Gamble et al v. Minnesota State-Operated Services et al

Filing 191

ORDER ADOPTING REPORT AND RECOMMENDATION; 188 adopting Report and Recommendation; granting 171 Motion for Conditional Certification and Proposed Opt-In Period subject to the modifications in the Report and Recommendation; denying 189 Defendant's Objection to the Magistrate Judge's report and Recommendation. (Written Opinion). Signed by Chief Judge John R. Tunheim on 1/24/2019. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DAVID LE ROY GAMBLE, JR.,
CYRUS PATRICK GLADDEN, II,
DAVID JAMES JANNETTA, JERRAD
WILLIAM WAILAND, CLARENCE
ANTONIA WASHINGTON, and all
others similarly situated,

Civil No. 16-2720 (JRT/KMM)

ORDER ADOPTING REPORT AND
RECOMMENDATION

Plaintiffs,
v.
MINNESOTA STATE-OPERATED
SERVICES, MINNESOTA STATE
INDUSTRIES, MINNESOTA SEX
OFFENDER PROGRAM,
DEPARTMENT OF HUMAN
SERVICES, STATE OF MINNESOTA,
EMILY JOHNSON PIPER, SHELBY
RICHARDSON, LUCINDA JESSON,
DENNIS BENSON, NANCY A.
JOHNSTON, SHIRLEY JACOBSON,
CHARLIE HOFFMAN, and JOHN AND
JANE DOES 1-20,
Defendants.
Charlie R. Alden, CHARLIE ALDEN, 2801 Cliff Road East, Suite 200,
Burnsville, MN 55337, for plaintiffs.
Kathryn Iverson Landrum, OFFICE OF THE MINNESOTA
ATTORNEY GENERAL, 445 Minnesota Stree, Suite 1100, Saint Paul,
MN 55101, for defendants.

Plaintiffs David Le Roy Gamble, Jr., Cyrus Patrick Gladden, II, David James
Jannetta, Jerrad William Wailand, and Clarence Antonia Washington (collectively,
“Plaintiffs”) bring this civil action against Minnesota State-Operated Services, Minnesota

State Industries, the Minnesota Sex Offender Program (“MSOP”), the Department of
Human Services, the State of Minnesota, Emily Johnson Piper, Shelby Richardson,
Luncinda Jesson, Dennis Benson, Nancy A. Johnston, Shirley Jacobson, Charlie Hoffman,
and twenty John and Jane Does (collectively, “Defendants”) for violations of the Fair Labor
Standards Act (“FLSA”), the Thirteenth and Fourteenth Amendments, and the
Rehabilitation Act. (Am. Compl. ¶¶ 125-54, June 14, 2017, Docket No. 79.) Plaintiffs are
individuals civilly committed to, and in the custody of MSOP. (Id. ¶¶ 12-16.) Plaintiffs
participate in, or previously participated in MSOP’s Patient Pay Program (the “Program”),
a vocational work program. (Id. ¶¶ 12-16, 33.) MSOP is authorized by statute to retain
fifty percent of an individual’s earnings through this Program to offset the cost of operating
MSOP. Minn. Stat. § 246B.05, subd. 6 (2018). MSOP has retained such earnings since
September 2009. (Id. ¶ 95.) Plaintiffs allege this violates the FLSA’s minimum wage
provision, the Thirteenth and Fourteenth Amendments, and the Rehabilitation Act. (Id. ¶¶
125-54.)
A cause of action must generally be brought within two years of an FLSA violation.
29 U.S.C. § 255(a) (2018). However, the statute of limitations may be extended to three
years where the violation is willful. Id.
Plaintiffs moved for conditional class certification and approval of the proposed
notice and opt-in period. Magistrate Judge Kathryn Menendez issued a Report and
Recommendation (“R&R”) recommending the Court grant Plaintiffs’ motion subject to
certain modifications. (R. & R. at 4-5, Nov. 14, 2018, Docket No. 188.) Presently before
the Court is Defendants’ Objection to the R&R. Defendants object to the Magistrate
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Judge’s recommendation that the statute of limitations period should be extended to three
years to allow notice of the collective action to Program participants dating back to August
12, 2013—three years prior to the commencement of the instant action. Because the
recommendation is not clearly erroneous or contrary to law, the Court will adopt it and
deny the Defendants’ objections.
DISCUSSION
The standard of review applicable to an appeal of a Magistrate Judge's
recommendation on nondispositive pretrial matters is extremely deferential. Roble v.
Celestica Corp., 627 F. Supp. 2d 1008, 1014 (D. Minn. 2007). The Court will decline to
adopt such a recommendation only if it is clearly erroneous or contrary to law. 28 U.S.C.
§ 636(b)(1)(A); Fed.R.Civ.P. 72(a); D. Minn. LR 72.2(a).
Defendants argue that the Magistrate Judge’s recommendation is contrary to law for
two reasons: (1) the statute of limitations in an FLSA case runs from the date of opt-in and
not the date the complaint is filed, contrary to what the Magistrate Judge found in her
recommendation; and (2) the statute of limitations in this case, as a matter of law, is two
years, and not three as recommended by the Magistrate Judge.
First, the Magistrate Judge’s recommendation that the conditional class comprise of
workers who worked in the Program within three years of the filing of the complaint—
August 12, 2013 to the present—is not contrary to law. While it is true that under the
FLSA the statute of limitations is only tolled for individual plaintiffs when they opt-in to
the class and not when the complaint was filed, 29 U.S.C. § 256(b) (2018); Redman v. U.S.

