Calderone et al v. Scott
Filing
54
OPINION AND ORDER granting 43 Plaintiffs' Motion to Conditionally Certify a Collective Action Pursuant to 29 U.S.C. §216(b); denying 43 Plaintiffs' Motion for Equitable Tolling of the Statute of Limitations; denying 43 Plainti ffs' Motion for Declaration of a Class Action as to Minimum Wage Claims Pursuant to Rule 23(b)(3); and denying as moot 53 Defendant's Motion to Strike Hearsay Statements in Plaintiffs' Reply and Plaintiffs' Affidavits. See Opin ion and Order for details. Plaintiffs shall file a proposed notice to putative FLSA class members on or before July 30th. Defendant shall file any objections to Plaintiffs' proposed notice on or before August 13th. Defendant shall provide notice-related discovery on or before August 13th. Signed by Judge John E. Steele on 7/16/2015. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN
CALDERONE,
an
individual, GEORGE SCHWING,
an
individual,
MICHAEL
ZALESKI, an individual, and
SELENA LEE, an individual,
Plaintiffs,
v.
Case No: 2:14-cv-519-FtM-29CM
MICHAEL SCOTT, as the duly
elected
Sheriff
of
Lee
County, Florida,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Plaintiffs’ Motion to
Conditionally Certify a Collective Action Pursuant to 29 U.S.C.
§216(b)
and
Motion
for
Equitable
Tolling
of
the
Statute
of
Limitations and Motion for Declaration of a Class Action as to
Minimum Wage Claims Pursuant to Rule 23(b)(3) (Doc. #43) filed on
June 5, 2015.
Defendant filed a Response (Doc. #47) on June 30,
2015 to which Plaintiff filed a Reply (Doc. #52) on July 13, 2015.
For the reasons set forth below, the motion is granted in part and
denied in part.
I.
Plaintiffs have filed an Amended Collective & Class Action
Complaint (Doc. #11), on their own behalf and on behalf of other
similarly situated individuals, against Defendant Michael Scott in
his
official
capacity
as
Sheriff
of
Lee
County,
Florida.
Plaintiffs, former employees of the Lee County Sheriff’s Office,
allege that they performed off-the-clock work for which they were
not compensated.
According to Plaintiffs, Defendant’s failure to
compensate them for such work violates the Fair Labor Standards
Act (FLSA) and the Florida Minimum Wage Act (FMWA).
Concerning
their FLSA claims, Plaintiffs seek conditional certification as a
collective action pursuant to 29 U.S.C. § 216(b) and request that
the
Court
plaintiffs.
facilitate
notice
Plaintiffs
to
also
potential
seek
to
collective
toll
limitations applicable to their FLSA claims.
the
action
statute
of
Concerning their
FMWA claims, Plaintiffs seek certification as a collective action
pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure.
II.
A.
FLSA Conditional Certification
An action to recover unpaid compensation under the FLSA may
be maintained “against any employer (including a public agency) in
any Federal or State court of competent jurisdiction 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
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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).
To demonstrate that plaintiffs are “similarly situated”, an
opt-in plaintiff “need show only that their positions are similar,
not
identical,
members.”
to
the
positions
held
by
the
putative
class
Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208,
1217 (11th Cir. 2001) (quotations and citations omitted).
Eleventh
Circuit
has
adopted
a
two-tiered
approach
The
to
certification, as described in Mooney v. Aramco Servs. Co., 54
F.3d 1207, 1213-14 (5th Cir. 1995):
The first determination is made at the socalled “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.
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Before providing notice, a plaintiff must offer a “reasonable
basis” for his assertion that there are other similarly situated
employees who desire to opt-in.
Morgan v. Family Dollar Stores,
551 F.3d 1233, 1260 (11th Cir. 2008); Dybach v. Fla. Dep’t of
Corr., 942 F.2d 1562, 1567 (11th Cir. 1991).
At this stage, the
Court applies a “fairly lenient standard”, Anderson v. Cagle’s
Inc., 488 F.3d 945, 953 (11th Cir. 2007), although there must be
more than counsel’s unsupported assertions, Morgan, 551 F.3d at
1261.
