerly employed by the Jefferson County Board of Education (“the Board”). For purposes of
this motion, their claims can be divided into two categories. First, they have sued the Board
alleging that the Board’s previous practice of dividing their annual salaries by 260 days to obtain
their hourly and overtime rates violated the Fair Labor Standards Act (“FLSA”). 29 U.S.C. §
201, et. seq. As explained below, the court refers to this allegation as Plaintiffs’ Common Claim.
Second, Plaintiffs have also alleged a garden variety of other FLSA violations. The court refers
to those allegations as Plaintiffs’ Individual Claims.

II.

Procedural History
In 2009, before this case was filed, a group of Jefferson County Board of Education

employees filed suit in this court. Reno, et al. v. Jefferson County Bd. of Educ., No. 2:09-cv01900-RDP (the AReno Litigation@). In the Reno Litigation, those employees challenged the
same pay practice condemned by the parties here. In particular, the Reno plaintiffs claimed
Defendants violated the FLSA because, although they were hired on the basis of a 240-day work
year, their pay rates were calculated on the basis of a 260-day annual salary.

The Reno

Litigation was mediated and settled. As part of the settlement, which this court approved, the
Board agreed to calculate the hourly pay and overtime rates of 240 day employees using a 240
day (rather than 260 day) annual salary. Based upon that settlement, the court dismissed the
Reno Litigation on September 1, 2010.
Following the Reno case, in September 2010 the Board approved a change from the 260day formula (the formula complained of here) to a daily rate formula based on 240 days for
purposes of calculating overtime rates. This change increased the overtime rate for all affected
employees (including Plaintiffs in this action). (Doc. # 41-1, Hammonds Aff. pp. 4-7, Exhs. EL). Thereafter, in 2010 the Board issued checks for back wages to all affected employees
(including each of the Plaintiffs here). (Id.). Every employee receiving a check negotiated it
(including Plaintiffs hereto), and letters were sent with those checks explaining the change and
the reasons for the change. (Id.).
After dismissal of the Reno Litigation, on October 8, 2010, Daryl Walker and twentynine (29) other then-current and former Board employees sued alleging FLSA violations. That
case was styled Darryl Walker, et al. v. Jefferson County Board of Education and bore civil
action number 2:10-cv-2713-JEO. It is referred to in this opinion as the A2010 Case.@ In the

2

2010 Case, Plaintiffs again sought back wages based on the previous 260 day method of
determining their hourly pay and overtime rates. And the Board again disputed the merits of that
claim.

The Board continues to assert that its 260 day method of calculation was correct;

however, in September 2010, the Board changed its calculation method to that proposed by
Plaintiffs here (and by the Reno plaintiffs) – i.e., utilizing a 240-day divisor instead of a weekly
or 260-day divisor. (See Doc. # 41-1, Hammonds Aff. pp. 4-7, Exhs. E-L). 1
On March 18, 2013, after two and a half years of litigation, the 2010 Case was dismissed
without prejudice at Plaintiffs= request. That request came after the court denied their request to
amend the pleadings to add school board members in their official capacities. Before that
dismissal, the parties had conducted extensive discovery on all claims asserted in the 2010 Case,
and motions to dismiss and/or for summary judgment were filed, fully briefed, and under
submission. Although the 2010 Case was initiated by thirty (30) plaintiffs, by the time of its
dismissal, only fifteen (15) plaintiffs remained in that case. The other fifteen (15) original
plaintiffs had either voluntarily dismissed their claims during the course of that litigation 2 or
their claims had been dismissed due to a failure to comply with a court order concerning a
discovery deadline.
This action was filed on the day after the dismissal of the 2010 Case—on March 19,
2013. Plaintiffs in this case number ten. Each one of them was a party to the 2010 Case. The
factual allegations and claims asserted in the Complaint in this case are substantively identical to

1

The affidavits that were filed in the 2010 Case have been refiled in this case. (Docs. # 41-1, Affidavit of
Dr. Phil Hammonds, 41-2 Affidavit of Yancy Morris, and 41-3 Affidavit of Eddie Brown). Each contains Rule 56
evidence pertinent to the subject Motion.
2

See 2010 Case, 2:10-cv-2713-JEO, Order of September 28, 2011 (Doc. # 27), Order of November 14,
2011 (Doc. # 35).

3

those that were asserted in the amended complaint in the 2010 Case. 3 In their Complaint,
Plaintiffs assert claims on their own behalf, and seek to represent other Board employees who
opt in and consent to representation. (Doc. # 1 at 1). 4
Plaintiffs have described the putative class in various ways. In their Complaint, they
reference it as a group of Anon-exempt employees of the Defendants in various job categories.@
(Doc. # 1,& 33). They have also stated that the group includes A[t]welve month employees who
worked as certified technicians and mechanics, support specialists, utility workers, secretaries,
electricians, accountants, custodians [for the Board.]@ (Id., & 21). In their Motion, they describe
the potential class as those employed Awith the Board in various non[-]exempt and non-certified
positions, including but not limited to custodians, paraprofessionals, secretaries, bookkeepers,
maintenance, Ketona facility workers and drivers.@ (Doc. # 40, & 3).
As noted above, Plaintiffs= FLSA claims fall into two categories. They allege that they (1)
were not fully paid overtime because the Board miscalculated those payments by using a formula
based on a weekly salary instead of a Adaily rate of pay@ (the ACommon Claim@), and (2) worked
time for which they were not paid at all or were not paid an appropriate overtime rate (the
AIndividual Claims@).
In their Complaint, Plaintiffs articulated their ACommon Claim@ as follows:
21. Defendant Jefferson County Board of Education did not properly calculate
the daily rate of the plaintiffs for FLSA purposes. Twelve month employees who
worked as certified technicians and mechanics, support specialists, utility
workers, secretaries, electricians, accountants, and custodians for Defendant daily
rate of pay was calculated by dividing their individual annual salary by 260 days