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West Business Resources, Inc., 153 F.3d 691, 695 (8th Cir. 1998), this principle does not
affect which potential class members should be notified of the collective action. Indeed, if
this rule controlled who was notified of the collective action, then no one would be eligible
to receive notification until they were already part of the collective action and the statute
of limitations was tolled as to them. Furthermore, the fact that persons working in the
Program on August 12, 2013 to the present should be notified does not extend their claims
back to that date. This date is merely the earliest possible date that an opt-in plaintiff may
have last suffered a violation of the the minimum wage provision of the FLSA and still
have a compensable injury should they prevail in this case. See In re RBC Dain Rauscher
Overtime Litigation, 703 F.Supp.2d 910, 966 (D. Minn. 2010); Kumar v. Tech Mahindra
(Americas) Inc., Case No. 4:16-cv-00905-JAR, 2017 WL 3168531 *3 (E.D. Mo. July 26,
2017). Thus, the Court will overrule Defendants’ objection regarding the commencement
of the statute of limitations and adopt the R&R.
Second, the Magistrate Judge’s recommendation as to willfulness is not contrary to
law. The Magistrate Judge correctly refrained from making any determinations regarding
willfulness

at

this

stage.

Maseck

v.

TAKCommc’ns, Inc., Civ. No. 10-

965, 2011 WL 1190579, at *3 (D. Minn. Mar. 28, 2011) (“At the initial [certification]
step, ‘[t]he court does not make any credibility determinations or findings of fact with
respect to contrary evidence presented by the parties . . . .’” (quoting Dege v. Hutchinson
Tech., Inc., Case No. 06-3754, 2007 WL 586787, at *2 (D. Minn. Feb. 22, 2007))).
Although it may be difficult for Plaintiffs to prove willfulness in light of Martin v.
Benson—holding that Program participants are not covered under the FLSA, and the
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retention of fifty percent of participant earnings was therefore not a violation of the FLSA,
827 F.Supp.2d 1022 (D. Minn. 2011)—they should still have the opportunity to develop
that theory of their case, and related potential class members should be notified. Thus, the
Court will overrule Defendants’ objection regarding the Magistrate Judge’s nondetermination of willfulness and adopt the R&R.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Defendants’ Objection to the Magistrate Judge’s Report and Recommendation
[Docket No. 189] is DENIED.
2. The Report and Recommendation [Docket No. 188] is ADOPTED.
3. Plaintiffs’ Motion for Conditional Certification and Proposed Opt-In Period
[Docket No. 171] is GRANTED subject to the modifications in the Report and
Recommendation [Docket No. 188].
DATED: January 24, 2019
at Minneapolis, Minnesota.

_______s/John R. Tunheim______
JOHN R. TUNHEIM
Chief Judge
United States District Court

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