Bouthner et al v. Cleveland Construction Inc. et al
Filing
132
MEMORANDUM OPINION. Signed by Judge Richard D Bennett on 3/5/12. (dass, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EUGENE V. BOUTHNER, JR., ET AL.
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PLAINTIFFS,
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V.
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CLEVELAND CONSTRUCTION, INC.,
ET AL.
CIVIL ACTION NO.: RDB-11-0244
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DEFENDANTS.
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MEMORANDUM OPINION
Plaintiffs Eugene V. Bouthner, Jr., Paul J. Isom and Jose M. Mancia (collectively,
“Plaintiffs”) bring this action on behalf of themselves and other similarly situated employees
and/or former employees against Defendants Cleveland Construction, Inc. (“CCI”),
Servicemax, Inc., Kurt Antonio Boyd, Margaret Sherman Boyd, FAS Consultants, LLC
(“FAS”), David R. Trent, Chesapeake Firestop Products, Inc. (“Chesapeake”), and Clifford
B. Smith (collectively, “Defendants”). The Plaintiffs are hourly wage earners who worked
for Defendants on construction projects located at the National Naval Medical Center in
Bethesda, Maryland, and the Johns Hopkins Hospital in Baltimore, Maryland. In Count I,
Plaintiffs allege that they were misclassified as independent contractors in violation of the
Maryland Workplace Fraud Act, MD. CODE ANN., LAB. & EMPL., § 3-901, et seq. In Count
II, Plaintiffs claim that they were not paid minimum wage and overtime pay in violation of
the Maryland Wage and Hour Law, MD. CODE ANN., LAB. & EMPL., § 3-401, et seq. In
Count III, Plaintiffs assert that they were not paid their full measure of wages for all time
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worked in violation of the Maryland Wage Payment and Collection Law, MD. CODE ANN.,
LAB. & EMPL., § 3-501, et seq. In Count IV, Plaintiffs contend in the alternative that
Defendants had a contractual and equitable obligation to compensate them for their unpaid
wages and overtime, and therefore are liable in quantum meruit. In Count V, Plaintiffs argue
that Defendants failed to pay them regular and overtime wages in violation of the Fair Labor
Standards Act of 1938, 29 U.S.C. § 201, et seq.
The original complaint was filed in the Circuit Court for Baltimore City, Maryland on
November 18, 2010. Defendants removed the case to this Court on January 28, 2011,
pursuant to 28 U.S.C. §§ 1332 and 1441, as amended by the Class Action Fairness Act of
2005, 28 U.S.C. § 1453. On February 16, 2011, the Plaintiffs filed a Second Amended
Complaint in order to include their overtime claim under the Fair Labor Standards Act
(“FLSA”). On February 28, 2011, Defendant CCI filed a motion to partially dismiss the
Plaintiffs‟ Second Amended Complaint on the grounds that some of the Plaintiffs‟ claims
were precluded by the federal enclave doctrine, and that the Plaintiffs‟ claim for quantum
meruit was preempted by the FLSA. The other Defendants filed separate but similar
motions to partially dismiss the Second Amended Complaint. On July 21, 2011, this Court
granted the Defendants‟ motions for partial dismissal. See Bouthner v. Cleveland Constr., Inc.,
No. RDB-11-0244, 2011 WL 2976868 (D. Md. Jul. 21, 2011).
As a result of this Court‟s prior ruling, the following claims remain: (1) Plaintiffs‟ state
law claims in Counts II and IV as they pertain to the work done on Johns Hopkins by all
Defendants, (2) Plaintiffs‟ state law claims in Counts I (Maryland Workplace Fraud Act) and
III (Maryland Wage Payment and Collection Law) as they pertain to the work done on Johns
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Hopkins Hospital by the Corporate Defendants—Cleveland Construction, Inc., Servicemax,
Inc., FAS Consultants, LLC, and Chesapeake Firestop Products, Inc., and (3) Plaintiffs‟
federal claims in Count V (Fair Labor Standards Act) as to all Defendants.
Presently pending is Plaintiffs‟ Motion to Allow Notice to Similarly Situated
Employees and to Approve Interrogatory to Defendants Seeking the Identity of Similarly
Situated Employees.
Pls.‟ Mot., ECF No. 50.
