Palma et al v. Metro PCS Wireless, Inc.
Filing
125
ORDER: Plaintiffs' Motion to Conditionally Certify Collective Action and Facilitate Notice of Potential Class Members 33 is GRANTED. The parties are directed to file a Jointly Proposed Notice and accompanying status report by December 30, 201 3. MetroPCS Wireless, Inc.'s Motion to Strike Declarations Submitted in Support of Plaintiffs' Motion for Conditional Certification 43 is GRANTED IN PART as to the declaration of Tracy Evans and is otherwise DENIED. Plaintiffs' Motion for Clarification and/or for Leave to Conduct Declaration Discovery, if Necessary 98 is DENIED as moot. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 12/16/2013. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KAREN PALMA and HALLIE SELGERT,
Plaintiffs,
v.
Case No.
8:13-cv-698-T-33MAP
METROPCS WIRELESS, INC.,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Plaintiffs
Karen Palma and Hallie Selgert’s Motion to Conditionally
Certify Collective Action and Facilitate Notice to Potential
Class Members (Doc. # 33), which was filed on May 14, 2013.
Defendant
MetroPCS
Wireless,
Inc.
filed
a
Response
in
Opposition to the Motion (Doc. # 44) on June 11, 2013, to
which Plaintiffs filed a Reply (Doc. # 73) on July 12, 2013.
Also
before
the
Court
is
MetroPCS’s
Motion
to
Strike
Declarations Submitted in Support of Plaintiffs’ Motion for
Conditional Certification (Doc. # 43).
Plaintiffs filed a
Response in Opposition to the Motion to Strike (Doc. # 64) on
June 28, 2013, MetroPCS filed a Reply (Doc. # 72) on July 11,
2013, and Plaintiffs filed a Sur-Reply (Doc. # 81) on July
19, 2013.
The Court declines to strike Plaintiffs’ declarations,
with the exception of one submitted declaration, and after
finding that Plaintiffs have demonstrated that similarly
situated employees seek to join the action, the Court grants
the Motion for Conditional Certification in this Fair Labor
Standards Act case.
I.
Background
Plaintiffs Palma and Selgert are currently employed by
Defendant MetroPCS as Account Service Representatives in
Tampa, Florida.
(Doc. # 31 at ¶¶ 9-10).
Plaintiffs assert
that they routinely worked overtime hours; however, because
MetroPCS classified all Account Service Representatives as
exempt employees, they were paid a salary plus commissions
instead of overtime premiums. (Id. at ¶¶ 60-64).
Plaintiffs
assert
as
that
their
alleged
misclassification
exempt
employees constitutes a violation of the FLSA, 29 U.S.C. §
201, et seq.
(Id. at ¶¶ 57-61).
Accordingly, Plaintiffs
filed an action for unpaid wages, liquidated damages, and
declaratory relief pursuant to the FLSA against MetroPCS on
March 18, 2013 (Doc. # 1), and thereafter filed an Amended
Complaint (Doc. # 31) on May 14, 2013.
At
this
juncture,
Plaintiffs
seek
conditional
certification of this case as a nationwide collective action
pursuant to 29 U.S.C. § 216(b), consisting of all Account
Service Representatives employed by MetroPCS within the last
2
three years who were paid salary plus commissions and who
earned less than $100,000 per year for any period of their
employment within the statute of limitations, and who were not
paid overtime compensation for hours worked over forty in a
workweek. (Doc. # 33 at 1).
II.
Legal Standard
The Fair Labor Standards Act expressly permits collective
actions against employers accused of violating the FLSA’s
mandatory overtime provisions. See 29 U.S.C. § 216(b) (“[a]n
action . . . may be maintained against any employer . . . by
any one or more employees for and in behalf of himself or
themselves and other employees similarly situated.”).
In
prospective collective actions brought pursuant to § 216(b),
potential
plaintiffs
collective action. Id.
must
affirmatively
opt
into
the
(“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.”).
The
Eleventh
Circuit
has
recommended
a
two-tiered
procedure for district courts to follow in determining whether
to certify a collective action under § 216(b). Cameron-Grant
v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 (11th
Cir. 2003)(citing Hipp v. Liberty Nat’l Life Ins. Co., 252
3
F.3d 1208, 1218 (11th Cir. 2001)).
The first tier, known as
the notice stage, is relevant here. “At the notice stage, the
district
court
makes
a
decision--usually
based
on
the
pleadings and any affidavits which have been submitted–whether notice of the action should be given to potential
class members.” Cameron-Grant, 347 F.3d at 1243.
