Bonner v. SFO Shuttle Bus Company

Filing 45

ORDER by Judge Thelton E. Henderson granting 26 Motion for Approval of Hoffmann-La Roche Notice (tehlc1, COURT STAFF) (Filed on 11/21/2013)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 MICHELLE BONNER, on behalf of herself and all others similarly situated, 7 Plaintiffs, 8 v. No. C13-1606 TEH ORDER GRANTING PLAINTIFFS’ MOTION FOR APPROVAL OF HOFFMANN-LA ROCHE NOTICE 9 10 SFO SHUTTLE BUS COMPANY; and DOES 1-20, Defendants. 12 For the Northern District of California United States District Court 11 13 14 Plaintiffs’ motion for approval of Hoffmann-La Roche notice was scheduled to 15 come before the Court on October 28, 2013. As the Court was unavailable on that date 16 and determined that the matter was appropriate for resolution without oral argument, the 17 matter was taken under submission, pursuant to Civil Local Rule 7-1(b). Defendant 18 subsequently requested argument and was instead given the opportunity to file a 19 supplemental brief, which it did on November 6, 2013. Having considered the papers 20 submitted, the Court now GRANTS Plaintiffs’ motion for the reasons set forth below. 1 21 22 BACKGROUND 23 Plaintiffs and the proposed collective action members are bus drivers for Defendant 24 SFO Shuttle Bus Company (“SFO Shuttle”). SFO Shuttle provides transportation services 25 in the San Francisco Bay Area through three divisions: (1) the corporate commuter 26 division which operates routes from the San Francisco Bay Area to Silicon Valley 27 1 28 The Court did not rely on any of the evidence objected to by SFO Shuttle and therefore does not rule on SFO Shuttle’s objections to Plaintiffs’ evidence. 1 1 companies (e.g., the Google employee shuttle); (2) the hotel division which operates routes 2 between area hotels and San Francisco International Airport; and (3) the airport division 3 which provides services within San Francisco and Oakland International Airports. 4 Plaintiffs claim that SFO Shuttle violates the Fair Labor Standards Act (“FLSA”), 5 29 U.S.C. § 201 et seq., by requiring its bus drivers to work without pay, and, where 6 applicable, without overtime pay, when performing the following duties: 7 (1) Inspections. Drivers are required to inspect buses after each trip to 8 ensure there are no passengers remaining, and also to look for any 9 damage, spills, or property left behind. From time to time, drivers must also take buses to be cleaned and to undergo mechanical inspections. 10 (2) 13 Meetings. SFO Shuttle holds meetings to discuss drivers’ job duties. These meetings last approximately fifteen minutes. 12 For the Northern District of California United States District Court 11 (3) Split-Shift Waiting. Drivers may be scheduled to work “split shifts” 14 meaning they drive two routes in one day, but with a break in between. 15 For example, a driver may drive a morning commute route from San 16 Francisco to Google. The driver then waits a certain period of time, 17 before driving from Google back to San Francisco for the evening 18 commute. By Plaintiffs’ allegation, during this wait time, drivers do not 19 have access to their personal cars, which are left at their original start 20 points. As a result, drivers must remain at an SFO Shuttle location for 21 the duration of their waiting time. Additionally, SFO Shuttle expects 22 drivers to be available to perform various additional tasks and 23 assignments during this waiting time. SFO Shuttle does not pay its 24 drivers for the wait time. 25 (4) Medical Certification. SFO Shuttle requires bus drivers to take a medical 26 examination, but does not pay for the time required to undergo the 27 medical examination. 28 2 1 (5) Licensing. SFO Shuttle does not pay drivers for the time they spend 2 going to the Department of Motor Vehicles to renew the commercial 3 driver’s licenses required for their jobs. 4 The FLSA authorizes workers to sue for unpaid wages and overtime wages on 5 behalf of themselves and all “other employees similarly situated,” in a form known as a 6 collective action. 29 U.S.C. § 216(b). Unlike class actions, collective actions are “opt in” 7 actions, meaning individuals must register their consent to join the class in order to 8 become class members. In Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165 (1989), the 9 Supreme Court held that, “in appropriate cases,” courts should exercise their discretion to 10 authorize notice of a collective action to similarly situated potential plaintiffs. Plaintiffs here move for Hoffmann- La Roche notice of an FLSA collective action 12 For the Northern District of California United States District Court 11 and request that the Court authorize the posting of a notice of the action at SFO Shuttle’s 13 locations, as well as the transmission of mail and e-mail notice of the action to prospective 14 collective action members, defined as: “all individuals who are currently employed, or 15 have formerly been employed, by SFO Shuttle Bus Company and all subsidiaries, joint 16 ventures, partnerships and affiliates . . . as a bus operator or in an equivalent position on or 17 after January 18, 2010.”2 Pl. Mot. at 1. Plaintiffs estimate there are approximately one 18 hundred prospective class members, of whom, more than twenty have already opted in by 19 filing consent forms. 