Gonzalez v. TZ Insurance Solutions LLC
Filing
45
ORDER: Plaintiff Barry Gonzalez's Motion for Conditional Certification and Order Permitting Court-Supervised Notice to Potential Opt-In Plaintiffs 39 is GRANTED as described herein. The parties are directed to file a Jointly Proposed Notice t o the Class by April 7, 2014. TZ Insurance is directed to produce to Gonzalez by April 7, 2014, a list containing the names, last known addresses, and email addresses of putative class members. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 3/26/2014. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
BARRY GONZALEZ,
Plaintiff,
v.
Case No.
8:13-cv-2098-T-33EAJ
TZ INSURANCE SOLUTIONS, LLC,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Plaintiff
Barry Gonzalez’s Motion for Conditional Certification and
Order Permitting Court-Supervised Notice to Potential Opt-In
Plaintiffs (Doc. # 39), which was filed on February 28, 2013.
Defendant TZ Insurance Solutions, LLC filed a Response in
Opposition to the Motion on March 14, 2014. (Doc. # 41).
For
the reasons that follow, the Motion is granted.
I.
Background
Gonzalez worked for TZ Insurance as a “sales specialist”
from approximately June 6, 2011, through September 15, 2011,
in TZ Insurance’s Tampa, Florida location. (Gonzalez Decl.
Doc. # 39-2 at ¶¶ 4-5, 7).
Gonzalez was paid by the hour and
was eligible for overtime pay. (Id. at ¶ 6). While Gonzalez’s
schedule typically reflected that he “worked 5 days a week
from 9:00 a.m. to 6:00 p.m.,” Gonzalez indicated that he
usually worked three to five extra hours per week without
compensation. (Id. at ¶¶ 10-18).
Gonzalez explains that he
was required by his supervisor to show up at least 30 minutes
early
for
his
shifts,
that
he
attended
mandatory
sales
meetings daily before clocking in, and that he was expected to
open
multiple
computer
programs
and
review
his
email
“including campaign information” all before clocking in for
the day. (Id.).
In addition, after logging off at the end of
the day, Gonzalez was required to close computer applications
and
answer
phone
calls.
(Id.
at
¶¶
13,
18).
Gonzalez
indicates that “sales specialists in the Tampa call center
performed similar job duties regardless of whether they were
in health, life, property and casualty insurance, etc.” (Id.
at ¶ 19).
In
addition
to
Gonzalez,
other
former
TZ
Insurance
employees, have come forward with declarations indicating that
they were required to work “off the clock” for TZ insurance,
resulting in uncompensated overtime hours. See, e.g., (DiggsHimmel Decl. Doc. # 39-3 at ¶ 13; Hennessey Decl. Doc. # 39-4
at ¶ 14). TZ Insurance has locations in Tampa and Fort Myers,
Florida, as well as in Charlotte, South Carolina. (Doc. # 39
at 3).1
1
TZ Insurance also suggests that it has a call center in
Dublin, Ohio. (Doc. # 41 at 14, n. 2).
2
On August 14, 2013, Gonzalez filed his Complaint against
TZ Insurance seeking the payment of overtime compensation
pursuant to the Fair Labor Standards Act, 29 U.S.C. § 216(b),
as well as other relief. (Doc. # 1).
At this juncture,
Gonzalez seeks an order conditionally certifying this case as
a collective action consisting of “all current and former
sales agents who worked for Defendant at any time within the
last three (3) years who were not paid for all hours worked.”
(Doc. # 39 at 1).
Among
other
arguments,
TZ
Insurance
asserts
that
conditional certification is not appropriate because Gonzalez
has not demonstrated that there are other employees who desire
to opt into the litigation that are similarly situated with
respect to their job requirements and pay arrangements.
As
will be discussed below, the Court finds that Gonzalez meets
the low threshold required for conditional certification.
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.”).
3
In
prospective collective actions brought pursuant to Section
216(b), potential plaintiffs must affirmatively opt into the
collective action. Id.
(“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, 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. “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.” 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); 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.”
4
Hipp, 252 F.3d at 1218.
Gonzalez bears the burden of showing
a reasonable basis for the contention that there are other
similarly
situated
litigation.
employees
who
desire
to
join
in
the
Dybach, 942 F.2d at 1567-68.
III. Conditional Certification Analysis
A.
Other Individuals Seek to Join the Suit
The record reflects that five other individuals (Rhonda
Diggs-Himmel, Justin Jennings, Jamie Doshier, Harry Lebowitz,
and Robert Hennessey) have filed consent documents reflecting
their desire to join in the action. (Doc. ## 23, 32).