3

In fact, other than the addition of the aforementioned official capacity claims and the deletion of specific
individual claims filed on behalf of the five Plaintiffs in the 2010 case who were not included in the Complaint, the
text of the Complaint appears identical to that found in the Amended Complaint filed in the 2010 case.
4

29 U.S.C. § 216(b) of the FLSA authorizes collective actions in a proper case.

4

instead of 240 days. This resulted in an incorrect and lower hourly rate of
overtime rate.
(Doc. # 1, ¶ 21). 5 Plaintiffs make additional allegations about their respective Individual Claims
in && 23-32 of the Complaint. (Id., ¶¶ 23-32). In those allegations, they assert they were not
paid for certain work performed. After addressing the proper standard of review, the court
discusses Plaintiffs’ Common Claim and Individual Claims, in turn.
III.

Legal Standard Applicable to Motion
The FLSA authorizes the filing of collective actions when the following conditions are

met:
An action ... may be maintained against any employer ... by any one or more
employees for and in behalf of himself or themselves and other employees
similarly situated. No employee shall be a party plaintiff to any such action unless
he gives his consent in writing to become such a party and such consent is filed in
the court in which such action is brought.
29 U.S.C. § 216(b). The purpose of such a collective action is “to avoid multiple lawsuits where
numerous employees have allegedly been harmed by a claimed violation or violations of the
FLSA by a particular employer.” Prickett v. Dekalb County, 349 F.3d 1294, 1297 (11th Cir.
2003). A district court has the discretion to conditionally certify a collective action if doing so
would permit the Aefficient resolution in one proceeding of common issues of law and fact
arising from the same alleged ... activity.@ HoffmanBLa Roche, Inc. v. Sperling, 493 U.S. 165,
169-70 (1989). Our Circuit has made clear that before exercising that discretion and Afacilitating
notice, a district court should satisfy itself that there are other employees who desire to >opt-in=
and who are >similarly situated= with respect to their job requirements and with regard to their
pay provisions.@ Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1259 (11th Cir. 2008);

5

These allegations are identical to those asserted in the 2010 Case. (See & 40 of Amended Complaint in
2010 Case).

5

see also Dybach v. State of Fla. Dep=t of Corrs., 942 F.2d 1562, 1567-68 (11th Cir.1991) (Athere
must be other employees of the [defendant-] employer who desire to >opt-in= and are >similarly
situated@).
AA plaintiff has the burden of showing a >reasonable basis= for his claim that there are
other similarly[-]situated employees.@ Morgan, 551 F.3d at 1260 (citations omitted). Thus,
“[t]he burden is on the plaintiffs to make an evidentiary showing that they and the proposed class
are similarly situated, not on the defendants to disprove such similarity.@ Saxton v. Title Max of
Alabama, Inc., 431 F.Supp.2d 1185, 1188 (N.D. Ala. 2006) (citing Reed v. Mobile County Sch.
Sys., 246 F.Supp.2d 1227, 1232 (S.D. Ala. 2003).

Further, a plaintiff Amust make some

rudimentary showing of commonality between the basis for his claims and that of the potential
claims of the proposed class, beyond the mere facts of job duties and pay provisions....@ Marsh v.
Butler Cnty. Sch. Sys., 242 F.Supp.2d 1086, 1093 (M.D. Ala. 2003); Thedford v. Drive In of
Evansville, Inc., 2014 WL 5520954 (N.D. Ala. 2014).
When a court undertakes the so-called similarly-situated inquiry, common job titles and
descriptions between Plaintiffs and the putative class members Aalone cannot be the basis for
conditional certification.@ See Pickering v. Lorillard Tobacco Co., 2012 WL 314691 at *12
(M.D. Ala. 2012). Rather, a court must look to the nature of each employee=s job duties, and the
degree to which evidence regarding the plaintiff=s job duties can be applied to all other
employees. Id.; see also, Holt v. Rite Aid Corp., 333 F.Supp.2d 1265, 1272 (M.D. Ala. 2004)
(AThe >similarly situated= inquiry in this case must be analyzed in terms of the nature of the job
duties performed by each putative plaintiff.@); Prince v. Cato Corp., 2015 WL 1040713 at
*9−10 (N.D. Ala. 2015).

6

In Hipp v. Liberty National Life Insurance Co., the Eleventh Circuit Asuggest[ed]@ a Atwotiered approach to certification of § 216(b) opt-in classes@ to assist district courts in resolving the
similarly situated inquiry. 252 F.3d 1208 (11th Cir. 2001).
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 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 ....
Hipp, 252 F.3d at 1218.
But this is not the usual case. Ordinarily, at the notice stage the parties have not yet
conducted extensive discovery directed at the factual issues and FLSA claims. Here, the parties
have done so – both in this litigation and the 2010 Case. Obviously, this litigation has progressed
well beyond the point that courts usually entertain an early motion for notice. AThe rationale [for
a more lenient standard of analysis that may apply at the preliminary stage of a case like Hipp6]
disappears ... once plaintiffs have had an opportunity to conduct discovery with respect to
defendant=s policies and procedures.@ Davis v. Charoen Pokphand (USA), Inc., 303 F.Supp.2d
1272, 1276 (M.D. Ala. 2004) (citing White v. Osmose, Inc., 204 F.Supp.2d 1309, 1313 n. 2
(M.D. Ala. 2002); Brooks v. BellSouth Telecomms., Inc., 164 F.R.D. 561, 566 (N.D. Ala.1995))
(emphasis added). When, as here, an FLSA case is in an advanced posture that is Adifferent . . .

