Boltinghouse, Jr. et al v. Abbott Laboratories, Inc.
Filing
64
MEMORANDUM Opinion and Order Signed by the Honorable Rebecca R. Pallmeyer on 7/20/2016. Mailed notice. (etv, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GARY BOLTINGHOUSE, JR., ROBERT
TAYLOR, and MARK CANALES, on
behalf of themselves and all other
similarly situated individuals,
Plaintiff,
v.
ABBOTT LABORATORIES, INC.,
Defendant.
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No. 15 CV 6223
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiffs Gary Boltinghouse, Jr., Robert Taylor, and Mark Canales worked as “field
service specialists” for Defendant Abbott Laboratories, Inc. (“Abbott”).
Plaintiffs allege that
Abbott violated the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., by failing to pay
them, and other similarly situated employees, for overtime work.
Plaintiffs now move for
conditional class certification and court-authorized notice under the FLSA. As explained here,
the court grants the motion for conditional certification [35] and authorizes Plaintiffs to proceed
with notice to potential collective action members.
FACTUAL BACKGROUND
Plaintiffs filed this putative collective action on July 16, 2015, alleging that Defendant
misclassified them and all other individuals who were employed by Defendant as field service
specialists, denying them overtime compensation in violation of the FLSA. (Pls.’ Mem. of Law in
Supp. of Mot. for Cond’l Class Cert., Doc. 36, 2–3.) Plaintiffs contend they performed nonexempt work, but that Defendants knowingly misclassified them as performing exempt work and
failed to maintain an accurate record of hours worked, as required by federal regulations.
(Compl., Doc. 1, ¶¶ 18–25, 33.) Plaintiffs propose a class definition of:
All persons who worked as field service specialists (also referred to as core lab
specialists, prism specialists, hematology support specialists, or other job titles
performing similar duties) for Abbott Laboratories, Inc. at any time since three
years prior to the filing of this Complaint.
(Compl. ¶ 28.). Plaintiff Boltinghouse alleges that he worked approximately 72 hours during the
workweek ending June 7, 2015; Plaintiff Taylor alleges that he worked approximately 50 to 55
hours during the workweek ending June 21, 2015; and Plaintiff Canales alleges that he worked
approximately 60 hours during the workweek ending March 28, 2015, all of them without
receiving overtime pay. (Compl. ¶ 31.)
In support of their motion for conditional certification and court-authorized notice,
Plaintiffs have submitted six declarations. All six declarants—named Plaintiffs Boltinghouse,
Canales, and Taylor, and additional Plaintiffs Mark Johnson, Daniel Maag, and Gerald
Newman—have worked for Defendant as field service specialists; all but Mr. Maag are current
employees of Defendant and have held various job titles during the course of their employment.
(Boltinghouse Decl., Doc. 37 Ex. 1, ¶ 2; Canales Decl., id., ¶ 2; Johnson Decl., id., ¶ 2; Maag
Decl., id., ¶ 2; Newman Decl., id., ¶ 2; Taylor Decl., id., ¶ 2.) All six describe their job duties as
“to install, repair, service and maintain diagnostic medical instrumentation, and test devices and
equipment at Abbott’s customer sites,” and all but Maag and Johnson add that “[m]y primary job
duties did not change when my specific title changed.” (Boltinghouse Decl. ¶ 3; Canales Decl. ¶
3; Newman Decl. ¶ 3; Taylor Decl. ¶ 3.)
All six declarants are or were salaried employees, classified by Defendant as exempt
from overtime compensation. (Boltinghouse Decl. ¶ 4; Canales Decl. ¶ 4; Johnson Decl. ¶ 4;
Maag Decl. ¶ 4; Newman Decl. ¶ 4; Taylor Decl. ¶ 4.) Each declares that he received “training
specifically for the medical instrumentation, devices and equipment” that he is or was “assigned
to install, repair, service and maintain”; that he has “attended training with other field service
specialists, including individuals with the specific titles of core lab specialists and hematology
support specialists”; and that he “occasionally see[s] other core lab specialists and hematology
support specialists . . . working at the same hospitals” as himself and has “observed that they
perform similar job duties” as he does. (Boltinghouse Decl. ¶¶ 6-7; Canales Decl. ¶¶ 6-7;
Johnson Decl. ¶¶ 6-7; Maag Decl. ¶¶ 6-7; Newman Decl. ¶¶ 6-7; Taylor Decl. ¶¶ 6-7.) Each
declarant also avers that:
[b]ased on these observations, my own experience, training and also
conversations with other Abbott employees, I believe that Abbott assigned similar
job duties to core lab specialists and hematology support specialists, classified
them as exempt from overtime compensation, and required them to work
overtime for which they are not paid an overtime premium.
