Burns v. City of Holyoke

Filing 19

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: " In accordance with the foregoing, 1) plaintiff's Motion to Certify Class (Docket No. 14 ) is DENIED and 2) defendant's Motion to Dismiss (Docket No. 13 ) is, with respect to the claim under M.G.L. c. 151, ALLOWED, but is, with respect to the claim under the FLSA, DENIED as moot. So ordered."(Moore, Kellyann)

United States District Court
District of Massachusetts
________________________________
)
SCOTT BURNS, individually and on )
behalf of all other persons
)
similarly situated,
)
Plaintiff,
)
Civil Action No.
)
12-30003-NMG
v.
)
)
CITY OF HOLYOKE,
)
Defendant.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
Plaintiff Scott Burns (“Burns”) brings this suit on behalf
of himself and others similarly situated against the City of
Holyoke (“the City”) for violating the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 207, and the Massachusetts Minimum Fair
Wages Act, M.G.L. c. 151, § 1A, by failing to pay overtime at one
and one-half times the regular pay rate.
Before the Court is the plaintiff’s motion for preliminary
certification of the putative class and the City’s motion to
dismiss.
I.

Background
Between January 5, 2009 and the present (“the Class

Period”), Burns has been employed as a police dispatcher by the
City and has been a member of the Service Employees International
Union, Local Union 888 (“Local Union 888").

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Through his union

membership, Burns was party to a collective bargaining agreement
(“CBA”) which governs the terms and conditions of his employment
with the City.
Under the terms of the CBA, employees are purportedly
entitled 1) to earn overtime pay for work in excess of 40 hours
in one week and 2) to receive augments to their usual salary,
including longevity pay, holiday pay, vacation pay upon
retirement, sick leave pay upon retirement and uniform pay.
The FLSA requires that employees be compensated for hours
worked in excess of 40 hours per week at a minimum rate of one
and one-half times their regular rate of pay.
207(a)(1).

29 U.S.C. §

Burns contends that the City has under-calculated the

overtime pay to which its Local Union 188 employees are entitled
by excluding pay augmentations from their regular rates of pay.
Instead, he contends, the City paid them only one-and-a-half
times their base salaries.
Burns therefore brings this suit on behalf of himself and
others similarly situated.

The proposed putative class is

comprised of all current or former members of Local Union 188 who
worked for the City during the Class Period.

According to the

amended complaint, that class includes:
a. office clerical employees in the City of Holyoke
including the Deputy City Treasurer, Deputy Tax
Collector, Assistant City Auditor, Assistant to the
Assessors, Assistant City Clerk and Deputy Commissioner
of Veterans Benefits;

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b. Inspectors and Code enforcers employed by the City of
Holyoke in the Department of Codes and Inspections, and
all inspectors and sanitarians in its Board of Health and
all inspectors in its Department of Engineering and the
Deputy Sealer of Weights and Measures of the City of
Holyoke;
c. Police Dispatchers employed by the City of Holyoke;
d. Medical Technicians employed by the City of Holyoke in
the Board of Health Department; and
e. Maintenance Employees employed by the City of Holyoke
at the City Hall and the War Memorial Building.
Burns alleges that, during the Class Period, he and the
class members were paid at a per-hour rate and on a bi-weekly
basis, worked overtime and received one or more pay
augmentations.

He further alleges that they all were subject to

the City’s purported “common policy and practice” of undercalculating overtime pay.
II.

Procedural History
Plaintiff filed his complaint in January, 2012, and, shortly

thereafter, defendant moved to dismiss.

In February, 2012,

plaintiff filed an amended complaint and opposed the motion to
dismiss.

The defendant then filed a motion to dismiss the

amended complaint.
In March, 2012, the case was reassigned to this Session
after United States District Judge Michael A. Ponsor took senior
status.

Shortly thereafter, plaintiff filed a motion for

preliminary certification of the putative class, which the
defendant has opposed.
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III. Analysis
A.

Plaintiff’s Motion for Conditional Certification

The FLSA authorizes an employee to bring suit against an
employer on his own behalf and on behalf of other “similarly
situated” employees.

29 U.S.C. § 216(b).

Such actions are

permitted “to serve the interest of judicial economy and to aid
in the vindication of plaintiffs' rights.”

Hoffmann-La Roche

Inc. v. Sperling, 493 U.S. 165, 170 (1989).
To bring a collective action, however, the plaintiffs must
be “similarly situated” to one another.

Id.

To determine

whether putative class members are similarly situated, the Court
follows a two-tiered approach.

O'Donnell v. Robert Half Intern.,

Inc., 429 F. Supp. 2d 246, 249 (D. Mass. 2006) (citing Kane v.
Gage Merch. Servs., Inc., 138 F. Supp. 2d 212, 214 (D. Mass.
2001)).

First, at the “notice stage”, the Court relies upon the

pleadings and affidavits to determine, under a “fairly lenient
standard”, whether the putative class members “were subject to a
single decision, policy, or plan that violated the law”.