“Evidence of similarly situated employees who desire to opt
in may be based on affidavits of other employees, consents to join
the lawsuit filed by other employees, or expert evidence on the
existence of other similarly situated employees,” but “plaintiff's
or counsel's belief in the existence of other employees who desire
to opt in and unsupported expectations that additional plaintiffs
will
subsequently
come
forward
are
insufficient
to
justify
certification of a collective action and notice to a potential
class.”
Hart v. JPMorgan Chase Bank, N.A., No. 12-CV-00470, 2012
WL 6196035, at *4 (M.D. Fla. Dec. 12, 2012) (internal citations
and quotation marks omitted).
In support of their assertion that there are additional
similarly situated individuals who wish to opt-in, Plaintiffs note
that more than thirty additional plaintiffs have opted-in since
the
commencement
of
this
case.
Under
the
“fairly
lenient
standard” appropriate at this stage of the proceedings, the Court
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is satisfied that Plaintiff has provided a reasonable basis for
his
assertion
individuals
that
who
there
wish
to
are
additional
opt-in.
similarly
Accordingly,
situated
conditional
certification is warranted and the Court will now address the
definition of the putative class.
B.
Definition of the Putative Class
According to Plaintiffs, their uncompensated off-the-clock
work
occurred
in
various
employment policies.
forms
and
as
a
result
of
various
As a result, Plaintiffs seek conditional
certification for a class consisting of the following individuals:
1.
All former or current Deputies who, up to three years1
preceding this Action, were/are employed by the
Defendant and who were/are required to don and doff
protective equipment prior to reporting for their
assigned shift or once their shift has concluded;
2.
All former or current Deputies who, up to three years
preceding this Action, were/are employed by the
Defendant and who were/are issued Lee County Sheriff’s
Office vehicles to take home;
3.
All former or current Deputies who, up to three years
preceding this Action, were/are employed by the
Defendant and who have been/are assigned to the Lee
County Sheriff’s Office’s “Traffic Unit”;
4.
All former or current Deputies who, up to three years
preceding this Action, were/are employed by the
Defendant, who were employed on an hourly basis and who
1
Willful FLSA violations are subject to a three-year statute of
limitations. Kaplan v. Code Blue Billing & Coding, Inc., 504 F.
App'x 831, 833 (11th Cir. 2013). This means that a putative class
member may pursue a claim for an FLSA violation that occurred
within the three years prior to the filing of his or her consent
to join. Abdul-Rasheed v. KableLink Commc'ns, LLC, No. 13-CV-879,
2013 WL 5954785, at *3 (M.D. Fla. Nov. 7, 2013).
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were required to report
pre/post-shift meetings;
to
their
sub-station
for
5.
All former or current Deputies who, up to three years
preceding this Action, were/are employed by the
Defendant and who were/are at times required to be
prepared for duty despite not being scheduled to work a
scheduled shift, constituting "on-call" time;
6.
All former or current Sergeants who, up to three years
preceding this Action, were/are employed by the
Defendant and have received pay on a salary basis; and
7.
All former or current Deputies or Sergeants who, up to
three years preceding this Action, were/are employed by
the Defendant and who were/are entitled to “comp time”
in lieu of receiving overtime pay on a time-and-a-half
cash basis.
Defendant did not object to Plaintiffs’ class definition and, with
three exceptions, the Court is satisfied that Plaintiffs’ proposed
class definition adequately describes the individuals with FLSA
claims similarly situated to Plaintiffs.
The exceptions concern Plaintiffs’ second, third, and sixth
categories.
As suggested by Plaintiffs, these categories cover
Deputies who were issued vehicles to take home, Deputies assigned
to
the
Traffic
Unit,
and
all
Sergeants.
Unlike
the
other
categories, these categories do not describe the nature of the
uncompensated
However,
work
performed
Plaintiffs
do
by
provide
the
this
putative
class
information
members.
elsewhere.
Concerning the Deputies issued vehicles to take home, Plaintiffs
allege that Defendant failed to pay them for time spent performing
law enforcement services while driving to and from their shifts.
(Doc. $43, p. 8.)
Concerning the Traffic Unit, Plaintiffs allege
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that its members “are compensated as soon as they leave their
driveway to report to their assigned location for daily traffic
enforcement.”
(Id. at p. 9 n.1.)
Presumably, Plaintiffs mean to
allege that members of the Traffic Unit were not compensated for
all
time
worked
prior
enforcement location.
to
their
arrival
at
their
assigned
Concerning the Sergeants, Plaintiffs allege
that Defendant failed to pay them overtime and misclassified them
as
overtime-exempt.