Plaintiffs‟ motion seeks conditional
certification, pursuant to § 216(b) of the FLSA,1 of a class of current and former employees
of the multiple Defendants who were allegedly denied overtime compensation by the various
Defendants. This Court has reviewed the record, as well as the pleadings and exhibits, and
finds that no hearing is necessary. See Local Rule 105.6 (D. Md. 2011). For the reasons that
follow, Plaintiffs‟ motion for conditional class certification (ECF No. 50) is DENIED.
Moreover, the Plaintiffs‟ Motion to Toll the Statute of Limitations for Claims Asserting
Violations of the Fair Labor Standards Act (ECF No. 104) is DENIED as MOOT;
Defendants FAS and David Trent‟s Motion to Strike (ECF No. 115) is DENIED as
MOOT; and Defendant CCI‟s Consent Motion for Leave to File Sur-Reply (ECF No. 120)
is GRANTED.
BACKGROUND
Defendant Cleveland Construction, Inc. is a general construction contractor that
performed various construction services at the two construction sites at issue in this
1
As will be discussed infra, collective action lawsuits brought pursuant to the Fair Labor Standards
Act differ from the more common class action suits brought under Rule 23 of the Federal Rules of
Civil Procedure. Notwithstanding the differences, collective actions do “behave in many ways like
Rule 23 class actions.” 7B Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and
Procedure § 1807 (3d ed. 2005).
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litigation—the National Naval Medical Center (“NNMC”) in Bethesda, Maryland, and the
Johns Hopkins Hospital (“Hopkins”) in Baltimore, Maryland. Generally speaking, CCI was
the contractor responsible for “inside work,” i.e., dry wall installation, framing, etc., at the
two construction sites. Defendant Servicemax, Inc. is a subcontractor that was employed by
CCI to perform inside work at the Hopkins site.2 CCI originally subcontracted dry wall
work to Servicemax in May of 2008, but in October of 2009, the scope of work performed
by Servicemax expanded significantly, and whereas CCI had been performing interior
framing on the project, that work was taken over by Servicemax.
Accordingly, CCI
terminated its employees that had been performing this framing work, and many of them
were then hired by Servicemax. According to Servicemax, at some point after taking over
the framing work from CCI, it then subcontracted that work to Defendant Chesapeake. See
Servicemax Opp‟n at 2-3, ECF No. 73.
From March 2009, through January 2010, CCI subcontracted the dry wall work at the
NNMC site to Defendant FAS.3
In January 2010, the contract ended, and CCI
subcontracted the same work to Defendant Chesapeake.4
The Plaintiffs allege that they, and similarly situated employees, were employed by the
Defendants to perform construction services at the NNMC and Hopkins construction sites.
Plaintiff Bouthner alleges that he worked for Defendant CCI at the Hopkins site from July
2009 through October 2009. Bouthner Decl. ¶ 1. Bouthner claims that he was hired by CCI
2
Defendants Kurt Antonio Boyd and Margaret Sherman Boyd are, respectively, the President and
Secretary of Servicemax. See Second Am. Compl. ¶¶ 22, 24.
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Defendant David R. Trent is an owner and officer of FAS. See Second Am. Compl. ¶ 29.
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Defendant Clifford B. Smith is the President of Chesapeake. See Second Am. Compl. ¶ 34.
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at a rate of $17.85 per hour, but was only paid $15.00 per hour. Id. ¶ 2. In October of 2009,
Bouthner claims that he “and more than one hundred of his similarly situated fellow
employees that they were suddenly employees of Defendant Servicemax, instead of
Defendant CCI.” Pls.‟ Mot. at 2. Bouthner claims that Servicemax required him to fill out a
W-9 tax form applicable to independent contractors. Bouthner Decl. ¶ 3. Bouthner claims
that sometime in December of 2009, he received a Form 1099 from Defendant Chesapeake.
Id. ¶ 7. Moreover, Bouthner alleges that both CCI and Servicemax required him and
similarly situated employees to perform pre-shift work and were required to attend meetings
after normal business hours. Id. ¶ 5. In short, Bouthner claims that he and similarly situated
employees regularly worked in excess of forty hours per week and were not compensated at
a rate of one and a half times their normal hourly rates for that overtime work.
