Smith et al v. Manhattan Management Company, LLC et al
Filing
39
ORDER AND REASONS granting in part and denying in part 23 Motion to Certify Class, as stated herein; parties are directed to meet, confer, and thereafter submit to the Court a joint proposal of notice no later than twenty-one days of entry of the Court's order. Signed by Judge Ivan L.R. Lemelle on 7/6/2015. (blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DE IVORY SMITH, ET AL.
CIVIL ACTION
VERSUS
NO. 14-2623
MANHATTAN MANAGEMENT COMPANY, LLC, ET AL.
SECTION “B”(2)
ORDER AND REASONS
I.
NATURE OF MOTION AND RELIEF SOUGHT
Before the Court is Plaintiffs’ “Motion to Conditionally
Certify FLSA Collective Action and to Facilitate Notice under 29
U.S.C. § 216(b)” (Rec. Doc. 23), in which they seek conditional
certification of a class for purposes of asserting claims for
alleged
violations
by
Defendants
of
the
minimum
wage
and
overtime provisions of the Fair Labor Standards Act (“FLSA”).
Defendants
have
no
objection
to
certification
of
a
limited
conditional class, as to those putative class members who share
the same position as the named plaintiffs herein (after-hours
telephone dispatchers); however, Defendants object to the class
as currently defined by Plaintiffs in their motion and further
object
to
Plaintiffs’
proposed
notice
plan.
(Rec.
Doc.
30).
Plaintiffs have filed a Reply in which they argue the addition
of a new opt-in Plaintiff and the Court’s discretion to divide
any
conditionally
Defendants’
certified
objections
to
class
into
certification.
1
subclasses
(Rec.
Doc.
moot
35).
Defendants filed a Sur-reply disputing relevance and timeliness
of the recently added potential opt-in plaintiff and her consent
form, as well as challenging the propriety of the use of subclassification in the present case. (Rec. Doc. 38). For the
reasons that follow, IT IS ORDERED THAT Plaintiffs’ Motion (Rec.
Doc. 23) is GRANTED IN PART, and DENIED IN PART, as set forth
fully below.
II. FACTS AND PROCEDURAL HISTORY
Plaintiffs De Ivory Smith and Marlie Trujillo resided and
worked as after-hours telephone dispatchers at the Forest Isles
Apartment Complex owned and operated by Defendants, Manhattan
Management Co., LLC and Berk-Cohen Associates, LLC, in Algiers,
Louisiana.
(Rec.
Doc.
generally
required
to
1).
In
field
that
service
capacity,
calls
Plaintiffs
from
Forest
were
Isles
tenants, route those calls to appropriate service technicians,
and maintain various records of the calls. (Rec. Doc. 23-1 at
5). Plaintiffs were paid a flat rate of pay for each night or
weekend shift they worked in the form of a “rent credit” of $20
per weeknight shift and $40 per weekend shift.
(Rec. Doc. 13-1
at 2). Alleging that this arrangement violated both the minimum
wage and overtime requirements of the FLSA, 29 U.S.C. §§ 201, et
seq., Plaintiffs filed their Complaint in the instant action on
November 17, 2014. (Rec. Doc. 1). In their Complaint, Plaintiffs
additionally
allege
that
other
2
resident
employees
of
Forest
Isles,
who
worked
variously
as
“after-hours
and
weekend
dispatchers, life guards and security personnel,” were subjected
to similar arrangements in violation of the provisions of the
FLSA. (Rec. Doc. 23-1 at 5).1
On April 1, 2015, Defendants filed their Answer (Rec. Doc.
12) and immediately moved for summary judgment (Rec. Doc. 31),
arguing
Plaintiffs’
allegations
failed
to
establish
a
valid
cause of action, in light of the “waiting to be engaged” and
“homeworkers’” exceptions to the otherwise mandatory provisions
of the FLSA. (See Rec. Doc. 31). The Court denied that motion on
May
4,
2015,
finding
issues
of
fact
sufficient
to
prevent
Defendants’ entitlement to judgment as a matter of law. (Rec.
Doc. 27).
