Leo et al v. Sarasota County School Board

Filing 24

ORDER: Plaintiffs' Motion for an Order Permitting Court Supervised Notice to Employees of Their Opt-In Rights 7 is granted to the extent stated herein. The Court conditionally certifies a class of all current and former school bus drive rs employed by Sarasota County School Board during the period of time from three (3) years prior to the date that the notice is sent who were not paid overtime for any hours worked over forty (40) hours in a workweek. The parties shall confer with r espect to any remaining objections to certain provisions of the notice (to the extent not already addressed by the Court) and file a joint proposed notice within fourteen (14) days of this Order. If the parties are unable to agree on the details of the notice, they shall individually file a proposed notice for the Court's review during that same period of time. Signed by Judge James S. Moody, Jr. on 2/6/2017. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SUSAN LEO, ROBERT BIEGEL,
THERESA JONES, LUIS MORALES,
BONNIE CHRISTIE, ANDREW GAMMILL,
PAUL NAUGLE, RONALD SEEKFORD, and
SHEILA SEEKFORD, on behalf of
themselves and others similarly situated,
Plaintiffs,
v.

CASE NO: 8:16-cv-3190-T-30TGW

SARASOTA COUNTY SCHOOL BOARD,
Defendant.
____________________________________/

ORDER
THIS CAUSE comes before the Court upon Plaintiffs’ Motion for an Order Permitting
Court Supervised Notice to Employees of Their Opt-In Rights (Dkt. 7) and Defendant’s
Response in Opposition (Dkt. 16). The Court, having reviewed the motion, response, and
being otherwise advised in the premises, concludes that the motion should be granted.
BACKGROUND
On November 14, 2016, Plaintiffs,1 who are current and/or former bus drivers
employed by Defendant, Sarasota County School Board, filed this collective action under the

1

There appears to be a dispute in the record regarding whether Plaintiff Paul Naugle
authorized Plaintiffs’ counsel to include him as a named Plaintiff in this action. Plaintiffs’
counsel shall immediately file the appropriate notice requesting Naugle’s dismissal if counsel
confirms with Naugle directly that Naugle does not wish to remain a Plaintiff in this action.

Fair Labor Standards Act (“FLSA”) alleging, in relevant part, that the School Board failed
to compensate them and others similarly situated for overtime compensation. In summary,
Plaintiffs contend that the School Board did not compensate them for time worked beyond
the time estimated by the School Board to complete their transportation routes.
The School Board is a political subdivision of the State of Florida subject to the
Florida Public Employees Relations Act, Chapter 447, Part II, Florida Statutes (the “Act”).
In accordance with the Act, the School Board and the bargaining agent for its employees, the
Sarasota Classified/Teacher’s Association (the “SC/TA”), negotiated a collective bargaining
agreement (the “CBA”). Plaintiffs, as current and/or former classified employees of the
School Board, are subject to the CBA. Some of the CBA’s provisions are relevant to the
issue of Plaintiffs’ compensation. Specifically, the CBA states that classified employees
shall be paid overtime for hours in excess of forty in a workweek. It also provides that
employees shall be paid in accordance with the FLSA.
With respect to bus drivers, the CBA sets forth particularized terms and conditions of
their employment, including the manner in which they are compensated. The School Board’s
Transportation Department develops individual routes that typically include multiple “runs”
to different schools in the morning and the afternoon. The estimated time of each of these
routes is then calculated using mapping software to determine the actual projected driving
time. Included within the projected driving time is a certain amount of time drivers lay over
between schools, until the next stop or pick-up. The projected driving time is then rounded
to the next highest one-half hour. After this “rounding up” is accomplished, an additional
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30 minutes is added to the route time. This process, known as “roundup plus 30” is intended
to compensate bus drivers for the actual time they worked, including the additional time they
spent accomplishing non-driving tasks, like fueling the bus, sweeping the bus, and dealing
with discipline referrals.
Plaintiffs allege that the School Board’s “roundup plus 30” policy did not fully
compensate them for hours worked in excess of forty in a workweek. Plaintiffs’ motion
requests that the Court conditionally certify an FLSA collective action of the School Board’s
current and former school bus drivers who worked one or more weeks during the three years
from the filing of the complaint to the present and were not paid overtime compensation for
any hours worked in excess of forty hours during a workweek.
Plaintiffs’ motion is supported by Declarations of eight of the named Plaintiffs in this
action. The Declarations similarly state that Plaintiffs were employed by the School Board
as bus drivers, regularly worked over forty hours in a workweek, and the School Board failed
to compensate them for the additional hours worked, including overtime pay.

The

Declarations also similarly aver that, based on their personal observations and discussions
with other bus drivers, the School Board fails to compensate other school bus drivers for all
of the hours they worked, including overtime hours. Plaintiffs’ motion attaches a notice of
consent to join from an additional School Board bus driver, Patricia Bucholtz.
The School Board opposes Plaintiffs’ motion. The Court now turns to the relevant
law.

