Greenstein v. Meredith Corporation

Filing 45

MEMORANDUM AND ORDER granting in part and denying in part 36 Motion to Certify Class. The Court shall conditionally certify the proposed class in the motion. Melissa Greenstein shall be designated as class representative and plaintiff's counsel are approved to act as class counsel. SEE ORDER FOR COMPLETE DETAILS. Signed by District Judge Julie A. Robinson on 4/23/2013. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MELISSA GREENSTEIN, on behalf
of herself and all other persons
similarly situated,
Plaintiffs,
v.
MEREDITH CORPORATION,
Defendant.

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Case No. 11-2399-RDR

MEMORANDUM AND ORDER
Plaintiff Melissa Greenstein has brought this action under
the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. and
the Kansas Wage Payment Act, K.S.A. 44-312
unpaid

straight

time

and

overtime

et seq.

compensation.

alleging
Plaintiff

worked as a news producer for a Kansas City television station
owned by defendant Meredith Corporation.
the

court

upon

a

motion

for

conditional

This case is before
class

certification

under FLSA, 29 U.S.C. § 216(b), filed on behalf of Greenstein
and other persons who have filed notices to join in the lawsuit.
Section 216(b) provides in part:
An action to recover the liability prescribed [in §
216(b)] may be maintained . . . 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.

(emphasis added).

In this case, the motion for conditional

certification

seeks

“conditional

consisting

[a]ll

[c]urrent

of

certification

and

former

of

a

Meredith

class

employees

employed in the position/title of ‘producer’ whose job duties
involved

the

creation

and

coordination

of

local

television

programming, and/or promotions related to such programming, and
who were classified by Meredith as exempt from the right to
receive

overtime.”

requests:

Doc.

an

order

No.

36,

p.

1.

designating

The

motion
as

Greenstein

also
class

representative; an order approving plaintiff’s counsel to act as
class counsel; the court’s approval of a proposed notice and
method

of

distribution

to

putative

class

members;

and

a

directive that defendant share certain employee information with
plaintiff’s counsel.
Defendant Meredith is a company that operates 12 television
stations

across

the

nation.

Defendant

does

not

object

to

conditional certification as to news producers who worked at
defendant’s

Kansas

conditional

certification

producers

at

the

City

Kansas

defendant’s

other

plaintiff’s

proposed

television
of

a

City

station,

class

station

stations.

including
and

Defendant

notice,

the

but

opposes

all

other

all

producers

at

also

objects

to

proposed

procedure

for

distributing the notice, and to plaintiff’s request for some
employee information.
2

I.

Request for conditional certification
To

succeed

upon

a

motion

for

conditional

certification,

plaintiff must present substantial allegations that the putative
class members were together the victims of a single decision,
policy, or plan.

Thiessen v. General Electric Capital Corp.,

267 F.3d 1095, 1102 (10th Cir. 2001)(interior quotation omitted).
As emphasized above, the class certification requested here is
conditional; at a later stage in the case the court must make a
second

determination

certification.

involving

a

Id. at 1102-03.

stricter

standard

of

class

The standard of certification

at the present stage is a lenient one that typically results in
class certification.

Brown v. Money Tree Mortgage, Inc., 222

F.R.D. 676, 679 (D.Kan. 2004).

The court does not weigh the

evidence, resolve factual disputes, or rule on the merits of
plaintiffs’ claims.

Gieseke v. First Horizon Home Loan Corp.,

408 F.Supp.2d 1164, 1166-67 (D.Kan. 2006).
A.

The complaint’s allegations

The

complaint

alleges

that

plaintiff

Greenstein

was

employed as a “producer” for defendant and paid on a salary
basis.

Doc. No. 1, ¶ 5.

defendant
“producers”

has

had

a

straight

The complaint further alleges that

policy
time

for

of
all

failing
hours

to

compensate

worked

and

its

overtime

compensation for all hours worked in excess of 40 hours per
week.

Id., ¶ 21.

The complaint asserts that plaintiff and the
3

putative class (producers who worked for defendant, but were not
paid overtime) are similarly situated in that they had the same
job duties and compensation structure.

Id., ¶¶ 25, 40 & 43.

The complaint asserts that plaintiff and the putative class are
entitled to be paid overtime compensation under FLSA.
50-52.

Id., ¶¶

Plaintiff contends in the complaint that she and other

producers

should

have

been

classified

as

non-exempt,

but

defendant treated them as exempt from receiving overtime under
FLSA.
B.