Plaintiffs
now
move
for
conditional
certification
of
a
class for purposes of bringing a collective action under 29
U.S.C. § 216(b). The putative class is defined as:
Individuals who, since November 2011,
previously worked or currently work for
Defendants, Manhattan Management Co., LLC
and
Berk-Cohen
Associates,
LLC
(“Defendants”)
as
apartment
dispatchers,
life guards and/or security personnel known
as “Unit 10” while they reside or resided on
Defendants’ premises and were compensated
with “rent credits” but, through Defendants’
1
On June 1, 2015, Plaintiffs filed with the Court a “Notice of Consent to
Join FLSA Collective Action” by Rachelle Lee. (Rec. Doc. 29). Plaintiffs
attached a declaration executed by the same individual to their reply in
support of the instant motion indicating that she worked in the capacities of
both after-hours security guard and pool monitor for Defendants. (Rec. Doc.
35-1).
3
use of “rent credits” to compensate them,
were not properly paid overtime and/or
minimum wage as mandated by the FLSA.
(Rec. Doc. 23 at 1-2).
In addition to the above, Plaintiffs request that the Court
exercise its discretion to facilitate notice to potential class
members
by
approving
Plaintiffs’
proposed
notice
plan,
which
would require that: (1) Defendants produce a database of names,
last-known
mailing
addresses,
telephone
numbers,
and
social
security numbers of potential class members within 14 days; (2)
Defendants post a copy of a bulletin notice in their workplace
in an area readily visible to all employees; (3) potential class
members submit consent forms to Plaintiffs’ counsel within 120
days
after the date on which the notice is mailed; and (4) that
Defendants’ counsel file consent forms with the Court on an
ongoing basis and no later than two weeks after conclusion of
the 120-day notice period. (Rec. Doc. 23-1 at 16).
III. CONTENTIONS OF MOVANT
Plaintiffs
establishing
argue
that
they
they
and
have
the
satisfied
potential
their
class
burden
members
of
are
“similarly situated” for purposes of the first step of the twostep Lusardi class certification process generally applied by
district courts in the Fifth Circuit in the context of FLSA
collective actions. (Rec. Doc. 23-1 at 10).
At this stage,
Plaintiffs need only make a preliminary showing that potential
4
opt-in plaintiffs and the named plaintiffs were subject to a
single
decision,
policy,
or
plan
and
shared
similar
job
requirements and pay provisions. (Rec. Doc. 23-1 at 9, 10).
According
to
Plaintiffs,
their
declarations
submitted
in
connection with the instant motion show Defendants maintained
common scheduling and compensation policies applicable to the
named Plaintiffs and members of the putative class, including:
(1) flat rates of pay, (2) failure to pay the federally-mandated
minimum wage, (3) failure to pay overtime for hours worked in
excess of 40 per week, (4) failure to keep accurate records of
the hours worked by Plaintiffs, and (5) misleading Plaintiffs
and potential class members about the law regarding minimum wage
and
overtime
pay.
(Rec.
Doc.
23-1
at
12).
Accordingly,
Plaintiffs request that the Court approve their proposed notice
plan, arguing it is similar to plans previously approved by
other courts within the Fifth Circuit.
IV. CONTENTIONS OF OPPONENTS
Defendants begin by noting they do not oppose conditional
certification of a class composed of individuals who held the
same
position
as
the
named
Plaintiffs;
viz.,
after-hours
telephone dispatchers. (Rec. Doc. 30 at 1). As to the other
members of the proposed class as currently defined by Plaintiffs
(to
include
Unit
10/property
monitors
and
pool
monitors),
Defendants argue these individuals are not “similarly situated”
5
for
purposes
of
the
collective
action
certification
rules
applicable under the FLSA. (Rec. Doc. 30 at 1). Defendants argue
dissimilarity in job duties and compensation schemes is fatal to
conditional certification under applicable case law within the
Fifth
Circuit.
manner
were
the
Because
named
similar
to
Plaintiffs
fail
telephone-dispatcher
those
of
Unit
to
establish
Plaintiffs’
10/property
in
job
monitors
what
duties
or
pool
monitors, Defendants argue the Court should not certify a class
defined
to
outline
the
include
these
different
individuals.
compensation
Further,
schemes
Defendants
applicable
to
the
respective positions to argue against certification.