6

Plaintiffs referenced the authority of Hipp in their Motion. However, as is discussed herein, the more
lenient standard discussed there is inapplicable here.

7

than that envisioned in Hipp as the first stage, or >notice stage,= . . . a more searching standard of
review is appropriate.@ Davis, 303 F.Supp.2d at 1276, and a plaintiff Awill not be permitted to
rely on the allegations in [the] Complaint. Rather, [a plaintiff] must rely on the evidence, and all
the evidence will be considered, not just [plaintiffs= evidence].@ See Pickering, 2012 WL 314691
at *9. Moreover, at this advanced stage of a case, a court must more seriously consider its
Aresponsibility to avoid the >stirring up= of litigation through unwarranted solicitation.@ Brooks,
164 F.R.D. at 567; Thedford, 2014 WL 5520954 at *12.
Finally, Athe mere fact that [FLSA] violations occurred cannot be enough to establish
similarity, as that would not ultimately be sufficient to establish a pattern and practice without a
showing that the violations were more than sporadic occurrences.@ Marsh, 242 F.Supp.2d 1086,
1094 (M.D. Ala. 2003); Hilley v. Tacala, L.L.C., 2014 WL 1246364 at *15-16 (N.D. Ala. 2014).
Rather, a plaintiff must demonstrate a Apattern@ of FLSA violations that Astem from [defendant’s]
formal or informal policy.@ Id.; see also Morgan, 551 F.3d at 1264. Where no wide-spread or
across-the-board FLSA violations can be pointed to, an Aindividualized analysis of the specific
minimum wage and overtime compensation violations [would be necessitated for] each and
every member of the proposed collective action@ (see Hilley at 15−16; see Ledbetter v. Pruitt
Corp., 2007 WL 496451 at *5 (M.D. Ga. Feb. 2007)), and Asuch an individualized analysis runs
directly counter to >the economy of scale= envisioned by collective treatment of similarly situated
employees under § 216(b) of the FLSA.@ Id. (citing Horne v. United Servs. Auto Ass’n, 279
F.Supp.2d 1231, 1237 (M.D. Ala. 2003)).

8

IV.

Analysis
As noted above, Plaintiffs= FLSA claims fall into two categories: (1) the so-called

Common Claim; and (2) their respective Individual Claims. The court addresses each category
of claims in turn.
A.

The Common Claim

Plaintiffs’ Common Claim relates to their allegation that the Board miscalculated the
overtime rate for Plaintiffs and other noncertified Board employees who were hired on a 240-day
basis. In particular, they complain they were short-changed as to their hourly pay and overtime
rates when the Board divided their individual annual salary by 260 days instead of 240 days.
(Doc. # 1, & 21). This same claim was advanced in the Reno Litigation (brought in this court in
2009) by other Board employees, all of whom were previously represented by Plaintiffs’ counsel
in this case. The Board disputed Plaintiffs= Common Claim in the Reno Litigation.
In their Motion, Plaintiffs request that this court conditionally certify a class of the
Board=s non-exempt, 240-day employees to provide them an opportunity to opt-in and
collectively assert the Common Claim. However, Defendants note that by September 2010, the
Board had corrected any alleged FLSA violations related to that Common Claim. 7

They

changed the policy and paid those employees affected the difference between the pay rates.
(Doc. # 41-1). Thus, they argue that the ACommon Claim@ made by Plaintiffs is also time barred
because the Board remedied that alleged FLSA violation more than two years before the filing of
the Complaint (on March 19, 2013).

7

For example, Plaintiff Jimmy Williams has attested that his Aovertime rate increased by $3.10 per hour
after the Board corrected its miscalculation of my overtime pay in or about September 2010.” (Doc. # 40-2, ¶ 7,
Williams Declaration).

9

To join an FLSA collective action, an employee must consent, or Aopt in,@ by filing with
the court a written consent. 29 U.S.C. § 216(b) A[O]pt-in plaintiffs are deemed to commence
their civil action only when they file their written consent to opt into the class action.@ Grayson
v. K Mart Corp., 79 F.3d 1086, 1106 (11th Cir. 1996); 29 U.S.C. § 256. The ordinary statute of
limitations in cases brought under the FLSA is two years. 29 U.S.C. § 255(a). The FLSA
provides for a three-year statute of limitations for causes of action arising from a willful
violation. 29 U.S.C. § 255(b). 8
There is little question that as of September 2012 (three and a half years ago), the statute
had run on any FLSA claim that was not then filed. Similarly, even if Plaintiffs alleged that the
so-called Common Claim FLSA violation could be deemed “willful” (and, to be sure, they have
not), and the three year statute of limitations applied, those claims became untimely as of 2013.
It follows inexorably that there are no current or former employees of the Board who could opt
in to this action at this (or any future) point and assert a viable Common Claim that is not timebarred, under either the two or three year statute of limitations that may apply in an FLSA case.
Accordingly, because any attempt to opt in based on the Common Claim will be untimely,
Plaintiff=s Motion is due to be denied as to the Common Claims.
Of course there are other reasons to deny Plaintiffs’ motion to certify the Common Claim
for opt in treatment here. Those are addressed below.
1.

Plaintiffs Have Not Satisfied the Opt-In Interest-In-Litigation
Requirement.

To prevail on their Motion, Plaintiffs must demonstrate that other employees have an optin interest in this litigation.

Pickering, 2012 WL 314691 at *12. (citation omitted).

