Czopek et al v. TBC Retail Group, Inc.

Filing 138

ORDER granting in part and denying in part 75 Motion to Certify Class. See Order for details. Signed by Judge Charlene Edwards Honeywell on 8/7/2015. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (ABC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
DAVID CZOPEK, CHRISTOPHER
KNOTT, LAWRENCE LEVESON, DAVID
EASLICK and JONATHAN RED,
Plaintiffs,
v.

Case No: 8:14-cv-675-T-36TBM

TBC RETAIL GROUP, INC.,
Defendant.
___________________________________/
ORDER
This matter comes before the Court upon the Plaintiffs' Motion for Conditional
Certification of Collective Action and Issuance of Notice (Doc. 75) and Defendant’s response
thereto (Doc. 101). A hearing was held on the motion on May 20, 2015 and supplemental briefing
was submitted following that hearing. See Docs. 130-133. The parties have also submitted
proposed notices to the class. See Docs. 134 and 136. The Court, having considered the parties’
submissions and arguments, will grant in part and deny in part Plaintiffs' Motion for Conditional
Certification of Collective Action and Issuance of Notice.
I.

Background
A.

Plaintiffs’ Allegations

On December 24, 2014, Plaintiffs David Czopek, David Easlick, Christopher Knott,
Lawrence Leveson, and Jonathan Red (collectively “the Named Plaintiffs”) filed the currently
operative Third Amended Complaint (Doc. 73) (“the Complaint”) against Defendant TBC Retail
Group, Inc. d/b/a Tire Kingdom (“TBC”). The Complaint is labeled a “216B Collective Action
and Rule 23 Class Action Complaint” and asserts four counts:

•

Count I: Violation of Overtime Requirements, alleges violations of the Fair Labor
Standards Act (“FLSA”) on behalf of the “Hourly Employee Class.” Doc. 73 ¶¶
102-111.

•

Count II: Violations of Minimum Wages and Overtime Requirements, alleges
violations of the FLSA on behalf of the “Tire Tech Class.” Doc. 73 ¶¶ 112-120.

•

Count III: Use of Pay Cards Violates the FLSA, alleges violations of the FLSA on
behalf of the “Debit Card Class.” Doc. 73 ¶¶ 121-131.

•

Count IV: Unjust Enrichment Class Action Claim for Damages under Federal Rule
23, alleges a common law claim for unjust enrichment on behalf of “the Class.”
Doc. 73 ¶¶ 132-147. 1

According to the Complaint, the Named Plaintiffs sought to represent three collective
action classes:
a.
The “Hourly Employee Class”: All Service Managers, Sales
Associates, and Tire Techs who are presently employed or were
employed by Defendant in the past three years preceding this lawsuit
in the State of Florida who [were] not paid at a rate of one and onehalf times their regular rate of pay for all hours worked over forty
(40) in a work week and elect to opt-in to the action pursuant to [the]
FLSA, 29 U.S.C. § 216(b).
b.
The “Tire Tech Class”: All Tire Technicians who are
presently employed or were employed by Defendant in the State of
Florida within the past three years preceding this lawsuit who were
paid an hourly rate of less than the federal minimum wage and who
were denied proper overtime compensation for all hours worked
over forty (40) in a work week and elect to opt-in to this action
pursuant to [the] FLSA, 29 U.S.C. § 216(b).

1

Pursuant to Local Rule 4.04 “within ninety (90) days following the filing of the initial complaint in [a class] action,
unless the time is extended by the Court for cause shown, the named plaintiff or plaintiffs shall move for a
determination under Rule 23(c)(1) as to whether the case is to be maintained as a class action.” Plaintiffs have failed
to file such a motion with regard to the Rule 23 class referred to in Count IV and the time for doing so has passed.
Thus, it appears that the class action claim asserted in Count IV has been abandoned.

2

c.
The “Debit Card Class”: All employees working for [TBC]
who are presently employed or who were employed in the State of
Florida, and who received debit cards issued in payment of wages
or salary due.
Doc. 73 ¶ 83. The Motion to Certify, however, seeks certification of three slightly different classes:
(1) The “Hourly Employee Class.” Consisting of all current or
former Service Managers, Sales Associates and Tire Techs who
were employed by Defendant within the State of Florida during the
past three years preceding this lawsuit who were forced or permitted
to work “off the clock” without overtime compensation during any
given workweek and elect to opt-in to this action pursuant to FLSA,
29 U.S.C. §216(b).
(2) The “Tire Tech Class.” Is (sic) a sub-class of the Hourly
Employee Class above, consisting of all current or former Tire
Technicians who were employed by Defendant within the State of
Florida as a Tire Tech during the past three years who were paid a
base hourly wage of $6.40 per hour plus SPIFFs and who elect to
opt-in to this action pursuant to FLSA, 29 U.S.C. § 216(b).
(3) The “Debit Card Class”. All hourly and flat rate employees
working for Tire Kingdom who are presently employed or who were
employed in the State of Florida during the three years immediately
preceding the filing of this lawsuit, and who received payroll debit
cards issued as payment of wages due and who elect to opt-in to this
action pursuant to FLSA, 29 U.S.C. § 216(b).
Doc. 75 ¶ 42. For purposes of this Order, the class definitions set forth in the Motion to Certify
will control.
The Plaintiffs’ factual allegations relating to each proposed class are summarized below.
1.