Defendants also object to certain features of Plaintiffs’
proposed notice plan, including the requirement that Defendants
produce
telephone
and
social
security
numbers
for
potential
class members as well as various production and filing deadlines
outlined therein. Defendants propose that the Court require the
parties to meet and confer for purposes of confecting a jointly
agreed class definition and notice plan.
In
their
Reply,
Plaintiffs
argue
they
have
shown
that
individuals performing the various job duties included in the
proposed class were subject to a common decision, policy, or
plan; namely, the rent-credit payment scheme which deprived them
of overtime and minimum wage payments. Plaintiffs further argue
the
Court’s
discretion
to
divide
6
the
conditional
class
into
subclasses where appropriate compels in favor of certification.
Finally, Plaintiffs note Defendants have already been sued for
similar alleged FLSA violations by Forest Isles office workers.
Defendants’
objection
litigation
prompted
to
adding
the
filing
the
instant
of
this
claims
suit,
to
which
that
was
transferred to this section of Court in light of the related
pending suit. Plaintiffs argue failure to certify the class as
presently defined would merely lead to the filing of additional
lawsuits
on
behalf
of
individuals
who
held
the
positions
discussed above, which would be transferred to this section for
treatment
in
a
manner
contrary
to
principles
of
judicial
economy.
V. CONDITIONAL CERTIFICATION STANDARD
A. 29 U.S.C.
Action
§
216(b)
–
Right
to
Proceed
by
Collective
Section 16(b) of the FLSA prescribes damages and defines
the right of action for employees against their employers for
violations of the overtime and minimum wage provisions of the
Act. 29 U.S.C. § 216(b). Relevant for present purposes, that
section includes a collective action provision under which a
person may maintain an action: “on behalf of himself . . . and
other employees similarly situated. No employee shall be a party
plaintiff to any such action unless he gives his consent in
7
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).
B. Certification Procedure
Certification
of
a
FLSA
collective
action
typically
proceeds under a two-step process, sometimes referred to as the
“Lusardi approach.” See, e.g., Mooney v. Aramco Servs. Co., 54
F.3d 1207, 1214 (5th Cir. 1995), overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156
L.Ed.2d 84 (2003). Although the Fifth Circuit has refused to
endorse either of the two existing methods of FLSA collective
action certification, Lusardi is the prevailing approach. See
Xavier
v. Belfor USA Group, Inc., 585 F. Supp. 2d 873 (E.D. La.
Sep. 23, 2008)(“[I]t is clear that the two-step ad hoc [Lusardi]
approach is the preferred . . . .”); Green v. Plantation of
Louisiana, LLC, No. 10-0364, 2010 WL 5256354, at *4-5 (W.D. La.
Nov.
24,
2010)(“This
method
is
consistent
with
the
Fifth
Circuit’s conclusion in LaChapelle v. Owens-Illinois, Inc. that
‘[t]here is a fundamental, irreconcilable difference between the
class action described by [FRCP] Rule 23 and that provided for
by FLSA § 16(b) . . . .”); THE FAIR LABOR STANDARDS ACT § 19-15 (Ellen
C. Kearns, et al. eds., 2d ed. 2010)[hereinafter, Kearns].
At the first stage, referred to as the
“notice
stage”
or
“conditional
certification” stage, the trial court makes
the determination whether notice of the
action should be given to potential opt-in
8
plaintiffs and whether the case should
initially proceed as a collective action.
If conditional certification is granted, the
action then proceeds as a representative
action throughout discovery.
At the second stage, the court makes
the determination of whether the case should
continue to be certified as a collective
action
for
trial.
The
second-stage
determination
is
usually
based
on
the
employer’s motion filed at or near the end
of discovery requesting that the court
decertify the case as a collective action.
Kearns, supra, at §19-17, 19-18; see also, Green, supra, at *5.
The fundamental inquiry at both stages is whether the named
plaintiffs and members of the potential FLSA collective class
are “similarly situated” for purposes of Section 16(b). Id.