Affidavits

Five affidavits have been submitted from former employees
of

defendant

certification.

in

support

of

the

motion

for

conditional

Three affidavits are from former news producers

for defendant and they describe similar job responsibilities.
Doc. No. 37, affidavits of Melissa Greenstein, Morgan C. Smith
and Daniel J. English, Exhibits E, F & H.

These affidavits

state that the affiants commonly worked more than 40 hours a
week, but were not paid overtime.

The affidavits also indicate

that the affiants spoke with other news producers who worked for
defendant and that these employees had similar duties and were
compensated in the same manner.

These affidavits do not state

where the affiants worked.
An affidavit from Kellee B. Divine, a former promotions
producer at one of defendant’s Kansas City stations, sets forth
4

her job responsibilities which are in some ways different, but
which bear similarity to the duties of a news producer.
No. 37, Exhibit G.

Doc.

She states in the affidavit that she has

spoken to other promotions producers and that those employees
had similar duties and were compensated in the same manner.
According to her affidavit, she regularly worked more than 40
hours

a

week

in

the

job

of

promotions

producer.

This

is

consistent with the affidavit of Daniel English who stated that
he also worked as a promotions producer.
The
affidavit

substance
of

John

of
L.

these

affidavits

Gilmore,

Jr.

who

is

similar

worked

as

to
a

producer for an Atlanta station operated by defendant.

the

sports

Doc. No.

37, Exhibit I.
C.

Deposition testimony

Plaintiff

has

submitted

the

deposition

testimony

of

Ms.

Lora Koch, a human resources consultant in defendant’s corporate
headquarters.

Ms.

Koch

testified

that

defendant’s

corporate

office signed off on decisions regarding whether employees had
exempt status under the FLSA.1

1

In one of her depositions (Doc. No. 37-2), Ms. Koch testified that the
corporate compensation office generally entered on job descriptions whether
the job was exempt or non-exempt.
Pp.
19-20.
She stated that the
compensation department signed off on whether positions were exempt and that
questions about FLSA status were answered at that office. Pp. 26 & 30. She
also stated that the compensation department decided what FLSA exemption
would apply to a news producer position. P. 66.

5

D.

Job descriptions

Finally,

plaintiff

has

included

job

descriptions

for

various producer positions at a number of stations owned by
defendant.

Doc.

No.

37-10.

These

positions

include:

writer/producer; promotion producer; multimedia producer; news
producer;

creative

services

producer;

producer, and sports producer.

topical

promotion

The jobs obviously are not the

same, but each job involves creating and editing programming or
commercials for broadcast on television or other media, as well
as coordinating with other persons.
E.

Arguments for a narrower class certification

Defendant

argues

for

a

narrower

class

certification

restricted to defendant’s Kansas City television station and the
position

of

news

producer.

Defendant

contends

that

this

approach is more appropriate because plaintiff’s allegations do
not establish that the producers in plaintiff’s proposed class
would

be

similarly

situated.

According

to

defendant,

its

television stations are scattered across the country and each
station

manages

resources manager.
its

own

decides

job
how

scheduled.

its

own

through

its

own

human

Defendant asserts that each station creates

descriptions,
the

workforce

producers

recruits
are

its

own

classified,

producers,

and

compensated

and

These arguments are supported by statements made in

Ms. Koch’s deposition.
6

Defendant further argues that the affidavits submitted by
plaintiff

are

imprecise

and

rather

limited

in

scope.

The

affidavits do not come close to addressing all categories of
producers

or

all

of

defendant’s

television

stations.

The

affiants also did not identify the sources of their information
when

they

stated

that

they

spoke

with

other

producers

for

defendant.
F.

Analysis of arguments and authority

Mindful, of course, that plaintiff’s lenient burden at this
stage is to present substantial allegations that the putative
class members were together the victims of a single decision,
policy, or plan, the court finds that plaintiff has satisfied
that

standard.

autonomy
questions

and

Defendant’s
differences

which

are

in

better

arguments
job

regarding

local

responsibilities

suited

for

office

raise

determination

fact

at

the

second stage of analysis where the court may consider “several
factors, including (1) disparate factual and employment settings
of the individual plaintiffs; [and] (2) the various defenses
available to defendant which appear to be individual to each
plaintiff . . .”

Thiessen, 267 F.3d at 1103.

for

some

there

to

be

variation

Santiago

v.

in

members.

See

Amdocs,

(N.D.Cal.

