Jankuski et al v. Heath Consultants, Inc. et al

Filing 26

MEMORANDUM Opinion and Order entered by the Honorable John W. Darrah on 12/5/2012. Mailed notice (tlm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JASON JANKUSKI,
BROOKE McKINNEY and
ALTON MORRIS, Individually and on
Behalf of All Others Similarly Situated,
Plaintiffs,
v.
HEATH CONSULTANTS, INC.;
GRAHAM MIDGLEY; and
GARY LAPE,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Case No. 12-cv-4549
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Plaintiffs Jason Jankuski, Brooke McKinney, and Alton Morris claim Defendants
Heath Consultants, Inc.1 (“Heath”); Graham Midgley; and Gary Lape violated the Fair
Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201 et seq., by failing to accurately
maintain records of time worked by Plaintiffs and failing to pay the time worked by
Plaintiffs. Plaintiffs have moved for conditional certification of a collective action and to
facilitate notice under 29 U.S.C. § 216(b).2 For the reasons discussed below, the Motion
is granted.

1

Plaintiffs refer to Defendant Heath Consultants, Inc. as “Health Consultants,
Inc.” in both the motion for certification and the reply brief. However, the action was
filed against Heath Consultants, Inc., and the party shall be identified as Heath
Consultants in this Opinion.
2
Plaintiffs also claim violations of Illinois wage payment and minimum wage
laws on behalf of a putative class but have not yet moved for class certification on those
claims.

BACKGROUND

The following facts are taken from the allegations in Plaintiffs’ Complaint and
from declarations (with attached exhibits) submitted in connection with the parties’ briefs
in support of and in opposition to Plaintiffs’ Motion.
Heath provides gas management services and products to utilities and
municipalities, which in turn provide gas services to consumers. (Resp. at 3.)
Specifically, Heath provides gas management services and products for People’s Gas
throughout the State of Illinois. (Mot. at 4; Resp. at 3.) Graham Midgley is the President
and CEO of Heath, and Gary Lape is the Vice President of Operations. (Compl. ¶¶ 1011.) In these positions, Lape and Midgley have the authority to hire and fire employees;
direct and supervise employees’ work; and make decisions pertaining to wages,
employee hours, and employee compensation. (Id.) Named Plaintiffs are former
employees of Heath. (Compl. ¶ 12; Resp. at 9.) Plaintiffs were employed by Heath as
shutoff technicians. (Mot. Ex. B, Jankuski Decl. ¶¶ 1, 5; Ex. B, McKinney Decl. ¶¶ 1, 5;
Ex. B., Morris Decl. ¶¶ 1, 5.) Specifically, Plaintiffs seek to bring claims on behalf of all
shutoff technicians, including named Plaintiffs, who were subjected to Defendants’
treatment, which included: (1) Defendants’ failure to pay Plaintiffs for time worked prior
to the start of their shifts and failure to properly record this time; (2) Defendants’ failure
to record and pay Plaintiffs for work performed after their scheduled shifts; (3)
Defendants’ automatic deduction from Plaintiffs’ pay for their use of company vehicles.
Plaintiffs move to conditionally certify a collective action. Plaintiffs propose the
following as a definition of the putative plaintiffs entitled to notice: “All individuals who