Off-the-Clock / Time Shaving – Hourly Employee Class

Plaintiffs allege that TBC forced or permitted Service Managers, Sales Associates and Tire
Techs (together as a group “Hourly Employees”) to work “off the clock” without overtime
compensation by requiring, coercing and/or allowing employees to work through lunch and after
clocking out, or by “shaving” Hourly Employees’ hours to reduce Defendant’s labor cost
obligations. Doc. 73 ¶¶ 62, 64-67; Doc. 75 ¶ 8. TBC maintains an official policy that employees

3

are prohibited from working “off the clock” and that managers are not allowed to adjust employee
time records without express authorization from the employees. Doc. 75 ¶ 9. However, the
Plaintiffs allege that TBC maintains an unwritten policy of requiring and permitting off-the-clock
work and time-shaving. Doc. 75 ¶ 10; Doc. 77 ¶ 10; Doc. 78 ¶ 10.
2.

Violations of Minimum Wage – Tire Tech Class

Plaintiffs allege that TBC failed or refused to pay Tire Techs the legally required minimum
wage. Doc. 73 ¶ 77; Doc. 75 ¶ 21. Tire Kingdom paid Tire Techs $6.40 per hour in addition to
SPIFFs (commissions on certain job activities). Doc. 73 ¶ 77; Doc. 75 ¶ 21. Plaintiffs allege that
(a) Tire Techs often did not earn sufficient weekly SPIFFs to meet the minimum wage
requirements and that (b) Tire Techs were required to provide their own tools and transportation
for the benefit of Tire Kingdom which reduced their compensation to below minimum wage. Doc.
73 ¶¶ 77-78; Doc. 75 ¶ 21.
3.

Access to Wages - The Debit Card Class

Plaintiffs allege that TBC violated the FLSA by requiring hourly and flat-rate employees
to accept their wages on payroll debit cards (instead of cash or checks) that are/were subject to
excessive transaction fees. Doc. 73 ¶ 69; Doc. 75 ¶ 29. Under the FLSA, wages cannot be
considered to have been paid by the employer and received by the employee unless they are paid
finally and unconditionally or “free and clear.” See 29 C.F.R. § 531.35. Plaintiffs allege that, by
issuing the payroll debit cards that were not redeemable for cash and were subject to substantial
transaction fees, TBC failed to comply with 29 C.F.R. §531.27(a) (requiring that all wage
payments are to be made in cash or negotiable instrument). Doc. 73 ¶ 79; Doc. 75 ¶ 29. Further,
Plaintiffs claim that TBC failed to disclose the fees associated with the payroll debit cards; failed
to offer employees the option of obtaining a paper check or cash in lieu of the debit card; and did

4

not list the name and address of an established place of business in the State of Florida at which
employees could receive cash on demand in exchange for the payroll debit cards. Doc. 75 ¶ 29.
B.

The Named Plaintiffs
1.

DAVID CZOPEK (“Czopek”)

Czopek has been employed by TBC since April of 2011 as a Service Manager at the
following locations: Dale Mabry, Henderson Blvd., North Palmetto, Pinellas Park, Lutz, Wesley
Chapel, Holiday, Plant City, and Highway 301. Doc. 73 ¶ 18; Doc. 79. Czopek was paid $12.00
per hour in addition to non-discretionary incentive awards including SPIFFs, sales commissions,
and monthly bonuses. Id. ¶ 19. Czopek worked sixty to eighty hours per work week but claims
that he was subjected to time shaving and regularly required to work off-the-clock (including
through lunch breaks) without compensation. Id. ¶¶ 20-21. Czopek further alleges that he was paid
wages through Defendant’s use of a debit card system, for which he was subjected to fees,
surcharges and limitations on his ability to use his wages. Id. ¶ 22.
2.

LAWRENCE LEVESON (“Leveson”)

Leveson was employed by TBC from June 2010 through November 2012 as a Service
Manager at several of TBC’s retail store locations including Palm River and Plant City. Id. ¶ 26.
Leveson was paid $12.00 per hour in addition to non-discretionary incentive awards including
SPIFFs, sales commissions, and monthly bonuses. Id. ¶ 27. Leveson worked sixty to eighty hours
per work week but claims that he was subjected to time shaving and regularly required to work
off-the-clock (including through lunch breaks) without compensation. Id. ¶¶ 28-29. Leveson
further alleges that he was paid wages through Defendant’s use of a debit card system, for which
he was subjected to fees, surcharges and limitations on his ability to use his wages. Id. ¶ 30.