(Id.) Beyond these boiler plate paragraphs, the declarations vary in the declarant’s dates of
employment by Defendant, official title as either a core lab specialist or hematology support
professional, number of average overtime hours worked, and the names of other exempt
hematology support specialists the individual Plaintiffs observed performing similarly duties.
Plaintiffs have submitted a proposed notice to putative collective action members and a
proposed reminder notice. (Notice of Lawsuit with Opportunity to Join, Doc. 37 Ex. 2; Re:
Lawsuit Against Abbott Laboratories, Inc., Doc. 37 Ex. 3.) At the parties’ request, the Court on
November 2, 2015 issued a broad protective order governing confidential information produced
in discovery.
LEGAL ANALYSIS
The FLSA generally requires overtime pay for work performed in excess of 40 hours per
week. 29 U.S.C. § 207. Federal regulations, however, exempt employees compensated at a
rate of at least $455 per week, who perform “office or non-manual work directly related to the
management or general business operations of the employer or the employer’s customers,” and
who exercise “discretion and independent judgment with respect to matters of significance.” 29
C.F.R. § 541.200(a) 1. The FLSA also permits collective actions by employees:
An action . . . may be maintained against any employer . . . 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
1
Amendments to the 29 C.F.R. § 541.200(a), published by the Department of Labor on
May 23, 2016, will become effective December 1, 2016. The amendments do not affect this
case. .
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).
Employees must receive “accurate and timely notice concerning the
pendency of the collective action[.]” Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170
(1989). “Section 216(b)’s affirmative permission for employees to proceed on behalf of those
similarly situated must grant the court the requisite procedural authority to manage the process
of joining multiple parties[.]” Id. This court therefore has “discretionary authority to oversee the
notice-giving process.” Id. at 174. An FLSA collective action may only be conditionally certified
if the plaintiffs show that members of the putative class are similar situated; that is, that there
exists “an identifiable factual nexus that binds the plaintiffs together as victims of a particular
violation of the overtime laws . . . .” Molina v. First Line Sols. LLC, 556 F. Supp. 2d 770, 786–87
(N.D. Ill. 2007). In this case, the required factual nexus are the duties performed Plaintiffs and
members of the putative class.
The Seventh Circuit “has yet to address how district courts should manage collective
actions,” but “courts in this district have commonly applied a two-part test to determine whether
an FLSA claim may proceed as a collective action.” Binissia v. ABM Indus., Inc., No. 13 C
1230, 2014 WL 793111, *3 (N.D. Ill. Feb. 26, 2014) (citing Jirak v. Abbott Labs., Inc., 566 F.
Supp. 2d 845, 847 (N.D. Ill. 2008)).
At the first stage, the court conditionally certifies the
collective action if the plaintiffs “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.” Binissia, 2014 WL 793111, at *3 (citing Smallwood v. Ill. Bell Tel. Co., 575 F. Supp. 2d
930, 933 (N.D. Ill. 2010), and Jirak, 566 F. Supp. 2d at 847)). This modest factual showing
cannot be founded solely on the complaint’s allegations. Rather, “plaintiffs must provide some
evidence in the form of affidavits, declarations, deposition testimony, or other documents” of a
common policy to which they and other similarly situated employees were subjected. Id. It
must also appear that the common policy, if established, violated the law; thus, “a plaintiff’s job
title alone is ‘insufficient to establish the exempt status of an employee. Instead, the court must
look beyond the formal [] job descriptions and to their day-to-day responsibilities to determine
whether employees are misclassified.’” Gromek v. Big Lots, Inc., No. 10 C 4070, 2010 WL
5313792, *4 (N.D. Ill. Dec. 17, 2010) (citing Johnson v. Big Lots Stores, Inc., 561 F. Supp. 2d
567, 579 (E.D. La. 2008). In the second stage, after the completion of discovery and the opt-in
process, the court reexamines the conditional certification to determine whether trial as a
collective action is proper. Binissia, 2014 WL 793111, at *3 (citing Jirak, 566 F. Supp. 2d at
848).