The
Court
must
determine
whether
there
are
other
employees who desire to opt-in and whether those employees are
similarly situated. Morgan v. Family Dollar Stores, Inc., 551
F.3d 1233, 1258 (11th Cir. 2008); Dybach v. State of Fla.
Dep’t of Corrections, 942 F.2d 1562, 1567-68 (11th Cir. 1991).
This determination is made using a “fairly lenient standard.”
Hipp, 252 F.3d at 1218.
Factors considered in determining
whether the potential plaintiffs are similarly situated to the
named plaintiffs include (1) job duties and pay provisions and
(2) whether they were subject to a common policy, plan, or
scheme that forms the basis of the alleged FLSA violation.
Dybach, 942 F.2d at 1567-68; Vondriska v. Premier Mort.
Funding, Inc., 564 F. Supp. 2d 1330, 1335 (M.D. Fla. 2007).
The plaintiffs bear the burden of showing a reasonable basis
for
the
claim
that
there
are
other
similarly
situated
employees who desire to join in the litigation. Id.
The
second
stage
of
the
4
certification
process
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.
During the second stage of the certification process,
the standard to show substantial similarity is more stringent.
Morgan, 551 F.3d at 1261.
stage
that
the
If it is determined at the second
representative
plaintiffs
and
the
opt-in
plaintiffs are not similarly situated, the district court
“decertifies” the collective action. Id.
does
not
make
credibility
Notably, the Court
determinations
or
resolve
contradictory evidence presented by the parties during the
notice stage.
See, e.g., Henderson v. Holiday CVS, LLC, No.
09-cv-80909, 2010 U.S. Dist. LEXIS 53604, at *10 (S.D. Fla.
May
11,
2010)(declining
to
“indulge
in
a
fact
finding
determination on the merits, which is improper” at the notice
stage of the litigation).
III. Conditional Certification Analysis
A.
Do Others Seek to Join in the Action?
As noted, Plaintiffs bear the onus of demonstrating that
there
are
litigation
other
and
employees
that
these
who
other
desire
to
opt
into
the
employees
are
similarly
situated with respect to their job requirements and pay
arrangements. Dybach, 942 F.2d at 1567-68.
5
Plaintiffs have
satisfied this requirement.
The following Account Service
Representatives, in addition to Palma and Selgert, have filed
opt-in notices: Linda Prevalon (Doc. # 7); Hector Casta (Doc.
# 8); Lisa Hobday (Doc. # 9); Eduardo Villar (Doc. # 10);
Christopher Smith (Doc. # 16); Aixa Reynolds (Doc. # 20);
Gerald Jusino (Doc. # 59); Yvonne Pacheo (Doc. # 69); and Ann
Bush (Doc. # 116).
Although there is no magic number requirement for the
notice stage, the presence of nine opt-in notices satisfies
the Court that other Account Service Representatives desire to
join in the action.1 See, e.g., Bradford v. CVS Pharmacy,
Inc., No. 1:12-cv-1159, 2013 WL 425060, at *5 (N.D. Ga. Feb.
4, 2013)(nine consents filed by similarly situated employees
was sufficient for nationwide certification); Reyes v. AT&T
Corp., 801 F. Supp. 2d 1350, 1357 (S.D. Fla. 2011)(affidavits
of named plaintiffs plus eight similarly situated employees
was sufficient for conditional certification of a nationwide
1
The
Court
denies
Plaintiffs’
“Motion
for
Clarification,” in which Plaintiffs ask the Court: “Can the
Court Please Clarify What it Deems to Be a Sufficient Number
of Declarations to Establish the ‘Desire to Join’ Prong for
Stage I Notice?” (Doc. # 98 at 4). The Court agrees with
Plaintiffs that “there is no magic number requirement,” for
conditional certification under the FLSA. (Id.). Because the
Court has provided a detailed discussion of the applicable law
and its reasoning for granting conditional certification
herein, “clarification” is not warranted and the Motion is
denied as moot.
6
class of “retail account executives”).
The Court will next
determine whether the Account Service Representatives are
similarly situated.
B.
Are the Employees Substantially Similar?
As explained in Morgan, the plaintiff’s burden of showing
a “reasonable basis” for the claim that there are other
similarly situated employees is “not particularly stringent,
fairly lenient, flexible, not heavy, and less stringent than
that for joinder under Rule 20(a) or for separate trials under
42(b).” 551 F.3d at 1260-61 (internal citations omitted).
As detailed below, the record supports that all Account
Service
Representatives
were
classified
as
exempt
from
overtime and completed standardized duties. Thus, for the
purposes of the notice stage, the Court finds that they are
“substantially similar.” Specifically, Plaintiffs tender the
declarations of the following present and former Account
Service Representatives, describing their duties and pay
arrangements: Karen Palma (Doc. # 33-2); Hallie Selgert (Doc.
