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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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MICHELLE BONNER, on behalf of
herself and all others similarly
situated,

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Plaintiffs,

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v.

No. C13-1606 TEH
ORDER GRANTING PLAINTIFFS’
MOTION FOR APPROVAL OF
HOFFMANN-LA ROCHE NOTICE

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SFO SHUTTLE BUS COMPANY;
and DOES 1-20,
Defendants.

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For the Northern District of California

United States District Court

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Plaintiffs’ motion for approval of Hoffmann-La Roche notice was scheduled to

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come before the Court on October 28, 2013. As the Court was unavailable on that date

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and determined that the matter was appropriate for resolution without oral argument, the

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matter was taken under submission, pursuant to Civil Local Rule 7-1(b). Defendant

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subsequently requested argument and was instead given the opportunity to file a

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supplemental brief, which it did on November 6, 2013. Having considered the papers

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submitted, the Court now GRANTS Plaintiffs’ motion for the reasons set forth below. 1

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BACKGROUND

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Plaintiffs and the proposed collective action members are bus drivers for Defendant

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SFO Shuttle Bus Company (“SFO Shuttle”). SFO Shuttle provides transportation services

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in the San Francisco Bay Area through three divisions: (1) the corporate commuter

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division which operates routes from the San Francisco Bay Area to Silicon Valley

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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.
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companies (e.g., the Google employee shuttle); (2) the hotel division which operates routes

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between area hotels and San Francisco International Airport; and (3) the airport division

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which provides services within San Francisco and Oakland International Airports.

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Plaintiffs claim that SFO Shuttle violates the Fair Labor Standards Act (“FLSA”),

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29 U.S.C. § 201 et seq., by requiring its bus drivers to work without pay, and, where

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applicable, without overtime pay, when performing the following duties:

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(1)

Inspections. Drivers are required to inspect buses after each trip to

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ensure there are no passengers remaining, and also to look for any

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damage, spills, or property left behind. From time to time, drivers must
also take buses to be cleaned and to undergo mechanical inspections.

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(2)

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Meetings. SFO Shuttle holds meetings to discuss drivers’ job duties.
These meetings last approximately fifteen minutes.

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For the Northern District of California

United States District Court

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(3)

Split-Shift Waiting. Drivers may be scheduled to work “split shifts”

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meaning they drive two routes in one day, but with a break in between.

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For example, a driver may drive a morning commute route from San

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Francisco to Google. The driver then waits a certain period of time,

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before driving from Google back to San Francisco for the evening

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commute. By Plaintiffs’ allegation, during this wait time, drivers do not

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have access to their personal cars, which are left at their original start

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points. As a result, drivers must remain at an SFO Shuttle location for

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the duration of their waiting time. Additionally, SFO Shuttle expects

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drivers to be available to perform various additional tasks and

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assignments during this waiting time. SFO Shuttle does not pay its

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drivers for the wait time.

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(4)

Medical Certification. SFO Shuttle requires bus drivers to take a medical

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examination, but does not pay for the time required to undergo the

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medical examination.

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(5)

Licensing. SFO Shuttle does not pay drivers for the time they spend

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going to the Department of Motor Vehicles to renew the commercial

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driver’s licenses required for their jobs.

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The FLSA authorizes workers to sue for unpaid wages and overtime wages on

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behalf of themselves and all “other employees similarly situated,” in a form known as a

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collective action. 29 U.S.C. § 216(b). Unlike class actions, collective actions are “opt in”

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actions, meaning individuals must register their consent to join the class in order to

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become class members. In Hoffmann–La Roche Inc. v. Sperling, 493 U.S. 165 (1989), the

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Supreme Court held that, “in appropriate cases,” courts should exercise their discretion to

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authorize notice of a collective action to similarly situated potential plaintiffs.
Plaintiffs here move for Hoffmann- La Roche notice of an FLSA collective action

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For the Northern District of California

