Byers et al v. Care Transport Inc
Filing
43
OPINION and ORDER Regarding Plaintiff's 34 Second MOTION for Conditional Certification of an FLSA Collective Action. Signed by District Judge Gerald E. Rosen. (JOwe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
YASHAE BYERS, GLORIE
ETZEL and JILL JANAVIKAS,
on behalf of themselves and all
others similarly situated,
No. 13-cv-15174
Hon. Gerald E. Rosen
Plaintiffs,
vs.
CARE TRANSPORT, INC.,
a Michigan corporation,
Defendant.
_______________________________/
OPINION AND ORDER REGARDING PLAINTIFF’S SECOND MOTION FOR
CONDITIONAL CERTIFICATION OF AN FLSA COLLECTIVE ACTION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on September 14, 2016
PRESENT: Honorable Gerald E. Rosen
United States District Judge
I. INTRODUCTION
Plaintiffs Yashae Byers, Glorie Etzel and Jill Janavikas, employees/former
employees of Defendant Care Transport, Inc. (“CTI”), a transportation service provider
for disabled veterans, filed this FLSA action contending that they, along with a putative
class of similarly-situated fellow employees, were entitled to overtime pay that Defendant
refused to pay them. The parties have had more than 15 months to conduct discovery,
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and cross-motions for summary judgment have already been filed and ruled upon. The
matter is now before the Court on Plaintiffs’ Second Motion for Conditional
Certification of an FLSA Collective Action. Response, Reply and Supplemental Briefs
have been filed.
Having reviewed and considered the parties’ briefs, supporting documents, and
the entire record of this matter, the Court has determined that oral argument is not
necessary. Therefore, pursuant to Eastern District of Michigan Local Rule 7.1(f)(2), this
matter will be decided on the briefs. This Opinion and Order sets forth the Court’s
ruling.
II. BACKGROUND
As noted above, the three Plaintiffs in this action are current or former employees
of CTI who all served as drivers. CTI has a fleet of 55 vehicles, including sedans,
minivans and wheelchair vans used to provide non-emergency transportation to
individuals to and from medical appointments. Each of the named Plaintiffs generally
drove a different type of vehicle: Glorie Etzel primarily drove a sedan, occasionally
drove a minivan, and never drove a wheelchair van; Jill Janavikas primarily drove a
minivan, but occasionally drove a sedan or wheelchair van; and Yashae Byers primarily
drove a wheelchair van, but occasionally drove a sedan or a minivan. During the period
at issue here, each of the three Plaintiffs worked at least some weeks in excess of 40
hours.
2
On December 19, 2013, Plaintiffs filed this action asserting a single claim of
FLSA Violation on behalf of themselves and as a putative class of “all current and
former employees employed as transport drivers. . . who worked for at least one week in
excess of forty hours but were paid only for forty hours, during the period from three
years prior to the filing of this complaint to the present.” [Complaint, Dkt. # 1, ¶¶ 38-45.]
After ten months of discovery, on September 24, 2015, the Court denied both
parties’ motions for summary judgment, holding that there remain questions of fact as to
whether each Plaintiff individually qualifies for overtime under the FLSA based on the
amount and timing of driving each Plaintiff did on vehicles covered by the “small vehicle
exception” of the Motor Carrier Act of 1935. See 9/24/15 Opinion and Order, Dkt. # 31.
The Court also denied as moot the Plaintiffs’ earlier-filed Motion to Certify Class for
FLSA Collective Action finding that the parties’ previously-provided briefs on that
motion were inadequate, but invited Plaintiffs to re-file the motion in light of the
substantial discovery the parties had completed. The Court directed the parties when
briefing the re-filed class certification motion to “take special note of the potential issue
of de minimis work under the small vehicle exception,” explaining that “[p]otential
Plaintiffs may only be part of a class if their work was not so ‘limited,’ ‘trivial,’ ‘casual,’
or ‘occasional’ as to be de minimis,” and urged the parties to address this issue, should
any potential Plaintiffs present a close case as to de minimis work. Id. at n. 17 (citation
omitted).