C. Notice Stage
At
the
“fairly
notice
lenient
stage,
standard.”
district
Mooney,
courts
54
typically
F.3d
at
apply
1214.
a
This
requires plaintiffs to make “a modest factual showing that the
putative class members were together the victims of a single
decision,
policy,
practice,
or
plan
that
violated
the
law.”
Kearns, supra, at §§ 19-20, 19-21 (citing, inter alia, Ryan v.
Staff Care, Inc., 497 F. Supp. 2d 820, 825 (N.D. Tex. 2007);
Villatoro v. Kim Son Rest., L.P., 286 F. Supp. 2d 807, 810 (S.D.
Tex.
2003)).
The
Court
decides,
“usually
based
only
on
the
pleadings and any affidavits which have been submitted,” whether
9
notice of the action should be given to potential class members.
Green, supra, at *5 (citing Mooney, 54 F.3d at 1213).
Section
16(b)
does
not
define
the
term
“similarly
situated.” Thus, “[w]hether employees are ‘similarly situated’
for purposes of the FLSA is determined in reference to various
factors,
including
their
‘job
requirements
and
.
.
.
pay
provisions.’” Xavier, 585 F. Supp. 2d at 877 (citing Lima v.
Int’l Catastrophe Solutions, Inc., 493 F. Supp. 2d 793, 798
(E.D. La. 2007)). Such a determination is appropriate when there
is “a demonstrated similarity among the individual situations .
. . some factual nexus that binds the named plaintiffs and the
potential
class
members
together
as
victims
of
a
particular
alleged policy or practice.” Id. at 877-78 (internal citations
and quotation marks omitted). A plaintiff’s right to proceed
collectively
action
under
relates
plaintiff
to
rather
practice.”
Id.
the
FLSA
may
specific
than
(citing
any
be
foreclosed
circumstances
generally
Crain
v.
only
personal
applicable
Helmerich
and
if
“the
to
the
policy
Payne
or
Int’l
Drilling Co., No. 92-0043, 1992 WL 91946 (E.D. La. Apr. 16,
1992)).
Finally,
in
determining
whether
to
grant
conditional
certification at the notice stage, courts must be conscious of
their duty to “refrain from stirring up unwarranted litigation.”
Xavier,
585
F.
Supp.
2d
at
878
10
(citing
Lentz
v.
Spanky’s
Restaurant II, Inc., 491 F. Supp. 2d 663, 668-69 (N.D. Tex.
2007)). Employers should not be unduly burdened by a frivolous
fishing
expedition
defendants’
conducted
expense.
by
585
Xavier,
the
plaintiffs
F.
Supp.
at
2d
the
at
878.
Nevertheless, “a collective action can be an effective mechanism
for resolving common issues in one consolidated action.” Green,
supra,
at
(1989)).
*6
(citing
Accordingly,
efficiency
of
Hoffman-La
courts
aggregating
Roche,
must
claims
493
“strive
in
one
U.S.
170
balance
the
against
to
165,
the
action
expense and inconvenience of frivolous litigation.” Id. (citing
Sims v. Housing Auth. City of El Paso, 2010 WL 2900429, *2 (W.D
Tex. 2010)).
VI. DISCUSSION
A. Conditional Certification
As
noted
above,
Defendants
concede
that
conditional
certification is appropriate here as to those members of the
potential
class
dispatcher
Accordingly,
who
held
position
the
as
only
the
same
Plaintiffs
remaining
after-hours
Smith
certification
telephone
and
Trujillo.
issue
for
the
Court is whether, as Defendants contend, alleged dissimilarities
in the job duties and compensation schemes applicable to Unit
10/property
plaintiffs
monitors
preclude
and
pool
conditional
monitors
vis-à-vis
certification
as
the
named
to
those
members of the potential class. Plaintiffs counter that, under
11
Defendants’ asserted standards, certification would effectively
only be granted where potential class members held positions
identical
to
the
named
plaintiffs’,
an
approach
inconsistent
with Section 16(b)’s “similarly situated” standard. They further
argue they have made a sufficient showing of a common policy,
plan, or decision, applicable to the entire potential class, so
as to warrant certification.