United States District Court

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and request that the Court authorize the posting of a notice of the action at SFO Shuttle’s

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locations, as well as the transmission of mail and e-mail notice of the action to prospective

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collective action members, defined as: “all individuals who are currently employed, or

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have formerly been employed, by SFO Shuttle Bus Company and all subsidiaries, joint

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ventures, partnerships and affiliates . . . as a bus operator or in an equivalent position on or

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after January 18, 2010.”2 Pl. Mot. at 1. Plaintiffs estimate there are approximately one

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hundred prospective class members, of whom, more than twenty have already opted in by

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filing consent forms.

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LEGAL STANDARD
Under the FLSA, a Plaintiff may maintain a collective action on behalf of persons

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“similarly situated.” 29 U.S.C. § 216(b). The statute, however, does not define “similarly

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situated,” and neither has the Ninth Circuit. Lewis v. Wells Fargo & Co., 669 F. Supp. 2d

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1124, 1127 (N.D. Cal. 2009) (Wilken, J.) (noting that the Tenth Circuit commented on the

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dearth of circuit case law defining “similarly situated” in Thiessen v. General Electric

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The proposed class includes drivers from all three divisions of SFO Shuttle’s operations:
commuter, hotel, and airport.
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Capital Corp., 267 F.3d 1095, 1102 (10th Cir. 2001)). Within this Circuit, most district

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courts have adopted a two-stage approach to determining whether plaintiffs are similarly

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situated and thereby whether the action may proceed as a collective action. See Lewis, 669

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F. Supp. 2d at 1127; Ramirez v. Ghilotti Bros. Inc., No. 12-4590, 2013 WL 1786636, at

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*2-*3 (N.D. Cal. Apr. 25, 2013); Mitchell v. Acosta Sales, LLC, 841 F. Supp. 2d 1105,

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1115 (C.D. Cal. 2011).
At the first stage, sometimes called the notice stage, the court is to make an initial,

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conditional determination of whether plaintiffs are similarly situated “for the purpose of

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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

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For the Northern District of California

conditional certification, the court requires “little more than substantial allegations,

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United States District Court

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victims of a single decision, policy, or plan.” Id. (internal quotation marks omitted). The

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determination relies on a “lenient [standard] that typically results in certification.” Wynn v.

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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

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decertification by the defendant. Lewis, 669 F. Supp. 2d at 1127. At the second stage, the

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court adopts a stricter standard for “similarly situated” and considers factors such as the

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“disparate employment settings of the individual plaintiffs;” defendant’s various defenses

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which are individual to each plaintiff; and “fairness and procedural considerations.” Id.

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(citing Thiessen, 267 F.3d at 1102-03).

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DISCUSSION

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I.

Conditional Certification
As an initial matter, SFO Shuttle argues that Plaintiffs’ motion should be evaluated

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on a more stringent standard than the typical first-stage conditional certification because

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Plaintiffs have “had ample time to conduct class discovery including propounding 85

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document requests.” Def. Opp. Br. at 9. While courts may occasionally apply a
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heightened standard or skip to the second-stage of certification review, courts in this

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Circuit plainly “refuse to depart from the notice stage analysis prior to the close of

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discovery.” See Kress v. PricewaterhouseCoopers, LLP, 263 F.R.D. 623, 629 (E.D. Cal.

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2009) (collecting cases). Here, although some discovery has occurred, Plaintiffs have not

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taken any depositions. To apply a heightened standard of review now would thus

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undermine the two-stage process and would prejudice Plaintiffs who have not had an

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opportunity to conduct sufficient discovery. Cf. Lewis, 669 F. Supp. 2d at 1127 (declining

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to deviate from traditional first-stage analysis even where significant discovery had

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occurred involving volumes of documents and several depositions). Once discovery is

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complete, SFO Shuttle may move for decertification where the more stringent, second-

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stage standard will apply.