5

3.

CHRISTOPHER KNOTT (“Knott”)

Knott was employed by TBC as a Flat Rate Technician (i.e. mechanic) at TBC’s Plant City
location from September 2011 through August 2013. Id. ¶ 34. 2 Knott was paid through
Defendant’s debit card system, for which he was subjected to fees, surcharges and limitations on
his ability to use his wages. Id. ¶ 35. Knott was not given a choice to receive his wages via direct
deposit or physical check and was unable to fully access his wages free and clear at his demand.
Id. ¶¶ 36-37.
4.

DAVID EASLICK (“Easlick”)

Easlick was employed at TBC’s Palm River location as a Tire Technician (“Tire Tech”)
from May 2012 through December 2012, and then as a Sales Associate until September 3, 2013.
Id. ¶ 41; Doc. 84. As a Tire Tech, Easlick was paid $6.40 per hour plus SPIFFs and $9.60 per hour
for overtime. Doc. 73 ¶¶ 42-43. As a Sales Associate, he was paid $8.00 per hour plus sales
commissions. Id. ¶ 44. Easlick claims that he was subjected to time shaving and regularly required
to work off-the-clock (including through lunch breaks) without compensation. Id. ¶ 45. Easlick
was also paid through Defendant’s debit card system, for which he was subjected to fees,
surcharges and limitations on his ability to use his wages. Id. ¶ 47.
5.

JONATHAN RED (“Red”)

Red was employed by TBC as a Sales Associate at five different retail store locations
between February 2006 and September 2013. Id. ¶ 50. Red was paid $8.00 per hour in addition to
non-discretionary incentive awards including SPIFFs, sales commissions, and monthly bonuses.
Id. ¶ 51. Red regularly worked sixty hours per week but claims that he was subjected to time
shaving and regularly required to work off-the-clock (including through lunch breaks) without

2

Based on his consent to join, it appears that Knott also worked at three other stores from September of 2005
through September of 2009, but those dates fall outside the relevant time period for this action. See Doc. 9-14.

6

compensation. Id. ¶¶ 52-53. Red further alleges that he was paid wages through Defendant’s use
of a debit card system, for which he was subjected to fees, surcharges and limitations on his ability
to use his wages. Id. ¶ 54.
C.

The Opt-In Plaintiffs

Plaintiffs have filed consents to join and/or declarations executed by 36 present and former
TBC employees, including the five Named Plaintiffs. Some of these individuals are automatically
excluded from the proposed classes:
1.

Bobby Brown and Donald Williamson were both store managers and,

therefore, not part of any class 3;
2.

Christopher Robert Beher (Doc. 9-3) worked for TBC only from May of

2009 to April of 2010, so any claims he may have clearly fall outside even the most
liberal statute of limitations; and
3.

McClelland and Sharpe have already been eliminated from this suit based

on their arbitration agreements with TBC.
This leaves us with 31 potential plaintiffs, including the five Named Plaintiffs. Only one of them,
Troy Bair, worked at a TBC location outside of the Middle District of Florida.
II.

Standard of Review
The decision to conditionally certify a collective FLSA action lies within the sound

discretion of the Court. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001).
However, the Court "should satisfy itself" that there are similarly situated employees who desire
to opt-in before certifying a collective action. Dybach v. State of Fla. Dept. of Corrections, 942

3

Defendant argues that Dwight Samuel was a store manager as well, however, his consent form
indicates that he also worked as a service manager. Thus, he cannot be excluded at this time.
7

F.2d 1562, 1567-68 (11th Cir. 1991). Within the Eleventh Circuit, district courts are encouraged,
but not required to adopt a two-tiered approach to certification of classes in an FLSA case. Hipp,
252 F.3d at 1219.
Under this two-tiered approach, the court's initial decision to conditionally certify a
collective action often comes early in the case. In making this decision, the court must first “satisfy
itself that there are other employees ... [(1)] who desire to ‘opt-in’ and [(2)] who are ‘similarly
situated’ with respect to their job requirements and with regard to their pay provisions.” Chung v.
Affordable Battery, Inc., Case No. 12–60612–CIV, 2012 WL 3759029, 1 (S.D. Fla. Aug. 29, 2012)
(quoting Dybach, 942 F.2d and 1567). At the first tier, the Court's certification decision is based
primarily on pleadings and affidavits, and the Court applies a “fairly lenient standard” in
determining whether the plaintiffs are similarly situated. Anderson v. Cagle's Inc., 488 F.3d 945,
953 (11th Cir. 2007).
At this early stage, the named plaintiff carries the burden of demonstrating that notice of
the action should be given to other employees. Although this burden is low and can often be met
by "detailed allegations supported by affidavits," Grayson v. K Mart Corp., 79 F.3d 1086, 1097
(11th Cir. 1996), it is not "invisible" and cannot be based on the conclusory allegations of a few
employees. Brooks v. Rainaldi Plumbing, Inc., Case No. 06-CV-631, 2006 WL 3544737, 2 (M.D.
Fla. Dec. 8, 2006); see also Simpkins v. Pulte Home Corp., Case No. 08-CV-130, 2008 WL
3927275, 2 (M.D. Fla. Aug. 21, 2008). At a minimum, the named plaintiff should offer affidavits
or declarations of consent to join by other individuals stating they are similarly situated and wish
to join the suit. See, e.g., Sanchez v. Ocwen Loan Servicing, LLC, Case No. 06:06-CV-1811, 2007
WL 809666, 2 (M.D. Fla. Mar. 14, 2007). When there are ambiguities in the papers seeking
collective action status, the court must draw all inferences in favor of the plaintiff at the preliminary