I.
Conditional Certification
Defendant notes that other district courts have denied certification where plaintiffs
submitted virtually identical statements containing only conclusory allegations. (Def.’s Resp.
[44] at 9.) In Songer v. Dillon Resources, Inc., 569 F. Supp. 2d 703 (N.D. Tex. 2008), the
plaintiffs’ affidavits consisted largely of statements such as “[a]ll drivers for Sunset and Dillon
are working overtime because anyone who fails to complete an assigned delivery will lose his
minimum guarantee in a later week where there is no work.” Id. at 707. Those affidavits, the
court observed, “contain nothing to establish that the plaintiffs have personal knowledge” of how
other employees were affected by the alleged common policy.
Id.
In Guan Ming Lin v.
Benihana Nat’l Corp., 755 F. Supp. 2d 504 (S.D.N.Y. 2010), a putative FLSA collective action
alleging violations of federal and New York minimum wage laws, the plaintiffs submitted the
affidavit of a single employee stating that he had been paid a base salary below the minimum
wage, and that he had witnessed other employees being paid below the minimum wage, as
well.
The employee’s affidavit presented no information about the identity of the other
employees or whether they were eligible for tips. Id. at 510. Defendant also cites Longcrier v.
HL-A Co., Inc., 595 F. Supp. 2d 1218, 1234 n. 22 (S.D. Ala. 2008), in which conditional
certification was granted. The Longcrier court accepted declarations as evidentiary support but
“suggested to both sides” in a footnote that “declarations are far more helpful and enlightening
to the extent they are molded and personalized to the circumstances of the individual declarant,
rather than amounting to a signature on a generic mass-produced form drafted by counsel.” Id.
Nevertheless, plaintiffs met the “requisite modest factual showing to satisfy [the] fairly lenient
standard for purposes of conditional certification.” Id. at 1236.
Plaintiffs’ modest evidentiary offerings in this case are better supported than those at
issue in cases like Songer and Guan Ming Lin. While the six declarations offered by Plaintiffs in
support of their motion for conditional certification are nearly identical, each declarant specifies
his dates of employment with Defendant under various job titles and his average number of
overtime hours worked without compensation at different times during the course of his
employment, and each names at least one of Defendant’s employees whom he has observed
performing similar job duties to his own. Each also states that his belief that other field service
specialists have not received overtime compensation is based on those observations, his own
experience and training, and conversations with other of Defendant’s employees, not idle
speculation. At this stage of the litigation, plaintiffs seeking conditional certification need not
meet the evidentiary standards set forth in Federal Rule of Civil Procedure 56(e). See White v.
MPW Indus. Servs., Inc., 236 F.R.D. 363, 369 (E.D. Tenn. 2006); see also Reyes v. AT&T
Mobility Services LLC, 759 F. Supp. 2d 1328, 1332 (S.D. Fla. 2010) (holding affidavits in
support of conditional class certification were admissible under a less strict evidentiary standard
than Rule 56); see also Smith v. C.H. James Rest. Holdings, L.L.C., No. 11 C 5545, 2012 WL
1144617, *5 (N.D. Ill. Apr. 5, 2012) (refusing to strike certain declarations in FLSA collective
action because plaintiffs were “not required to meet evidentiary burdens” at the conditional
certification stage).
Defendant rightly asserts that some district courts have declined to certify a putative
FLSA collective action alleging violations of federal overtime provisions, since “[d]etermining
whether an employee is exempt is extremely individual and fact-intensive, requiring a detailed
analysis of the time spent performing administrative duties and a careful analysis of the full
range of the employees’ job duties and responsibilities.” Mike v. Safeco Ins. Co. of Am., 274 F.
Supp. 2d 216, 220 (D. Conn. 2003) (internal citations omitted). Defendant suggests that at least
some of the six Plaintiffs who filed declarations in this case earn enough that they are exempt
from overtime pay requirements. But in this district, courts agree that “‘concerns regarding a
lack of common facts among potential class members and the need for individualized inquiries’
should be raised at step two,” not step one.