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For the Northern District of California

United States District Court

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For purposes of the first-stage review before the Court, certification is appropriate

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based on “nothing more than substantial allegations that the putative class members were

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together the victims of a single decision, policy, or plan.” Theissen, 267 F.3d at 1102

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(internal quotation marks and citations omitted). Plaintiffs allege that the putative class all

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performed the same duty as bus drivers, and they were all victims of SFO Shuttle’s

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practice of not paying them for time worked.

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SFO Shuttle opposes certification on several grounds primarily relating to the

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merits of Plaintiffs’ claims. First, SFO Shuttle contends that the class should not be

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certified because Plaintiffs fail to establish that it violated the law. For example, although

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Plaintiffs submitted declarations from drivers stating that they could not attend to personal

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matters during waiting time, were forced to stay onsite, and therefore should have been

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paid for that time, SFO Shuttle characterizes the time spent differently and reasons that it

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should not be compensable. SFO Shuttle also argues that deposition testimony contradicts

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Plaintiffs’ claims as the deponent plaintiffs admit that they were occasionally paid for

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inspection time, and were sometimes permitted to spend waiting time attending to personal

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errands. At this stage, with discovery still incomplete, the Court declines to engage in the

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parties’ factual disputes. Cf. Lewis, 669 F. Supp. 2d at 1128 (declining to consider
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defendant’s declarations, finding that plaintiffs had met their burden, and defendant could

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resubmit its declarations at second-stage decertification). “It may be true that the evidence

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will later negate [P]laintiffs’ claims, but this order will not deny conditional certification at

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this stage in the proceedings.” Escobar v. Whiteside Const. Corp., No. 08-1120, 2008 WL

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3915715, at *4 (N.D. Cal. Aug. 21, 2008).

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In addition to its arguments on the merits, SFO Shuttle also disputes Plaintiffs’

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showing that the class members are similarly situated. Specifically, SFO Shuttle claims

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that because Plaintiffs’ declarations are all from drivers in the commuter division,

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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

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For the Northern District of California

Google drivers were subject to the same policies. Again, because discovery is not yet

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United States District Court

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in other divisions and groups. Moreover, although the proposed class of drivers worked in

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different divisions and for different clients of SFO Shuttle, and varied in their routes,

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locations, and supervisors, there is no evidence that each group or division is subject to

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such de-centralized decisionmaking about pay practices that collective adjudication on pay

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issues is impossible. See Wong v. HSBC Mortgage Corp. (USA), No. 07-2446 MMC, 2008

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WL 753889, at *3 (N.D. Cal. Mar. 19, 2008) (granting conditional certification of class

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comprised of employees with various job titles, finding that the differences represented by

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those titles did not make the employees any less “similarly situated” for purposes of their

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FLSA claim).

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As Plaintiffs’ burden at this stage is light, they have met their burden by alleging

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that all drivers are subject to SFO Shuttle’s policy of non-payment for certain categories of

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work and supporting those allegations with declarations, albeit from a limited sample of

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the prospective class. Further discovery may reveal contrary facts, at which point SFO

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Shuttle could move for decertification. If applicable, the Court may also then consider the

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division of the class into subclasses.

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II.

Proposed Notice
Plaintiffs request that the Court order SFO Shuttle to produce the names, addresses,

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e-mail addresses, and telephone numbers of prospective collective action members within

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ten days of this order. Upon receipt of that information, Plaintiffs seek permission to mail

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and e-mail notice of the action to prospective class members, and to post a notice at each

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of SFO Shuttle’s locations. From the date of sending and posting the notice, prospective

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plaintiffs would have ninety days to provide their written consent to joining the action.

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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

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the Plaintiffs’ proposed notice, the Court sees no reason to require the parties to meet and

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For the Northern District of California

Proposed Order, at Docket No. 28, and request that the parties meet and confer on the form

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United States District Court

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confer regarding the same disputes already now before the Court. SFO Shuttle challenges

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only two elements of Plaintiffs’ notice.