8

certification stage. Mendoza v. Ashiya Sushi 5, Inc., No. 12 Civ. 8629(KPF), 2013 WL 5211839,
3 (S.D.N.Y. Sept. 16, 2013).
Here, TBC argues that a stricter standard should be applied to Plaintiff’s motion because,
unlike in Hipp, there has been extensive discovery here and the Court has been presented with
numerous declarations by both sides. “In White [v. Osmose, Inc., 204 F. Supp. 2d 1309, 1313 n.2
(M.D. Ala. 2002)], Chief Judge Albritton wrote that because the plaintiff had had extensive
discovery with respect to the defendant's policies, ‘the court deems it necessary to carefully
consider the submissions of the parties with respect to the class allegations.’” Davis v. Charoen
Pokphand (USA), Inc., 303 F. Supp. 2d 1272, 1276 (M.D. Ala. 2004). This Court agrees that the
evidence presented by all parties should be considered carefully, but a careful review of the
evidence does not change the standard to be applied. The Court is still tasked with deciding
whether notice is appropriate, but conceivably has more evidence – from both sides – to consider
when making the decision.
III.

Discussion
“[A]t the conditional-certification stage, the question before the Court is (1) whether other

employees of the defendant employer desire to opt-in; and (2) whether these other employees are
‘“similarly situated’ with respect to their job requirements and with regard to their pay
provisions.’” Rojas v. Garda CL Southeast, Inc., 297 F.R.D. 669, 675 (S.D. Fla. 2013) (citing
Bennett v. Hayes Robertson Group, Inc., 880 F. Supp. 2d 1270, 1282-83 (S.D. Fla. 2012); Dybach,
942 F.2d at 1567-68. “[I]n making a determination in whether to conditionally certify a proposed
class for notification purposes only, courts do not review the underlying merits of the action.”
Pares v. Kendall Lakes Auto., LLC, No. 13-20317, 2013 WL 3279803, 3 (S.D. Fla. June 27, 2013).
In determining whether potential class members are similarly
situated, the Court considers
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(1) whether the plaintiffs all held the same job title; (2)
whether they worked in the same geographic location; (3)
whether the alleged violations occurred during the same time
period; (4) whether the plaintiffs were subjected to the same
policies and practices, and whether these policies and
practices were established in the same manner and by the
same decision-maker; and (5) the extent to which the actions
which constitute the violations claimed by plaintiffs are
similar.
Gonzalez v. Winn-Dixie Stores, Inc., Case No. 14-20792-CIV-ALTONAGA, 2014 U.S. Dist.
LEXIS 130930, 7-8 (S.D. Fla. Sept. 18, 2014) (internal citations omitted).
A.

The Hourly Employee Class

As previously noted, the proposed “Hourly Employee Class” consists of all current or
former Service Managers, Sales Associates and Tire Techs who were employed by Defendant
within the State of Florida during the past three years preceding this lawsuit who were forced or
permitted to work “off the clock” without overtime compensation during any given workweek and
elect to opt-in to this action pursuant to FLSA, 29 U.S.C. §216(b).
The Named Plaintiffs that fall within this class are Czopek (service manager), Easlick (tire
tech and sales associate), Red (sales associate), and Leveson (service manager). These Named
Plaintiffs worked at the following locations: 103 (Palm River), 95 (Plant City), 3 (Dale Mabry),
10 (Henderson Blvd.), 13 (North Palmetto), 30 (Pinellas Park), 158 (Lutz), 199 (Wesley Chapel),
102 (Highway 301), 90 (Brandon), 64 (Winter Haven), 49 (South Lakeland), 201 (Auburndale)
and 164 (Seffner).
The proposed class would have the same job titles as the Named Plaintiffs during the same
general time frame as the Named Plaintiffs. The proposed class has also been limited by the type
of violation – off-the-clock work – so that the putative class members and the Named Plaintiffs all
assert similar alleged violations. However, the proposed class covers a much larger geographic
area than is represented by the Named Plaintiffs. The proposed class encompasses the entire state
10