Although there is no magic number requirement for the
notice stage, the presence of five opt-in plaintiffs, each
having filed a declaration describing their working conditions
and their desire to join in this suit, satisfies the Court
that others desire to join in the action. See, e.g., RobbinsPagel v. WM. F. Puckett, Inc., No. 6:05-cv-1582-Orl-31DAB,
2006 U.S. Dist. LEXIS 85253 (M.D. Fla. Nov. 22, 2006)(finding
that three affidavits alleging claims of unpaid overtime was
sufficient to establish that other individuals were interested
in joining the action); Dieujuste v. R.J. Elec., Inc., No. 780272, 2007 U.S. Dist. LEXIS 100531 (S.D. Fla. Aug. 21,
2007)(granting conditional certification when two individuals
sought overtime wages against the same employer and each filed
5
a declaration); Pendlebury v. Starbucks Coffee, Co., No. 04cv-80521, 2005 U.S. Dist. LEXIS 574 (S.D. Fla. Jan. 3,
2005)(granting conditional certification upon consideration of
four affidavits from store managers complaining of improper
exemption from overtime eligibility).
The Court finds that
Gonzalez has met his burden of demonstrating that other
employees seek to join the action.
B.
The Employees are Substantially Similar
As explained in Morgan, the plaintiff’s burden of showing
a “reasonable basis” for the claim that “similarly situated”
employees
seek
to
join
the
action
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).
For purposes of defining the “similarly situated class”
pursuant to § 216(b), Gonzalez need only show that the defined
class
is
comprised
of
representatives
who
are
similarly
situated to Gonzalez with respect to their “job requirements
and pay provisions.” See Dybach, 942 F.2d at 1568. In support
of his Conditional Certification Motion, Gonzalez offers his
declaration explaining that TZ Insurance required him to
arrive at work 30 minutes early every day, and required him to
6
perform work both before clocking in and after clocking out.
(Gonzalez Decl. Doc. # 39-2 at ¶¶ 14-18).
indicated
that
“there
were
over
400
Insurance’s Tampa location. (Id. at ¶ 8).
Gonzalez also
employees”
at
TZ
Other TZ Insurance
sales employees echo Gonzalez’s declaration statements.
For
example, Rhonda Diggs-Himmel, a former Tampa TZ Insurance
sales specialist, states:
TZ required me and other employees in my position
to work off the clock both before and after our
work shifts. I was required to arrive to work up
to 30 minutes prior to my shift in order to turn on
my computer, load multiple computer programs, read
emails and memorandums.
We also had daily preshift meetings to discuss our daily tasks. I also
spent time closing computer applications after I
logged off at the end of the day.
(Diggs-Himmel Decl. Doc. # 39-3 at ¶¶ 13-16).
Likewise,
Robert Hennessey, a former Fort Myers TZ Insurance sales
specialist indicated that he was required “to work off the
clock both before and after [] work shifts,” “was required to
arrive to work up to 30 minutes prior to [his] shift,” and
“had daily pre-shift meetings.” (Hennessey Decl. Doc. # 39-4
at ¶¶ 14-16).
Hennessey also indicated that “[t]here were
approximately seventy-five to one hundred sales specialists at
the Fort Myers call center.” (Id. at ¶ 9).
Former TZ
Insurance sales specialists Harry Lebowitz and Jamie Doshier
also filed declarations mirroring the contention that TZ
7
Insurance employed hundreds of sales specialists and required
them to work off the clock both before and after their shifts.
(Doc. ## 39-5, 39-6).
These detailed declarations confirm that TZ Insurance
employed hundreds of similarly situated sales employees, that
all of these employees were paid an hourly rate, worked
similar hours, and were eligible for overtime compensation.
Each declarant also indicates that TZ Insurance failed to
provide proper compensation due to the policy of requiring
sales employees to work off the clock on a daily basis.
TZ
Insurance
contends
that
Gonzalez
and
the
opt-in
Plaintiffs are not similarly situated because they do not
share the same job title, were not supervised by the same
manager, and did not work at the same location.
In addition,
TZ Insurance has filed competing affidavits by present TZ
Insurance employees challenging Gonzalez’s allegations that TZ
Insurance required its sales employees to work “off the
clock.”
However, the evidence TZ Insurance proffers 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).
8
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 TZ Insurance’s strategy, “Pulte present[ed] a mass
of
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.
There, the Court noted that “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. The Simpkins
court granted conditional certification 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 Gonzalez and the opt-in Plaintiffs have shown
that there are similarly situated sales agents who seek to
join this action, and TZ Insurance’s arguments arrayed against
conditional
certification
are
prematurely
analogous situation arose in Reyes.
asserted.
An
There, a group of retail
account executives sought conditional certification of a FLSA
9
action. AT&T countered with a deluge of competing affidavits,
including
numerous
affidavits
by
current
retail
account
executives claiming that they were all properly compensated.