8

Plaintiffs cannot avail themselves of the extended statute of limitations for willful violations because they
have not alleged any willful violations of the FLSA in the Complaint. (Doc. # 1).

10

“[U]nsupported expectations that additional plaintiffs will subsequently come forward” are
insufficient. Mackenzie v. Kindred Hosps. East, L.L.C., 276 F.Supp.2d 1211, 1220 (M.D. Fla.
2003).
When Plaintiffs filed the Motion, they also filed Consent forms signed by two persons:
(1) Kelvin Kimble, former Board employee at Minor High School from October 1996 – July 29,
2013. Kimble held the position of a nine month, eight hour custodian during the course of his
employment; and (2) Tammra Harris, former Board employee at Chalkville Elementary School
from 2007-2011. Harris held the position of a six hour (30 hours per week) Child Nutrition
Program worker during the course of her employment. (See Docs. # 40-4, 40-5).
Over the five and one-half (5½) year course of this litigation (spanning from the filing to
the 2010 case to present), only Kimble and Harris 9 have filed a consent opt-in form to join these
actions. No potential plaintiffs have indicated the same interest. Plaintiffs’ failure to show that
there are others who want to opt in is fatal to their Motion. See Pickering, 2012 WL 314691 at
*12 (holding only one opt-in plaintiff during one and a half years of litigation was insufficient to
meet the interest-in-litigation requirement).
Finally, it is highly doubtful that expending the resources associated with class
certification and notice would produce any judicial economies. There is nothing that suggests
any appreciable number of opt-in claimants may be added. Other employees who might join this
action must have been the victims of an FLSA violation similar to those asserted by Plaintiffs.
Moreover, as noted above, the statute of limitations for opt-in claimants runs from the time the
Consent is signed and filed with the court. See Grayson v. K Mart Corp., 79 F.3d 1086, 1106
(11th Cir. 1996). The pay practice that is the subject of the Common Claim was changed in
9

Of course, any claim by Harris -- who was last employed by the Board in 2011 -- is time barred and
cannot be considered.

11

2010. Thus, even if there were potential FLSA class members in this case, they would have to
show their rights were similarly violated within two years of the filing of their consents.
In fact, over the span of this action and the 2010 Case, the number of persons pursuing
claims has dropped precipitously. Twenty employees who initially filed as plaintiffs effectively
“opted-out” by dismissing or failing to prosecute their claims. 10 None of the persons who
dismissed their claims during that time did so because of a settlement; rather, by all indications,
they decided not to pursue their claims for other reasons. During the long course of this
litigation that saw the exodus of twenty co-plaintiffs from the suits, Plaintiffs have managed to
recruit only two other persons -- Kimble and Harris -- to join their cause 11 and both of those
employees are no longer employed by the Board, having left in July 2013 and October 2011,
respectively.
Moreover, as already noted during the life of this litigation, the Board has changed its
means for reporting, administering, and paying overtime compensation. (See Exh. D, Jones Aff.
p. 2). Before October 2012, employees used paper time sheets to report time to the Board, and
most of Plaintiffs’ Individual Claims involve complaints made in some form or fashion about
those time sheets. In 2012, the Board adopted a comprehensive, real-time, electronic time
keeping system.

That system entails wholly different processes, from employee input, to

corrections, to payments. Thus, the Individual Claims that Plaintiffs have identified are not
based on a pay system similar to that in place before October 2012. (See Ex. D, Jones Aff. p. 2,
Exhs. A-B.). For all these reasons, Plaintiffs have not shown the existence of other similarly
situated employees who desire to opt-in.

10

At the inception of the 2010 case, there were thirty plaintiffs. Today, only ten plaintiffs remain in this

action.
11

Kimble and Harris filed their Consents with the Motion.

12

Although there appears to be little binding precedent providing guidance as to the issue of
numerosity related to a conditional FLSA opt-in certification, other district courts have declined
to certify classes when there appear to be few potential plaintiffs. See, e.g., Smith v. Washington
County Kennel Club, Inc., 2014 WL 4627437 (N.D. Fla. 2014) (finding that five additional opt in
members insufficient to certify a class); Latortue v. Fast Payday Loans, Inc., 2010 WL 557712
(M.D. Fla. 2010) (finding that adding five opt-in plaintiffs was not sufficient to certify a class);
Rappaport v. Embarq Mgmt. Co., 2007 WL 4482581 (M.D. Fla. Dec.18, 2007) (finding six optin affidavits insufficient to certify class); Sanders v. Drainfield Doctor, Inc., 2007 WL 1362723
(M.D. Fla. 2007) (finding class of twelve employees not large enough to justify class treatment).
Plaintiffs have provided no evidence that, if this court grants certification, additional
plaintiffs (other than those who have already sent notice – Kimble and Harris) are likely to
surface in any meaningful number. 12 At this point, having already had the opportunity to conduct
discovery necessary to identify additional op-ins, certification appears to be designed as a fishing
expedition for additional plaintiffs. Certification is not the appropriate means to discover other
plaintiffs to join the lawsuit. Smith, 2014 WL 4627437 at *2 (citing Sanders, 2007 WL 1362723
at *3 (and in turn citing Mackenzie v. Kindred Hosps. East, L.L.C., 276 F.Supp.2d 1211, 1220
(M.D. Fla. 2003)). “It would not be in the interests of justice to utilize judicial resources to
search for a class with so little evidence of its existence, and when the existing class is so small
(at most seven individuals).” Smith, 2014 WL 4627437 at *2.
B.

The Individual Claims

Plaintiffs have also asserted Individual Claims.