B. Plaintiffs’ Proposed Class
The class proposed by Plaintiffs is effectively composed of
individuals
holding
dispatchers,
(2)
three
Unit
job
positions:
10/property
(1)
monitors,
telephone
(3)
and
pool
monitors. In their opposition to Plaintiffs’ motion, Defendants
set forth the job descriptions for each of these groups and
argue
that
the
conditional
that
differences
certification
after-hours
in
their
responsibilities
inappropriate.
telephone
dispatchers
The
and
record
Unit
render
reflects
10/property
monitors were paid under a flat-rate scheme that did not account
for
hourly
wages.
On
the
other
hand,
Defendants
submitted
evidence that pool monitors were paid an hourly wage. (See Rec.
Doc. 30-1 at 2)(Declaration of Stephen Enslow, Forest Isle Asset
and
Property
declaration
Manager).
of
This
potential
evidence
opt-in
is
consistent
plaintiff
with
the
Rachelle
Lee,
who
confirmed that she was paid an hourly wage for her work as a
pool
monitor,
although
she
claims
12
to
have
never
received
overtime payments to which she was entitled. (See Rec. Doc. 35-1
at 1)(Declaration of Rachelle Lee). For reasons explained more
fully below, this difference in compensation schemes is material
and
warrants
limiting
the
proposed
class
definition
in
this
case.
In
support
of
their
position
against
conditional
certification, Defendants cite a number of cases, which they
contend
demonstrate
that
dissimilarity
in
job
duties
and
compensation schemes precludes conditional certification at the
notice stage. Because we find the precedent relied upon to be
informative,
though
distinguishable
as
to
members
of
the
proposed class who held the positions of telephone dispatchers
and Unit 10/property monitors, we visit those cases in turn.2
i.
Green
In Green v. Plantation of Louisiana, LLC, No. 10-0364, 2010
WL
5256354
(W.D.
La.
Nov.
24,
2010),
the
plaintiffs
sought
conditional certification of a class composed of former exotic
dancers, waitresses, shot girls, door girls, bar tenders, and
bouncers at the defendant establishment. The plaintiffs alleged
generally that the defendant had violated the minimum wage and
overtime wage provisions of the FLSA. Id. at *1. While the Green
2
Rulings
on
conditional
certification
are
typically
interlocutory,
accordingly there is a relative dearth of circuit-level precedent on many of
the issues confronted in reaching such a decision. As such, much of the
relevant precedent on these issues has developed through the district courts.
Citations herein are therefore often to district court opinions.
13
court engaged in a thorough and detailed discussion of the legal
standards applicable to a FLSA collective action certification
decision, a number of items render that court’s ultimate ruling
against certification inapposite here.
First,
supporting
the
court
evidence
indication
that
reviewed
submitted
the
the
to
various
conclude
allegedly
affidavits
that
unlawful
there
and
was
policies
no
were
systematically implemented as to all employees. Id. at *6. That
is to say, two employees who nominally held the same position
(e.g., two waitresses) may have been compensated on an hourly
wage
or
wage-and-tips
tellingly,
the
evidence
basis,
respectively.
submitted
by
the
See
id.
plaintiffs
(“Most
suggests
that employees within a particular class were not compensated
alike.”) Second, there was no consensus among the parties, or
even among the potential plaintiffs, as to how to divide the
potential class into subclasses, an alternative that had been
advocated by the named plaintiffs. Id. at *9. Accordingly, the
Court was compelled to conclude that there was no factual nexus
binding
the
plaintiffs’
claims
together,
and
that
“the
only
similarity between the plaintiffs appear[ed] to be that they all
worked
for
the
[defendant]
and
that
they
all
claim[ed]
violations of the FLSA.” Green, supra, at *7.
Notably,
and
relevant
for
present
purposes,
the
Court
distinguished authority relied upon by the plaintiffs to argue
14
in
favor
of
sub-classification
among
the
various
positions
included in the proposed class. Id. at *8. In the cited case,
Realite
v.
Ark
Restaurants
Corp.,
7
F.
Supp.
2d
303,
306
(S.D.N.Y. 1998), the class of plaintiffs held various positions
at the defendant’s restaurants: waiters, porters, dishwashers,
cooks,
etc.