# 33-3); Peter Hong (Doc. # 33-4); Lisa Hobday (Doc. # 33-5);
Aixa Reynolds (Doc. # 33-6); Christopher Smith (Doc. # 33-5);
Fernando Pereira (Doc. # 33-6); and Hector Casta (Doc. # 34-
7
1).2
Although
the
declarations
submitted
by
the
Account
Service Representatives vary from declaration to declaration,
they share common core allegations.
The Court reproduces
salient portions of Palma’s declaration below:
Other than small differences in the “point of
contact” with the different customers, based on
their size, the job duties I perform as an ASR do
not change in any material way, nor does the manner
in which I am paid by MetroPCS.
. . . .
[My] fellow ASRs and I are employed by
MetroPCS to perform standardized duties of their
ASR position.
Specifically, as ASRs, our primary duty is to
develop and maintain supportive relationships with
MetroPCS’ existing accounts, as assigned to us by
MetroPCS, regardless of which account it is.
To ensure that we perform these duties in a
uniform and consistent manner, MetroPCS has
specific training programs that I, as well as all
other ASRs, are required to complete on a regular
basis, regarding MetroPCS’ ever-changing line-up of
products and services.
Throughout my employment with MetroPCS, I have
regularly worked over forty (40) hours per week.
Despite the fact that I have worked overtime
hours in many weeks of my employment with MetroPCS,
MetroPCS has never paid me any overtime premiums
for such overtime hours.
. . . .
MetroPCS failed to pay me time and a half for
any of my overtime hours . . . because it has
classified everyone in its ASR position as exempt
from overtime.
2
Both the declaration of Lisa Hobday and the declaration
of Christopher Smith are labeled as (Doc. # 33-5). Likewise,
the declarations of both Aixa Reynolds and Fernando Pereira
are labeled as (Doc. # 33-6).
8
. . . .
During my employment with MetroPCS, I have
personally observed that there were numerous
similarly situated ASRs who: (a) perform the same
or similar job duties that I perform; (b) are paid
a combination of salary and commissions; (c) work
over 40 hours in many workweeks; and (d) are not
paid any overtime wages due to MetroPCS’ uniform
misclassification of all ASRs as exempt from
overtime.
(Doc. # 33-2 at ¶¶ 13-31).
It
is
unnecessary
to
repeat
the
varied
declaration
statements that are before the Court from each Account Service
Representative, as each declaration is similar and asserts
that Account Service Representatives perform “standardized
duties” with the primary duty being to develop and maintain
supportive relationships with MetroPCS’s existing accounts.
Plaintiffs have also filed the uniform “Job Description”
of a MetroPCS Account Service Representative as listed on job
postings
for
Pennsylvania,
Florida,
New
York,
Michigan,
Georgia, and Rhode Island, which states as to “Essential
Duties and Responsibilities:”
*
*
*
*
*
*
Achieves account support objectives
Supports
indirect/third
party
retail
distribution channels
Maintains reporting requirements and forecasts
Effectively
communicates
and
executes
information and programs including approved
compensation plans
Sets up and delivers all training requirements
for third party retailers in the markets
Supports
local
promotional
events
for
9
indirect/third party retail channels
(Doc. # 33-8 at 2).
In addition, Plaintiffs filed the declaration of a former
MetroPCS
manager,
Tracy
Evans.
(Doc.
#
33-7).
In
her
declaration, Evans states that she “interacted with [MetroPCS]
ASRs on an almost daily basis,” and that these employees
perform standardized duties. (Id. at ¶ 11). She further
opines, “As a result of MetroPCS’ actions, no ASR receives
proper overtime compensation under the Fair Labor Standards
Act.” (Id. at ¶ 29).
However, as explained below, the Court
strikes her declaration.
In response, MertoPCS has inundated the Court with a
barrage of competing declarations as well as a motion to
strike
Plaintiffs’
declarations.
However,
MetroPCS’s
documents and evidence exceeds by far this Court’s limited
inquiry at the notice stage of the conditional certification
process.
The court was faced with a similar situation in
Simpkins v. Pulte Home Corporation, No. 6:08-cv-130-Orl-19DAB,
2008 U.S. Dist. LEXIS 64270 (M.D. Fla. Aug. 21, 2008). There,
Pulte classified all superintendents as exempt from overtime
and Simpkins, a superintendent, filed a FLSA action. Id. at
*10-11.
Simpkins
sought
conditional
certification.
Id.
