Campagnone et al v. DL Pool Service, LLC

Filing 48

OPINION AND ORDER granting in part and denying in part 40 Motion for an Order Permitting Supervised Notice to Potential Opt-in Plaintiffs and Conditional Certification as a Collective Action. The action is conditionally certified as a collecti ve action, but the request to permit notice is denied pending review of a revised proposed notice to be filed on or before November 21, 2016, with objections to the revised proposed notice due on or before December 1, 2016. Signed by Judge John E. Steele on 11/7/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRITTANY
COMPAGNONE,
on
behalf of herself and those
similarly situated,
Plaintiff,
v.

Case No: 2:15-cv-647-FtM-99MRM

DL POOL SERVICE, LLC, a
Florida Limited Liability
Company,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion for
an

Order

Permitting

Supervised

Notice

to

Potential

Opt-in

Plaintiffs and Conditional Certification as a Collective Action
(Doc. #40) filed on May 4, 2016, and defendant’s Response (Doc.
#43) filed on June 8, 2016.

For the reasons set forth below, the

motion is granted to the extent that this case is conditionally
certified as a collective action, but denied as to the request for
approval

of

plaintiff’s

members.

proposed

notice

to

potential

class

(Doc. #40-3.)
I.

Plaintiff Brittany Compagnone (plaintiff or Compagnone) has
filed a one-count Amended Complaint (Doc. #17) against her former
employer, DL Pool Service, LLC (defendant or DL), on her own behalf

and on behalf of other similarly situated individuals, for overtime
compensation relief under the Fair Labor Standards Act (FLSA), 28
U.S.C. §§ 201–19.

On January 18, 2016, Juan Long (Long) filed a

Notice of Consent to Join.

(Doc. #21-2.)

To date, no others have

joined Compagnone and Long as plaintiffs.

The underlying facts,

as set forth in the Amended Complaint, are as follows:
Compagnone worked for DL as a “pool service technician” 1 from
approximately

May

1,

2014

through

March

commercial and residential pools and spas.

20,

2015,

servicing

(Doc. #17, ¶¶ 3-4.)

Plaintiff alleges that she, Long, and other similarly situated
employees were paid a weekly salary 2 during their employment with

1

In Compagnone’s Declaration attached in support of the
certification motion, she states that she worked for defendant as
a “service technician.”
(Doc. #40-1.)
Yet in her Verified
Answers to the Court’s Interrogatories, she stated she was a “pool
route technician.”
(Doc. #22.)
Likewise, in the Amended
Complaint, plaintiff asserts that Long worked for DL as a “pool
service technician,” yet in Long’s Verified Answers to the Court’s
Interrogatories, he states he was a “repair technician/route
technician.” (Doc. #17, ¶5; Doc. #27.) And Long’s Declaration
states that he was a “service technician.”
(Doc. #40-2.)
The
Court notes that plaintiff’s proposed notice to potential class
members refers to Compagnone as a “service technician” and uses
this title in the class description contained therein. (Doc. #403.) As the Court finds that plaintiff has offered a reasonable
basis for her assertion that there are other similarly situated
employees who desire to opt-in, the discrepancies in the titles
are not significant to the issue of conditional certification.
2

At one point in the Amended Complaint Compagnone alleges
that she was an “hourly paid employee,” yet elsewhere in the
Amended Complaint and in her Declaration in support of the
certification motion, she claims that she was a salaried employee.
(Doc. #17, ¶¶ 2, 22, 25, 35, 41; Doc. #40-1.) The same discrepancy
regarding how Long was paid also exists.
Plaintiff’s other
allegations comport with Compagnone and Long being salaried

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defendant and “additional pay when they worked on the weekend.”
(Id. at ¶¶ 19-20.)

Plaintiff alleges that all of defendant’s

service technicians performed the same or similar job duties,
worked similar hours, and were paid pursuant to the same salary
compensation

plan.

(Id.

at

¶¶

23-25,

28.)

During

their

employment, Compagnone and Long allege that they were required to
work in excess of 40 hours per week but were told that they were
salaried

employees

compensation.

and

therefore

(Id. at ¶ 22.)

ineligible

for

overtime

Compagnone alleges that she, and

those similarly situated, were not compensated at a rate of one
and one-half their regular rate of pay for those hours worked in
excess of forty in a workweek in violation of the FLSA.