of Florida, but the named Plaintiffs worked only in the west-central Florida area. Thus, the
geographic scope of the class must be limited. The Defendant has indicated that the State of Florida
is broken up into three regions and eighteen districts. However, neither party has informed the
Court which stores fall within which regions or districts.
Plaintiffs’ evidence indicates that store managers received direction from district managers
to allow or force employees to work off-the-clock. See Doc. 77 at ¶ 10; Doc. 78 ¶ 10. Accordingly,
the Court will limit this class to the district or districts that encompass the stores worked in by the
named Plaintiffs, which are: 103 (Palm River), 95 (Plant City), 3 (Dale Mabry), 10 (Henderson
Blvd.), 13 (North Palmetto), 30 (Pinellas Park), 158 (Lutz), 199 (Wesley Chapel), 102 (Highway
301), 90 (Brandon), 64 (Winter Haven), 49 (South Lakeland), 201 (Auburndale) and 164 (Seffner).
This limitation should also increase the likelihood that the putative class members and the Named
Plaintiffs were subject to the same policies and practices, and whether these policies and practices
were established in the same manner and by the same decision-maker – the relevant decisionmakers, because Plaintiffs’ allegations suggest that district managers instructed store managers to
violate TBC’s policies by allowing off-the-clock work and shaving time. See e.g., Robbins-Pagel
v. Puckett, Inc., No. 6:05-cv-1582-Orl-31DAB, 2006 WL 3393706, 3 (M.D. Fla. 2006) (limiting
class to one county).
Defendant has argued that Plaintiffs have not shown enough interest by other current and
former employees to warrant conditional certification. According to Defendant, Plaintiffs have
submitted consents to join of less than 1% of the proposed class (35/6600 = 0.53%). Doc. 101 at
p. 5. However, while Defendant has filed a greater number of affidavits from potential members
of the proposed classes stating that they do not want to join, that number is still less than 1% of
the entire proposed class (59/6600 = 0.89%). Furthermore, with the geographic limitations

11

imposed by this Court, the proposed class should be substantially less than 6,600 people, making
Plaintiffs’ percentage more substantial. In any event, there is no magical number of interested
individuals that an FLSA plaintiff has to find to support conditional certification. In fact, other
courts have concluded that the submission of a single affidavit or consent to join the case by one
other similarly situated individual can be sufficient. See Guerra v. Big Johnson Concrete Pumping,
Inc., No. 05-14237-CIV, 2006 WL 2290512, at *4 (S.D. Fla. May 17, 2006) (finding a single
affidavit from another individual than the named plaintiff was sufficient to establish "a minimum
quantum of evidence to warrant the creation of a collective [action]."); Gonzalez v. Go Relax
Travel, LLC, 2009 U.S. Dist. LEXIS 106523 (S.D. Fla. 2009). See also Robbins-Pagel v. Puckett,
No. 6:05-cv-1582-Orl-31DAB, 2006 WL 3393706, 2 (M.D. Fla. Nov. 22, 2006) (finding two
affidavits sufficient).
One other issue remains – a number of putative class members have executed the same
arbitration agreements that former opt-in plaintiffs Sharpe and McClelland have executed. This
Court has already ruled that those agreements are valid and prohibit participation in this lawsuit.
Accordingly, any class must exclude employees who have signed such agreements. Plaintiffs argue
that only employees who signed the agreements on or after March 13, 2014 should be excluded
from the class, because that was the date that TBC rolled out the agreement to the entire company.
See Doc. 131. However, there is no legal basis for including people in the class who signed
agreements prior to the final roll-out.
The Defendant also argues that the class should be further limited in time. Plaintiffs’ seek
to send notice to current and former employees that worked for TBC during the three years prior
to the lawsuit being filed. The FLSA statutes of limitations are 3 years for willful violations and 2
years for non-willful violations. See 29 U.S.C. § 255. Plaintiffs here have alleged that all violations