The
plaintiffs
in
Realite
complained
that
each
member was purportedly paid at a fixed weekly rate, regardless
of the number of hours actually worked, and in accordance with
the defendant’s challenged uniform fixed rate policy, which was
allegedly
implemented
to
avoid
payment
of
minimum
wages
and
overtime. Realite, at 304, 307. As the Green court put it: “The
defendant’s uniform payment of the fixed weekly rate to all
class
members
was
collectively,”
certification.
Green
and
Green,
complained
of
thus
the
at
the
common
Realite
*8.
disparate
By
court
issue
granted
contrast,
and
to
the
be
tried
conditional
plaintiffs
inconsistently
in
implemented
policies that were not homogenous and did not lend themselves to
collective inquiry. Id at *9. As set forth more fully below, the
claims of the potential telephone monitor and Unit 10/property
monitor classes in the instant matter are more analogous to
those in Realite than in Green, a conclusion that weighs in
favor of conditional certification.
ii.
Harris
15
In Harris v. Fee Transp. Servs, Inc., No. 05-77, 2006 WL
19944586,
at
*1
(N.D.
Tex.
May
15,
2006),
the
court
denied
certification to a potential class composed of customer service
representatives,
account
managers,
billing
clerks,
driver
associates, driver managers, and fleet managers who worked for
the defendants.
due
to
As a preliminary matter, it must be noted that
substantial
prior
discovery,
the
Court
analyzed
the
certification issue under the heightened “stage two” standard.
Id. at *4. Accordingly, the Court focused on the prospect of
individualized
claims
and
defenses
of
the
parties;
considerations not properly before the court at a “stage one”
inquiry.
See
Kearns,
supra,
at
§
19-41
(“Employers
commonly
argue that the employees’ claims or that the employer’s defenses
are
too
individualized
for
conditional
certification.
Courts
generally do not deny conditional certification at the notice
stage based on such allegations and instead hold that these
issues are better raised in a motion to decertify a class after
discovery has been conducted.”) Although the Harris court noted
that it would have ruled against certification even under the
more lenient “stage one” standard, there are further reasons for
distinguishing that case. See Harris, supra, at *4.
Much as in Green, supra, the evidence reviewed by the Court
(which,
it
bears
repeating,
was
substantially
more
developed
than that presently before this Court), indicated a lack of
16
uniformity in the job duties and policies applicable even as
between
individuals
Harris,
“some
of
sharing
the
the
class
same
nominal
members
position.
challenge[ed]
In
their
classification as exempt, while other plaintiffs [were] already
classified as non-exempt and [appeared] to allege that their
hours were not properly recorded.” Harris, 2006 WL 1994586, at *
3.
Because
again
the
issue
in
Harris
related
to
a
lack
of
uniformity of job duties as well as application of employer
policy among the employees holding a particular position, that
case is distinguishable at present where there appear to be no
similar
issues
of
internal
uniformity
among
the
positions
contained in the potential class as presently defined.
iii. Xavier
In Xavier v. Belfor USA Group, Inc., 585 F. Supp. 2d 873
(E.D.
La.
2008),
plaintiffs
and
classified
as
the
issue
potential
“exempt”
again
class
under
related
members
the
FLSA.
to
claims
that
had
been
improperly
In
that
case,
the
potential class was composed of all subcontractors who performed
labor for the defendant at any time in the prior three years and
did not receive overtime compensation. Xavier, 585 F. Supp. 2d
873. Again, the Xavier court was considering a far more complete
evidentiary record, which had developed over the course of a
previously denied motion for class certification under Fed. R.
Civ. P. 23 and various rounds of pleading amendment. See id. at
17
875. The plaintiffs therein argued the defendant structured its
employment
relationships
through
sham
subcontracting
arrangements so as to deprive individuals who were effectively
its
employees
contractors.
particular
of
Id.
policy
violations
‘nationwide’
on
overtime
treating
at
878-79.