Plaintiff Isom claims that he worked for both CCI5 and Servicemax for approximately
three months. Isom Decl. ¶ 1. During these three months, Isom worked at both the
NNMC and the Hopkins construction sites. Id. Isom alleges that at times he was paid an
hourly rate of $15.00 per hour, and at other times was paid a piece rate. Id. ¶¶ 2-4. Isom
claims that when he received a piece rate, he was compensated at a rate below minimum
wage. Id. ¶ 5. Isom began work at the Hopkins site, but in December 2009, was transferred
to the NNMC site, and allegedly worked under the supervision of a CCI foreman and an
FAS foreman. Id. ¶¶ 6-7. Isom claims that neither Servicemax nor CCI withheld taxes from
his paycheck—instead, he claims he was classified as an independent contractor and received
paychecks with the notation “Contract Labor & 1099‟s” in the check description. Id. ¶ 8.
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CCI disputes this contention, and maintains that Plaintiff Bouthner is the only plaintiff to have
worked directly for CCI. See CCI Opp‟n at 7 n.3, ECF No. 72.
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Finally, Isom claims that he was not paid overtime for hours worked in excess of forty per
week. Id. ¶ 9.
Plaintiff Mancia claims that in December 2009, he applied for work with CCI at the
NNMC site. Mancia Decl. ¶ 1. Mancia claims that he was hired by both CCI and FAS, and
worked for both entities for several months. Id. Mancia claims that CCI and FAS did not
pay him at a rate of one and a half times his normal hourly wage for overtime work. Id. ¶ 3.
Additionally, while Mancia alleges that during the first few weeks of his employment he was
classified as an independent contractor, he states that he was transferred from Defendant
FAS to Defendant CCI whereupon he was then classified as an employee. Id. ¶¶ 4-5.
Broadly speaking, the Plaintiffs claim that Defendants (1) misclassified Plaintiffs and
the subclass as independent contractors or exempt persons in violation of the Maryland
Workplace Fraud Act (“MWFA”); (2) did not compensate Plaintiffs and the class at the
minimum wage for each hour worked in violation of the Maryland Wage and Hour Law
(“MWHL”), (3) failed to timely and regularly pay Plaintiffs their earned wages in violation of
the Maryland Wage Payment and Collection Law (“MWPCL”), and (4) failed or refused to
pay them regular and overtime wages in violations of the Fair Labor Standards Act
(“FLSA”). Regarding their FLSA claims, the Plaintiffs contend that CCI is a joint employer
with Servicemax at the Hopkins site, a joint employer with FAS at the NNMC site, and a
joint employer with Chesapeake at both sites.
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STANDARD OF REVIEW
Collective action lawsuits brought under the Fair Labor Standards Act have been
described as “a unique species of group litigation” that differs from the more common class
action suits brought under Rule 23 of the Federal Rules of Civil Procedure. See 7B Charles
A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1807 (3d ed.
2005). Under the FLSA, a plaintiff may bring an action on behalf of himself and other
employees so long as the other employees are “similarly situated” to the plaintiff. 29 U.S.C.
§ 216(b) (A FLSA collective 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.”). See also Williams v.
Long, 585 F. Supp. 2d 679, 684 (D. Md. 2008) (“The paramount issue in determining the
appropriateness of a conditional class certification is whether plaintiffs have demonstrated
that potential class members are „similarly situated.‟”) As this Court has previously indicated,
a two-step inquiry is employed in deciding whether to certify a collective action under the
FLSA:6
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Defendant CCI suggests that this Court modify its traditional two-step inquiry in light of the
Supreme Court‟s recent decision in Wal-Mart Stores, Inc. v. Dukes, __ U.S. __, 131 S. Ct. 2541 (2011).
More specifically, while Dukes was decided under Fed. R. Civ. P. 23 and was based on claims of
sexual discrimination under Title VII of the Civil Rights Act of 1964, CCI contends that the higher
standard articulated by the Court in Dukes, regarding what constitutes sufficient commonality for
class certification, should displace the more lenient two-step inquiry normally undertaken in Fair
Labor Standards Act collective action cases. See CCI Opp‟n at 11. However, insofar as this Court
concludes that the Plaintiffs have failed to meet their burden of showing that their claims are
“similarly situated” under the traditional approach, it need not definitively determine whether
application of the Dukes standard is required. See Faust v. Comcast Cable Commc’n Mgmt., LLC, No.