20 21 22 LEGAL STANDARD Under the FLSA, a Plaintiff may maintain a collective action on behalf of persons 23 “similarly situated.” 29 U.S.C. § 216(b). The statute, however, does not define “similarly 24 situated,” and neither has the Ninth Circuit. Lewis v. Wells Fargo & Co., 669 F. Supp. 2d 25 1124, 1127 (N.D. Cal. 2009) (Wilken, J.) (noting that the Tenth Circuit commented on the 26 dearth of circuit case law defining “similarly situated” in Thiessen v. General Electric 27 2 28 The proposed class includes drivers from all three divisions of SFO Shuttle’s operations: commuter, hotel, and airport. 3 1 Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)). Within this Circuit, most district 2 courts have adopted a two-stage approach to determining whether plaintiffs are similarly 3 situated and thereby whether the action may proceed as a collective action. See Lewis, 669 4 F. Supp. 2d at 1127; Ramirez v. Ghilotti Bros. Inc., No. 12-4590, 2013 WL 1786636, at 5 *2-*3 (N.D. Cal. Apr. 25, 2013); Mitchell v. Acosta Sales, LLC, 841 F. Supp. 2d 1105, 6 1115 (C.D. Cal. 2011). At the first stage, sometimes called the notice stage, the court is to make an initial, 7 8 conditional determination of whether plaintiffs are similarly situated “for the purpose of 9 sending notice to potential class members.” Lewis, 669 F. Supp. 2d at 1127. For supported by declarations or discovery, that the putative class members were together the 12 For the Northern District of California conditional certification, the court requires “little more than substantial allegations, 11 United States District Court 10 victims of a single decision, policy, or plan.” Id. (internal quotation marks omitted). The 13 determination relies on a “lenient [standard] that typically results in certification.” Wynn v. 14 National Broadcasting Company, Inc., 234 F. Supp. 2d 1067, 1082 (C.D. Cal. 2002). The second stage occurs after the close of discovery, often on a motion for 15 16 decertification by the defendant. Lewis, 669 F. Supp. 2d at 1127. At the second stage, the 17 court adopts a stricter standard for “similarly situated” and considers factors such as the 18 “disparate employment settings of the individual plaintiffs;” defendant’s various defenses 19 which are individual to each plaintiff; and “fairness and procedural considerations.” Id. 20 (citing Thiessen, 267 F.3d at 1102-03). 21 22 DISCUSSION 23 24 25 I. Conditional Certification As an initial matter, SFO Shuttle argues that Plaintiffs’ motion should be evaluated 26 on a more stringent standard than the typical first-stage conditional certification because 27 Plaintiffs have “had ample time to conduct class discovery including propounding 85 28 document requests.” Def. Opp. Br. at 9. While courts may occasionally apply a 4 heightened standard or skip to the second-stage of certification review, courts in this 2 Circuit plainly “refuse to depart from the notice stage analysis prior to the close of 3 discovery.” See Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 629 (E.D. Cal. 4 2009) (collecting cases). Here, although some discovery has occurred, Plaintiffs have not 5 taken any depositions. To apply a heightened standard of review now would thus 6 undermine the two-stage process and would prejudice Plaintiffs who have not had an 7 opportunity to conduct sufficient discovery. Cf. Lewis, 669 F. Supp. 2d at 1127 (declining 8 to deviate from traditional first-stage analysis even where significant discovery had 9 occurred involving volumes of documents and several depositions). Once discovery is 10 complete, SFO Shuttle may move for decertification where the more stringent, second- 11 stage standard will apply. 12 For the Northern District of California United States District Court 1 For purposes of the first-stage review before the Court, certification is appropriate 13 based on “nothing more than substantial allegations that the putative class members were 14 together the victims of a single decision, policy, or plan.” Theissen, 267 F.3d at 1102 15 (internal quotation marks and citations omitted). Plaintiffs allege that the putative class all 16 performed the same duty as bus drivers, and they were all victims of SFO Shuttle’s 17 practice of not paying them for time worked. 