(Id. at

¶ 31.)
Compagnone

now

seeks

conditional

certification

as

a

collective action and requests that the Court facilitate notice to
potential collective action plaintiffs.

(Doc. #40.)

Compagnone

seeks to facilitate notice to
all current and former service technicians who worked
for Defendant any time within the last three (3) years,
and who were subjected to Defendant’s illegal practice
of not paying full and proper overtime compensation for
all overtime hours worked.

employees.

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(Id. at ¶ 4.)

Plaintiff estimates that there are approximately

forty (40) service technicians that fall within this definition.
(Doc. #17, ¶ 26.)
Defendant
(Doc. #43.)

opposes

plaintiff’s

motion

on

several

grounds.

First, DL argues that Compagnone has failed to satisfy

her burden that there are other employees who wish to opt-in to
the lawsuit; and second, that plaintiff has failed to establish
that she is similarly situated to other pool service technicians,
so as to make her an appropriate class representative.
p. 3.)

(Id. at

Additionally, defendant asserts that even if the Court

allows conditional certification, plaintiff’s proposed notice is
insufficient.

(Id. at pp. 18-20.)
II.

An action to recover unpaid overtime 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).
“to

avoid

multiple

The purpose of such a collective action is
lawsuits

where

numerous

employees

have

allegedly been harmed by a claimed violation or violations of the

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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:
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 “optin.”
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.
Before providing notice, a plaintiff must offer a “reasonable
basis” for her assertion that there are other similarly situated
employees who desire to opt-in.

Morgan v. Family Dollar Stores,

Inc., 551 F.3d 1233, 1260 (11th Cir. 2008); Dybach v. Fla. Dep’t

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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. 8:12–cv–470-T-

27TBM, 2012 WL 6196035, at *4 (M.D. Fla. Dec. 12, 2012) (internal
citations omitted).
III.
Defendant argues that plaintiff cannot establish that she is
similarly situated with the putative plaintiffs because she has
failed to show that there are other employees who desire to optin to the action, and has failed to demonstrate a reasonable basis
for her claim that there are similarly situated employees who have
been denied overtime pay.

Plaintiff alleges the contrary.

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A. Similarly Situated Individuals
In support of her assertion that other similarly situated
service

technicians

defendant’s

service

exist,

plaintiff

technicians

states

performed

the

that
exact

all

of

same

job

duties, worked similar hours, and were paid pursuant to the same
salary compensation plan.

(Doc. #40-1.)

Defendant argues that

plaintiff has failed to offer any evidence of DL’s pay practices.
Defendant

also

cites

discrepancies

in

plaintiff

and

Long’s

responses to the Court’s Interrogatories regarding their work
schedules and work duties, showing that plaintiff is not similarly
situated to other service technicians.
With regard to their work schedules, Compagnone states that
as a “pool route technician” her schedule varied, but typically
consisted of work on Monday through Friday, and included weekend
work if for some reason her route was not completed.

(Doc. #22.)

Long states that he had a full-time route, and did not provide any
information about his schedule.

(Doc. #27.)

With regard to job

duties, Compagnone’s “were to service and maintain commercial and
residential pools.”

(Doc. #22.)

Long states that he was a

“repair technician/route technician” that was “hired for repairs.”
(Doc. #27.)
they

were

products.”

Both Compagnone and Long’s Declarations state that
“primarily

responsible

for

installing

(Docs. ##40-1, ¶ 6; 40-2, ¶ 6.)

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Defendant’s

The Court finds that plaintiff has provided a “reasonable
basis” that the other employees are similarly situated to plaintiff
in regard to their job duties and pay provisions.

Plaintiff has

alleged that all potential opt-ins worked on a full-time basis,
including overtime, for which they were not compensated, providing
Declarations in support of this assertion.
40-1; 40-2.)

(Docs. ## 17, ¶ 22;

Furthermore, the Court does not find that the

discrepancies in Compagnone’s and Long’s job duties sufficient to
defeat

conditional

certification.

At

this

stage

of

the

proceedings, the Court declines to weigh evidence and make factual
determinations.

See Morgan, 551 F.3d at 1261 (“[A]t the second

stage....the district court must consider whether the defenses
that apply to the opt-in plaintiffs’ claims are similar to one
another or whether they vary significantly.”

(citation omitted)).

Defendant also argues that because some putative plaintiffs
signed arbitration agreements, they are not similarly situated.
(Doc. #43, pp. 17-18.)