were employed, or are currently employed, by one or more of the Defendants, its
subsidiaries or affiliated companies, as technicians or any other similarly-titled position
at any time during the relevant statute of limitations period.” (Mot. at 2.)
LEGAL STANDARD
The FLSA entitles nonexempt employees to receive one-and-a-half times their
regular rate of pay for each hour worked above forty per week. See 29 U.S.C. § 207. A
plaintiff may bring a collective action on behalf of “other employees similarly situated”
in an action to recover unpaid wages. 29 U.S.C. § 216(b). Unlike class actions under
Federal Rule of Civil Procedure 23, members of a Section 216(b) collective action are
not bound by the court’s decision unless they “opt-in.” See Woods v. New York Life Ins.
Co., 686 F.2d 578, 580 (7th Cir. 1982); Jirak v. Abbott Labs., Inc., 566 F. Supp. 2d 845,
847 (N.D. Ill. 2008) (Jirak).
The FLSA does not contain specific provisions governing how collective actions
are to proceed, and neither the Supreme Court nor the Seventh Circuit provide definitive
guidance regarding the burden of establishing that others are “similarly situated” for
purposes of providing notice to potential claimants. Consequently, the management of
these actions has been left to the discretion of the district courts. See Jirak, 566 F. Supp.
2d at 847 (citing Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170-72 (1989)).
Collective actions under the FLSA generally operate under a two-step process.
See Russell v. Ill. Bell Tel. Co., 575 F. Supp. 2d 930, 933 (N.D. Ill. 2008) (Russell). First,
the plaintiff must show there are similarly situated employees who are potential
claimants. Mielke v. Laidlaw Transit, Inc., 313 F. Supp. 2d 759, 762 (N.D. Ill. 2004). To

meet this burden, the plaintiff must make “a modest factual showing sufficient to
demonstrate that they and potential plaintiffs together were victims of a common policy
or plan that violated the law.” Flores v. Lifeway Foods, Inc., 289 F. Supp. 2d 1042, 1045
(N.D. Ill. 2003) (citation omitted). This initial certification is conditional, and courts use
a “lenient interpretation” of the term “similarly situated.” Russell, 575 F. Supp. 2d at
933. If a plaintiff meets this burden, conditional certification should be granted. Notice
may then be sent to potential class members, allowing them an opportunity to opt in to
the action. See Heckler v. DK Funding, LLC, 502 F. Supp. 2d 777, 779 (N.D. Ill. 2007)
(Heckler).
The second step of the collective-action process comes after the opt-in process is
completed and discovery has commenced. Then, the defendant may ask the court to
“reevaluate the conditional certification ‘to determine whether there is sufficient
similarity between the named and opt-in plaintiffs to allow the matter to proceed to trial
on a collective basis.’” Jirak, 566 F. Supp. 2d at 847, 848 (quoting Heckler, 502 F. Supp.
2d at 779). If the court determines such similarities do not exist, conditional certification
can be revoked. Russell, 575 F. Supp. 2d at 933.
At this first stage, “[u]nless defendant admits in its answer or briefs that other
similarly situated employees exist, plaintiffs cannot rely on their allegations alone to
make the required modest factual showing.” Molina v. First Line Solutions LLC,
566 F. Supp. 2d 770, 786 (N.D. Ill. 2007) (Molina); see also Howard v. Securitas
Security Servs., USA Inc., No. 08 C 2746, 2009 WL 140126, at *5 (N.D. Ill.
Jan. 20, 2009) (stating that the court should not accept all allegations as true but must

evaluate the record before it). Although Plaintiffs are not required to provide conclusive
support for their claims at this stage, “they must provide an affidavit, declaration, or other
support beyond allegations in order to make a minimal showing of other similarly
situated employees subjected to a common policy.” Molina, 566 F. Supp. 2d at 786.

ANALYSIS
Plaintiffs seek a conditional certification of an FLSA collective action and for the
authority to Plaintiffs to send notice of the collective action to “anyone who worked for
HEALTH [sic] CONSULTANTS, INC. as a technician any time in the past three (3)
years.” (Mot. Ex. C.) Defendants oppose Plaintiffs’ motion for conditional certification,
asserting that Plaintiffs have failed to demonstrate the existence of a common policy or
practice at Heath that violated the FLSA and that Plaintiffs’ claims are inappropriate for a
collective action, as they rely upon individual issues.
Plaintiffs support their allegations that employees were required to start their
workday prior to their shifts by declarations that state, “[p]ursuant to Heath directives, I
typically started my day at 5:00 a.m. by logging on to my company lap top computer to
receive jobs for the day,” and were required to perform additional work after the end of a
shift. (Mot. Ex. B, ¶¶ 7, 12.) However, Plaintiffs submit no evidence of Heath directives
regarding the start of their workday beyond the averments made in their declarations. To
the contrary, Defendants submit “Work From Home Policy” documents signed by each
of the named Plaintiffs, which indicates that employees are not permitted to work at
home or otherwise perform work off the clock. (See Resp. Ex. 2.) Defendants also
submitted declarations from current employees, who attest to the fact that they are not
required to do any work off the clock and have been instructed not to perform any work
off the clock. (Resp. Ex. 5, 6.) However, credibility determinations are improper at this
stage, and the evidence of Defendants’ policy may not be accepted over Plaintiffs’
contrary evidence. See Russell, 575 F. Supp. 2d at 935 (“[T]he mere fact that a company