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Plaintiffs thereafter filed their Second Motion for Conditional Certification of an
FLSA Collective Action. With that motion pending, the Court held a final pretrial
conference with the parties which revealed that several factual questions that would
likely be critical in determining the scope of the class -- if any -- had still yet to be
discovered. In particular, the Court noted that Plaintiffs had not by then obtained
documentation identifying the total number of potential class members, the number of
overtime hours worked by those potential class members, or the types of vehicles
regularly driven by them, the latter of which would be critical in determining whether the
drivers are eligible for FLSA overtime pay should it be determined that Defendants’
wheelchair vans fall outside of the small vehicle exception of the Motor Carrier Act, as
discussed at length in the Court’s summary judgment opinion.
Therefore, the Court reopened the discovery period for an additional 60 days to
allow the Plaintiffs to seek the documents or other information necessary to allow the
parties to properly define the potential scope of the class, and particularly to determine
which employees drove which CTI vehicles, and at what times they drove those vehicles.
[See 11/12/15 Order, Dkt. # 37.] The Court further ordered the parties to file
supplemental briefs after the close of the extended discovery period. Id.1 The Court
specifically ordered that the Plaintiffs’ supplemental brief include a description of the
1
The parties thereafter stipulated to a further 21-day extension of the discovery
period and the deadline for filing supplemental briefs. [See 1/26/16 Stipulated Order,
Dkt. # 40.]
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potential class, “including the potential size of the class, the types of vehicles operated by
each potential class member, and the likely damages based on the number of overtime
hours worked by the potential class members.” Id.
Plaintiffs filed their Supplementary Memorandum on January 18, 2016 and
Defendant responded on January 25, 2016. Plaintiffs replied on February 9, 2016.
Defendant thereafter supplemented its response with a Supplemental Memorandum on
February 15, 2016.
In their Supplementary Memorandum, Plaintiffs state that they seek to certify as a
potential class of current and former drivers employed by CTI after December 20, 2010
who were not paid time-and-a-half for overtime hours. Plaintiffs state that this potential
class consists of 71 such current and former CTI employees.
Plaintiffs state that eight CTI drivers who drove only sedans and/or minivans
worked overtime during at least one week of their employment. [See Dkt. # 38, p. 4.]
There is no dispute that sedans and minivans fall within the “small vehicle exception” to
the Motor Carrier Act, and hence, without question, the drivers who exclusively drove
these small vehicles would be covered under the FLSA and could properly be included as
members of a potential collective action. Plaintiffs allege that the overtime damages of
these eight drivers total “at least $34,105.30, not including liquidated damages.” Id.
Whether the remaining drivers identified in Plaintiffs’ Supplementary
Memorandum are sufficiently “similarly situated” to also be included in a potential class
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is not so clearly established.
Plaintiffs include as part of the class for which they seek certification 37 drivers
who only operated wheelchair vans. Id. at p. 5. Plaintiffs claim that all of these 37
drivers worked some overtime, and their overtime damages are “at least $200,480.30,
excluding liquidated damages.” Id. The remaining 18 drivers operated sedans, minivans
and wheelchair vans. Id. Plaintiffs, however, have not specified the amount of time each
driver in this last group drove each kind of vehicle, stating only that this group’s “overall
damages equal $117,796.94, without liquidated damages” but for the workweeks where
the drivers operated sedans and/or minivans, the damages only amount to “approximately
$19,580.40.” Id.
III. DISCUSSION
Section 216(b) of the FLSA permits individuals to sue on “their own behalf and
for ‘similarly situated’ persons.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th
Cir. 2006). In order to proceed as a “collective action,” the plaintiffs must be actually
similarly-situated and all plaintiffs must affirmatively opt into the litigation. Id. (citing
29 U.S.C. § 216(b) and Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 167-68
(1989)). This is in contrast to “the opt-out approach utilized in class actions under Fed.