WMN-10-2336, 2011 WL 5244421, at *1 n.1 (D. Md. Nov. 1, 2011) (declining to allow further
briefing regarding the applicability of Dukes to a FLSA action concerning certification of a collective
action for unpaid overtime wages) (citations omitted).
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First, upon a minimal evidentiary showing that a plaintiff can meet the
substantive requirements of 29 U.S.C. § 216(b), the plaintiff may proceed with
a collective action on a provisional basis. Second, following discovery, the
court engages in a more stringent inquiry to determine whether the plaintiff
class is “similarly situated” in accordance with the requirements of § 216, and
renders a final decision regarding the propriety of proceeding as a collective
action.
Rawls v. Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007) (internal
citations omitted). The second, more “stringent” phase of collective action certification
under the FLSA is often prompted by a defendant‟s filing of a motion to decertify, and is
often referred to as the “decertification stage.” See Syrja v. Westat, Inc., 756 F. Supp. 2d 682,
686 (D. Md. 2010).
Generally, plaintiffs bear the burden of showing that their claims are “similarly
situated,” but courts have ruled that “similarly situated” need not mean “identical.” See, e.g.,
Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1217 (11th Cir. 2001). Nevertheless, district
courts have broad discretion to determine whether a collective action is an appropriate
means for prosecuting an FLSA cause of action. Id. at 1219; see also Syrja, 756 F. Supp. 2d at
686 (citing Choimbol v. Fairfield Resorts, Inc., 475 F. Supp. 2d 557, 563 (E.D.Va. 2006)); 7B
Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1807,
n.44 (3d ed. 2005). Although the United States Court of Appeals for the Fourth Circuit has
not defined the phrase “similarly situated,” this Court has held that a group of FLSA
plaintiffs is similarly situated if they can show they were victims of a common policy,
scheme, or plan that violated the law. Mancía v. Mayflower Textile Servs. Co., No. CCB-08-273,
2008 WL 4735344, at *3 (D. Md. Oct. 14, 2008).
To make this showing, Plaintiffs
allegations “must consist of more than „vague allegations‟ with „meager factual support,‟ but
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it need not enable the court to reach a conclusive determination whether a class of similarly
situated plaintiffs exists.” Id. at *2 (quoting D’Anna v. M/A-COM, Inc., 903 F. Supp. 889,
893 (D. Md. 1995). Moreover, “[w]hen sufficient evidence in the record at the initial „notice‟
stage makes it clear that notice is not appropriate, . . . a court can . . . deny certification
outright.” Syrja, 756 F. Supp. 2d at 686 (quoting Purdham v. Fairfax Cnty. Pub. Sch., 629 F.
Supp. 2d 544, 547 (E.D. Va. 2009)). Plaintiffs may rely on “affidavits or other means” to
make the required showing. Williams, 585 F. Supp. 2d at 683; Dorsey v. The Green Turtle
Franchising Corp., No. CCB-10-92, 2010 WL 3655544, at *1 (D. Md. Sept. 14, 2010).
This Court has previously held that consideration of issues relating to the
manageability of a proposed collective action is appropriate at the notice stage of a FLSA
action. For example, in D’Anna v. M/A-COM, Inc., 903 F. Supp. 889, 894 (D. Md. 1995),
this Court noted that “[a]s a matter of sound case management, a court should, before
offering [to assist plaintiff in locating additional plaintiffs], make a preliminary inquiry as to
whether a manageable class exists.” (quoting Severtson v. Phillips Beverage Co., 137 F.R.D. 264,
267 (D. Minn. 1991) (alteration in original). In making this determination, this Court further
concluded that “courts, as well as practicing attorneys, have a responsibility to avoid the
stirring up of litigation through unwarranted solicitation,” and “an employer should not be
unduly burdened by a frivolous fishing expedition conducted by the plaintiff at the
employer‟s expense.” Id. at 894 (internal quotation marks and citation omitted). More
recently, this Court reiterated its conclusion that is has a duty to address manageability
concerns at the notice stage of FLSA litigation. In Syrja v. Westat, Inc., Judge Messitte stated
that “[u]ltimately, the significance of manageability concerns at the notice stage is, like other
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aspects of the conditional certification analysis, a decision for the Court on the facts before
it.” 756 F. Supp. 2d at 689. In so concluding, Judge Messitte quoted from HoffmannLaRoche, Inc., v. Sperling, 493 U.S. 165, 170 (1989), in which the Supreme Court noted that in
FLSA collective actions “[t]he judicial system benefits by efficient resolution in one proceeding
of common issues of law and fact arising from the same alleged discriminatory activity.”
