Torres v. Nation One Landscaping, Inc.,

Filing 69

ORDER Signed by the Honorable Manish S. Shah on 10/21/2014: Plaintiff's motion to authorize notice pursuant to 29 U.S.C. § 216(b) and for class certification pursuant to Fed. R. Civ. P. 23 55 is granted in part, denied in part. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
AURELIANO TORRES,
Plaintiff,

No. 12 CV 9723

v.

Judge Manish S. Shah

NATION ONE LANDSCAPING, INC.,
Defendant.
ORDER
Plaintiff’s motion to authorize notice pursuant to 29 U.S.C. § 216(b) and for
class certification pursuant to Fed. R. Civ. P. 23 [55] is granted in part, denied in
part.
STATEMENT
Plaintiff Aureliano Torres worked for defendant Nation One Landscaping,
Inc., from March to November 2011, and has filed suit alleging violations of: the Fair
Labor Standards Act and the Illinois Minimum Wage Law based on the failure to pay
time-and-a-half for overtime worked (Counts I and II); the Illinois Minimum Wage
Law and the Illinois Wage Payment and Collection Act based on Torres’s earnings
falling below the minimum wage because he was not paid for all time actually worked
(Counts III and IV); and the Illinois Wage Payment and Collection Act based on
unauthorized deductions taken out of his paycheck for the cost of his uniform (Count
V). Torres and his counsel seek to pursue all five claims as representatives of a class
of all Nation One employees.
Count I is a claim under the FLSA, 29 U.S.C. § 201, et seq. An FLSA collective
action requires an “opt-in” process, whereas in a Rule 23 class action, class members
are covered by the suit unless they opt out. Although these two types of actions may
ultimately be governed by equivalent standards, see Espenscheid v. DirectSat USA,
LLC, 705 F.3d 770, 771–772 (7th Cir. 2013), this case is at a stage where the
difference matters. To justify notice to potential opt-ins of an FLSA collective
action—which is all plaintiff seeks in the present motion—he need only make a
modest factual showing sufficient to demonstrate that he and similarly situated
others were victims of a common policy or plan that violated the law. See Myers v.
Hertz Corp., 624 F.3d 537, 555 (2d Cir. 2010). To obtain class certification of his other