12/19/2011)(conditionally

the

It is not unusual

duties

Inc.,

of

2011

certifying

the
WL

class

6372348

class

of

information technology employees from different “job families”
7

and who held different job “roles”); Renfro v. Spartan Computer
Services, Inc., 243 F.R.D. 431, 434 (D.Kan. 2007)(conditionally
certifying

a

class

of

field

technicians

and

installers

with

numerous job titles); Pivonka v. Bd. Of County Commissioners,
2005 WL 1799208 *4 (D.Kan. 7/27/2005)(conditionally certifying
class of paramedics, lieutenants and captains); Moss v. Crawford
& Co., 201 F.R.D. 398 (W.D.Pa. 2000)(denying de-certification of
class of monitors, adjusters, invoice reviewers and supervisors
for an insurance company).
In Holbrook v. Smith & Hawken, Ltd., 246 F.R.D. 103, 106
(D.Conn. 2007), the court certified a class of assistant store
managers in spite of an argument that the sheer number of stores
and store locations (60 stores in 23 states) made it impossible
to classify all assistant store managers as similarly situated.
The court held that:

“The court need not find uniformity in

each and every aspect of employment to determine a class of
employees are similarly situated.”

The Holbrook court cited

Scott v. Aetna Services, Inc., 210 F.R.D. 261, 264-65 (D.Conn.
2002) to support its holding.
computer
generally

systems

engineers

described.

The

In Scott, the class members were
whose
court,

job

functions

upon

a

were

motion

rather

for

de-

certification, held that while each systems engineer spent his
or her time on somewhat different assignments, this did not

8

refute

the

conclusion

that

the

job

duties

were

sufficiently

similar for class certification.
Here, there may be a lack of uniformity.

Indeed, some

producers may have been classified as non-exempt.

Nevertheless,

the court finds there are sufficient substantial allegations to
support a claim that defendant had a general policy or plan of
misclassifying producers as exempt employees.
Defendant contends that this court should follow the result
in Ruiz v. Serco, Inc., 2011 WL 7138732 (W.D.Wis. 8/5/2011)
where conditional certification was denied.

The court believes

the Ruiz decision can be distinguished upon its facts.
the

proposed

class

included

approximately

1,000

In Ruiz,
employees

working in 15 different positions under different supervisors
and in different locations around the country.

The proposed

class in this case does not appear to be as large, although it
does include different positions in different locations across
the country.

More importantly, the court in Ruiz found that the

evidence did not demonstrate that the primary duties of the
potential class members were substantially similar or that they
exercised similar levels of discretion and responsibility.
at *5.
the

Finally, the court found that individual managers made

exemption

decision

Id.

or

determinations

policy

to

and

classify

9

did
all

not

follow

employees

in

a
a

single
certain

category as exempt.

Id. at *7.

Here, there is evidence that

exemption decisions were made at the corporate office level.
Defendant

also

Exchange,

2011

position.

In

WL

cites

2981466

MacGregor,

MacGregor

however,

Farmers

7/22/2011)

(D.S.C.

v.

to

the

found

court

Insurance

support
that

its
the

plaintiffs did not allege a single or common policy or plan.
Instead, the plaintiffs alleged “a conglomeration of policies
and practices” stemming from individual supervisors’ decisions.
Id. at *3.
Finally, defendant makes extensive reference to two Kansas
cases:
WL

Braun v. Superior Industries International, Inc., 2010

3879498

(D.Kan.

9/28/2010)

and

Stubbs

Corporation, 227 F.R.D. 661 (D.Kan. 2004).

v.

McDonald’s

These cases are also

distinguishable from the allegations in this case.

In Braun,

the

from

court

limited

its

certification

to

employees

one

facility, though the company was operating or had operated five
facilities

in

four

different

states,

because

the

plaintiffs’

allegations indicated that “the alleged policy was implemented
by a handful of ‘rogue’ supervisors” at one facility.
*6.
second

Braun, at

In Stubbs, the plaintiff wished to certify a class of
assistant

and

first

assistant

managers.

But,

the

plaintiff provided only one affidavit from a second assistant
manager (the plaintiff) and no affidavits from first assistant
managers.

Moreover,

the

court
10

found

that

the

plaintiff’s

affidavit

could

only

speculate

regarding

single decision, policy or plan.
from

the

employer,

plaintiff’s
but

the

wife,

court

plaintiff’s allegations.

the

presence

of

a

There was a second affidavit

who

found

also

that

worked

it

added

for

the

little

same

to

the

The court finds that the allegations

in the case at bar provide significantly greater support for the
conditional

certification

motion

than

was

provided

by

the

movants in Braun and Stubbs.
On the basis of this analysis and authority the court shall
grant the requested conditional class certification.
II.