(Id.
at
p.
8.)
The
descriptions
of
Plaintiffs’ second, third, and sixth categories must be modified
accordingly to more clearly specify the nature of the uncompensated
work at issue.
With
those
modification,
the
Court
grants
conditional
certification for the class of individuals who belong to one of
the seven categories listed above and who did not receive minimum
wage and/or overtime compensation as required by the FLSA.
In
accordance with the above, Plaintiffs shall filed a proposed notice
to be sent to members of the putative class within fourteen days
of the date of this Opinion and Order.
objections
to
Plaintiffs’
Defendant shall file any
proposed
notice
fourteen
an
directing
days
thereafter.
Plaintiffs
also
request
order
Defendant
to
provide contact information for the members of the putative class.
The
Court
agrees
with
Plaintiffs
discovery is appropriate here.
that
limited
notice-related
To the extent Defendant is in
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possession of such information, Defendant must provide Plaintiffs’
counsel with a list of putative class members’ names, addresses,
and e-mail addresses within twenty-eight days.
Because this data
will contain personal identifying information of law enforcement
officers, its dissemination must be limited.
Defendant shall
provide the information to Plaintiffs’ counsel only, who must keep
the information confidential.
Plaintiffs’ counsel may not use
this information for any purpose other than to provide notice to
putative class members in this case.
may
not
share
the
information
Further, Plaintiffs’ counsel
with
Plaintiffs,
include
the
information in a public filing, or provide it to any person other
than members of his staff.
C.
Tolling the Statute of Limitations
As previously noted, willful FLSA violations are subject to
a three-year statute of limitations, Kaplan, 504 F. App'x at 833,
which means that a putative class member may pursue a claim for an
FLSA violation that occurred within the three years prior to the
filing of his or her consent to join, Abdul-Rasheed, 2013 WL
5954785, at *3.
Plaintiffs seek equitable tolling of the statute
of limitations period up to the date Plaintiffs receive noticerelated discovery from Defendant.
Plaintiffs argue that equitable
tolling is warranted because Defendant employed “threatening,
intimidating and coercive tactics” to discourage opt-ins.
#43, p. 24.)
- 8 -
(Doc.
“Equitable tolling is the doctrine under which plaintiffs may
sue after the statutory time period has expired if they have been
prevented from doing so due to inequitable circumstances.” Ellis
v. GMAC, 160 F.3d 703, 706 (11th Cir. 1998).
The doctrine is
“applied sparingly,” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.
2000), and only if a party establishes “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Downs v. McNeil, 520 F.3d 1311,
1324 (11th Cir. 2008).
motions
for
equitable
In the context of FLSA class actions,
tolling
are
routinely
denied
because
putative class members always have the option of filing their own
individual FLSA claim even if an extraordinary circumstance stood
in the way of joining a pending collective action.
Palma v.
MetroPCS Wireless, Inc., No. 13-CV-698, 2013 WL 6836535, at *2
(M.D. Fla. Dec. 26, 2013).
While Plaintiff has provided generalized allegations that
Defendant acted to prevent opt-ins, there is no evidence that any
Plaintiff (or potential opt-in) was actually prevented from filing
an FLSA action, either as an opt-in or individually.
Indeed, the
sole factual support for Plaintiffs’ allegations come in the form
of affidavits provided by Plaintiffs who have successfully optedin to this action.
The Plaintiffs testify that they “have further
received reports from potential opt-in and class members that the
Defendant’s administration has threatened them with termination,
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unfavorable assignments and the removal of their cruiser should
they join this action.”
(E.g., Doc. #43-1, ¶ 12.)
alone,
accounts
these
Plaintiffs’
second-hand
burden
of
are
establishing
insufficient
that
an
Standing
to
carry
extraordinary
circumstance prevented potential opt-ins from joining this action.
Therefore, Plaintiffs’ motion for equitable tolling is denied.
III.
Plaintiffs also seek to certify their FMWA claims as a class
action
pursuant
to
Rule
23(b)(3).
Defendant
argues
that
Plaintiffs’ motion should be denied (1) because it is untimely
under Local Rule 4.04 and (2) because Plaintiffs have failed to
satisfy the requirements of Rule 23.
The Court will address each
argument in turn.
A.