18 SFO Shuttle opposes certification on several grounds primarily relating to the 19 merits of Plaintiffs’ claims. First, SFO Shuttle contends that the class should not be 20 certified because Plaintiffs fail to establish that it violated the law. For example, although 21 Plaintiffs submitted declarations from drivers stating that they could not attend to personal 22 matters during waiting time, were forced to stay onsite, and therefore should have been 23 paid for that time, SFO Shuttle characterizes the time spent differently and reasons that it 24 should not be compensable. SFO Shuttle also argues that deposition testimony contradicts 25 Plaintiffs’ claims as the deponent plaintiffs admit that they were occasionally paid for 26 inspection time, and were sometimes permitted to spend waiting time attending to personal 27 errands. At this stage, with discovery still incomplete, the Court declines to engage in the 28 parties’ factual disputes. Cf. Lewis, 669 F. Supp. 2d at 1128 (declining to consider 5 1 defendant’s declarations, finding that plaintiffs had met their burden, and defendant could 2 resubmit its declarations at second-stage decertification). “It may be true that the evidence 3 will later negate [P]laintiffs’ claims, but this order will not deny conditional certification at 4 this stage in the proceedings.” Escobar v. Whiteside Const. Corp., No. 08-1120, 2008 WL 5 3915715, at *4 (N.D. Cal. Aug. 21, 2008). 6 In addition to its arguments on the merits, SFO Shuttle also disputes Plaintiffs’ 7 showing that the class members are similarly situated. Specifically, SFO Shuttle claims 8 that because Plaintiffs’ declarations are all from drivers in the commuter division, 9 particularly from Google employee shuttle drivers, that there is no evidence that all non- complete, the Court will not infer anything from the absence of declarations from drivers 12 For the Northern District of California Google drivers were subject to the same policies. Again, because discovery is not yet 11 United States District Court 10 in other divisions and groups. Moreover, although the proposed class of drivers worked in 13 different divisions and for different clients of SFO Shuttle, and varied in their routes, 14 locations, and supervisors, there is no evidence that each group or division is subject to 15 such de-centralized decisionmaking about pay practices that collective adjudication on pay 16 issues is impossible. See Wong v. HSBC Mortgage Corp. (USA), No. 07-2446 MMC, 2008 17 WL 753889, at *3 (N.D. Cal. Mar. 19, 2008) (granting conditional certification of class 18 comprised of employees with various job titles, finding that the differences represented by 19 those titles did not make the employees any less “similarly situated” for purposes of their 20 FLSA claim). 21 As Plaintiffs’ burden at this stage is light, they have met their burden by alleging 22 that all drivers are subject to SFO Shuttle’s policy of non-payment for certain categories of 23 work and supporting those allegations with declarations, albeit from a limited sample of 24 the prospective class. Further discovery may reveal contrary facts, at which point SFO 25 Shuttle could move for decertification. If applicable, the Court may also then consider the 26 division of the class into subclasses. 27 28 6 1 2 II. Proposed Notice Plaintiffs request that the Court order SFO Shuttle to produce the names, addresses, 3 e-mail addresses, and telephone numbers of prospective collective action members within 4 ten days of this order. Upon receipt of that information, Plaintiffs seek permission to mail 5 and e-mail notice of the action to prospective class members, and to post a notice at each 6 of SFO Shuttle’s locations. From the date of sending and posting the notice, prospective 7 plaintiffs would have ninety days to provide their written consent to joining the action. 8 SFO Shuttle challenges Plaintiffs’ proposed notice, Exhibit A to Plaintiffs’ and method of notice. As SFO Shuttle has had ample opportunity to raise its objections to 11 the Plaintiffs’ proposed notice, the Court sees no reason to require the parties to meet and 12 For the Northern District of California Proposed Order, at Docket No. 28, and request that the parties meet and confer on the form 10 United States District Court 9 confer regarding the same disputes already now before the Court. SFO Shuttle challenges 13 only two elements of Plaintiffs’ notice. 14 First, it argues that Plaintiffs’ proposed notice is flawed because its use of the Court 15 caption implies the Court’s endorsement. “In exercising the discretionary authority to 16 oversee the notice-giving process, courts must be scrupulous to respect judicial neutrality. 