As Defendants correctly note, the

Individual Claims are specific to Plaintiffs’ various positions, circumstances, and work
12

This lack of opt-in interest may be connected to the facts that the Board has previously corrected the
challenged pay formula (Doc. # 41-1, pp. 4-7) and after that change, issued back pay checks to all those affected.
(Id.).

13

responsibilities for the Board. The court concludes that the allegations made by Plaintiffs and
the evidence they have submitted with respect to these Individual Claims simply does not justify
treating these claims collectively. Plaintiffs have not met the requirements of showing that other
employees who are similarly situated desire to opt in.
1.

Plaintiffs Have Not Shown a Board Policy, Plan, Practice or Scheme
that Relates to Plaintiffs’ Individual Claims and Violates the FLSA

It is axiomatic that a plaintiff seeking to certify an FLSA class must show that the
employer has policies or practices that violate the FLSA. As noted above, Plaintiffs’ FLSA
claims in this case are identical to those they asserted in their 2010 Case. In the 2010 Case, the
parties took fourteen months to conduct extensive comprehensive discovery concerning these
claims. That discovery included seventeen depositions (including depositions of all Plaintiffs in
this case and five Board Representatives), 13 Interrogatories and Requests for Production sent by
Plaintiffs to the Board, similar requests from the Board to Plaintiffs, and production of
substantial documents by both sides (including time records and personnel files of every
Plaintiff).
The substantial discovery completed in the 2010 Case, and other discovery taken in this
litigation, have permitted Plaintiffs an ample opportunity to discover the Board=s policies related
to their Individual Claims. As already noted above, the rationale for application of the Amore
lenient@ standard simply does not apply here. Rather, it is appropriate to apply a Amore searching
standard of review@ to determine whether there are other employees who are Asimilarly situated@

13

Plaintiffs took the deposition of the Board=s Superintendent (Dr. Phil Hammonds), CFO (Ms. Sheila
Jones), Deputy Superintendent (Dr. Yancy Morris), Director of Support Operations (Mr. Eddie Brown) and Central
Office Building Coordinator (Mr. Lonnie Self). Each of these depositions was made a part of the record in the 2010
Case. The court takes judicial notice of the record in that action. See Horne v. Potter, 392 Fed. Appx. 800 (11th
Cir. 2010); Universal Express Inc. v. U.S. S.E.C., 177 Fed. Appx. 52, 53 (2006) (per curiam); Cash Inn of Dade,
Inc. v. Metropolitan Dade County, 938 F. 2d 1239 (11th Cir. 1991).

14

to whom notice should issue. Thedford, 2014 WL 5520954 at *2 (N.D. Ala. 2014) (citing Davis
v. Charoen Pokphand (USA) Inc., 303 F.Supp.2d 1272, 1276 (M.D. Ala. 2003)). 14
Here, despite conducting extensive discovery, Plaintiffs have not pointed to any common
evidence of a pervasive policy, plan, or practice by the Board that violates the FLSA and relates
to each of the Plaintiffs themselves (much less others). Consequently, this situation is analogous
to that which was presented to this court in Saxton v. Title Max of Alabama, Inc., 431 F.Supp.2d
1185 (N.D. Ala. 2006). In Saxton the plaintiffs failed to offer statements or other evidence of
any Asingle decision, policy, or plan@ that allegedly resulted in the proposed opt-in class not
receiving overtime wages in contravention of FLSA. Id. at 1188. This court denied the class
certification motion and reasoned as follows:
In the absence of any evidence tending to show that [the employer] routinely
breached FLSA=s overtime provisions, such deviations are then, by their very
nature, highly case-specific and subject to a variety of variables, including
whether [management] neglected to enforce the overtime policy and/or whether
the [employee] failed to report his or her overtime hours. The individualized
analysis of overtime compensation runs directly counter to Athe economy of scale
envisioned by@ collective treatment of substantially similar employees under §
216(b) of the FLSA. See Horne v. United Servs. Auto. Ass’n, 279 F.Supp.2d
1231, 1237 (M.D. Ala. 2003) (discussing § 216(b)’s Acompeting considerations of
the economy of scale@ and avoiding A>stirring up= of litigation through
unwarranted solicitation@) (citations omitted). Accordingly, Plaintiffs’ efforts to
obtain conditional certification are alternatively rejected because they have failed
to satisfy the similarly situated requirement regarding their compensation.
Id. at 1189. The court’s analysis in Saxton applies equally here.
14

In Davis, the court explained the significance of discovery on the collective action process as follows:

This case is in a slightly different posture than that envisioned in Hipp as the first stage, or Anotice
stage,@ 252 F.3d at 1218, and thus a more searching standard of review is appropriate. The
rationale for the Afairly lenient standard@ is that at the early stages of litigation, plaintiffs have not
had time to conduct discovery and marshal their best evidence. See id. This rationale disappears,
however, once plaintiffs have had an opportunity to conduct discovery with respect to defendant=s
policies and procedures. White v. Osmose, Inc., 204 F.Supp.2d 1309, 1313 n.2 (M.D. Ala.
2002)(Albritton, C.J.); see also Brooks v. BellSouth Telecommunications, Inc., 164 F.R.D. 561,
566 (N.D. Ala. 1995)(Blackburn, J.)(analyzing motion for conditional class certification in light of
extensive discovery by plaintiff.)
Id. at 1276.

15

2.

