Depew et al v. Mobile Dredging and Plumbing Co. et al

Filing 21

MEMORANDUM AND ORDER Granting 18 Motion for Conditional Certification to Facilitate Identification and Notification of Similarly Situated Employees. Signed by Magistrate Judge J. Mark Coulson on 5/12/2016. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LARRY DEPEW, et al,

*

Plaintiffs,

*

v.

*

MOBILE DREDGING AND PLUMBING
CO., et al,

Civil Case No. 15-3080-JMC

*
*

Defendants.
*
*******
MEMORANDUM AND ORDER
On October 9, 2015, Plaintiffs Larry Depew and Francis Spokus filed this wage and hour
collective action against their employers, Defendants Mobile Dredging and Plumbing Company
(“Mobile”) and Carolyn Company (“Carolyn”). (Compl., ECF No. 1.) Mobile, which provides
sewer cleaning, dredging, and hydro-blasting services in the Mid-Atlantic region, is a subsidiary
of Carolyn, which provides environmental cleaning and municipality services throughout the
country.

(Compl. ¶¶ 3-4.)

Plaintiffs Depew and Spokus were employed as operators by

Defendants at various points between January 2008 and June 2015.

(Compl. ¶¶ 10-11.)

Presently pending before the Court is Plaintiffs’ Motion for Conditional Certification to
Facilitate Identification and Notification of Similarly Situated Employees. (ECF No. 18.) On
April 12, 2016 Defendants filed an untimely response in opposition to Plaintiffs’ motion.1 (ECF
No. 19.) Plaintiffs did not file a reply brief, and the time for doing so has passed. No hearing is
necessary. Loc. R. 105.6 (D. Md. 2014). For the reasons set forth herein, Plaintiffs’ motion is
GRANTED.

1

Although Defendants’ motion was untimely filed, I will nevertheless briefly address the arguments set forth
therein.

I.

BACKGROUND
The dispute arises from alleged unpaid wages earned by Plaintiffs and other employees

during their employment by Defendants. In particular, Plaintiffs allege that Defendants failed to
pay them for overtime hours they spent driving work trucks from Baltimore, Maryland to
Washington, D.C. beginning in August 2013 in connection with a contract Defendants held to
perform work at the Blue Plains Advanced Waste Water Treatment Plant (“the Blue Plains
facility”). Plaintiffs contend that the time they spent driving the work trucks between Baltimore
and Washington, D.C. resulted in them routinely working in excess of forty hours per week.
Plaintiffs claim that Defendants’ failure to pay them for those hours violated the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. § 201 et seq. (“FLSA”); the Maryland Wage and
Hour Law, Md. Code Ann., Lab. & Empl. § 3-401 et seq. (“MWHL”); and the Maryland Wage
Payment and Collection Law, Md. Code Ann., Lab. & Empl. § 3-201 et seq. (“MWPCL”).
On March 26, 2016, Plaintiffs Depew and Spokus filed a “Motion for Conditional
Certification to Facilitate Identification and Notification of Similarly Situated Employees,”
supported by a memorandum and declarations of Mr. Depew and Mr. Spokus. (ECF No. 18.)
Plaintiffs’ motion seeks conditional certification of an FLSA collective consisting of employees
of Defendants between August 2013 and the present, who worked as laborers and operators and
drove Defendants’ work vehicles from Sparrows Point in Baltimore City to the Blue Plains
facility. (Pls.’ Mem. at 10.)
II.

CONDITIONAL CERTIFICATION UNDER THE FAIR LABOR STANDARDS
ACT
The FLSA permits plaintiffs to “maintain a collective action against their employer for

violations under the act pursuant to 29 U.S.C. § 216,” Quinteros v. Sparkle Cleaning, Inc., 532 F.
Supp. 2d 762, 771 (D. Md. 2008), which provides in pertinent part:
2

An action . . . may be maintained against any employer . . . 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.
29 U.S.C. § 216(b). Section 216(b) establishes an “opt-in” scheme, “whereby potential plaintiffs
must affirmatively notify the Court of their intentions to be a party to the suit.” Quinteros, 532
F. Supp. 2d at 771 (citing Camper v. Home Quality Management, Inc., 200 F.R.D. 516, 519 (D.
Md. 2000)). The FLSA certification process typically occurs in two stages. First, at the “notice
stage,” the court “makes a threshold determination of whether the plaintiffs have demonstrated
that potential class members are similarly situated, such that court-facilitated notice to putative
class members is appropriate.” Butler v. DirectSAT USA, LLC, 876 F. Supp. 2d 560, 566 (D.
Md. 2012) (citations and internal quotations omitted). Second, at the “decertification stage,”
once discovery is closed, the court conducts a more stringent inquiry to determine whether the
plaintiffs are in fact “similarly situated” as required by section 216(b) and to make a final
determination regarding whether the case should proceed as a collective action.