17 To that end, trial courts must take care to avoid even the appearance of judicial 18 endorsement of the merits of the action.” Hoffman-La Roche, 493 U.S. at 174. The Court 19 finds that use of the caption does not give a false impression of endorsement; rather it 20 indicates the importance of the notice and may distinguish it from junk mail. Also, in the 21 event of any possible misinterpretation, the notice contains a clear statement that: “The 22 Court has taken no position in this case regarding the merits of Plaintiffs’ claims or 23 Defendant’s defenses.” Proposed Order, Ex. A, Dkt. No. 28, 24 Second, SFO Shuttle claims that Plaintiffs’ counsel should be prohibited from 25 contacting class members, and notice should instead distributed by a third-party claims 26 administrator. Although some courts have required such methods, others have found 27 notice by plaintiff’s counsel to be sufficient. See Lewis, 669 F. Supp. 2d at 1128 (requiring 28 notice by third-party claims administrator); Escobar, 2008 WL 3915715, at *6 (denying 7 1 plaintiff’s request for third-party claims administrator and requiring plaintiff’s counsel to 2 provide notice). As SFO Shuttle fails to offer any reason to require a third-party 3 administrator, appointment of an administrator seems an unnecessary expenditure at this 4 stage. Plaintiffs’ counsel will be responsible for disseminating notice. 5 6 7 III. Equitable Tolling Under the FLSA, the three-year statute of limitations continues to run until a valid Southern California, Inc., 645 F.2d 757, 760 (9th Cir. 1981), abrogated on other grounds 10 by Hoffmann-La Roche Inc, 493 U.S. 165. Plaintiffs request that the court toll the statute 11 of limitations as of the date of the original complaint, January 18, 2013, or in the 12 For the Northern District of California consent to join a suit is filed. 29 U.S.C. § 256(b); Partlow v. Jewish Orphans’ Home of 9 United States District Court 8 alternative, as of the date Plaintiffs’ counsel first requested class member contact 13 information, March 11, 2013. They argue that tolling is necessary to preserve the claims 14 of similarly situated persons who were unable to opt-in as they lacked notice of the suit. 15 The FLSA statute makes plain that the three-year state of limitations is to run until 16 “the date when the complaint is filed, [for an individual who] is specifically named as a 17 party plaintiff” or for those not so named, “the subsequent date on which such written 18 consent is filed in the court in which the action was commenced.” 29 U.S.C. § 256(b). 19 That there may be a difference between the date when a complaint is filed and the date a 20 plaintiff consents to join a suit is specifically contemplated in the statute and is therefore 21 not sufficient to justify equitable tolling to preserve any claims that may lapse during that 22 period. The Court therefore declines to equitably toll the statute of limitations at this stage. 23 Cf. Lewis, 669 F. Supp. 2d at 1129 (declining to equitably toll statute of limitations were 24 plaintiffs similarly requested it on the basis that defendants’ counsel had earlier denied 25 them class contact information). Nevertheless, the Court permits distribution of the notice 26 to prospective class members employed in the three years prior to the date of the 27 complaint, in the event that any individuals may have specific circumstances that warrant 28 equitable tolling. As the proposed class is estimated as including one hundred people, 8 1 twenty of whom have already opted in, the cost of any additional mailing and e-mailing is 2 minimal. 3 4 5 CONCLUSION For the foregoing reasons, the Court grants Plaintiffs’ motion for approval of currently employed, or have formerly been employed, by SFO Shuttle as a bus operator or 8 in an equivalent position at any time within the three years prior to the filing of this action. 9 Within ten days of the date of this order, SFO Shuttle shall produce to Plaintiffs’ counsel a 10 Microsoft Excel file containing the names, mailing addresses, e-mail addresses and phone 11 numbers of all prospective members of the class. The Court approves of the proposed 12 For the Northern District of California Hoffmann-La Roche notice. The Court conditionally certifies the class of those who are 7 United States District Court 6 notice located at Exhibit A to Plaintiffs’ Proposed Order at Docket No. 28. Notice will 13 proceed as detailed in this order. The Court will not equitably toll the limitations period at 14 this stage. 15 16 IT IS SO ORDERED. 17 18 19 Dated: 11/21/13 __ ________ ___________ ______ THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT 20 21 22 23 24 25 26 27 28 9

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