Local Rule 4.04
Local Rule 4.04 provides that motions for class certification
shall be filed within ninety days following the filing of the
initial complaint, unless the time is extended by the Court for
cause shown.
the
existence
M.D. Fl. R. 4.04(b).
of
a
potential
Here, Plaintiffs first alleged
class
action
in
their
Amended
Complaint Collective & Class Action Complaint (Doc. #11), which
was filed on December 29, 2014.
Accordingly, the 90-day filing
deadline established by Local Rule 4.04 expired on March 30, 2015.
Plaintiffs did not seek to extend this deadline and their motion
for class certification was not filed until two months later.
- 10 -
Although Plaintiffs should have moved for an extension of
time as expressly provided by Local Rule 4.04, the Court sees no
reason to bar their motion as a result of their failure to do so.
In this case, the parties spent majority of the 90-day postcomplaint period briefing Defendant’s motion to dismiss, which was
not decided by the Court until after the expiration of the class
certification filing deadline.
As a result, strict adherence to
Local Rule 4.04 would have required Plaintiffs to move for class
certification without knowing for certain which causes of action
remained viable.
Had Plaintiffs done so, the motion would have
been denied as moot following the Court’s April 16, 2015 Opinion
and Order (Doc. #38) dismissing Counts V and VI of the Amended
Complaint, and Plaintiffs would have been permitted to refile their
class certification motion in light of the Court’s ruling.
Thus,
Plaintiffs’ failure to follow Local Rule 4.04 did not create any
undue delay.
See Lakeland Reg'l Med. Ctr., Inc. v. Astellas U.S.
LLC, No. 10-CV-2008, 2012 WL 2402825, at *2 (M.D. Fla. June 26,
2012) (excusing failure to follow Local Rule 4.04 where doing so
would have required the filing of a “perfunctory” Rule 23 motion).
Moreover,
as
set
forth
in
the
Amended
Complaint,
the
employment policies allegedly giving rise to Plaintiffs’ causes of
action are ongoing.
Therefore, even if Plaintiffs were prohibited
by Rule 4.04 from moving for class certification in this case,
nothing would prevent the opt-in Plaintiffs here from filing a new
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case asserting identical causes of action, thereby resetting Local
Rule 4.04’s 90-day certification deadline.
Thus, strict adherence
to Rule 4.04 here would cause additional delay and needless
duplicative
litigation.
Accordingly,
Plaintiffs’ motion timely-filed.2
the
Court
will
deem
However, as set forth below,
the motion is denied on the merits.
B.
Rule 23(b)
Before certifying a class action, Rule 23(b)(3) requires a
court to find, inter alia, that "a class action is superior to
other available methods for fairly and efficiently adjudicating
the controversy."
Fed. R. Civ. P. 23(b)(3).
Here, the Court
concludes that an FMWA class action is not superior to other
available methods for adjudicating Plaintiffs’ claims because
overlapping FLSA and FMWA class actions are “mutually exclusive
2
In their Reply (Doc. #52), Plaintiffs argue that their late
filing should be excused because Defendant frustrated Plaintiffs’
efforts to identify additional opt-in Plaintiffs.
In support,
Plaintiffs point to affidavits submitted by the opt-ins stating
they have “have received reports from potential opt-in and class
members that the Defendant’s administration has threatened them
with termination, unfavorable assignments and the removal of their
cruiser should they join this action.” (E.g., Doc. #43-1, ¶ 12.)
Defendant moves to strike this portion of the affidavits, and the
portions of the Reply relying upon them, as inadmissible hearsay.
(Doc. #53.)
The Court did not rely upon Defendant’s alleged
conduct in deeming Plaintiffs’ motion timely-filed. Moreover, as
set forth below, Plaintiffs’ motion for class certification is
denied on the merits. Accordingly, Defendant’s Motion to Strike
(Doc. #53) will be denied as moot.
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and irreconcilable.”
La Chapelle v. Owens-Illinois, Inc., 513 F.
2d 286, 289 (5th Cir. 1975).
As detailed above, the FLSA requires putative class members
who wish to join the action to affirmatively opt-in.
The opt-in
requirement is designed to "eradicate the problem of totally
uninvolved employees gaining recovery as a result of some third
party's action in filing suit."
Cameron-Grant v. Maxim Healthcare
Services, Inc., 347 F.3d 1240, 1249 (11th Cir. 2003).