has a written overtime policy does not defeat conditional certification when a plaintiff
provides countervailing evidence of a common policy of not paying for overtime.”).
At this juncture in the litigation, Plaintiffs are only required to demonstrate that
potential class members are “similarly situated,” and the term is afforded a lenient
interpretation. Jirak, 566 F. Supp. 2d at 848. This is an undemanding standard, and a
plaintiff need only make a “‘modest factual showing’ that other potential class members
are similarly situated.” Kelly v. Bank of America, No. 10 C 5332, 2011 WL 4526674, at
*2 (N.D. Ill. Aug. 30, 2011) (quoting Larsen v. Clearchoice Mobility, Inc., No. 11 C
1701, 2011 WL 3047484, at *2 (N.D. Ill. July 25, 2011)). “At this stage, the court does
not resolve factual disputes or decide substantive issues going to the merits.” Id.
Shutoff technicians at Heath performed similar duties by turning off gas meters;
they also each have their own laptop computers upon which they receive their daily
routes and are required to complete similar paperwork each workday. (Resp. at 3-4.)
Based on the evidence submitted, shutoff technicians may be required to log-on to their
laptops prior to the beginning of a shift in order to review their daily routes. Despite
having a “Work From Home Policy,” Plaintiffs argue, Defendants also have in place an
“unwritten de facto policy that [shutoff technicians] perform work before and after their
scheduled shifts without pay.” (Reply at 6.) Plaintiffs are not required to prove the
existence of this de facto policy at this stage in the litigation, though they will eventually
have to meet more than a modest factual showing. Additionally, it is undisputed that
Defendants make tax deductions from Plaintiffs’ pay for the use of company vehicles;
Defendants’ arguments that such deductions are required by applicable tax law are

premature at this time. After reviewing the evidence submitted by Plaintiffs and
applying the lenient standard appropriate at this stage, Plaintiffs have made a modest
factual showing that Plaintiffs and other similarly situated individuals were victims of a
common policy or plan on the part of Defendants to require employees to work without
pay.
However, Defendants further contend that, even if Plaintiffs can meet this modest
showing, Plaintiffs’ proposed collective action is overbroad. Plaintiffs concede in their
reply brief that there are other types of technicians employed by Heath and “stipulate that
they are only seeking to issue notice to shutoff technicians working for Defendants across
the country.” (Reply at 1 n.1.) Thus, notice of the collective action should be issued
only to shutoff technicians employed by Heath in the State of Illinois, as described in
Plaintiffs’ Motion. (Mot. at 3-4.)

CONCLUSION
Plaintiffs have met the modest factual showing required to conditionally certify
this action as a collective action pursuant to 29 U.S.C. § 216(b). Accordingly, Plaintiffs’
Motion is granted. Stephan Zouras, LLP is appointed counsel for the Plaintiff class.
Defendants are ordered to produce a computer-readable data file, containing the names,
addresses, telephone numbers, and e-mail addresses of such potential opt-in members
(shutoff technicians employed by Defendants) so that notice may be implemented.
Plaintiffs are authorized to send notice of the collective action by U.S. first class mail and
e-mail to all of the putative class members who have not yet had their federal claims for
unpaid wages previously adjudicated, to inform them of their rights to opt-in to this suit.

Date: December 5, 2012

______________________________
JOHN W. DARRAH
United States District Court Judge