Lukas v. Advocate Health Care Network &
Subsidiaries, No. 14 C 2740. 2014 WL 4783028, *3 (N.D. Ill. Sept. 24, 2014) (quoting Smith v.
Family Video Movie Club, Inc., No. 11 C 1773, 2012 WL 580775, *4 (N.D. Ill. Feb. 22, 2012),
and citing Jirak, 566 F. Supp. 2d at 848) (brackets omitted). See also Perez v. Comcast, No. 10
C 1127, 2011 WL 5979769, *1 (N.D. Ill. Nov. 29, 2011) (holding that at conditional certification
stage, “the court does not resolve factual disputes or decide substantive issues going to the
merits.”). Discovery will permit the parties to show which putative class members, if any, are
exempt, and which are not. At least at first blush, Plaintiffs’ job descriptions do not appear
comparable to the white-collar administrative work contemplated by 29 C.F.R. § 541.200(a). “At
this stage, it is sufficient that Plaintiffs have shown that [Defendant has a policy] applied
uniformly to all potential plaintiffs and that the policy appears to be inconsistent with FLSA
regulations.” Binissia, 2014 WL 793111, *5.
II.
Court-Authorized Notice
Defendant objects to Plaintiffs’ proposed notice on the bases that (1) it includes a case
caption on the first page, which improperly “could suggest to potential plaintiffs that the Court
has lent its imprimatur to the merits of this case,” Jirak, 566 F. Supp. 2d at 851; and (2) it fails to
inform putative plaintiffs that they may be required to sit for a deposition, otherwise participate in
discovery, or pay defense counsel’s fees if Defendant prevails in the litigation. It also objects to
Plaintiffs’ proposed plan of notice distribution via e-mail (which Plaintiffs propose in addition to
the traditional U.S. Postal Service method) and through Plaintiffs’ counsel rather than through a
third-party administrator, and to Plaintiffs’ proposed reminder e-mail.
These concerns do not trouble the court. First, the proposed notice’s case caption is
unproblematic. In Jirak, the court ordered that the plaintiff either remove the court name on the
notice or include the entire case caption “so it is clear the notice is a court document and not
some type of letter from the Court.” 566 F. Supp. 2d at 851. Plaintffs’ proposed notice adheres
to this direction. It includes a complete case caption and, on page 3, the following bold-face
disclaimer:
THIS NOTICE AND ITS CONTENT HAVE BEEN AUTHORIZED BY THE
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF ILLINOIS,
EASTERN DIVISION, THE HONORABLE JUDGE REBECCA R. PALLMEYER.
THE COURT HAS MADE NO DECISION ABOUT THE MERITS OF
PLAINTIFFS’ CLAIMS OR DEFENDANT’S DEFENSES.
This language is sufficient to eliminate any suggestion of judicial endorsement of Plaintiffs’
position in the case.
As to Defendant’s next concern, while some courts have held that potential plaintiffs in
an FLSA collective action “should be advised of the possibility that opt-in plaintiffs may be
required to provide information, appear for a deposition, and/or testify in court,” Salomon v.
Adderley Indus., Inc., 847 F. Supp. 2d 561, 566 (S.D.N.Y. 2012), such a requirement is not
common in this district. Where an FLSA collective action could include a large number of opt-in
plaintiffs, a warning to each potential plaintiff that he or she may be required to sit in depositions
and testify is unnecessary. The possibility that any one plaintiff will be so required is slim, Wynn
v. Express, LLC, No. 11 C 4588, 2012 WL 874559, *6 (N.D. Ill. Mar. 14, 2012); representative
discovery may be the superior approach anyway, see, e.g., Oropeza v. AppleIllinois, LLC, No.
06 C 7097, 2010 WL 3034247, *7 (N.D. Ill. Aug. 3, 2010); and the risk of chilling would-be
plaintiffs’ participation in the collective action may well outweigh the risk to those plaintiffs of
incurring litigation costs (by way of lost time or even counsel fees) as a result of their
participation. See, e.g., Woods v. Club Cabaret, Inc., 140 F. Supp. 3d 775 (C.D. Ill. 2015);
Austin v. CUNA Mut. Ins. Soc., 232 F.R.D. 601, 608 (W.D. Wis. 2006). Defendant is a large
corporation with tens of thousands of employees, and the odds of a fee award to prevailing
defendants under 216(b) are long. See Herrera v. Unified Mgmt. Corp., No. 99 C 5004, 2000
WL 1220973, *3 (N.D. Ill. Aug. 18, 2000). The court is satisfied that such a warning to potential
opt-in plaintiffs is unnecessary in this case.