Objections to proposed notice
Several

issues

have

been

raised

regarding

the

plaintiff proposes be sent to putative class members.
first

objects

to

statements

such

as

“your

legal

affected” and that a choice must be made “now.”
not sustain this objection.

notice

Defendant
rights

are

The court will

The rights to participate in this

case are affected by making the decision as to whether to opt-in
to

the

case.

Defendant

also

objects

plaintiff for the proposed notice.

to

the

model

used

by

But, this general model

appears to have been used in another case in this district.
Allen v. Mill-Tel, Inc., Case No. 11-1143.

The court, however,

agrees with defendant that putative class members should not be
advised that by failing to opt-in they may be “jeopardizing your
right to sue.”
11

Next, defendant objects to any implication that the court
approved of the merits of the case which might be conveyed by
placing the court’s title as a heading to the notice.

The court

concurs with this objection as far as placing the court’s title
as a heading to the notice, but it is permissible to say that
the court authorized the sending of the notice.
Defendant objects that the notice fails to inform class
members that they might have to be deposed, testify or appear in
Kansas City, or that there is a possibility that they could be
responsible for costs.

The court sustains this objection.

See

Allen v. Mill-Tel, Inc., 2012 WL 2872160 *7 (D.Kan. 7/12/2012).
Defendant’s remaining objections regarding the deadline to
respond

to

participate

the

notice

in

the

and

class

the

date

action

defining

appear

to

eligibility
be

conceded

to
by

plaintiff.
Defendant has asked that the court direct that the parties
confer with each other following the issuance of this order in
an attempt to agree upon a proposed notice.

The court agrees

with this proposal.
III.

Objections to requested notice distribution procedures
Defendant objects to the request that defendant post the

notice

at

objection.

the

workplace.

The

court

shall

sustain

this

See Hadley v. Wintrust Mortg. Corp., 2011 WL 4600623

*4 (D.Kan. 10/3/2011); Wass v. NPT Int’l, Inc., 2011 WL 1118774
12

*12 (D.Kan. 3/28/2011).
that

defendant

be

Defendant also objects to the request

required

delivered to employees.
as well.

to

place

notices

with

paychecks

The court shall sustain this objection

It is reasonable to think that both of these proposed

measures are unnecessary.
The

court

plaintiff’s

shall

request

also

for

sustain

e-mail

defendant’s

addresses

and

objection

social

to

security

numbers of putative class members for the following reasons.
First,

defendant

states

that

personal e-mail addresses.
clear

that

this

it

does

not

collect

employees’

Second, at this time, it is not

information

is

necessary

for

plaintiff

contact the persons who need to receive the notice.

to

Without a

showing of necessity, the court denied a request for social
security numbers in Allen, supra at *8.

If, at a later time,

plaintiff wishes to approach the court on this matter again,
plaintiff may do so.
Additionally, the court shall deny defendant’s objection to
plaintiff’s request for phone numbers.
its

remaining

aspects,

the

request

See Hadley, supra.
for

electronic

and

In
hard

copies of employee information for all individuals who meet the
class description shall be granted.
IV.

Conclusion
Consistent with the court’s comments in this memorandum and

opinion,

the

court

shall

grant
13

in

part

and

deny

in

part

plaintiff’s motion for conditional certification.

Doc. 36.

The

court

class

the

shall

motion.

conditionally

Melissa

certify

Greenstein

the

shall

proposed

be

designated

in

as

class

representative and plaintiff’s counsel are approved to act as
class counsel.
Plaintiff’s request for approval of a proposed notice to
class members is denied consistent with this order.

The court

directs that counsel for both sides meet and confer within 14
days in an attempt to agree upon a proposed notice and consent
form.

If agreement is reached, the parties shall submit a joint

proposed
within

notice

14

and

days.

consent
If

the

form

to

parties

the
are

court

for

unable

to

approval
reach

an

agreement, then plaintiff shall file a motion within 7 days to
seek approval of a proposed form and defendant shall have 7 days
to respond to plaintiff’s motion.

Defendant may, if necessary,

submit an alternative proposed notice and consent form.
The court shall decline plaintiff’s request for an order
that

the

notice

transmitted

with

be

posted

paychecks.

at

the
The

workplace
court

shall

or

that

also

it

be

decline,

without prejudice, plaintiff’s request for production of email
addresses and social security numbers.

Otherwise, the request

for electronic and hard copies of employee information for all
individuals who meet the class description shall be granted.

14

IT IS SO ORDERED.
Dated this 23rd day of April, 2013, at Topeka, Kansas.

s/Julie A. Robinson
United States District Judge

15