The
or
decision
of
behalf
who
by
of
performed
them
plaintiffs
the
as
pointed
defendant,
“all
persons
manual
labor
independent
and
similarly
on
[the
to
no
alleged
situated
defendant’s]
projects at any time within three years prior to the filing of
the
initial
complaint
and
who
did
not
receive
overtime
compensation.” Xavier, 585 F. Supp. 2d at 875. In addition to
concluding that the plaintiffs had failed to point to any policy
or decision of the defendant employer, the court noted:
While
the
named
plaintiffs
and
potential opt-in plaintiffs may all have
been
denied
overtime
payments,
the
similarity ends there. The action taken by
each of the subcontractors at each Belfor
job site would have to be reviewed and
individually analyzed to determine, inter
alia, whether a violation occurred and
whether Belfor would be liable for such a
violation. During the time period at issue,
Belfor utilized 2100 subcontractors in at
least forty-four states at different job
sites. . . . Each subcontractor had a
different business relationship with Belfor.
. . . Belfor has shown that the specific
circumstances of each worker is personal to
his or her job experience with each of the
subcontractors. As stated supra, the named
plaintiffs
have
not
shown
that
their
circumstances
and
experiences
with
the
payroll
practices
of
the
specific
18
subcontractor were similar to the payroll
practices of the remaining workers who
worked for those 2100 or so subcontractors
who contracted with Belfor. There is simply
no evidence of a generally applicable policy
or practice and the individual circumstances
of each worker is too particularized to
warrant collective certification nationwide.
. . .
The Court cannot make such a certification
based upon the showing made and given that
the facts of this case would require too
particularized
and
individualized
an
analysis of each worker’s situation. The
claims of plaintiffs are better tried as
individual cases based upon the conditions
at
each
different
job
site
or
by
subcontractor.
Xavier, 585 F. Supp. 2d at 880. Accordingly, in addition to the
failure
to
identify
a
single
policy
or
decision
of
the
defendant, the sheer numerosity and geographic breadth of the
proposed class cut against the ability to efficiently handle the
various
also,
plaintiffs’
Kearns,
claims
supra,
at
§
through
collective
19-37(“[C]ourts
treatment.
have
limited
See
the
geographic scope of the notice in cases where plaintiffs have
failed to allege or provide sufficient supporting affidavits or
other evidence of similar violations outside of the geographic
location in which the plaintiffs were employed.”). The lack of
similar
issues
here,
where
the
proposed
class
consists
of
current or former employees of a single apartment complex, and
which relate to alleged FLSA violations stemming from fixed-rate
compensation schemes, distinguishes Xavier and weighs in favor
19
of conditional certification under the relatively lenient stageone standard.
C. Application
As the foregoing reveals, conditional certification is not
warranted
where
collective
treatment
would
be
impractical
because individualized issues, personal to the various potential
opt-in
plaintiffs,
predominate.
This
is
most
frequently
seen
where there is evidence of inconsistent treatment or application
of job duties and compensation schemes among individuals holding
the same nominal position. See Green and Harris, supra. Stage
one certification is further unwarranted where the sheer breadth
of the potential class and the failure to identify a single
policy of the employer frustrates collective treatment, as in
Xavier,
supra.
Where,
however,
the
plaintiffs
have
made
a
preliminary showing of a common policy, and nothing indicates
inconsistency
in
treatment
among
individuals
holding
a
particular job position, such that “a collective action would
promote
judicial
economy
because
there
is
otherwise
an
identifiable factual or legal nexus,” conditional certification
should be granted. See Russell v. Illinois Bell Tel. Co., Inc.,
721 F. Supp. 2d 804, 814 (N.D. Ill. Jun. 28, 2010).
Here, the named Plaintiffs complain that a fixed-rate rent
credit
program
implemented
by
Defendants,
and
applicable
to
after-hours telephone dispatcher and Unit 10/property monitor
20
employees, operated to deprive them of minimum wage and overtime
payments due under the FLSA. While the proposed class consists
of members holding three different positions, those positions
are readily identifiable and there has been no evidence that the
members
of
personnel,
each
and
group:
pool
telephone
monitors
were
dispatchers,
subject
to
security
internally
inconsistent job duties or employment policies. Plaintiffs have
further satisfied, at least preliminarily, their duty to show
the likelihood that other individuals exist who would have an
interest in joining the collective action. See, e.g., Simmons v.