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, TZ Insurance’s
affidavits,
including
affidavits
filed
by
current
sales
employees indicating that they never perform off the clock
work. See
839
(N.D.
Creely v. HCR Manorcare, Inc., 789 F. Supp. 2d 819,
Ohio
[defendant’s]
2011)(“[T]his
submission
of
Court
is
thirty-five
not
swayed
‘happy
by
camper’
affidavits. . . . [T]he Court’s function at this stage of
conditional certification is not to perform a 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 TZ Insurance’s affidavits pinpointing variations
in the sales representatives’ individual titles, schedules,
and
practices
convince
the
certification is unwarranted.
Court
that
conditional
See Vondriska v. Premier Mort.
Funding, Inc., 564 F. Supp. 2d 1330, 1335 (M.D. Fla. 2007)
(“Variations in specific duties, job locations, working hours,
10
or the availability of various defenses are examples of
factual issues that are not considered at the notice stage.”);
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, 2005 U.S. Dist. LEXIS 574, at *10 (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
TZ
Insurance
tenders
competing
affidavits, the Court declines to engage in a credibility
analysis.
The Court finds that the sales representatives are
substantially similar for the notice stage of conditional
certification.
In granting conditional certification, the Court is also
persuaded
by
conditionally
allegations
the
line
certified
that
the
of
cases
in
collective
defendant
which
actions
employer
courts
based
failed
to
have
on
pay
employees for time spent logging into and out of computers and
software programs prior to and after work shifts. See, e.g.,
Keller v. HSNI, LLC, No. 8:10-cv-1198-RAL-EAJ (Doc. # 33, Oct.
28, 2010); Fantauzzi v. Agora Mktg. Sol., Inc., No. 8:10-cv11
513-T-26TGW, 2010 WL 2220246 (M.D. Fla. June 2, 2010); Fisher
v. Mich. Bell Tel. Co., 665 F. Supp. 2d 819 (E.D. Mich. 2009);
Gipson v. SW Bell Tel. Co., No. 08-cv-2017, 2009 WL 1044941
(D. Kan. Apr. 20, 2009); Russell v. Ill. Bell Tel. Co., 575 F.
Supp. 2d 930 (N.D. Ill. 2008).
C.
Geographical Scope of the Litigation
TZ Insurance correctly argues that Gonzalez and the optin
Plaintiffs
have
only
provided
statements
about
the
conditions at TZ Insurance’s Tampa and Fort Myers locations.
TZ Insurance requests that any order granting conditional
certification should be limited to those locations. The Court
agrees. There is no evidence before the Court bearing upon the
manner in which TZ Insurance’s employees outside the state of
Florida are compensated, nor have Gonzalez and the opt-in
Plaintiffs made any supported allegations that non-Florida TZ
Insurance locations follow the same procedures as the Florida
locations.
The Court determines that it is appropriate to
limit the breadth of this action to TZ Insurance’s Florida
locations, which are located in Tampa and Fort Myers.
D.
Content of Class Notice
Gonzalez’s proposed form of Class Notice (Doc. # 39-8) is
before the Court.
TZ Insurance raises a number concerns with
respect to the Class Notice, including (1) that it does not
12
provide information about or contact information for defense
counsel; (2) that it lacks information concerning opt-in
Plaintiffs’ obligations and rights; and (3) that the class
definition
includes
“sales
agents”
instead
of
“sales
specialists.”
1.
Defense Counsel and “Opt In” Information
Court-authorized notice in a class action context helps
to prevent “misleading communications” and ensures that the
notice is “timely, accurate, and informative.”
Hoffmann-La
Roche, Inc. v. Sperling, 493 U.S. 165, 171 (1989).
The Court
agrees with TZ Insurance that Defense Counsel’s name and
contact information should be included in the notice in the
interest of full disclosure to the notice recipients. The
Court directs the parties to work together to revise the Class
Notice to include that missing information.
The Court also
agrees that Gonzalez’s proposed Class Notice does not fully
advise the notice recipients (1) that if they opt in, they may
be required to appear for trial and (2) if Plaintiffs are
unsuccessful, TZ Insurance may attempt to recover its costs
from the potential class members. See Sealy v. Keiser Sch.
Inc., No. 11-cv-61426, 2011 U.S. Dist. LEXIS 152369, at *13
(S.D. Fla. Nov. 8, 2011)(finding that the proposed class
notice failed to fully advise potential class members of the
13
consequences of opting into the suit, including that defendant
may attempt to recover its costs from the potential class
members if the lawsuit is unsuccessful and that the potential
class members may be required to appear for trial). The Court
directs counsel to jointly revise the Class Notice to more
adequately reflect the consequences for opt-in Plaintiffs.