Rawls v.

Augustine Home Health Care, Inc., 244 F.R.D. 298, 300 (D. Md. 2007) (citations omitted).
Here, Plaintiffs seek conditional certification at the first stage and, if certification is granted, a
window of time in which to submit a proposed notice to the Court for approval.
At the notice stage, conditional certification is appropriate where the plaintiffs make “a
minimal evidentiary showing that [they] can meet the substantive requirements of 29 U.S.C. §
216(b),” that is, that they are “similarly situated.” Rawls, 244 F.R.D. at 300; Camper, 200
F.R.D. at 519. A group of potential plaintiffs are “similarly situated” when they “together were
victims of a common policy or scheme or plan that violated the law.” Quinteros, 532 F. Supp.
2d at 772 (citing D’Anna v. M/A-COM, Inc., 903 F. Supp. 889, 893 (D. Md. 1995)). At the

3

notice stage, Plaintiffs need only make a “relatively modest factual showing that such a common
policy, scheme, or plan exists,” to establish that they are “similarly situated.” Butler, 876 F.
Supp. 2d at 566 (quoting Marroquin v. Canales, 236 F.R.D. 257, 259 (D. Md. 2006)). This
showing may be made through affidavits or other means, but allegations in the complaint alone
are insufficient. Camper, 200 F.R.D. at 519.
As noted, Plaintiffs seek conditional certification of a collective that includes individuals
employed Defendants between August 2013 and the present, who worked as laborers and
operators and whose responsibilities included driving Defendants’ work vehicles from Sparrows
Point in Baltimore City to the Blue Plains facility to perform environmental cleaning. In support
of Plaintiffs’ proposed collective, they have attached declarations of Mr. Depew and Mr. Spokus.
(ECF Nos. 18-3, 18-4.)
Mr. Depew’s declaration asserts that he was employed by Defendants from 2008 to
present as a laborer, operator, and or foreman. (Depew Decl. ¶ 3.) Mr. Depew’s work duties
consisted of cleaning environmental waste at the Blue Plains facility in Washington D.C. (Id. ¶
6.) Despite being scheduled to work forty hours per week, Mr. Depew consistently worked in
excess of forty hours per week—typically working approximately fifty-five hours per week. (Id.
¶¶ 8-9.) Mr. Depew asserts that other laborers and operators employed by Defendants to perform
work at the Blue Plains facility also consistently worked fifty five hours per week. (Id. ¶ 9.) A
scheduled day of work for Mr. Depew consisted of performing certain pre-trip work at
Defendants’ Sparrows Point facility in Baltimore before driving Defendants’ vehicles to the Blue
Plains facility, and then upon completing work at the Blue Plains facility, driving Defendants’
vehicles back to the Sparrows Point facility and performing certain post-trip work. (Id. ¶ 10.)
However, Mr. Depew asserts that he was not compensated for all of the time he spent driving

4

Defendants’ vehicles between the Sparrows Point and Blue Plains facilities. (Id. ¶ 14.)

Mr.

Depew states that he is aware of approximately three current and/or former laborers and
operators employed by Defendants who travel between the Sparrows Point and Blue Plains
facilities. (Id. ¶ 13.)
Mr. Spokus’ declaration asserts that he was employed by Defendants from 2011 to April
7, 2015, also as a laborer, operator, and/or foreman, and that his duties also consisted of cleaning
environmental waste at the Blue Plains facility in Washington D.C. (Spokus Decl. ¶¶ 3, 6.) Like
Mr. Depew, Mr. Spokus asserts that he and other employees typically worked about fifty-five
hours per week, that he was required to perform certain pre- and post- trip work at the Sparrows
Point facility, that he was required to drive Defendants’ vehicles between the Sparrows Point and
Blue Plains facilities, and that he was not compensated for all of the time he spent driving
Defendants’ vehicles between the Sparrows Point and Blue Plains facilities. (Id. ¶¶ 9-10, 14.)
Mr. Spokus states that he is aware of approximately three current and/or former laborers and
operators employed by Defendants who travel between the Sparrows Point and Blue Plains
facilities. (Id. ¶ 13.)
Based on the declarations of Mr. Depew and Mr. Spokus, Plaintiffs have adduced
evidence that other potential class plaintiffs may have been subject to a common scheme by
which Defendants avoided compensating those employees for the time they spent driving
Defendants’ vehicles between Sparrows Point and the Blue Plains facility. The allegations in
Mr. Depew’s declaration are corroborated by those in Mr. Spokus’ and vice versa, evidencing
the existence of a common scheme or plan. Additionally, both Mr. Depew and Mr. Spokus
indicate that there were several other employees of Defendants who drove Defendants’ vehicles
between the Sparrows Point and Blue Plains facilities. Accordingly, Plaintiffs have made the