Not Only Have Plaintiffs Failed to Show that They are Similarly
Situated for Purposes of Maintaining a Collective Action on Their
Individual Claims, They Have Not Shown They are Similarly Situated
to One Another

Plaintiffs seek to certify a conditional class of all Anon[-]exempt and non-certified
positions, including but not limited to custodians, paraprofessional, secretaries, bookkeepers,
maintenance, Ketona facility workers, and drivers@ which essentially consists of all non-teachers
or administrative level employees. (See Doc. # 1, & 3). The class they seek to certify is
exceptionally broad. The Board employs over 1,500 non-exempt employees at over sixty
different job locations with varying work hours, work days, schedules, supervisors, and job
duties, responsibilities and classifications. Here, Plaintiffs have not shown that they themselves
are similarly situated to each other, much less that there are other employees working (or who
previously worked) for the Board who are similarly situated.

The court addresses both

comparisons.
a.

Plaintiffs Themselves are Not Similarly Situated to Each Other

Substantial differences exist between the types of positions Plaintiffs held. In addition,
Plaintiffs work at different locations, and during different work periods. Below is a chart
submitted by the Board which demonstrates the differences:
Name

Position Held

Work Location

Current Status

Daryl Walker

Assistant Building
Coordinator

Central Office

Active

Kimberly
Brumbeloe

Secretary

Central Office
(Curriculum and
Instruction Support
Services)

Resigned
12/12/12

Ronnie Newsome

Certified Technician - Truck
and Equipment Operator

Support Operations

Retired 3/1/12

16

Darlene Holder

Staff Accountant

Central Office (New
Construction)

Active

Clarence Powell

Certified Technician Electrician/Custodian

Central Office

Retired 3/1/14

Odell Sumerlin

Utility Worker - Truck and
Equipment Operator

Support Operations

Retired 12/6/11

Sylvia Miller

Office Assistant I

Central Office

Active

Jimmy Williams

Specialist - Storage and
Distribution

Support Operations

Retired 1/5/12

Eugene Jarmon, Jr. Custodian

Central Office

Retired 9/1/10

Ronald Chambers

Minor High School

Retired 3/1/14

Head Custodian

(Doc. # 41 at 13).
The goal of a collective action is to promote judicial efficiency. Here, there is little
commonality in the positions, locations of work, and periods of work performed by Plaintiffs
themselves, as well as between Plaintiffs and those they seek to send notice to. Therefore, no
efficiencies would be created by granting the Motion and sending notice to other employees who
held different positions, worked a variety of hours, possessed disparate job duties, experienced
different employment circumstances, and worked in dissimilar locations under a number of
supervisors. It follows, therefore, that judicial economy will not be promoted if the court permits
Plaintiffs to transmit notices and attempt to secure consents from persons whose claims are
inherently dissimilar to those advanced by Plaintiffs in this action.
b.

No Commonality Exists between the Nature of Plaintiffs’
Individual Overtime Claims and Those of Other Potential
Plaintiffs

In assessing whether employees are similarly situated for the purposes of collective
action treatment, a district court must also “analyze the nature of each employee’s job duties,
and the degree to which evidence regarding the [named] plaintiff’s job duties can be applied to

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all other employees.” Pickering v. Lorillard Tobacco Co., 2012 WL 314691 at *12 (M.D. Ala.
2012) (emphasis in original); see also Prince, 2015 WL 1040713 at *9 (N.D. Ala. 2015). This
burden cannot be met by simply showing commonality between job duties and pay provisions of
Plaintiffs’ and putative class members. Rather, putative representatives must show commonality
between the basis of their claims and the claims of the putative class. See Marsh v. Butler Cnt.
Sch. Sys., 242 F.Supp.2d 1086, 1053 (M.D. Ala. 2003). Here, Plaintiffs have not come forward
with any information that satisfies this burden. Indeed, a comparison of the specific allegations
made by Plaintiffs concerning their Individual Claims and the claims of others in the putative
class establishes that there is no commonality between those respective claims.
The evidence submitted with the Motion in the Declaration of Jimmy Williams and
Ronald Chambers falls short of the threshold burdens necessary to support a collective action.
Jimmy Williams worked as a Specialist in Support Operations at the Ketona facility. He has
alleged in his Complaint that he “was paid a monthly compensation based on a 40 hour work
week,” and that “[t]he Board . . . did not pay [him] for all hours worked over forty at a rate of
time and a half.” (Doc. #1, ¶ 30). Williams also submitted a Declaration (Exhibit B to Motion)
in which he stated the following in relevant part:
4. My schedule shift was 7:00 a.m. to 3:30 p.m. I was the second
employee to arrive in the mornings at 6:30 a.m. wherein to beg[i]n my
daily duties. Eddie Brown was the first employee to arrive at the
‘Ketona’ facility.
5. I worked through my one hour duty free period.
9. My normal workweek while employed by the Board consisted of
between 47 and 50 hours per week. I did work such as paperwork,
reports and vehicle preparation including loading and unloading the
trucks.
10. I arrive thirty minutes early and started my duties.

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(Doc. # 40-2, ¶¶ 4, 5, 9, 10). Putting aside the question of whether these allegations are
consistent with his deposition testimony, what is clear from the Rule 56 record is that Williams
(1) occupied a unique position at a unique facility in a Board department that no longer exists,15
and (2) worked with employees who are either already named Plaintiffs in this suit (Odell
Sumerlin and Ronnie Newsome) 16 or who are no longer employed by the Board. Because the
procedures, job conditions, and work environment at the Department where Williams worked are
no longer in place, there are simply no employees who are “similarly situated” to him. (See Doc.
# 41-2 at 2).
When the 2010 Case was filed, the original plaintiffs in that action included twenty
employees from the Transportation and Maintenance Departments at Ketona. But all of those
employees have since voluntarily dismissed their claims. That left only the employees in Storage
and Distribution in the suit. (See 2010 Case, Docs. # 27, 35). Because of the unique position
Williams held (i.e., the special nature of the Ketona facility, his unique job functions, the
shuttering of his former work group, and the time that has passed since he retired), and the
unique basis of his claims (i.e., the very job-specific allegations he has made), Plaintiffs simply
cannot establish that there are other employees who are similarly situated to him.
Ronald Chambers worked as the Head Custodian at Minor High School. He is the only
local school-based employee in this suit. He alleged in the Complaint that he “was paid a
monthly compensation based on a 40 hour work week,” and that “[t]he Board . . . did not pay