2.
Class Definition and “Sales Agents”
TZ Insurance also contends that the class definition is
flawed because it describes the relevant employees as “sales
agents” while Gonzalez and the opt-in Plaintiffs describe
themselves as “sales specialists.”
The Court determines that
Gonzalez’s class definition, including use of the term “sales
agents” to describe the target employees, is straight forward
and accurate.
TZ Insurance’s website repeatedly refers to its sales
employees as “agents.” For example, under the heading “Sales
Center Solutions,” TZ Insurance indicates: “We have over 500
licensed Life, Health and Property & Casualty agents in three
state-of-the-art Sales Center facilities. Our agents are
licensed in all 50 states.” (Doc. # 39-1 at 4).
In addition,
the affidavits TZ Insurance has submitted in opposition to
Gonzalez’s Motion for Conditional Certification also refer to
the sales employees at issue by different titles.
14
For
instance, current TZ Insurance employee James Cordero refers
to the relevant sales employees as “Sales Professionals” and
indicates
that
“there
is
no
such
position
as
a
‘sales
specialist’” at TZ Insurance. (Cordero Aff. Doc. # 41-1 at ¶
3).
Justin
Insurance,
Adsit,
refers
the
to
Vice
the
President
relevant
of
Sales
employees
as
for
TZ
“sales
employees” and “sales agents.” (Adsit Aff. Doc. # 41-2 at ¶¶
3, 6).
The fact that Gonzalez described himself as a “sales
specialist” in his declaration does not require this Court to
conform
the
statement.
class
definition
to
match
his
declaration
Gonzalez’s declaration also described a sales
workforce in Tampa with over 400 “sales representatives.”
(Gonzalez Decl. Doc. # 39-2 at ¶ 16).
The Court determines
that the term “sales agents” adequately describes the target
sales employees at issue.
Having addressed the issues raised with respect to the
Class Notice and the scope of the action, the Court directs
counsel for TZ Insurance and counsel for Gonzalez to confer
regarding the proposed Class Notice. The parties are directed
to file an agreed form of Class Notice for the Court’s
15
approval by April 7, 2014.2
E.
Dissemination of the Class Notice
Gonzalez asserts that the Class Notice should be sent via
first class mail and via email.
Gonzalez also contends that
the Class Notice should “be posted at each of Defendant’s
locations at which sales agents are employed to further the
broad remedial purpose of the FLSA.” (Doc. # 39 at 19).
TZ
Insurance agrees that the Class Notice should be disseminated
via first class mail and to private email addresses (not TZ
Insurance email addresses), but objects to the posting of
Class Notice at any of its call centers.
The Court determines that it is appropriate to furnish
Class Notice via first class mail and via non-TZ Insurance
email.
The Court denies without prejudice Gonzalez’s request
that Class Notice be posted at TZ Insurance locations.
The
Court notes that other courts have required that Class Notice
be posted at the workplace only after a showing that a
defendant has failed to cooperate in the collective action
process. See, e.g., Sutton v. Singh, No. 6:12-cv-1254-Orl28TBS, 2013 U.S. Dist. LEXIS 81162, at *12-13 (M.D. Fla. May
2
In their discussions, the parties should internally
resolve their dispute regarding the duration of the opt-in
period and other timing issues.
16
2, 2013)(finding the plaintiffs’ request for posting of class
notice
at
the
workplace
to
be
“premature”
because
the
plaintiffs did not show that the defendant “produced an
inadequate list of names and/or addresses to [p]laintiffs,
thereby necessitating some other form of notice.”).
In this
case, the Court directs TZ Insurance to produce to Gonzalez by
April 7, 2014, a list containing the names, last known
addresses,
and
non-TZ
Insurance
email
addresses
of
the
putative class members, which includes sales agents employed
(or formerly employed) in a Florida location within the last
three years.
The Court may reconsider its determination
regarding posting Class Notice in the workplace if Gonzalez
shows that TZ Insurance failed to timely and adequately
provide the contact information described above.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)
Plaintiff
Barry
Certification
and
Gonzalez’s
Order
Motion
Permitting
for
Conditional
Court-Supervised
Notice to Potential Opt-In Plaintiffs (Doc. # 39) is
GRANTED as described herein.
(2)
The parties are directed to file a Jointly Proposed
Notice to the Class by April 7, 2014.
(3)
TZ Insurance is directed to produce to Gonzalez by April
17
7,
2014,
a
list
containing
the
names,
last
known
addresses, and email addresses of putative class members
as described above.
DONE and ORDERED in Chambers, in Tampa, Florida, this
26th day of March, 2014.
Copies: Counsel of Record
18
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