claims, plaintiff must prove by a preponderance of the evidence that each
requirement of Rule 23 has been met. Messner v. Northshore University
HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
Count I – FLSA Collective Action
Torres testified by declaration that when he worked over 40 hours in a week,
he received two checks, one payroll check for 40 hours and a second check for
overtime hours paid at his regular rate (i.e., not time-and-a-half). [56-2] ¶ 10. Torres
also said that he worked from 6:40 a.m. to 5:15 or 6:30 p.m. (depending on the
landscaping season), Monday through Friday, and from 6:40 a.m. to 4:00 p.m. two
Saturdays per month. [56-2] ¶¶ 6–8. Plaintiff has also submitted evidence that other
Nation One employees were not paid time-and-a-half for overtime. The Illinois
Department of Labor found that Nation One failed to pay certain employees
overtime, [56-4]; there are records of separate “overtime checks” issued to employees,
[56-5]; there are records showing payments made at regular pay rates for more than
40 hours of work, [56-6]; and there are records showing more than 40 hours worked
during periods when payroll records indicate payment for 40 hours, [56-8]. This is
sufficient to suggest that a policy was in place to not pay time-and-a-half for
overtime.
Defendant does not contest this factual showing, but argues that the requested
class is too broad. Defendant notes that some employees have been made whole by
compliance with the IDOL audit findings, and the time period for the proposed opt-in
notice (employees who worked for Nation One from December 5, 2009, to the present)
stretches too far back. That some employees have been paid after-the-fact is not a
reason to forgo a collective action notice. After opt-ins have been received, the court
will assess whether they are similarly situated to plaintiff’s claims. At the second
stage of collective action review, I will decide whether to dismiss certain opt-in
claims.
Defendant is correct, however, that there is no reason to reach back prior to
2011 to identify potential class members. Plaintiff has offered no evidence that any
such employees exist, and acknowledged (in open court on 08/04/14) that there were
no employees for the company prior to 2011. See also [56-13] at 10 (owner testifying
that company was just him and “maybe two guys” in 2010). Therefore, neither the
FLSA collective action nor any Rule 23 class shall be defined to include individuals
employed prior to 2011.
Plaintiff requests that notice to potential opt-ins be made by posting signs at
Nation One’s office and job sites as well as by placing a notice in payroll envelopes for
one pay period. The argument for additional means of notice is that defendant may
be withholding information about employees’ addresses. Perhaps defendant has not
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maintained thorough records, but plaintiff has not demonstrated that identifying
employees and addresses is unusually difficult here—plaintiff’s argument is largely
conclusory and unpersuasive. Therefore, notice shall go out via first class mail to all
persons employed by Nation One at any time from 2011 to the present. If, in
preparing for mailed notice, plaintiff develops facts to support alternative notice as
an effective means of communicating to the class, plaintiff may file an appropriate
motion. The proposed notice, consent form, and envelope, [56-15, 56-16, 56-17], are
adequate and hereby approved. (Defendant submitted no objections to these notices.)
Count II – IMWG Overtime Claim
Count II is the state-law analog to plaintiff’s FLSA claim in Count I, and
plaintiff seeks to certify a class pursuant to Rule 23(a) and (b)(3).
Plaintiff has established by a preponderance of the evidence that the class of
individuals employed by Nation One from 2011 to the present likely includes more
individuals than could practicably be joined in a single suit. For example, the IDOL
identified over 40 individuals who were owed overtime wages during its audit for the
2012-2013 time period. [56-4]. Plaintiff has also established that there is at least one
common question of fact to all potential class members in this claim—namely,
whether Nation One failed to pay time-and-a-half for overtime. Plaintiff Torres’s
claim is typical in that he has alleged that he suffered the same injury by virtue of a
company-wide policy to not pay overtime wages appropriately. I find that Torres is an
adequate representative for the class, in that he has no antagonistic or conflicting
claims as compared to the potential class, he is clearly interested in pursuing a
class-favorable outcome with vigorous advocacy, and his counsel is experienced and
generally able to conduct litigation on behalf of a class. See [56] at 18 & n. 8 (listing
cases in which plaintiff’s counsel has been designated class counsel).
Defendant has little to say about the plaintiff’s Rule 23(a) showing, but does
argue that individualized determinations will predominate the case. With respect to
the overtime claim in Count II, I find that the question of whether Nation One
regularly paid overtime at a regular rate, as opposed to time-and-a-half, represents a
significant aspect of the case and the same evidence will provide an answer to that
question across employees. Individualized monetary claims can exist within a
23(b)(3) class. Messner, 669 F.3d at 815. Here, the individualized determination as to
the amount of overtime due will not overtake the threshold question of whether a
policy existed to not pay the correct rate. I also find that the class action is superior to
other methods for adjudicating the controversy. Fed. R. Civ. P. 23(b)(3). The
individual overtime claims, as evidenced by the IDOL audit, can be small, and
therefore unlikely to be adjudicated on an individual basis. The prospect of no
adjudication is inferior to the class action alternative.
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Count V – IWPCA Claim for Unauthorized Deductions
In Count V, plaintiff alleges that Nation One took unauthorized deductions
from his paycheck to pay for the costs of a uniform. I find that plaintiff has met his
burden to establish the propriety of a class action for this claim, for reasons similar to
the overtime claim in Count II. The class is numerous, as every employee appears to
have been subject to automatic deductions for the uniforms, and a common question
predominates—namely, whether the deductions were authorized or not. It appears
that an Employee Policy Manual disclosed the deductions and employees signed the
manual. The issue of whether the deductions were lawful is amenable to resolution
across employees, and again, while there may be individualized questions of
damages, that alone does not defeat certification under Rule 23(b)(3). Plaintiff is a
typical and adequate representative for this claim, and class counsel is also
adequate. A class action is a superior method for adjudicating this claim because the
individual uniform deductions are quite small and not likely to be adjudicated absent
a class procedure.
Counts III and IV – Unpaid Wage Claims
Plaintiff has not, however, met his burden to justify a class action for the wage
claims asserted in Counts III and IV. In these claims, plaintiff alleges that his wages
fell below the minimum wage (Count III) and that he was not paid (Count IV)
because of work that went uncompensated. Plaintiff testified that his lunch was
interrupted by work assignments, he was not paid for preparatory work when he
arrived early as directed (loading tools and materials), and he was not paid for work
at the end of the day after clocking out (unloading tools and materials). While all
employees appear to have been subject to a lunch deduction and a request to arrive a
few minutes before start time, that evidence is not sufficient to establish
commonality. There may be common questions—e.g., was preparatory work
performed—but a class proceeding must “generate common answers apt to generate
the resolution of the litigation.” Wal-Mart Stores v. Dukes, 131 S.Ct. 2541, 2551
(2011). I find that plaintiff has not demonstrated that such common answers exist or,
more importantly, predominate. Absent systemic proof of work performed before
clocking in, after clocking out, or during lunch (proof that plaintiff has not mustered
by a preponderance of the evidence), these claims are unique to the individual
employee.*

Plaintiff’s declaration, in which he states that he observed other employees doing
preparatory work and unloading work, is not sufficient. The affidavit is bereft of detail and I
cannot conclude from plaintiff’s limited observation that it reflects a common pattern that
stretches throughout the class period (which post-dates plaintiff’s employment).
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*

Conclusion
Plaintiff’s motion to authorize notice pursuant to 29 U.S.C. § 216(b) and for
class certification pursuant to Fed. R. Civ. P. 23 [55] is granted in part, denied in
part.
Section 216(b) notice shall go out via first class mail to all persons employed by
Nation One at any time from 2011 to the present. The proposed notice, consent form,
and envelope, [56-15, 56-16, 56-17], are hereby approved.
With respect to Counts II and V, this matter is certified as a class action under
Rule 23(b)(3). The class is defined as follows: All individuals employed by Nation One
Landscaping, Inc., at any time from 2011 to the present who worked overtime or who
had deductions taken for the cost of uniforms.
Plaintiff Aureliano Torres is named to represent the class and attorneys
Christopher J. Williams and Alvar Ayala are appointed to represent the class.
The type, content and manner of notice to the class will be determined at the
next status hearing on November 3, 2014.
Counts III and IV will proceed as individual claims by plaintiff Torres.
ENTER:
Date: 10/21/14

Manish S. Shah
U.S. District Judge

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