Similar to MetroPCS’s strategy, “Pulte present[ed] a mass of
10
evidence
in
opposition
to
Simpkins
collection
of
declarations,” including evidence showing that superintendents
had varying levels of education, training, and licensure;
worked on different types of projects; had varying amounts of
discretion; and worked flexible hours. Id. at *14.
In response to the avalanche of evidence presented by
Pulte, the court indicated that “more is not necessarily
better, and the evidence Pulte presents goes far beyond the
scope of this Court’s review at the first stage of the
certification process.” Id. at *15.
granted
conditional
certification
The Simpkins court
after
finding
that
Simpkins demonstrated a reasonable basis to conclude that
other similarly situated superintendents wished to join the
action.
Following the sound reasoning of Simpkins, this Court
determines that Plaintiffs have shown that there are similarly
situated Account Service Representatives who seek to join this
action, and MetroPCS’s arguments arrayed against conditional
certification are premature.
Reyes.
An analogous situation arose in
There, a group of retail account executives who
performed the same role as Account Service Representatives for
AT&T sought conditional certification of a FLSA action.
AT&T
countered with a deluge of competing affidavits, including
11
numerous affidavits by current retail account executives
claiming that they did not intend to join in the action.
The
court declined AT&T’s invitation to engage in a “battle” of
the affidavits. 801 F. Supp. 2d at 1358. This Court similarly
considers, but is not convinced by, MetroPCS’s declarations
indicating
that
131
of
its
current
Account
Service
Representatives are not interested in joining the action.
See
Creely v. HCR Manorcare, Inc., 789 F. Supp. 2d 819, 839
(N.D. Ohio 2011)(“[T]his Court is not swayed by [defendant’s]
submission of thirty-five ‘happy camper’ affidavits. . . .
[T]he
Court’s
certification
function
is
not
to
at
this
perform
stage
a
of
conditional
detailed
review
of
individual facts from employees hand-picked by [defendant].
Those questions of breadth and manageability of the class are
left until the second stage analysis following the receipt of
forms from all opt-in plaintiffs.”).
Nor do MetroPCS’s declarations pinpointing variations in
the Account Service Representatives’ schedules, duties, and
practices convince the Court that conditional certification is
unwarranted.
See
Vondriska,
564
F.
Supp.
2d
at
1335
(“Variations in specific duties, job locations, working hours,
or the availability of various defenses are examples of
factual issues that are not considered at the notice stage.”);
12
Morgan, 551 F.3d at 1261-62 (courts should consider at the
second stage “the various defenses available to defendant[s]
[that]
appear
to
be
individual
to
each
plaintiff.”);
Pendlebury v. Starbucks Coffee Co., No. 04-cv-80521, 2005 U.S.
Dist. LEXIS 574, at *10 (S.D. Fla. Jan. 3, 2005)(granting
conditional certification and refusing to consider factual
dispute raised by defendant at the conditional notification
stage
where
plaintiff
offered
affidavits
establishing
a
similarly situated class).
Thus,
to
the
extent
MetroPCS
tenders
competing
declarations, the Court declines to engage in a credibility
analysis and a battle of the declarations.
The Court finds
that the Account Service Representatives are substantially
similar for the notice stage of conditional certification.
C.
MetroPCS’s Motion to Strike
Further, to the extent MetroPCS seeks an order striking
from the record Plaintiffs’ declarations, the Court denies the
Motion with minor exception.
issues
raised
in
the
The Court emphasizes that the
motion
to
strike
do
not
diminish
Plaintiffs’ ability to meet their lenient burden at the notice
stage of conditional certification.
Specifically, MetroPCS correctly points out that the
declarations Plaintiffs tendered on behalf of former and
13
current Account Service Representatives are strikingly similar
to the declarations filed in the Reyes case, in which the
Morgan and Morgan firm that represents Palma and Selgert
represented a class of retail account executives in a FLSA
suit against AT&T.
performed
similar
The retail account executives in Reyes
duties
as
the
Account
Service
Representatives in this action, and the Reyes court granted
conditional certification of the action after being presented
with opposing declarations similar in kind to those presented
by MetroPCS here.
This Court finds no reason to strike
Plaintiffs’ declarations because they resemble those filed in
the Reyes case.3
Rather, it stands to reason that counsel for
Palma and Selgert, after filing a successful motion for
conditional certification in a factually and procedurally
apposite case, would mirror their filings in this case in
hopes of achieving a similar result.
However, the Court will strike from the record the
declaration filed by former MetroPCS manager Tracy Evans.