12

by TBC are willful. In collective actions, each plaintiff’s claim is considered made when their
consent to join is filed. See, e.g., Gutescu v. Carey Int'l, Inc., Case Number: 01-4026-CIVMARTINEZ, 2004 WL 5333763, 4 (S.D. Fla. Feb. 25, 2004) (“an Opt-in Plaintiff's suit is not
commenced until he files his consent with the Court.”). Therefore, a plaintiff who files a consent
to join on June 1, 2015, for example, would be able to claim damages for willful damages as far
back as June 1, 2012. Here, Plaintiffs filed a separate motion requesting equitable tolling of the
statutes of limitations from the time the motion for certification was filed – December 29, 2014.
See Doc. 134. By separate order, that motion will be denied. Thus, the Court will allow notice to
be sent to putative class members who worked for Defendant within the past three years.
Accordingly, the Plaintiffs will be authorized to send notice of the collective action to:
all current or former Service Managers, Sales Associates and Tire
Technicians who are not party to an arbitration agreement with
Defendant and who were employed by Defendant at any store within
the same district(s) that encompass the following stores at any time
during the past three years: 103 (Palm River), 95 (Plant City), 3
(Dale Mabry), 10 (Henderson Blvd.), 13 (North Palmetto), 30
(Pinellas Park), 158 (Lutz), 199 (Wesley Chapel), 102 (Highway
301), 90 (Brandon), 64 (Winter Haven), 49 (South Lakeland), 201
(Auburndale) and 164 (Seffner).
The “Hourly Class” will thus be defined as:
all current or former Service Managers, Sales Associates and Tire
Technicians who are not party to an arbitration agreement with
Defendant and who were employed by Defendant at any store within
the same district(s) that encompass the following stores at any time
during the past three years: 103 (Palm River), 95 (Plant City), 3
(Dale Mabry), 10 (Henderson Blvd.), 13 (North Palmetto), 30
(Pinellas Park), 158 (Lutz), 199 (Wesley Chapel), 102 (Highway
301), 90 (Brandon), 64 (Winter Haven), 49 (South Lakeland), 201
(Auburndale) and 164 (Seffner); and who allege timely FLSA
violations by the Defendant regarding failure to pay minimum or
overtime wages due for all hours worked.
The form of the notice and process for notification will be discussed below.

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B.

The Tire Tech Class

The proposed Tire Tech Class is a “sub class” of the Hourly Employee Class and would
include all current or former Tire Technicians who were employed by Defendant within the State
of Florida as a Tire Tech during the past three years who were paid a base hourly wage of $6.40
per hour plus SPIFFs and who elect to opt-in to this action pursuant to FLSA, 29 U.S.C. § 216(b).
Plaintiffs allege that Tire Techs falling within this category were sometimes paid less than
minimum wage for the hours they worked and had to supply their own tools, which had the effect
of bringing down their hourly wages further.
The only Named Plaintiff that could possibly fall within this definition is Easlick, who
worked as a Tire Tech at the Palm River location from May 2012 through December 2012.
However, there is no allegation that Easlick was ever paid less than minimum wage for any hour
he worked for TBC as a Tire Tech or that he was required to purchase his own tools for work. See
Doc. 84. Without any named plaintiff similar to this proposed class, the Court will not
conditionally certify the class.
C.

The Debit Card Class

Finally, the Plaintiffs seek conditional certification of the “Debit Card Class” which
includes all hourly and flat rate employees 4 working for Tire Kingdom who are presently employed
or who were employed in the State of Florida during the three years immediately preceding the
filing of this lawsuit, and who received payroll debit cards issued as payment of wages due and
who elect to opt-in to this action pursuant to FLSA, 29 U.S.C. § 216(b). All of the Named Plaintiffs
appear to fall within this class.

4

It appears from the parties’ filings that all flat-rate employees are mechanics.

14

The proposed class would have the same job titles as the Named Plaintiffs during the same
general time frame as the Named Plaintiffs. The Named Plaintiffs include both hourly employees
and one flat-rate employee (Knott). The proposed class has also been limited by the type of
violation so that the putative class members and the Named Plaintiffs all assert similar alleged
violations. However, once again, the proposed class covers a much larger geographic area than is
represented by the Named Plaintiffs. The proposed class encompasses the entire state of Florida,
but the named Plaintiffs worked only in the west-central Florida area. Indeed, all but one of the
opt-in plaintiffs that would fall within this purported class worked in that geographic area.
The Defendant has indicated that notifying the entire proposed class would encompass
approximately 6,600 employees. Some individual inquiries would be required of each class
member, i.e. how they received the card, whether they chose to receive wages on the card, whether
they received documentation with the card, what that documentation was, whether they attempted
to access the money “free and clear” at any time, etc. Therefore, a class of 6,600 plaintiffs would
likely be unmanageable. Thus, the geographic scope of the class must be limited. Accordingly, the
Court will limit this class to the district or districts that encompass the stores worked in by the
Named Plaintiffs, which are: 103 (Palm River), 95 (Plant City), 3 (Dale Mabry), 10 (Henderson
Blvd.), 13 (North Palmetto), 30 (Pinellas Park), 158 (Lutz), 199 (Wesley Chapel), 102 (Highway
301), 90 (Brandon), 64 (Winter Haven), 49 (South Lakeland), 201 (Auburndale) and 164 (Seffner).
Again, a number of putative class members have executed the same arbitration agreements
that former opt-in plaintiffs Sharpe and McClelland have executed. Thus, the same limitation
appropriate to the Hourly Class is appropriate here. As previously discussed, at this time, the Court
will allow notice to be sent to putative class members who worked for Defendant within the past
three years.