See id.

Second, upon the close of discovery and a motion from an
employer, the Court considers whether de-certification is
warranted.

See id.

In this case, we are at the first stage and the Court must
determine whether the putative class is “similarly situated”.
Although that determination is made using a fairly lenient

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standard, the standard is not “invisible”.

See Houston v. URS

Corp., 591 F. Supp. 2d 827, 831 (E.D. Va. 2008) (citations
omitted).

Rather, “as a matter of sound case management” and to

avoid “a frivolous fishing expedition at the employer's expense”,
courts should generally require the party moving for conditional
certification to make “a preliminary factual showing that there
actually exists a similarly situated group of potential
plaintiffs.”

Melendez Cintron v. Hershey Puerto Rico, Inc., 363

F. Supp. 2d 10, 18 (D.P.R. 2005).

At a minimum, the plaintiff

must “put forth some evidence that the legal claims and factual
characteristics of the class in [the] case are similar.”
Trezvant v. Fidelity Emp’r Servs. Corp., 434 F. Supp. 2d 40, 44
(D. Mass. 2006) (citing Kane, 138 F. Supp. 2d at 215).
The Court concludes that plaintiff has failed to meet his
burden for conditional certification.

The purported class is

comprised of all current, or former, members of Local Union 188
who are, or have been, employed by the City during the Class
Period.

That group encompasses an assorted array of City

employees working in different departments.

It includes not only

police dispatchers, such as the plaintiff, but also a host of
other City employees such as tax collectors and auditors,
inspectors employed by the Department of Engineering, medical
technicians employed by the City’s Board of Health, and
maintenance workers employed at City Hall.

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No information is

provided in affidavits or the amended complaint concerning the
respective duties or responsibilities of class members or whether
they work under similar supervision or management.

Based upon

the diversity of the job positions and departments of employment,
and a modicum of common sense, the requisite similarity of
responsibilities and supervision is doubtful.
In his motion, plaintiff denies that diverse job titles or
positions among class members is of any significance to
conditional class certification.

He relies on Davis v.

Footbridge Eng’g Servs, LLC, No. 09-11133, 2010 U.S. Dist. LEXIS
106523 (D. Mass. Oct. 5, 2010), in which the court noted that
“different job titles or positions do not preclude a finding that
plaintiffs are similarly situated.”
accurate, is deceptive.

That statement, while

The Davis court proceeded to allow

provisional certification only after determining that the
plaintiff had “adequately alleged that she and her potential
class members performed similar functions and were subject to
similar policies.”

Id.

The Court concluded that those

allegations were enough to “justify conditional certification
despite the differences in the class members’ job titles and work
locations.”

Id.

Thus, simply because job disparity does not preclude
conditional certification, its existence is not irrelevant to the
analysis.

In fact, courts generally require at least some

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showing of similar job requirements before allowing conditional
certification, see, e.g., Trezvant, 434 F. Supp. 2d at 44
(requiring employees with disparate job titles or positions to
make a factual showing of similar job functions and pay
provisions before determining them to be “similarly situated”).
Here, plaintiff has made no such showing.
Plaintiff’s failure in that regard is exacerbated by the
fact that the amended complaint does not 1) specify how many
members fall within the putative class or 2) demonstrate that
such members are interested in joining the lawsuit.

The

plaintiff estimates only that the class will include “at least 50
plaintiffs” and submits boilerplate affidavits from two other
employees who, as is the named plaintiff, are police dispatchers
and express their desire to opt into the action.

Notably, those

declarations are silent as to the existence of employees from
different departments who are interested in joining the suit or
are subject to the same purported policy of underpayment.

The

Court declines to certify such an ambiguous class based on the
affidavits of a few employees.

See Delano v. MasTec, Inc., No.

8:10-CV-320-T-27MAP, 2011 WL 2173864, at *4 (M.D. Fla. June 2,
2011) (noting that courts in its district “have routinely denied
requests for conditional certification where plaintiffs attempt
to certify a broad class based only on the conclusory allegations
of a few employees”).

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Finally, plaintiff’s conclusory allegation that all class
members are subject to the City’s “common policy and practice” of
excluding wage augmentations from employees’ regular rate of pay
is insufficient, in and of itself, to show similarity.

Trezvant,

434 F. Supp. 2d at 43 (noting that an “unsupported allegation of
a common plan” is insufficient for conditional certification).
The only arguable support for that allegation is 1) the
plaintiff’s wholly speculative claim that all class members
received varying pay augmentations which were not included in
their regular rate of pay for purposes of calculating overtime
and 2) the two aforementioned affidavits in which potential optin plaintiffs aver that the holiday pay, longevity pay and
clothing allowance they received from the City were not so
included.