Syrja, 756 F. Supp. 2d at 689 (quoting Sperling, 493 U.S. at 170) (emphasis in original).
ANALYSIS
I. PLAINTIFFS’ MOTION FOR CONDITIONAL CERTIFICATION
Congress enacted the Fair Labor Standards Act in 1938 to eliminate “labor conditions
detrimental to the maintenance of the minimum standard of living necessary for health,
efficiency, and general well-being of workers.” Pub. L. No. 75-718, 52 Stat. 1060 (1938)
(codified as amended at 29 U.S.C. §§ 201 et seq.). To this end, the FLSA generally requires
employers to compensate employees for all of the hours worked, at a rate that is not less
than the federal minimum wage rate. See 29 U.S.C. § 206(a)(1). In addition, the FLSA
provides that employers must compensate employees at “a rate not less than one and onehalf times the employee's regular hourly rate” for any time the employee is required to work
in excess of a 40-hour workweek. 29 U.S.C. § 207(a). Any employer who violates Sections
206 or 207 of the FLSA is liable to the affected employees for unpaid wages and liquidated
damages. 29 U.S.C. § 216(b).
The Plaintiffs generally allege that the Defendants engaged in a common policy or
scheme to violate the Fair Labor Standards Act to avoid paying overtime wages. More
specifically, the Plaintiffs argue that the common policy or scheme entailed systematically
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misclassifying employees as independent contractors, and that the Defendants routinely
failed to compensate employees for pre and post-shift work. See generally Pls.‟ Mot. at 7-8.
However, the Plaintiffs have provided no actual evidence to support their claims that the
Defendants—eight in all—maintained any kind of policy to avoid paying overtime wages by
systematically misclassifying employees as independent contractors. Instead, the Plaintiffs
essentially rely on the broad allegations contained in the Second Amended Complaint and
the three one-page declarations attached to their motion for conditional certification. These
“vague allegations” with “meager factual support” are insufficient to support conditional
certification. See D’Anna, 903 F. Supp. At 893-94.
Notwithstanding the fact that the Plaintiffs‟ burden is minimal, they have completely
failed to identify any company plan or policy (of any of the eight Defendants) violative of
the FLSA‟s overtime provisions. Aside from generally stating that they occasionally worked
in excess of forty hours and did not receive overtime compensation, they can point to no
overarching policy, do not identify which Defendant directed the overtime work, do not
describe the nature of the work, and generally provide no supporting evidence for their
allegations. What is more, Plaintiffs Bouthner, Isom, and Mancia state in their declarations
that they regularly worked in excess of forty hours without overtime compensation, see Pls.‟
Declarations, ECF Nos. 50-3, 50-6. 50-9, but those allegations are contradicted by the
Second Amended Complaint which states that “Defendants were aware of their overtime
compensation obligations, as reflected by the fact that they did sometimes compensate
Plaintiffs and other similarly situated employees at an overtime rate on occasions where
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Defendants required the employees to remain working at their regular assignments well
beyond their scheduled or regular work shifts . . . .” Second Am. Compl. ¶ 61.
By way of comparison, in Williams v. ezStorage Corp., No. RDB-10-3335, 2011 WL
1539941 (D. Md. Apr. 21, 2011), this Court conditionally certified a class in a case where the
Plaintiffs alleged that the defendant ezStorage Corp. maintained a uniform policy whereby it
would routinely demand pre and post-shift duties of its workers, and would not compensate
them for the overtime. In that case, the plaintiffs‟ provided specific facts demonstrating they
were similarly situated. See id. at *1. Specifically, the Plaintiffs described with the minimal
requisite particularity the work they performed for which they were not compensated, the
uniform nature of the work, how long the work would typically take, and submitted an
affidavit describing conversations with other similarly situated employees. Id. Moreover, as
corroboration, the plaintiffs in Williams submitted the ezStorage operations manual that
described the pre and post-shift work expected of ezStorage employees, and pointed to a
stipulation made by the Defendant that potential opt-in plaintiffs were uniformly subject to
the same policies, rules, pay systems, hours, and benefits. Id. at *3. In contrast, the Plaintiffs
in this case have provided no factual support for their overtime claims aside from their
broad assertion that the Defendants misclassified them as independent contractors. What is
more, Plaintiffs fail to even adequately allege how any supposed misclassification led to the
Defendants‟ failure to pay overtime wages.