To the
contrary, Rule 23 class actions require putative class members who
do not wish to join the class to affirmatively opt-out.
Civ. P. 23(c).
are
identical,
Fed. R.
Where, as here, the putative FLSA and FMWA classes
the
opt-in
and
opt-out
procedures
cannot
be
reconciled.
To illustrate this point, consider a hypothetical Deputy who
is a member of Plaintiffs’ putative class but does not wish to
have her minimum wage claims adjudicated in this case.
Upon
receiving notice of the FLSA action, she would do nothing because
the FLSA provides that she is not bound by the outcome of this
case unless she opts-in.
However, upon receiving notice of the
FMWA action, she would have to affirmatively opt-out.
If she does
not opt-out, she will become a member of the FMWA action by default
and her minimum wage claims will be adjudicated in this case.
The
end result is that any putative class member who does not wish to
be bound by the outcome in this case must affirmatively opt-out,
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despite the fact that the FLSA requires precisely the opposite.
La Chapelle clearly holds that such a result is impermissible.
513 F.2d at 288 (“Rule 23 cannot be invoked to circumvent the
[FLSA’s] consent requirement . . . .”).
To be clear, The Eleventh Circuit has yet to squarely address
the issue, and courts within this District have not uniformly
followed La Chapelle.
Compare Perez v. Avatar Properties, Inc.,
No. 07-CV-792, 2008 WL 4853642, at *3 (M.D. Fla. Nov. 6, 2008)
(“There is no doubt that the opt-in/opt-out distinction represents
a fundamental, irreconcilable difference between the class action
described by Rule 23 and that provided for by the FLSA.”) (quoting
Schmidt v. Fuller Brush Co., 527 F.2d 532, 536 (8th Cir. 1975),
with Kubiak v. S.W. Cowboy, Inc., No. 12-CV-1306, 2014 WL 2625181,
at *1 n.4 (M.D. Fla. June 12, 2014) (“Hybrid class action suits
under Rule 23 (for state law minimum wages) and 29 U.S.C. § 216(b)
may
proceed
without
conflict.”)
(quoting
Bennett
v.
Hayes
Robertson Grp., Inc., 880 F. Supp. 2d 1270, 1276 (S.D. Fla. 2012)).
However, the Eleventh Circuit has not repudiated LaChapelle,
which remains binding precedent on this Court.3
To the contrary,
the Eleventh Circuit has cited LaChapelle approvingly for the point
that the FLSA and Rule 23 employ conflicting class action notice
3
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc) the Eleventh Circuit adopted as binding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
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procedures.
See, e.g., Cameron-Grant v. Maxim Healthcare Servs.,
347 F.3d 1240, 1248 (11th Cir. 2003); Grayson v. K Mart Corp., 79
F.3d 1086, 1106 (11th Cir. 1996) (noting in dicta that La Chapelle
“held that Rule 23 and § 216(b) actions are mutually exclusive and
irreconcilable”).
Accordingly, the Court will follow La Chapelle
and hold that Plaintiffs’ overlapping FLSA and FMWA class actions
are
mutually
exclusive
and
irreconcilable.
On
this
basis,
Plaintiffs’ motion to certify their FMWA claims as a class action
pursuant to Rule 23(b)(3) is denied.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Plaintiffs’
motion
seeking
conditional
certification
pursuant to 29 U.S.C. § 216(b) is GRANTED for the modified class
of individuals as more fully described herein.
In accordance with
this Order, Plaintiffs shall file a proposed notice to putative
class members on or before July 30, 2015.
Defendant shall file
any objections to Plaintiffs’ proposed notice on or before August
13, 2015.
Defendant shall provide Plaintiffs’ counsel with a list
of putative class members’ names, addresses, and e-mail addresses
on or before August 13, 2015.
Such information must be kept
confidential as set forth herein.
2.
Plaintiffs’ motion seeking equitable tolling of the
statute of limitations is DENIED.
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3.
Plaintiffs’ motion seeking Rule 23 class certification
for their FMWA causes of action is DENIED.
4.
Defendant’s
Motion
to
Strike
Hearsay
Statements
in
Plaintiffs’ Reply and Plaintiffs’ Affidavits (Doc. #53) is DENIED
as MOOT.
DONE and ORDERED at Fort Myers, Florida, this
of June, 2015.
Copies:
Counsel of Record
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16th
day
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