15

Williams was employed in the Storage and Distribution division of Support Operations at the Ketona
facility. Support Operations used to consist of two components: Storage and Distribution (where Williams,
Newsome, and Sumerlin worked) and Maintenance. However, operational changes rendered Storage and
Distribution unnecessary. The duties performed by that group were effectively phased out as employees retired or
resigned and the duties formerly performed by Storage and Distribution employees are now performed by
employees in the Maintenance Department.
16

In his deposition, Williams testified that he supervised Newsome and Sumerlin, among others. (Case No.
2:10-cv-2713-JEO, Doc. # 57-6).

19

[him] for all hours worked over forty at a rate of time and a half.” (Complaint, ¶ 32). Chambers
submitted a Declaration in which he claims the following in relevant part:
3. I worked through my duty free periods or often worked later than
my scheduled work time several days of each work week. In fact, I did
not have a scheduled or thirty minute duty free period.
6. My normal workweek while employed by the Board consists of
between 45 and 50 hours per week.
7. My normal shift as Head Custodian was 3 p.m. to 11 p.m. On
several occasions, I started work by going to get supplies one and one
half to two hours before my shift started.
8. I was required to answer the school alarm after my shift. I answered
the alarm calls at least once per week, which took approximately two
and a half hours.
(Doc. # 40-3, ¶¶ 3, 6-8). Again, putting aside any issue as to whether Chambers’s Declaration is
consistent with his deposition testimony, 17 the court notes that Chambers: (1) is now retired and
has no personal knowledge of the processes and procedures which now are in place at the Board,
at his former work location, or at other Board schools or locations; (2) was the only Head
Custodian at Minor High School, and in that position his job duties included a unique range of
responsibilities, some of which other custodians do not share (including supervision of other
custodians); and (3) worked an unsupervised shift (from 3:00 p.m. to 11:00 p.m. during which, at
least for the most part, administration was not present). Because his position was unique and the
nature of his duties was unlike those of other Board employees (including other persons holding
custodian jobs), the evidence submitted does not establish the requisite nexus between his job
and the positions of other “similarly situated” employees.
These are but two examples of why Plaintiffs’ claims are not appropriate for collective
treatment. They have not shown, even after conducting substantial discovery, that similarly
17

Chambers testified that his shift was scheduled to be 3-11:30, but he sometimes did not take his 30
minute free period so he could leave early at 11:00. (Case No. 2:10-cv-2713-JEO, Doc. # 57-17 at 11-12).

20

situated employees (1) have been affected by similar pay practices, (2) have not received
overtime compensation, and (3) desire to pursue their wage claims in this action. Indeed,
considering the diversity of Plaintiffs’ positions, the disparate nature of their respective duties,
and their allegations and submissions, at best, they have only alleged general, sporadic violations
of the FLSA in their Individual Claims. That evidence does not reasonably connect their claims
to those of other “similarly situated” employees and, as recognized in Thedford, is legally
insufficiently to justify collective treatment:
[T]he mere fact that violations occurred cannot be enough to establish similarity,
as that would not ultimately be sufficient to establish a pattern and practice
without a showing that the violations were more than sporadic occurrences.”
[Marsh v. Butler Cnty. Sch. Sys., 242 F.Supp.2d 1086, 1094 (M.D. Ala. 2003]
Plaintiff must demonstrate a “pattern” of FLSA violations that “stem from
[defendant’s] formal or informal policy.” Id.; see also Morgan v. Family Dollar
Stores, Inc., 551 F.3d 1233, 1264 (11th Cir. 2008).
Thedford, 2014 WL 5520954 at *12.
Actually, the situation that now confronts this court is substantially similar to that
presented in Marsh v. Butler Cnty. Sch. Sys., 242 F.Supp.2d 1086 (M.D. Ala. 2003). In Marsh,
the plaintiffs alleged that they were victims of a common plan or policy under which the
defendant failed to pay overtime wages for all time worked in excess of forty hours (40) per
week. The Marsh plaintiffs sought conditional class certification pointing to employees who
worked for that school board in various positions: bus drivers, custodians, assistant teachers,
janitors, cafeteria workers, maintenance workers, bus barn employees, secretaries, cafeteria
managers, mechanics, maids, and security guards. However, just as here, the Marsh plaintiffs
came forward with nothing to suggest that there was a particular employment practice which led
to the loss of properly paid time. Id. at 1087. Faced only with evidence of sporadic FLSA

21

violations, the court denied the plaintiffs’ motion for conditional class certification and reasoned
as follows:
In this case, there is apparently no dispute that the employees at issue are in
various job classifications and employed at different schools within the Defendant
system. While this is not fatal to a finding that the plaintiffs are similarly situated,
Harper v. Lovett’s Buffet, 185 F.R.D. 358 (M.D. Ala.1999), the mere fact that
violations occurred cannot be enough to establish similarity, as that would not
ultimately be sufficient to establish a pattern and practice without a showing that
the violations were more than sporadic occurrences. To conclude otherwise, that
is, to conclude that it is enough to demonstrate that employees are similarly
situated simply to say that they claim violations of the law by the same employer,
is to conclude that any time an employer had two or more employees who
allegedly were not being paid the overtime they claimed they were due, the
employees would be similarly situated and be allowed to proceed with a collective
action.
Id. at 1093. The Marsh court’s analysis applies with full force here.
3.