15

Accordingly, the Plaintiffs will be authorized to send notice of the collective action to:
all hourly and flat rate employees who are presently employed or
who were employed by the Defendant in the district(s)
encompassing the following stores during the past three years, who
are not parties to arbitration agreements with Defendant, and who
received payroll debit cards issued as payment of wages due: 103
(Palm River), 95 (Plant City), 3 (Dale Mabry), 10 (Henderson
Blvd.), 13 (North Palmetto), 30 (Pinellas Park), 158 (Lutz), 199
(Wesley Chapel), 102 (Highway 301), 90 (Brandon), 64 (Winter
Haven), 49 (South Lakeland), 201 (Auburndale) and 164 (Seffner).
The “Debit Card Class” with thus be defined as:
all hourly and flat rate employees who are presently employed or
who were employed by Defendant in the district(s) encompassing
the following stores during the past three years, who are not parties
to arbitration agreements with Defendant, and who received payroll
debit cards issued as payment of wages due: 103 (Palm River), 95
(Plant City), 3 (Dale Mabry), 10 (Henderson Blvd.), 13 (North
Palmetto), 30 (Pinellas Park), 158 (Lutz), 199 (Wesley Chapel), 102
(Highway 301), 90 (Brandon), 64 (Winter Haven), 49 (South
Lakeland), 201 (Auburndale) and 164 (Seffner); and who allege
timely FLSA violations by Defendant because they were required to
receive wages via payroll debit cards.
The form of the notice and process for notification will be discussed below.
IV.

Form of Notice
Plaintiffs have filed proposed notices to send to the potential collective action members.

See Doc. 133. Defendant filed objections to those proposed notices as well. See Doc. 135. “Courtauthorized notice in a class action context helps to prevent “misleading communications,” and
ensures that the notice is “timely, accurate, and informative.” Sealy v. Keiser Sch., Inc., No. 1161426-CIV, 2011 WL 7641238, 4 (S.D. Fla. Nov. 8, 2011) (quoting Hoffmann-LaRoche, Inc. v.
Sperling, 493 U.S. 165, 171-172 (1989)). “In the exercise of its discretion, the court should screen
the proposed notice to prevent potential plaintiffs from receiving information which is ‘factually
inaccurate, unbalanced, or misleading.’” Earle v. Convergent Outsourcing, Inc., No. 2:12-CV-

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1050-WKW, 2013 WL 6252422, 5 (M.D. Ala. Sept. 5, 2013) (quoting Maddox v. Knowledge
Learning Corp., 499 F.Supp.2d 1338, 1344 (N.D. Ga. 2007)).
First, Defendant objects to the notices because they have an “incorrect statute of
limitations”, lack a geographic limitation, and fail to exclude employees who signed arbitration
agreements. The Court has discussed those issues above, and the class definitions that will be
inserted into the notices will address these matters.
Defendant next objects to the notices’ references to Plaintiff’s counsel’s website and what
Defendant refers to as “inappropriate solicitations.” The Court agrees that the references to the
websites, which are represented by blank web addresses in the proposed notices, are inappropriate.
The Court has no knowledge of what these websites may contain and will not allow counsel to
refer to them in a court-authorized notice. The Court also agrees that the proposed notices should
be edited with regard to the section titled “Can I be fired or retaliated against if I participate in the
Class?” in that it instructs individuals to contact Class Counsel if they believe they have been
retaliated against. Therefore, the Court has modified this section as well.
The proposed notices submitted by the Plaintiffs are also deficient in that they do not advise
potential class members of the obligations and responsibilities they incur if they join the lawsuit.
For example, they do not inform the potential opt-in plaintiffs that they may be required to
participate in discovery or trial and, therefore, may be called to physically appear here in the
Middle District of Florida. See Sealy, 2011 WL 7641238 at 4 (finding that the proposed class notice
failed to fully advise potential class members of the 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); Gonzalez
v. TZ Ins. Solutions, LLC, Case No. 8:13–cv–2098–T–33EAJ, 2014 WL 1248154, 5 (M.D. Fla.