Put simply, the Plaintiffs cannot rely on allegations alone—they must put forth some
factual support for conditional certification, and they have failed to do so. As noted by this
Court in D’Anna, “[t]he Plaintiff has the burden of demonstrating that notice is
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„appropriate.‟ [citation omitted] In this case, plaintiff has not met this burden.” 903 F.
Supp. At 894.
Even if the Plaintiffs were able to provide sufficient factual support for their FLSA
claims, certification of a collective action is nevertheless inappropriate as a result of the
myriad of individualized factual and legal issues that would predominate. As this Court
recently held in Syrja, “the question of manageability at the notice stage” is an appropriate
inquiry, and conditional certification of a collective action should not be granted if
adjudication on a class-wide basis “would require a cumbersome, individualized analysis of
each class member‟s particular factual circumstances.” 756 F. Supp. 2d at 690.
This case involves two separate constructions sites, a general contractor, three
subcontractors, and individual Plaintiffs that worked at different locations and for different
combinations of employers. As Defendant FAS aptly notes in its opposition brief, Plaintiffs‟
motion for conditional certification “offers no consideration for the fact that there are over
seven different defendants in this case, does not adequately address the fact that there are
two different construction projects implicated in this case, and makes no allowance for the
vast and obvious differences that exist among the three Named Plaintiffs themselves, let
alone between the Named Plaintiffs and a nebulous collection of „similarly-situated
employees.‟” FAS Opp‟n at 4, ECF No. 80.
Undergirding the Plaintiffs claims, is their argument—devoid of factual support—
that the general contractor, CCI, is a joint employer with three subcontractors at two
different construction sites. The FLSA defines “employer” to include “any person acting
directly or indirectly in the interest of an employer in relation to an employee.” 29 U.S.C. §
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203(d). Courts generally interpret this definition broadly, and an individual may be the
employee of more than one employer at the same time. See Schultz v. Capital Int’l Sec. Inc., 466
F. 3d 298, 304 (4th Cir. 2006). However, courts generally look at the “economic reality” of
an individual's status in the workplace before determining liability. See Schultz, 466 F.3d at
304; Goldberg v. Whitaker House Coop., Inc., 366 U.S. 28, 33(1961). While “[t]here is no
mechanical test to evaluate the „economic reality‟ between employees and putative joint
employers,” the economic reality of a joint employment arrangement may be determined by
examining a number of factors such as:
1)
2)
3)
4)
Authority to hire and fire employees;
Authority to supervise and control work schedules or employment conditions;
Authority to determine the rate and method of payment; and
Maintenance of employment records.
Jacobson v. Comcast Corp., 740 F. Supp. 2d 683, 689 (D. Md. 2010).
In this case, to determine the economic reality of the employment relationship
between the Defendants and the Plaintiffs, individualized questions would necessarily
predominate regarding which defendant hired each plaintiff, which defendant supervised
them, which defendant determined their rate of pay, and the interaction and relationship
between the individual defendant. Moreover, because the Plaintiffs allegations span two
distinct construction sites, this analysis would necessarily have to be conducted twice.
Finally, unlike cases such as Williams v. ezStorage, 2011 WL 1539941, where the
plaintiffs alleged a broad company-wide policy to deprive employees of overtime
compensation, the Plaintiffs‟ overtime allegations in this case would also require
individualized factual inquiries. In the Second Amended Complaint, the Plaintiffs allege that
sometimes they received overtime payments, but in their declarations, they claim that
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overtime was regularly withheld. Accordingly, individualized questions of each potential
plaintiff would be required to determine, inter alia, what pre and post-shift work was required
of that employee; how long those tasks took to complete; was the overtime work regular or
sporadic; who demanded the overtime work of the plaintiffs; and how the overtime work
differed between the Johns Hopkins and NNMC construction sites. In a similar case, this
Court recently denied a motion for conditional certification and concluded that “the
adjudication of multiple claims in this case would require the parties, the Court, and perhaps
eventually a jury, to engage in an unmanageable assortment of individualized factual inquiries
. . . . Simply put, this is not a case that lends itself to the sort of efficient adjudication of
multiple claims by „similarly situated‟ persons that § 216(b) contemplates.” Syrja, 756 F.
