Palma et al v. Metro PCS Wireless, Inc.

Filing 93

ORDER: The Court holds Plaintiffs' Expedited Motion to Conditionally Certify Collective Action and Facilitate Notice of Potential Class Members 33 in ABEYANCE pending resolution of Plaintiffs' Motion for Preliminary Injunction 43 . See Order for details. Signed by Judge Virginia M. Hernandez Covington on 7/30/2013. (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

sua

sponte.

Plaintiffs Karen Palma and Hallie Selgert filed this FLSA case
against MetroPCS Wireless, Inc. on March 18, 2013. (Doc. # 1).
At this juncture, Plaintiffs seek conditional certification of
a

class

of

Account

Service

Representatives

employed

Defendant who were not paid overtime compensation.
33).

by

(Doc. #

In a related Motion for Preliminary Injunction (Doc. #

57), Plaintiffs allege that Defendant has penalized Palma in
the terms of her employment due to her participation in this
action as one of the named Plaintiffs.

Palma indicates in a

declaration that:
[O]n March 26, 2013, all ASRs in Tampa were
required to attend a meeting where Defendant
announced a realignment of the territories.
Although no other ASR had a significant change to
their territory, I was reassigned to the highestcrime territory in the Tampa area.
In fact,
because the area was such a high-crime area,
Defendant had never assigned any female ASR the
territory, and instead had always assigned male

ASRs there.
Both in the meeting and after, my
fellow-ASRs acknowledged that it was clear that the
realignment was really just targeting me in an
effort to punish me for filing the lawsuit and
scare away other ASRs from pursuing their claims.
(Doc. # 57-1 at 3, ¶ 9).1
Palma also alleges that “although [Defendant] had never
done so in my prior 4-plus years of employment, Defendant
performed an audit on my travel reimbursement submissions
within 1 week of learning of my lawsuit.” (Id. at ¶ 10).

She

also contends that she has been supervised more closely with
“ride alongs” by her supervisor since filing this lawsuit.
(Id. at ¶ 11).
In

addition,

in

the

Preliminary

Injunction

Motion,

Plaintiffs allege that Defendant has engaged in intimidating
activity

designed

to

deter

other

Account

Representatives from participating in this action.
other

allegations,

Plaintiffs

maintain

that

Service
Among

“Defendant

required many of their current ASRs to execute a cookie cutter
Declaration, in which each ASR declares that they do not
intend to join the case.” (Doc. # 57 at 8).
In

response

to

Plaintiffs’

1

Motion

for

Conditional

Plaintiffs later indicate that Defendant did not follow
through with the reassignment of Palma to the high-crime
territory.
2

Certification, Defendant tenders a plethora of declarations
executed by its Account Service Representatives in which such
Account Service Representatives disavow having any interest in
participating in this action. For example, the declaration of
Jose Martinez states: “I am aware of how I am classified under
the FLSA and compensated by MetroPCS, and I agree with my pay
arrangement;” and “I am not aware of any other employee who
wants to join the lawsuit, including myself.” (Doc. # 56-1 at
6, ¶¶ 19-20).
Plaintiffs’ counsel indicates in a declaration that, as
a result of Defendant’s alleged tactics, several individuals
who showed interest in joining the litigation “later reported
to me that they had elected not to join the case because they
feared retaliation from Defendant and feared for their jobs.”
(Doc. # 56-2 at 3, ¶ 8).
In the Motion for Preliminary Injunction, Plaintiffs
request that the Court direct corrective notice to Defendant’s
Account Service Representatives “informing the employees that
they still have a right to participate even if they signed a
declaration”

and

“explain[ing]

the

protection

against

retaliation.” (Doc. # 57 at 9).
Discussion
The Fair Labor Standards Act expressly permits collective
3

actions against employers accused of violating the FLSA’s
mandatory overtime provisions. 29 U.S.C. § 216(b).

The

Eleventh Circuit has recommended a two-tiered procedure for
district courts to follow in determining whether to certify a
collection action under § 216(b). Cameron-Grant v. Maxim
Healthcare Servs., Inc., 347 F.3d 1240, 1242 (11th Cir.
2003)(citing Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d
1208, 1218 (11th Cir. 2001)).

The first tier, known as the

notice stage, is relevant here.
district

court

makes

a

“At the notice stage, the

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.” Id. 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).

Thus, in determining

whether it is appropriate to grant conditional certification
of a FLSA action, one of the most important factors for the
Court to consider is whether other individuals desire to join
in the action. As explained in Mackenzie v. Kindred Hospitals
East, LLC, 276 F. Supp. 2d 1211, 1220 (M.D. Fla. 2003),
certification of a collective action and notice to a potential
4

class is not appropriate to determine whether there are others
who desire to join the lawsuit. Rather, a showing that others
desire to opt in is required before certification and notice
will be authorized by the Court. Id.
Although Plaintiffs’ Motion for Conditional Certification
is technically ripe, the Court determines that it would be
patently erroneous to make a decision regarding conditional
certification

during

the

Preliminary Injunction.

pendency

of

the

Motion

for

On the present record, it appears

that only a handful of individuals desire to participate in
the

action,

while

at

least

128

of

Defendant’s

current

employees have filed declarations indicating that they are not
interested in joining the action.

However, Plaintiffs have

cast an ominous cloud of suspicion over the generation of the
declarations in which Defendant’s current employees proclaim
their disinterest in joining the present suit.
The Motion for Preliminary Injunction has been referred
to the Magistrate Judge for a hearing and for the issuance of
a

Report

and

Recommendation.

The

Magistrate

Judge

scheduled a hearing on the matter for August 6, 2013.
Court

accordingly

holds

the

Motion

for

has
The

Conditional

Certification in abeyance pending the determination of the
Motion for Preliminary Injunction on the merits.
5

Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
The

Court

holds

Plaintiffs’

Expedited

Motion

to

Conditionally Certify Collective Action and Facilitate Notice
of Potential Class Members (Doc. # 33) in ABEYANCE pending
resolution of Plaintiffs’ Motion for Preliminary Injunction
(Doc. # 43).
DONE and ORDERED in Chambers, in Tampa, Florida, this
30th day of July, 2013.

Copies: Counsel of Record

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