3
The Court rejects MetroPCS’s assertion that Plaintiffs’
declarations “were cut-and-pasted from - and are virtually
identical to - declarations filed by Plaintiffs’ counsel” in
the Reyes case. (Doc. # 43 at 1). Plaintiffs’ declarations
are certainly similar to those filed in the Reyes case, but
there is nothing improper about that, as they were prepared by
the same team of attorneys at the same firm. The Court is
likewise unconvinced that the declarations presented here are
a “sham” as asserted by MetroPCS.
14
Among other things, she entered into a separation agreement
with
MetroPCS
on
May
17,
2011.
In
consideration
of
$47,960.93, she agreed, inter alia, to refrain from making any
harmful or negative statements about MetroPCS. (Doc. # 43-5 at
¶ 5).
law,
Evans’ statement that MetroPCS has violated a federal
specifically
the
FLSA,
statement about MetroPCS.
is
a
harmful
and
negative
The Court accordingly declines to
consider her declaration and strikes it from the record.
However, even in the absence of Evans’ declaration, the Court
still finds that Plaintiffs met their burden at this stage of
the proceedings.
D.
Geographical Scope of the Litigation
MetroPCS argues that “Plaintiffs’ proposed collective
action is overbroad and in any case must be limited to the
locations where Plaintiffs worked within the limitations
period.” (Doc. # 44 at 18). MetroPCS specifically seeks to
limit this action to Account Service Representatives located
in Florida, New York, and California.
contention,
MetroPCS
relies
on
an
In support of this
order
conditionally
certifying a class of technicians in Thomas v. All Year
Cooling & Heating, Inc., No. 11-cv-61274, 2012 U.S. Dist.
LEXIS
11831,
at
*4
(S.D.
Fla.
Feb.
1,
2012),
in
which
plaintiffs sought to certify employees who worked at a single
15
Broward County, Florida location. That case is not persuasive
because the motion for conditional certification was unopposed
and there is no indication that the defendant in that case
maintained employees on a nationwide basis.
Plaintiffs,
reasonable
on
basis
the
for
other
finding
hand,
that
have
all
presented
Account
a
Service
Representatives nationwide are similarly situated. Plaintiffs
offer declarations from Account Service Representatives from
Florida, New York, and California and have supplied the Court
with
uniform
job
descriptions
for
Account
Service
Representative job openings in Pennsylvania, Florida, New
York,
Michigan,
Georgia,
and
Rhode
Island.
Furthermore,
MetroPCS’s annual report for 2011 describes itself as “the
fifth largest facilities-based broadband mobile communications
provider in the United States based on the number of customers
served. We offer wireless broadband mobile services under the
MetroPCS brand in selected major metropolitan areas in the
United States.” (Doc. # 33-1 at 3).
Considering these factors at the notice stage, the Court
declines to limit the scope of the collective action and
grants nationwide conditional certification.
See, e.g.,
Carrera v. UPS Supply Chain Solutions, Inc., No. 10-cv-60263,
2011
U.S.
Dist.
LEXIS
34611
16
(S.D.
Fla.
Mar.
31,
2011)
(conditionally certifying a nationwide class of UPS drivers
where opt-in plaintiffs had collectively worked in Florida,
New Jersey, New York, and Virginia); Reyes, 801 F. Supp. 2d at
1357 (conditionally certifying a nationwide class of retail
account executives based on affidavits of employees who worked
in four stores where defendant operated on a nationwide
basis).
E.
Form and Content of Class Notice
Plaintiffs’ proposed form of class notice (Doc. # 33-9)
is
before the Court.
MetroPCS lodges a number of specific
objections to the notice and “requests the opportunity to meet
and confer regarding the proper form of notice” in the
instance that the Motion for Conditional Certification is
granted.
(Doc. # 44 at 20). Having granted nationwide
conditional certification, the Court directs the parties to
confer regarding the proposed class notice and the means of
dissemination of the notice. The parties are directed to file
a Jointly Proposed Notice and accompanying status report by
December 30, 2013.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiffs’ Motion to Conditionally Certify Collective
Action and Facilitate Notice of Potential Class Members
17
(Doc. # 33) is GRANTED.
(2)
The parties are directed to file a Jointly Proposed
Notice and accompanying status report by December 30,
2013.
(3)
MetroPCS Wireless, Inc.’s Motion to Strike Declarations
Submitted
in
Support
of
Plaintiffs’
Motion
for
Conditional Certification (Doc. # 43) is GRANTED IN PART
as to the declaration of Tracy Evans and is otherwise
DENIED.
(4)
Plaintiffs’ Motion for Clarification and/or for Leave to
Conduct Declaration Discovery, if Necessary (Doc. # 98)
is DENIED as moot.
DONE and ORDERED in Chambers, in Tampa, Florida, this
16th day of December, 2013.
Copies: Counsel of Record
18
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