Many courts have held that issues regarding

arbitration agreements executed by employees are more properly
examined at the second tier of the certification process because
they involve merit-based determinations.

See Racey v. Jay-Jay

Cabaret, Inc., No. 15 Civ. 8228 (KPF), 2016 WL 3020933, at *5
(S.D.N.Y. May 23, 2016); Williams v. Omainsky, No. 15-0123-WS-N,
2016 WL 297718, at *7 n.14 (S.D. Ala. Jan. 21, 2016) (collecting
cases); Sealy v. Keiser Sch., Inc., No. 11-61426-CIV, 2011 WL

- 8 -

7641238, at *3 (S.D. Fla. Nov. 8, 2011).

This Court agrees.

Accordingly, the Court finds that defendant’s arguments regarding
the arbitration agreements are more properly suited to be addressed
at the decertification stage.
B. Existence of Other Individuals Who Desire to Opt In
In

support

of

her

assertion

that

there

are

additional

similarly situated individuals that were subject to the same
employment policies who wish to opt in, Compagnone points to her
Declaration, as well as Long’s Declaration, which state that during
their employment with defendant, they worked with approximately 10
to 15 similarly situated service technicians.
11; 40-2, ¶ 9.)

(Docs. ##40-1, ¶

They estimate that there are approximately 40 to

80 similarly situated service technicians due to high turnover.
(Id. at ¶ 10; ¶ 12.)

The Declarations state that each “anticipate

that mostly all of the technicians from my branch would be inclined
to join if they receive notice fully explaining their rights to
join this action because we were unaware that there was a suit or
that we could join the suit.”

(Id. at ¶ 11; ¶ 13.)

Further,

plaintiff points to the fact that one other former DL employee
participated

in

their

violations against DL.

own

separate

FLSA

suit

for

overtime

(Doc. #40, pp. 9-10.)

Defendant asserts that plaintiff has not produced sufficient
evidence to show that there are additional similarly situated
individuals

who

wish

to

opt-in,

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stating

that

other

than

the

conclusory

allegations

contained

in

the

Amended

Complaint,

plaintiff offers only her own self-serving Declaration, and that
of opt-in plaintiff Long, as evidence of a belief that others wish
to join this suit.

Defendant also argues that plaintiff has failed

to demonstrate that there are a sufficient number of potential
class members to warrant conditional certification.

In support,

defendant points to the Affidavit of Justin Henderson, Controller
for DL (Henderson Affidavit), attached to its Response.
#43-1.)

(Doc.

The Henderson Affidavit states that, excluding the three

individuals that have already filed claims against defendant from
the

total

number

of

potential

class

members,

the

number

of

individuals in the potential class would be less than thirty,
including eleven that remain employed by DL.
the

eleven

implemented

current
after

employees
Compagnone’s

arbitrate any FLSA disputes.

signed

an

(Id. at ¶ 10.)

arbitration

employment

ended,

(Id. at ¶¶ 11-13.)

And,

agreement

agreeing

to

Therefore,

defendant argues these eleven employees should be excluded from
the potential class.
A review of the relevant case law confirms that no firm line
has been drawn regarding the number of opt-ins necessary, or magic
language required, to convince the court that additional putative
plaintiffs will join or desire to join the action.

See Ciani v.

Talk of The Town Rests., Inc., No. 8:14-cv-2197-T-33AEP, 2015 WL
226013, at *2 (M.D. Fla. Jan. 16, 2015) (finding presence of two

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opt-in plaintiffs, each having filed a declaration describing
their working condition sufficient to show others desire to join);
Teahl v. The Lazy Flamingo, No. 2:13-cv-833-FtM-38CM, 2015 WL
179367, at *5-6 (M.D. Fla. Jan. 14, 2015) (finding declaration and
two opt-ins sufficient to provide a reasonable basis that others
desire to join); Gonzalez v. TZ Ins. Sols., LLC, No. 8:13-cv-2098T-33EAJ, 2014 WL 1248154, at *2 (M.D. Fla. Mar. 26, 2014) (finding
that “[a]lthough there is no magic number requirement for the
notice stage,” five opt-in plaintiffs are sufficient to convince
the court that others desire to join the action); Robbins-Pagel v.
Puckett, No. 6:05-cv-1582-Orl-31DAB, 2006 WL 3393706, at *2 (M.D.
Fla. Nov. 22, 2006) (finding affidavits submitted by plaintiff and
two additional former employees sufficient to show that others
desire to join).