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Mar. 26, 2014) (same); Earle, 2013 WL 6252422 at 5 (“participation [of] plaintiffs may obligate
them to provide discovery, give depositions, or testify in court, and that these obligations might
require travel”).
The proposed notices also indicate that Plaintiffs will not be liable for attorneys’ fees.
However, “unless [the N]amed Plaintiffs choose to separately enter into agreements with the optins that waive their liability for attorney's fees, these opt-ins may indeed be liable for attorney's
fees and costs.” Rojas v. Garda CL Southeast, Inc., 297 F.R.D. 669, 681 (S.D. Fla. 2013) (citing
Mayer v. Wall St. Equity Grp., Inc., 514 F. App'x 929, 932 (11th Cir. 2013); Turlington v. Atlanta
Gas Light Co., 135 F.3d 1428, 1437 (11th Cir. 1998) (noting 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)). Thus, the Form should notify plaintiffs that they may be liable for attorneys’ fees and costs
if there is no judgment in their favor. Additionally, the proposed notice fails to indicate that the
recipient can retain or consult counsel of his choosing before agreeing to join this lawsuit.
Finally, the Court agrees with Defendant that the proposed notices could be read to indicate
judicial endorsement or sponsorship of the action. The Supreme Court has expressly cautioned that
a district court “must be scrupulous to respect judicial neutrality” and “avoid even the appearance
of judicial endorsement of the action” when issuing notice to potential plaintiffs. Hoffman–La
Roche, 493 U .S. at 174. The Court has revised the language to recognize that the Court has made
no decisions on the merits of this action. However, it is customary that a notice be styled with the
court's name as the heading. See, e.g., McLean v. Cleaning Servs., Inc., No. 3:11–cv–874–MEF
(M.D. Ala. June 28, 2012) (order granting motion to issue class notice and approving notice form
with court's name in heading). Thus the notice may contain the Court name, as part of the case
style, at the top of the first page.

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Accordingly, the Court has revised the proposed notice to conform to this Order. The
approved forms of notice are attached hereto as Exhibit A (Hourly Class) and Exhibit B (Debit
Card Class). Defendant has not objected to Plaintiffs’ proposed Consent to Join forms, therefore,
those proposed forms may be included with the Court-approved notice.
It is hereby ORDERED that:
1.

Plaintiffs’ Motion for Conditional Certification of Collective Action and Issuance

of Notice (Doc. 75) is GRANTED in part and DENIED in part.
2.

Defendant shall produce to Plaintiff, within 30 days of the date of this Order, the

names and last known addresses of:
a. all current or former Service Managers, Sales Associates and Tire
Technicians who are not party to an arbitration agreement with Defendant
and who were employed by Defendant at any store within the same
district(s) that encompass the following stores at any time during the past
three years: 103 (Palm River), 95 (Plant City), 3 (Dale Mabry), 10
(Henderson Blvd.), 13 (North Palmetto), 30 (Pinellas Park), 158 (Lutz), 199
(Wesley Chapel), 102 (Highway 301), 90 (Brandon), 64 (Winter Haven),
49 (South Lakeland), 201 (Auburndale) and 164 (Seffner); and
b. all hourly and flat rate employees who are presently employed or who were
employed by Defendant in the district(s) encompassing the following stores
during the past three years, who are not parties to arbitration agreements
with Defendant, and who received payroll debit cards issued as payment of
wages due: 103 (Palm River), 95 (Plant City), 3 (Dale Mabry), 10
(Henderson Blvd.), 13 (North Palmetto), 30 (Pinellas Park), 158 (Lutz), 199

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(Wesley Chapel), 102 (Highway 301), 90 (Brandon), 64 (Winter Haven),
49 (South Lakeland), 201 (Auburndale) and 164 (Seffner).
3.

Counsel for Plaintiff is authorized to distribute the approved form of notice and

consent to join via first class U.S. Mail within 30 days of receiving the contact information from
Defendant.
4.

Each "Consent to Join" returned to plaintiffs’ counsel must be post-marked, or

delivered to a commercial carrier who provides a receipt, on or before December 7, 2015.
5.

Counsel for Plaintiffs shall file all consents to join with the Court on or before

December 15, 2015.
6.

During the allowed period for response to this initial mailing, should the initial

"Notice of Right to Join" mailed to any individual be returned as un-deliverable, the parties shall
promptly cooperate and exchange such additional information in their custody or control, or in the
custody or control of their agents, as may reasonably be available to identify a better address for
each such individual, to assist in the search for better addresses. To the extent that it is feasible,
but in no event later than the end of the allowed period for response to the initial mailing, plaintiffs'
counsel shall, at the sole cost and expense of plaintiffs, re-mail one time the "Notice of Right to
Join" to each such individual. For each re-mailed "Notice of Right to Join," it shall be in the form
set forth above; shall be re-dated with the date of re-mailing, and shall give the individual up to
the same deadline allowed for response to the initial mailing to return a "Consent to Join" and no
additional time.
7.

Individuals who timely opt into this collective action pursuant to this Court's

supervised notice procedure shall be deemed joined as opt-in plaintiffs for all purposes under the
Federal Rules of Civil Procedure and under the orders of this Court through trial and appeal, if

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any, subject to any motion for decertification or representative discovery, and may be represented
at any settlement, mediation or trial by the named plaintiffs at the time, pending further orders of
the Court.
8.

In light of the deadlines above, the parties shall submit an Amended Case

Management Report within fourteen (14) days of this Order proposing new deadlines.
DONE AND ORDERED in Tampa, Florida on August 7, 2015.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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