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First, it argues that Plaintiffs’ proposed notice is flawed because its use of the Court

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caption implies the Court’s endorsement. “In exercising the discretionary authority to

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oversee the notice-giving process, courts must be scrupulous to respect judicial neutrality.

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To that end, trial courts must take care to avoid even the appearance of judicial

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endorsement of the merits of the action.” Hoffman-La Roche, 493 U.S. at 174. The Court

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finds that use of the caption does not give a false impression of endorsement; rather it

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indicates the importance of the notice and may distinguish it from junk mail. Also, in the

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event of any possible misinterpretation, the notice contains a clear statement that: “The

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Court has taken no position in this case regarding the merits of Plaintiffs’ claims or

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Defendant’s defenses.” Proposed Order, Ex. A, Dkt. No. 28,

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Second, SFO Shuttle claims that Plaintiffs’ counsel should be prohibited from

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contacting class members, and notice should instead distributed by a third-party claims

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administrator. Although some courts have required such methods, others have found

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notice by plaintiff’s counsel to be sufficient. See Lewis, 669 F. Supp. 2d at 1128 (requiring

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notice by third-party claims administrator); Escobar, 2008 WL 3915715, at *6 (denying
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plaintiff’s request for third-party claims administrator and requiring plaintiff’s counsel to

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provide notice). As SFO Shuttle fails to offer any reason to require a third-party

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administrator, appointment of an administrator seems an unnecessary expenditure at this

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stage. Plaintiffs’ counsel will be responsible for disseminating notice.

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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

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by Hoffmann-La Roche Inc, 493 U.S. 165. Plaintiffs request that the court toll the statute

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of limitations as of the date of the original complaint, January 18, 2013, or in the

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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

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United States District Court

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alternative, as of the date Plaintiffs’ counsel first requested class member contact

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information, March 11, 2013. They argue that tolling is necessary to preserve the claims

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of similarly situated persons who were unable to opt-in as they lacked notice of the suit.

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The FLSA statute makes plain that the three-year state of limitations is to run until

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“the date when the complaint is filed, [for an individual who] is specifically named as a

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party plaintiff” or for those not so named, “the subsequent date on which such written

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consent is filed in the court in which the action was commenced.” 29 U.S.C. § 256(b).

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That there may be a difference between the date when a complaint is filed and the date a

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plaintiff consents to join a suit is specifically contemplated in the statute and is therefore

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not sufficient to justify equitable tolling to preserve any claims that may lapse during that

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period. The Court therefore declines to equitably toll the statute of limitations at this stage.

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Cf. Lewis, 669 F. Supp. 2d at 1129 (declining to equitably toll statute of limitations were

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plaintiffs similarly requested it on the basis that defendants’ counsel had earlier denied

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them class contact information). Nevertheless, the Court permits distribution of the notice

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to prospective class members employed in the three years prior to the date of the

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complaint, in the event that any individuals may have specific circumstances that warrant

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equitable tolling. As the proposed class is estimated as including one hundred people,
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twenty of whom have already opted in, the cost of any additional mailing and e-mailing is

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minimal.

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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

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in an equivalent position at any time within the three years prior to the filing of this action.

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Within ten days of the date of this order, SFO Shuttle shall produce to Plaintiffs’ counsel a

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Microsoft Excel file containing the names, mailing addresses, e-mail addresses and phone

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numbers of all prospective members of the class. The Court approves of the proposed

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For the Northern District of California

Hoffmann-La Roche notice. The Court conditionally certifies the class of those who are

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United States District Court

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notice located at Exhibit A to Plaintiffs’ Proposed Order at Docket No. 28. Notice will

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proceed as detailed in this order. The Court will not equitably toll the limitations period at

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this stage.

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IT IS SO ORDERED.

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Dated: 11/21/13

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THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT

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