Although the burden of showing that there are

other employees who desire to opt in is minimal, this “minimal
burden

should

not

be

confused

with

a

nonexistent

burden.”

Goodrich v. Covelli Family Ltd. P’ship, No. 8:11-cv-1715-T-33TBM,
2012 WL 1081473, at *3 (M.D. Fla. Mar. 30, 2012).
While the Court agrees that a valid arbitration clause is
enforceable in an FLSA collective action, see Walthour v. Chipio
Windshield Repair, LLC, 745 F.3d 1326 (11th Cir. 2014), it does
not find defendant’s allegation that an arbitration agreement was
rolled out after Compagnone’s employment ended to be dispositive
proof that others do not desire to join.

- 11 -

While some courts have

been able to conclusively establish that named plaintiffs were
prohibited from bringing an action as a result of an arbitration
agreement, other courts have held that the fact that some members
of a proposed class may be subject to an arbitration provision
does not preclude the conditional certification of a class.

See

Saravia v. Dynamex, Inc., 310 F.R.D. 412, 424 (N.D. Cal. 2015);
Bowman v. Dow Run Res. Corp., No. 4:13 CV 2519 CDP, 2014 WL 3579885,
at *5 (E.D. Mo. July 21, 2014).

As discussed supra, issues

regarding the arbitration agreements in this case are more properly
addressed at the decertification stage or on a motion to compel
arbitration.
Under the “fairly lenient standard” appropriate at this stage
of the proceedings, the Court is satisfied, however, that plaintiff
has provided a “reasonable basis” for her assertion that there are
additional similarly situated individuals who desire to opt-in.
See Scheall v. NICAEA Acad., Inc., No. 2:14-cv-653-FtM-29DNF, 2015
WL 3991041, at *2 (M.D. Fla. June 30, 2015) (finding presence of
two opt-ins in addition to plaintiff and affidavits of plaintiff
and one opt-in sufficient to show there are similarly situated
individuals who wish to opt-in); Kirk v. Dr. Goodroof, Inc., No.
2:14-cv-639-FtM-29CM, 2015 WL 1138445, at *1-2 (M.D. Fla. Mar. 13,
2015)

(finding

plaintiff

and

one

other

sufficient to show others’ desire to join).

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opt-in’s

testimony

Accordingly, conditional certification is warranted and the
Court will now address the definition of the putative class and
the substance of the notice to be sent to putative class members.
C. Adequacy of the Proposed Notice
Defendant

objects

to

the

proposed

notice

attached

to

plaintiff’s motion (Doc. #40-3) on multiple grounds: (1) the class
definition is overly broad as to the time period, (2) it is not
impartial, (3) it fails to inform recipients of their right to
obtain

independent

instructs

recipients

legal
to

representation,
contact

(4)

plaintiff’s

it

improperly

counsel

should

retaliation occur, (5) fails to notify opt-in plaintiffs that they
may be liable for attorneys’ fees and costs in the event that the
court were to find that the matter was litigated in bad faith, and
(6) plaintiff’s request to post notices at company locations and
send

via

email

sufficient.

should

be

denied

(Doc. #43, pp. 18-20.)

because

notice

by

mail

is

The Court will consider each

objection in turn.
In the proposed notice, plaintiff seeks to represent a class
of former and current service technicians who have worked for DL
at any time within the last three years.

(Doc. #40-3, p. 1.)

The

Court agrees that the proposed notice is overbroad as to the time
period because it does not define a start or end date.

The Court

will allow plaintiff the opportunity to file a revised proposed
notice.

- 13 -

With

regard

to

impartiality,

defendant

argues

that

the

proposed notice does not contain any mention that DL disputes
plaintiff’s claims.

(Doc. #43, p. 19.)

The Court disagrees.

The

proposed notice states under the heading “DEFENDANT’S POSITION”
that “DL POOL maintains that it paid its service technicians in
accordance with the applicable law and that each was properly
compensated.”

(Doc. #40-3, p. 1.)

Defendant may assert any

further objections in response to the revised proposed notice.
The Court further notes that the proposed notice states that “[t]he
court has made no finding as to the merits of the case at this
time.”

(Id.)