R. Civ. P. 23.” Id.
Though the Sixth Circuit has not expressly decided the procedure that a district
court should utilize to determine whether to certify a collective action under Section
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216(b), the near universal approach within this Circuit -- and across the country -- is to
employ a “two-phase inquiry.” Id. During the first stage, which generally takes place at
the beginning of discovery, a court will typically “conditionally certify” a representative
class upon a “modest factual showing” that a class of similarly-situated individuals
exists. Id. at 547 (citation omitted). Courts have described this showing as “a fairly
lenient standard.” See White v. Baptist Mem. Health Care Corp., 699 F.3d 869, 877 (6th
Cir. 2012). Putative class members are then notified of the action and are given the
opportunity to “opt-in.” Comer, 454 F.3d at 546. Following the close of discovery, a
court will turn to the second stage and determine whether the class members are, in fact,
similarly-situated by way of a decertification motion. Id. Lead plaintiffs bear the burden
of showing that the opt-in plaintiffs are similarly situated to the lead plaintiffs. O’Brien
v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009).
This instant Motion, however, is before this Court in a slightly different
procedural posture than most motions for conditional certification. Here, the motion for
conditional certification was filed after the parties had fifteen months of discovery and
after dispositive motions were filed and decided.
When a plaintiff has been afforded the opportunity to conduct discovery, courts
have employed several approaches in deciding motions for conditional certification.
Some courts simply have determined that the lenient standard does not apply, and those
courts proceed directly to a second stage review. See e.g., Pfohl v. Framers Ins. Group,
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2004 WL 554834 at * 1, *3 (C.D. Cal. Mar. 31, 2004); Basco v. Wal-Mart Stores, Inc.,
2004 WL 1497709 at *4 (E.D. La. July 2, 2004). Other courts have applied an
intermediate standard. See e.g., Holt v. Rite Aid. Corp, 333 F. Supp. 2d 1265, 1274
(M.D. Ala. 2004).
When the parties have conducted discovery on the issue of conditional
certification, courts in this Circuit typically have applied a “heightened” or “more
restrictive” -- but not stringent -- standard. See, e.g., Wheeler v. City of Detroit, 2012
WL 1119300, at *3 (E.D. Mich. Apr. 3, 2012); Neff v. U.S. Xpress, Inc., 2013 WL
4479078, at *3 (S.D. Ohio Aug. 20, 2013); Lankford v. CWL Investments, LLC, 2014
WL 3956184 at *4 (E.D. Mich. Aug. 13, 2014). It is this heightened standard that the
Court will apply in deciding the pending conditional certification motion in this case.
In Creely v. HCR ManorCare, Inc., 789 F. Supp. 2d 819 (N.D. Ohio 2011), the
court described the requisite showing under this heightened standard as a “modest-plus”
showing. Id. at 826-27; see also Neff, 2013 WL 4479078 at *5. Under this “modestplus” standard, the court compares the allegations set forth in Plaintiffs’ Complaint with
the factual record assembled through discovery to determine whether Plaintiffs have
made a sufficient showing beyond their original allegations that would tend to make it
more likely that a class of similarly-situated employees exists. Id. (quoting Creely, 789
F. Supp. 2d at 827). In other words, the Court will review whether Plaintiffs have
“advanced the ball down the field” -- showing that it is more likely that a group of
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similarly-situated individuals may be uncovered by soliciting opt-in plaintiffs. Id.
“Plaintiffs need not have moved the ball far down the field, but they need to have shown
some progress as a result of the discovery as measured against the original allegations
and defenses.” Creely, 789 F. Supp. 2d at 827. “How much progress Plaintiffs have
made will be considered in conjunction with Defendant’s evidence and in the context of
Plaintiffs’ unshifting burden to prove their claims.” Id. However, the Court will not
weigh the relative merits of the parties’ claims at this conditional certification stage. Id.
“A full and complete merits review is best preserved for the detailed and strict review
conducted at stage two.” Id.
Having set forth the above standard, a few prefatory comments are necessary to
address the parties’ arguments with respect to the Plaintiffs’ showing in this case.
First, the Court notes that neither Plaintiffs nor Defendant have provided the
Court with any concrete record evidence establishing the numbers of employees making
up the various segments of Plaintiffs’ putative opt-in class. All that has been presented
to the Court effectively is what Plaintiffs’ attorneys have represented the numbers to be
in the briefs they filed. While certainly such representations of counsel, without
supporting record evidence, would not be sufficient at a stage two merits review, given
that Defendant has not disputed Plaintiffs’ numbers, the Court accepts them at this stage.
As indicated above, in their Supplementary Memorandum, Plaintiffs seek to
certify a potential class consists of 71 drivers. Thirteen of these drivers only operated
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sedans or minivans, but only eight of these 13 worked at least one week of overtime.