Defendant cites Nehmelman v. Penn Nat’l Gaming, Inc., 822 F. Supp. 2d 745 (N.D. Ill.
2011), for the proposition that notices should be sent by a third-party administrator rather than
plaintiffs’ counsel, as the notice proposed seeks personal information from putative opt-ins—
their names, phone numbers, physical addresses, and e-mail addresses.
In Nehmelman,
another FLSA collective action, the plaintiffs requested that potential opt-ins furnish information
concerning their dates and location of employment as well as Social Security numbers. Id. at
767.
The court allowed the notice, reasoning that plaintiffs’ right to discover appropriate,
relevant information from potential opt-ins outweighs those potential opt-ins’ privacy rights and
that notice could be sent either by plaintiffs’ counsel or by a third-party administrator paid for by
the defendant. Id. at 766. Defendant has volunteered to pay for a third-party administrator, but
courts in this district have often rejected precisely this sort of privacy argument, particularly
where a protective order is already in place (as it is here). See, e.g., Acevedo v. Ace Coffee
Bar, Inc., 248 F.R.D. 550, 554–55 (N.D. Ill. 2008); Brand v. Comcast Corp., No. 12 C 1122,
2012 WL 4482124, *9 (N.D. Ill. Sept. 26, 2012); Anyere, 2010 WL 1542180, *4. As these other
courts have concluded, this court believes the protective order adequately prevents abuse of the
confidential information of potential or actual opt-ins, and renders the use of a third-party
administrator unnecessary.
Plaintiffs’ request for potential plaintiffs’ names, phone numbers, and physical addresses
is standard practice in this district. Plaintiffs’ request for e-mail addresses, to enable notice via
e-mail as well as the Postal Service, is more unusual. District courts have split on the question
whether e-mail notice is appropriate in the FLSA collective action context.
Compare
Espenscheid v. DirectSat USA, LLC, N. 09 cv 625 bbc, 2010 WL 2330309, *14 (W.D. Wis. Jun.
7, 2010) (collecting cases from various districts and rejecting e-mail notice due to “the potential
for recipients to modify and redistribute email messages”) with Atkinson v. TeleTech Holdings,
Inc., No. 3:14-cv-253, 2015 WL 853234, *5 (S.D. Ohio Feb. 26, 2015) (noting that notice via
both U.S. mail and e-mail to all potential opt-in plaintiffs in an FLSA action “appears to be in line
with the current nationwide trend”).
This court concludes that dual postal mail and e-mail
distribution is likely to “advance[ ] the remedial purpose of the FLSA by increasing the likelihood
that all potential opt-in plaintiffs will receive notice.” Shoots v. iQor Holdings US Inc., No. 15 CV
563 (SRN/SER), 2015 WL 6150862, *22 (D. Minn. Oct. 19, 2015). Because Plaintiffs propose
that the notice be e-mailed as a .pdf attachment, not included in the body of the e-mail message
sent to potential opt-ins, the risk for improper modification of the notice appears to be minimal.
Finally, Defendant objects to Plaintiffs’ proposal that a reminder notice be sent 15 days
before the end of the opt-in period, a practice that Defendant contends is “unnecessary and
potentially could be interpreted as encouragement by the court to join the lawsuit.” Wlotkowski
v. Mich. Bell Tel. Co., 267 F.R.D. 213, 220 (E.D. Mich. 2010). Plaintiffs cite several cases
approving the use of a reminder notice, and Defendant offers no contrary authority. The court
concludes this procedure, too, is reasonable, and therefore authorizes Plaintiffs to send one
reminder notice to any potential opt-in plaintiff who has not replied 15 days prior to the end of
the opt-in period.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for conditional certification and courtauthorized notice [35] is granted. The parties are directed promptly to proceed with notice.
ENTER:
Dated: July 20, 2016
_________________________________________
REBECCA R. PALLMEYER
United States District Judge
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