Defendant next argues that the proposed notice improperly
leads one to believe that if a potential class member opts-in to
the

lawsuit,

they

plaintiff’s counsel.

have

no

choice

but

to

be

represented

by

In this regard, the proposed notice reads,

“legal representation if you join” – “If you choose to join in the
lawsuit, you will be represented by the Representative Plaintiff 3
through her attorneys as counsel for the class.”

(Id. at 2.)

The

Court agrees that potential opt-ins should be informed that they
may obtain independent legal counsel.

3

The Court further notes that “Representative Plaintiff” is
not defined in the proposed notice. Any future amended notices
should include this definition.

- 14 -

Defendant also takes issue with the fact that proposed notice
contains the

following

anti-retaliation

provision

in

boldface

type:
Notice: The law prohibits anyone from discriminating or
retaliating against you for taking part in this case.
If
you
believe
that
you
have
been
penalized,
disciplined, punished, threatened, intimidated, or
discriminated against in any way as a result of your
receiving this notification, your considering whether to
complete and submit the Notice of Consent, or your having
submitted the Notice of Consent, you may contact the
attorneys at the number provided above.
(Doc. #40-3, p. 3.)

Defendant argues that because the issue of

retaliation has not been raised by plaintiff, including it in the
proposed notice is improper.

The Court will allow the provision,

but finds that it is improper as stated because it does not inform
potential opt-ins that they may seek independent legal counsel.
Therefore, the last sentence should read: “If you believe that you
have

been

penalized,

disciplined,

punished,

threatened,

intimidated, or discriminated against in any way as a result of
your receiving this notification, your considering whether to
complete and submit the Notice of Consent, or your having submitted
the Notice of Consent, you may contact an attorney of your choice
or the attorneys at the number provided above.”
The proposed notice also states under the heading “Effect of
Joining Suit” that the opt-in plaintiffs would not “be required to
pay attorney’s fees directly.”

(Id.)

In Turlington v. Atlanta

Gas Light Co., 135 F.3d 1428, 1437 (11th Cir. 1998), the Eleventh

- 15 -

Circuit noted that the FLSA entitles a prevailing defendant to
attorney’s fees and costs when the district court finds that the
plaintiff litigated in bad faith.

It is not clear what plaintiff

means when she states that potential opt-in plaintiff would not
have to pay for attorney’s fees “directly.”

The notice should

warn potential class members that, should DL prevail, all class
members may be held responsible for DL’s attorney’s fees and
defense costs.
Finally, as recognized previously by this Court, “requests
[to post notices] are routinely granted and the Court sees no
reason to divert from that standard of practice in this case.”
Scheall, 2015 WL 3991041, at *3 (citing Fiore v. Goodyear Tire &
Rubber Co., No. 2:09-cv-843-FtM-29SPC, 2011 WL 867043, at *4 (M.D.
Fla. Mar. 10, 2011)).

The Court also approves sending notices via

first class mail as well as via email.

“A number of courts have

determined that email is an inexpensive and appropriate means of
delivering notice of an action to a class.”

Palma v. Metropcs

Wireless, Inc., No. 8:13-cv-698-T-33MAP, 2014 WL 235478, at *2
(M.D. Fla. Jan. 22, 2014).

Therefore, service by email will be

allowed.
D. Notice-Related Discovery
Plaintiff requests that the Court order defendant to produce
a list of all similarly situated service technicians who worked
for defendant within the last three (3) years, within 30 days in

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order to facilitate notice of the lawsuit.
The

Court

agrees

that

limited

(Doc. #40, p. 16.)

notice-related

discovery

is

appropriate here, but as the time period is not yet defined, the
Court will defer ordering such a production.

Plaintiff should

include the request for production when filing the revised proposed
notice.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Notice

Plaintiff’s Motion for an Order Permitting Supervised
to

Potential

Opt-in

Plaintiffs

and

Conditional

Certification as a Collective Action (Doc. #40) is GRANTED IN PART
AND DENIED IN PART.

This action is conditionally certified as a

collective action, but the request to permit notice is denied
without prejudice pending the Court’s review of a revised proposed
notice to be filed by plaintiff on or before November 21, 2016.
2.

Defendant

shall

file

any

objections

to

plaintiff’s

revised proposed notice on or before December 1, 2016.
DONE and ORDERED at Fort Myers, Florida, this
November, 2016.

Copies:
Counsel of Record

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7th

day of