5

relatively modest factual showing necessary to demonstrate that the potential class members are
“similarly situated,” and conditional certification is appropriate. I emphasize, however, that due
to the narrow nature of Plaintiffs’ allegations, the collective is limited to individuals employed
by defendants between August 2013 and the present who drove Defendants’ work vehicles from
the Sparrows Point facility in Baltimore City to the Blue Plains facility in Washington, D.C.
Defendants argue that Plaintiffs have not established that they are “similarly situated” to
other potential plaintiffs because their motion is supported only by the named Plaintiffs’
declarations, which are unsubstantiated by any additional evidence. Defendants cite Bouthner v.
Cleveland Construction, in which this Court declined to conditionally certify a collective action
due to the insufficiency of the vague allegations and meager factual support in affidavits
submitted by the named plaintiffs. No. 11-cv-0244-RDB, 2012 WL 738578 (D. Md. Mar. 5,
2012). In Bouthner, the Court emphasized that the plaintiffs’ affidavits did not point to an
“overarching policy,” did not “identify which Defendant directed the overtime work,” and did
not “describe the nature of the work.” Id. at * 5. Although Plaintiffs’ motion here is supported
only by the declarations of the named plaintiffs, those declarations are both detailed and
narrowly drawn, and they point to a common scheme by which Defendants uniformly and
routinely avoided compensating employees who drove vehicles to a particular work site for preand post- shift work that is described in detail. Accordingly, the evidence offered in support of
Plaintiffs’ request for conditional certification here is critically distinguishable from the vague
allegations the Court confronted in Bouthner. Additionally, as this Court has repeatedly noted,
while allegations in the complaint alone are insufficient to justify conditional certification, an
adequate factual showing may be made by affidavit. See e.g., Marroquin v. Canales, 236 F.R.D.
257 (D. Md. 2006). Here, Plaintiffs’ allegations have demonstrated a factual nexus connecting

6

them to the other potential plaintiffs in their proposed collective, such that they are “similarly
situated,” and conditional certification is appropriate.
Defendants also argue that Plaintiffs’ motion should be denied because Plaintiffs have
failed to show that there are other potential class members who desire to opt in. Defendants cite
several cases in support of this point, none of which are from this district. As this Court has
previously explained, “courts employ different standards to determine whether plaintiffs have
made a sufficient showing to warrant court facilitated notice,” Camper, 200 F.R.D. at 519, and
this Court has consistently declined to impose the requirement Defendants suggest here, Butler,
876 F. Supp. 2d at 572 (citing Mancia v. Mayflower Textile Servs. Co., No. 08-cv-273-CCB,
2008 WL 4735344, at *5 n.3 (D. Md. Oct. 14, 2008); Quinteros, 532 F. Supp. 2d at 772 n.5).
Finally, as noted above, the FLSA collective certification process occurs in two stages.
Defendants will thus have an opportunity after the close of discovery to assert that the plaintiffs
are not, in fact, “similarly situated,” under the more stringent inquiry that applies at the
decertification stage.
III.

COURT FACILITATED NOTICE
Once the Court has granted conditional certification of the FLSA collective, it then must

approve of the notice by which plaintiffs will inform potential members of the pendency of the
collective action, so that potential plaintiffs can make informed decisions about whether to
participate. See Butler, 876 F. Supp. 2d at 574-75 (citations omitted). Plaintiffs have not
submitted a proposed notice with their motion and instead seek a seven day window in which to
confer with counsel for Defendants in an effort to reach an agreement regarding the terms of the
proposed notice. Plaintiffs’ suggested course of action is acceptable, and the parties are directed
to confer and submit a joint proposed notice for court approval no later than May 20, 2016. If

7

the parties are unable to agree upon a joint proposed notice, they are instead directed to submit
individual proposed notices no later than May 20, 2016.
IV.

CONCLUSION
For the reasons stated herein, it is hereby ORDERED that:
1.

Plaintiffs’ Motion for Conditional Certification to Facilitate Identification and

Notification of Similarly Situated Employees is GRANTED;
2.

Defendants shall produce to Plaintiffs no later than May 27, 2016 a list of names

and contact information (including the last known residential address, the last known work
address, the last known phone number, and the last known email address), for individuals
employed by Defendants between August 2013 and the present who drove Defendants’ work
vehicles from the Sparrows Point facility in Baltimore City to the Blue Plains facility in
Washington, D.C.; and
3.

The parties shall submit for Court approval no later than May 20, 2016 a joint

proposed notice, or in the alternative individual proposed notices, by which potential plaintiffs
will be apprised of their ability to opt-in to this action.
Dated: May 12, 2016

/s/
J. Mark Coulson
United States Magistrate Judge

8