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DISCUSSION
Pursuant to the FLSA,
[a]n action to recover [unpaid minimum wage or overtime compensation] may
be maintained against any employer (including a public agency) in any Federal
or State court of competent jurisdiction by any one or more employees for and
in behalf of himself or themselves and other employees similarly situated. No
employee shall be a party plaintiff to any such action unless he gives his
consent in writing to become such a party and such consent is filed in the court
in which such action is brought.
29 U.S.C. §216(b).
The Eleventh Circuit recommends a two-tiered procedure for district courts to
determine whether to certify a collective action under §216(b). See Cameron-Grant v.
Maxim Healthcare Sys., 347 F.3d 1240, 1242 (11th Cir. 2003) (citing Hipp v. Liberty Nat’l
Life Ins. Co., 252 F.3d 1208, 1216 (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 only 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 other employees desire to opt-in and whether those employees are
similarly situated. See Dybach v. State of Fla. Dep’t of Corrs., 942 F.2d 1562, 1567-68 (11th
Cir. 1991). At this stage, the standard is fairly lenient and typically results in conditional
certification of the representative class. See Hipp, 252 F.3d at 1218.
The onus is on the plaintiff to demonstrate a reasonable basis for the assertion that
other employees desire to opt-in. See Haynes v. Singer Co., Inc., 696 F. 2d 884, 887 (11th
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Cir. 1983). Here, Plaintiffs have met the light burden to establish a reasonable basis that
other employees desire to opt-in this action because there are at least eight interested
Plaintiffs and one additional person has opted-in to this lawsuit. See Pittman v. Comfort
Systems USA (Southeast), Inc., No. 8:12-cv-2142-T-30TGW, 2013 WL 525006, at *2 (M.D.
Fla. Feb.13, 2013) (Moody, J.) (noting that five opt-ins were sufficient to establish that other
employees desired to opt-in the collective action); see also Brooks v. A. Rainaldi Plumbing,
Inc., No. 6:06-cv-631-Orl-31DAB, 2006 WL 3544737, *2 (M.D. Fla. Dec. 8, 2006) (noting
that even one opt-in notice can be sufficient to meet the first requirement for conditional
certification). Moreover, Plaintiffs’ Declarations reference, albeit, generally, that they
anticipate that other bus drivers will join this lawsuit if they are provided with notice of it and
an opportunity to join.
At this early juncture, Plaintiffs also establish the similarly-situated element. The
evidence reflects that the School Board’s “roundup plus 30” policy applies to all bus drivers.
The bus drivers also have the same job requirements, perform similar duties, and are subject
to the CBA’s terms and conditions. The School Board’s arguments against conditional
certification are premature at the notice stage.2 See Vondriska v. Premier Mortg. Funding,
Inc., 564 F. Supp. 2d 1330, 1335 (M.D. Fla. 2007) (“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.”); see also Morgan v. Family Dollar Stores,

2

For example, the School Board argues that Plaintiffs’ route times varied and that any
“off the clock” time is highly irregular and inherently individualized.
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Inc., 551 F.3d 1233, 1261-62 (11th Cir. 2008) (courts should consider at the second stage
“the various defenses available to defendant[s] [that] appear to be individual to each
plaintiff.”). Accordingly, the Court concludes that certification is appropriate for notice
purposes.3
The School Board objects to certain aspects of Plaintiffs’ proposed notice. The Court
sustains some of these objections. Specifically, the Court agrees that the notice should
contain information that potential plaintiffs may be responsible for the School Board’s costs
if the School Board prevails. See Gonzalez v. TZ Ins. Sols., LLC, No. 8:13-CV-2098-T33EAJ, 2014 WL 1248154, at *5 (M.D. Fla. Mar. 26, 2014). The Court also agrees that the
School Board’s counsel’s information should be included. See id. Finally, the notice should
reflect a three-year period from the date that the notice is sent, not from the date that the
complaint was filed. See Abdul-Rasheed v. KableLink Comm., LLC, No. 8:13-cv-879-T-24,
2013 WL 5954785, at *3 (M.D. Fla. Nov. 7, 2013). The parties shall attempt to resolve any
remaining objections as set forth below.
It is therefore ORDERED AND ADJUDGED that:

3

It is important to note that it does not appear that Plaintiffs are challenging the accuracy
of the estimated route times with respect to driving time; rather, it seems that Plaintiffs contend
that the “roundup plus 30” policy did not compensate them fully for non-driving time, like
pre/post-trip inspections, fueling the bus, sweeping the bus, etc. If discovery reveals that an
individualized inquiry into each plaintiff’s specific route and each plaintiff’s non-driving time is
necessary, the Court may have to consider whether decertification of the collective action is
necessary based on the “disparate factual and employment settings of the individual plaintiffs.”
See Anderson v. Cagle’s, Inc., 488 F.3d 954, 953 (11th Cir. 2007).
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1.

Plaintiffs’ Motion for an Order Permitting Court Supervised Notice to

Employees of Their Opt-In Rights (Dkt. 7) is granted to the extent stated herein.
2.

The Court conditionally certifies a class of all current and former school bus

drivers employed by Sarasota County School Board during the period of time from three (3)
years prior to the date that the notice is sent who were not paid overtime for any hours
worked over forty (40) hours in a workweek.
3.

The parties shall confer with respect to any remaining objections to certain

provisions of the notice (to the extent not already addressed by the Court) and file a joint
proposed notice within fourteen (14) days of this Order. If the parties are unable to agree on
the details of the notice, they shall individually file a proposed notice for the Court’s review
during that same period of time.
DONE and ORDERED in Tampa, Florida on February 6, 2017.

Copies furnished to:
Counsel/Parties of Record

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