Supp. 2d at 688-89. As previously noted, in the context of Section 216(b) collective action
certification, the Supreme Court has cautioned that “[t]he judicial system benefits by efficient
resolution in one proceeding of common issues of law and fact arising from the same alleged
discriminatory activity.” Hoffmann-LaRoche, Inc. v. Sperling, 493 U.S. 165, 170 (1989) (emphasis
added). This Court concludes that the adjudication of the Plaintiffs‟ claims in this case
would be anything but efficient were this Court to conditionally certify a collective action.
Therefore, Plaintiffs‟ Motion to Allow Notice to Similarly Situated Employees and to
Approve Interrogatory to Defendants Seeking the Identity of Similarly Situated Employees
(ECF No. 50) is DENIED.
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II. OTHER MOTIONS
In addition to the motion for conditional certification, the Plaintiffs have also filed a
Motion to Toll the Statute of Limitations for Claims Asserting Violations of the Fair Labor
Standards Act (ECF No. 104). Plaintiffs filed this motion on October 4, 2011, requesting
that this Court toll the statute of limitations for potential opt-in plaintiffs during the time it
considers the Plaintiffs‟ motion for conditional certification. In connection with the filing of
that motion, Defendant CCI filed a consent motion to file a surreply, which was not
opposed by the Plaintiffs. That motion (ECF No. 120) is GRANTED.
As this Court noted in Syrja, “[a]s a rule, unknown or prospective plaintiffs in a
proposed class action are not entitled to equitable tolling absent a showing of extraordinary
circumstances.” 765 F. Supp. 2d at 680 (citation omitted). Moreover, Defendant CCI has
persuasively argued that, insofar as the instant motion only affects hypothetical opt-in
plaintiffs and not any actual party to this case, there exists no “case or controversy” under
Article III of the United States Constitution. See CCI Opp‟n at 2-4, ECF No. 107 (citing
authority). However, as the Plaintiffs have only requested tolling of the statute of limitations
while this Court considers the motion for conditional certification, the request is essentially
moot. Because this Court concludes that conditional certification is inappropriate in this
case, the Plaintiffs‟ Motion to Toll the Statute of Limitations for Claims Asserting Violations
of the Fair Labor Standards Act (ECF No. 104) is DENIED as MOOT.
Finally, Defendants FAS Consultants, LLC and David Trent have filed a Motion to
Strike (ECF No. 115). The motion seeks to strike two supplemental submissions made by
the Plaintiffs in support of their motion for conditional certification.
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The Plaintiffs‟
supplemental submissions, ECF Nos. 96 & 103, were filed without seeking or obtaining
leave of court. Pursuant to Local Rule 105.2(a) (D. Md. 2011), surreplies “are not permitted
to be filed” without leave of court, and those surreplies will be stricken. See Flores v. Deutsche
Bank Nat. Trust, Co., No. DKC-10-0217, 2010 WL 2718949, at *2 n.1 (D. Md. Jul. 7, 2010)
(striking surreplies filed without leave of court); Sterling Acceptance Corp. v. Tommark, Inc., 227
F. Supp. 2d 454, 459 n.3 (D. Md. 2002) (same). Accordingly, Defendant FAS Consultants,
LLC and David Trent‟s Motion to Strike (ECF No. 115) is GRANTED.
CONCLUSION
Because this Court concludes that the Plaintiffs have failed to provide sufficient
factual support for their motion for conditional certification, and because this case would be
unmanageable if certified as a collective action, this Court exercises its broad discretion and
holds that Plaintiffs‟ Motion to Allow Notice to Similarly Situated Employees and to
Approve Interrogatory to Defendants Seeking the Identity of Similarly Situated Employees
(ECF No. 50) is DENIED. Plaintiffs‟ Motion to Toll the Statute of Limitations for Claims
Asserting Violations of the Fair Labor Standards Act (ECF No. 104) is DENIED as
MOOT.
Defendants FAS and David Trent‟s Motion to Strike (ECF No. 115) is
GRANTED, and Defendant CCI‟s Consent Motion for Leave to File Sur-Reply (ECF No.
120) is GRANTED.
A separate Order follows.
Dated: March 5, 2012.
/s/________________________
Richard D. Bennett
United States District Judge
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