Again, however, because both affiants are police

dispatchers, their statements do not support an inference that
the purported common practice and policy of underpayment was
widespread and uniform across the various City departments
involved in this case.
The circumstances of this case are most analogous to those
which have prompted the Court to deny conditional certification.
For example, in O’Donnell, 429 F. Supp. 2d at 250, the Court
denied conditional certification, noting that the putative class
would number in the thousands, would include unidentified
individuals in different departments and locations and
would involve those working under different management.

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The Court further remarked that plaintiffs had failed to
demonstrate that any of the putative class members were
interested in joining the suit and that “[c]ourts have considered
such interest to be a requirement to justify conditional
certification of a class.”

Id.

By contrast, in Kane, 138 F. Supp. 2d at 215, conditional
certification was allowed because 1) plaintiff sought to certify
a “discrete” class of only 50-100 people, 2) all of whom had
worked on a single construction job under a single supervisor and
3) had been subjected to the same explicit policy under one
particular constructions contract.

See also Litz v. Saint

Consulting Grp., Inc., No. 11-10693-GAO, 2012 WL 549057, at *2
(D. Mass. Feb. 17, 2012) (allowing conditional certification
where employees had the same general job descriptions, duties and
terms of employment, billed time on an hourly basis and received
similar training and directives from management).
The plaintiff’s burden to establish that this case is
appropriate for conditional certification is not onerous.
Nonetheless, before subjecting an employer to the rigors of a
collective action, plaintiff must at least establish a colorable
factual basis for his claim that a manageable class of “similarly
situated” plaintiffs exist.

Here, a common City employer,

collective bargaining agreement and payment schedule is
insufficient to establish such similarity.

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Considering the

obviously diverse job positions and duties involved, the absence
of facts to support plaintiff’s conclusory assertion of
widespread violations and the ambiguity with respect to the
number and interest of the putative class members, the Court
finds that plaintiff has failed to meet his burden.

Accordingly,

plaintiff’s motion to certify will be denied.
B.

Motion to Dismiss

The City moves to dismiss the amended complaint with respect
to the collective class action and the claim under Massachusetts
law.
1.

Legal Standard

To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.”
Twombly, 550 U.S. 544, 570 (2007).

Bell Atl. Corp. v.

In considering the merits of

a motion to dismiss, the Court may look only to the facts alleged
in the pleadings, documents attached as exhibits or incorporated
by reference in the complaint and matters of which judicial
notice can be taken.

Nollet v. Justices of the Trial Court of

Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248 F.3d
1127 (1st Cir. 2000).

Furthermore, the Court must accept all

factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff’s favor.

Langadinos v.

Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

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If the

facts in the complaint are sufficient to state a cause of action,
a motion to dismiss the complaint must be denied.

See Nollet, 83

F. Supp. 2d at 208.
Although a court must accept as true all of the factual
allegations contained in a complaint, that doctrine is not
applicable to legal conclusions.
1937, 1949 (2009).

Ashcroft v. Iqbal, 129 S. Ct.

Threadbare recitals of the legal elements

which are supported by mere conclusory statements do not suffice
to state a cause of action.

Id.

Accordingly, a complaint does

not state a claim for relief where the well-pled facts fail to
warrant an inference of anything more than the mere possibility
of misconduct.
2.

Id. at 1950.
Claim Under the FLSA

The City concedes that the amended complaint states a cause
of action for Burns individually but moves to dismiss it with
respect to the collective class action.

That portion of the

motion to dismiss will be denied as moot because this Court has
already determined, when denying plaintiff’s motion for
conditional class certification, that the FLSA claim may not
proceed collectively.
3.

Claim Under M.G.L. c. 151

Count II of the amended complaint asserts a violation of the
Massachusetts Fair Wages Act, M.G.L. c. 151, § 1A, which
requires, as does the FLSA, state employers to compensate an

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employee “at a rate of not less than one and one half times the
regular rate at which he is employed” for work in excess of 40
hours a week.

The City moves to dismiss that Count, arguing that

the Fair Wages Act is inapplicable to municipal employees as a
matter of law.
Recently, the City successfully litigated this precise issue
before Judge Ponsor in Lemieux v. City of Holyoke, 740 F. Supp.
2d 246 (D. Mass. 2010).

After careful consideration of the

statute and pertinent Massachusetts case law, Judge Ponsor
concluded that
the legislature never intended to jettison the doctrine
of municipal immunity in order to permit suits by
municipal employees under the state’s Fair Wages Act.
Id. at 260-61.
This Court agrees with Judge Ponsor’s careful analysis of
this issue and joins in the holding reached in Lemieux.
Accordingly, the plaintiff’s claim under state law is foreclosed
and the defendant’s motion to dismiss Count II will be allowed.

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ORDER
In accordance with the foregoing,
1)

plaintiff’s Motion to Certify Class (Docket No. 14) is
DENIED and

2)

defendant’s Motion to Dismiss (Docket No. 13) is, with
respect to the claim under M.G.L. c. 151, ALLOWED, but
is, with respect to the claim under the FLSA, DENIED as
moot.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated August 3, 2012

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