Plaintiffs Have Not Satisfied the Opt-In Interest-In-Litigation
Requirement

In its discussion of the Common Claim above, the court has explained why Plaintiffs
have not satisfied the opt-in interest-in-litigation requirement. (See section IV., A, 1, supra).
That same analysis applies to Plaintiff’s Individual Claims. Plaintiffs have not shown the
existence of other similarly situated employees who desire to opt-in.
4.

Other Alleged Grounds for Motion are Insufficient

In their Motion, Plaintiffs assert that several other factors support their Motion.
However, each of these “other factors” constitutes an insufficient basis to grant the Motion.
For instance, Plaintiffs allege that they are:
all victims of a common plan, policy or practice of the Board which violated the
provisions of the FLSA. That is, the Defendant knowingly and purposefully failed
to properly calculate and pay overtime wages for all time worked in excess of
forty (40) hours [per week] as specifically required in the FLSA. Plaintiffs
contend that “Alabama school boards, generally, and Jefferson County Board of
Education, specifically have been aware of the overtime issues since similar
lawsuits were filed before 2003.
22

(Doc. # 40, ¶ 4). 18 An allegation that an employer knew of general overtime issues from other
lawsuits is insufficient to support a motion for class certification, particularly after a group of
plaintiffs have had years to conduct FLSA discovery and discover common practices and/or
issues.

In Marsh, the plaintiffs made similar allegations that a defendant had previous

knowledge of “problems with FLSA compliance standards.” Marsh, 242 F.Supp.2d at 1088. In
that case, this prior knowledge was available based upon a show that had aired on public
television. Id. The court in Marsh questioned whether this information was relevant, and further
concluded that “if [it is at] all probative, [it is] only slightly probative of whether persons within
the Defendant’s school system exist who have been denied overtime in violation of the FLSA.”
Id. Here, as in Marsh, even if these allegations about “other overtime issues” are probative, they
certainly do not satisfy Plaintiffs’ burden to demonstrate that there are other employees who
desire to “opt-in” and who are “similarly situated” to Plaintiffs.
Finally, Plaintiffs contend that the Declarations of Williams and Chambers and the
Consents of Kimble and Harris provide further evidence that there are others who are similarly
situated to the named plaintiffs. (Motion, ¶ 5). Williams made the following statements in his
Declaration with respect to other, unnamed co-employees:
14. During my employment with the Board, I knew of and worked with other
specialist in support operations and staff who routinely worked in excess of forty
(40) hours despite the fact that no overtime compensation was received for those
hours over forty (40).
15. Based upon my knowledge, observation, experience and dealings with the
Board, I believe that there are other staff previously and currently employed that
are similarly situated to me, in that we did not receive overtime pay at time and
one half.
(Doc. # 40-2, ¶¶ 14-15). Likewise, Chambers stated the following in his Declaration:
18

Again, the Complaint in this case is entirely devoid of any allegations that the FLSA violations were
willful (Doc. # 1), as were the Complaint and Amended Complaint in the 2010 Case. (Case No. 2:10-cv-2713-JEO,
Docs. # 1, 5).

23

11. Based upon my knowledge, observation, experience and dealings with the
Board, I believe that there are other staff previously and currently employed that
are similarly situated to me, in that we did not receive overtime pay at time and
one half.
13. During my employment with the Board, I knew of and worked with other
custodians and staff who routinely worked in excess of forty (40) hours despite
the fact that no overtime compensation was received for those hours over forty
(40).
(Doc. # 40-3, ¶¶ 11, 13). After careful consideration, the court concludes these statements are
insufficiently particular to meet Plaintiffs’ burden.
The statements made by both declarants indicating that they “believe that there are other
staff previously and currently employed who are similarly situated to [them]” are insufficient to
demonstrate the actual existence of such similarly situated employees. Pickering v. Lorillard
Tobacco Co., 2012 WL 314691 at *11 (M.D. Ala. 2012) (finding that an affiant’s statement in
conditional class certification motion that it was his “belief that other sales representatives in his
division also were “spending a lot of time at night on e-mails” carries no evidentiary weight.);
see Boyd v. Alutiiq Global Solutions, LLC, 2011 WL 3511085 at *6 (N.D. Ill. 2011)
(“[D]eclarations filed in support of a motion for conditional certification must be based on
personal knowledge.”). Accordingly, the “beliefs” of Williams and Chambers that others are
similarly situated carries no weight here. 19

19

Williams and Chambers also state in their Declarations that they “knew of and worked with other . . .
staff who routinely worked in excess of forty (40) hours despite the fact that no overtime compensation was received
for those hours.” (Docs. # 40-2, 40-3). But such vague and general statements are also insufficient. Neither of the
Declarants identify the other employees they know of who suffered any overtime violation, the number and nature
of those violations, how they learned about the purported violations, or the time frames in which any such overtime
violation involving another may have occurred. There is no indication in the record that either individual had the
opportunity to acquire personal knowledge of these matters. Nor is there any indication that either individual was
responsible for time sheet review, approved overtime or any payroll practices, or knew how many hours other
employees actually worked (much less whether the subject employees were paid overtime). Finally, as Williams has
been retired for over three years, his knowledge of any such persons is dated.

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V.

Conclusion
For all of the foregoing reasons, Plaintiffs’ Renewed Motion for Conditional Class

Certification is due to be denied. A separate order will be entered.
DONE and ORDERED this March 22, 2016.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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