[Pl’s Supp. Brief., p. 4]. 40 drivers only operated wheelchair vans, 37 of which worked
some overtime during the relevant period. Id. at 5. The remaining 18 drivers operated
sedans, minivans and wheelchair vans. Id. Only approximately 17% of the overtime
damages of this group of mixed vehicle drivers were incurred as a result of driving
sedans and/or minivans. Id.
Although Defendant does not dispute Plaintiffs’ tabulation of the numbers of
drivers in each category, Defendant argues that the Court should not consider those 40
drivers who drove wheelchair vans exclusively or those 18 mixed-vehicle drivers who
spent some time driving wheelchair vans in determining whether conditional class
certification is warranted. Defendant bases this argument on a DVD it submitted along
with its Supplementary Memorandum showing a wheelchair van equipped for and being
loaded with four wheelchairs, thereby confirming, in Defendant’s view, that the
wheelchair vans are “designed or used to transport more than 8 passengers, including the
driver,” and, hence, such wheelchair van drivers are not subject to the FLSA’s overtime
requirements. Therefore, Defendant maintains these drivers cannot be included in
Plaintiffs’ collective action.
The Court will not consider Defendant’s video “evidence” in deciding the
conditional certification issue. The DVD is plainly inadmissible hearsay evidence as it is
being offered for the truth of its content. See Fed. R. Evid. 801(c)(2); 802. More
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fundamental, however, is the lack of foundation and authentication for its admission.
No effort whatsoever has been made to establish an evidentiary foundation for the
admission of the video. There has been no sworn deposition or affidavit testimony
concerning the DVD. It is not appended to any affidavit nor was it ever addressed or
even mentioned in the deposition of Defendant’s owner, Sabah Rabiah. There has been
no testimony or other evidence provided as to when the recording was made, where it
was made, or who made it, or when it was copied to the DVD. Lacking proper
foundation and authentication, the Court will not consider the DVD in deciding the
matter presently before the Court.
As discussed above, at this stage of the proceedings, under a heightened “modestplus” standard, the Court reviews this matter to determine whether Plaintiffs’ have made
a sufficient showing to “advance the ball down the field.” “[T]he focus of the Court’s
inquiry at this point is ‘not on whether there has been an actual violation of law but rather
on whether the proposed plaintiffs are similarly situated . . . with respect to th[e]
allegations that the law has been violated.’” Creely, 789 F. Supp. 2d at 835 (citation
omitted).
At this stage, all that the Court is determining is whether the named Plaintiffs have
shown that a potential class of sufficiently similarly-situated opt-in plaintiffs exists. The
Court concludes that Plaintiffs have submitted sufficient evidence to support and
advance their allegations. Defendant will have an opportunity to file a motion for
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decertification challenging the Court’s preliminary determination that the other CTI
drivers Plaintiffs point to are similarly-situated after the close of the opt-in period.
CONCLUSION
For the reasons set forth above in this Opinion and Order,
IT IS HEREBY ORDERED that Plaintiffs’ Second Motion for Conditional
Certification of an FLSA Collective Action [Dkt. # 34] is GRANTED. Accordingly,
The Court CONDITIONALLY CERTIFIES FOR COLLECTIVE ACTION a
class of all current and former Drivers who were employed by Defendant Care Transport,
Inc. after December 20, 2010, and who worked hours in excess of 40 hours per week but
were not paid 1 ½ times their regular rate for overtime hours.
IT IS FURTHER ORDERED that, within 14 days of the date of this Order,
Plaintiffs shall provide Notice to the conditional class members, in the form and
substance of the proposed Notice appended as Exhibit 1 to Plaintiffs’ Second Motion to
Certify Class for Conditional FLSA Collective Action [Dkt. # 34-2].
The Court stresses here that its certification of collective action is a conditional
one. After the opt-in notices have been sent, responses received and discovery
concluded, the Court may decertify the conditional collective action, in whole or in part,
if it cannot be shown that plaintiffs are not similarly-situated.
SO ORDERED.
s/Gerald E. Rosen
United States District Judge
Dated: September 14, 2016
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on September 14, 2016, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, (313) 234-5135
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