T-Mobile USA, Inc. (S.D. Tex. Jan. 24, 2007)(“[A] showing is
necessary that at least a few similarly situated individuals
seek to join the lawsuit . . . .”).
Nevertheless, as to the potential pool-monitor plaintiffs,
the
differences
inherent
in
their
compensation
scheme,
which
evidence presented by both sides indicates was structured based
on an hourly rate of pay, is too attenuated from the other
potential plaintiffs’ claims pertaining to fixed-rate payments.
(Rec. Doc. 35-1 at 1). This suggests that issues particular to
the pool monitor plaintiffs would predominate in a manner not
appropriate for treatment as a collective action together with
the other plaintiffs’ claims, and the conditional class must be
limited to exclude these individuals.
21
Plaintiffs’
dispatchers
and
allegations
Unit
concerning
the
monitors,
however,
10/property
telephone
are
more
analogous to those at issue in Realite, supra, where conditional
certification was granted, than in Green, where it was denied.
While the potential plaintiffs hold or held different positions,
they all effectively complain that a similar policy operated to
deprive them of compensation to which they were entitled under
the FLSA. While there may be some differences among their job
duties, there is, at least as of yet, no indication that the
challenged policies were not uniformly implemented as between
each position. See, e.g., Walker v. Honghua America, LLC, 870 F.
Supp.
2d
462,
470
(granting
conditional
certification
when
evidence suggested Crane Operators and Roughneck/Riggers were
similarly situated within their respective groups and complained
of
a
similar
particular
jobs
overtime
duties);
policy,
although
Aguilar
v.
differing
Complete
in
their
Landsculpture,
Inc., No. 04-0776, 2004 WL 2293842, at *4 (N.D. Tex. Oct. 7,
2004)(finding conditional certification proper despite foremen
and laborers having somewhat different duties and rates of pay,
“where they all complain[ed] of the same ‘block rate’ scheme
that applied to them similarly.”); Donohue v. Francis Servs.,
Inc., No. 04-170, 2004 WL 1161366, at *2 (E.D. La. May 24,
2004)(“Whether
at
the
notice
stage
or
on
later
review,
collective action certification is not precluded by the fact
22
that the putative plaintiffs performed various jobs in differing
departments
sufficient
treatment
and
locations.”).
nexus
at
of
this
fact
and
Thus,
law
preliminary
the
as
notice
to
claims
share
warrant
stage.
a
collective
Should
it
prove
through discovery that individualized and purely personal issues
predominate, Defendants may then move for de-certification, so
as to trigger a closer review of the claims at issue, and/or a
limiting of the certified class as appropriate.
Finally,
as
Plaintiffs
accurately
note,
denial
of
conditional certification here would likely merely prompt the
filing of additional suits on behalf of each of the foregoing
groups;
a
result
economy
where
the
inconsistent
defendants
with
and
principles
subject
of
judicial
policies
would
otherwise overlap, and for which the FLSA collective action is
designed to promote efficient resolution.
In light of the foregoing, IT IS ORDERED THAT Plaintiffs’
Motion is GRANTED, IN PART, so as to conditionally certify a
class
composed
of
telephone
dispatchers
and
Unit
10/property
monitors, as defined therein, while excising the pool monitors.
As to Plaintiffs’ proposed notice plan, the issues raised
by Defendants ought properly to be resolved by common agreement
of
the
Motion
parties.
is
Accordingly,
DENIED,
IN
PART,
IT
IS
ORDERED
as
to
that
THAT
portion
Plaintiffs’
requesting
approval of the notice plan proposed therein. However, IT IS
23
FURTHER ORDERED that the parties are directed to meet, confer,
and thereafter submit to the Court a joint proposal of notice no
later than twenty-one days of entry of the Court’s order. In
connection with that same endeavor, the parties shall work to
agree on a proposed class definition consistent with the Court’s
statements
above,
which
includes
the
potential
telephone
dispatcher and Unit 10/property monitor plaintiffs. Issues of
sub-classification shall be addressed in connection with same.
New Orleans, Louisiana, this 6th day of July, 2015.
____________________________
UNITED STATES DISTRICT JUDGE
24
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