Harris et al v. Hinds County, Mississippi et al
Filing
33
ORDER granting 25 Motion to Certify Class. Signed by District Judge Carlton W. Reeves on 02/04/14. (jc)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
DERIUS HARRIS, RAY MARSHALL, AND FREDERICK
MALONE, INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED
V.
PLAINTIFFS
CIVIL ACTION NO. 3:12-cv-00542-CWR-LRA
HINDS COUNTY, MISSISSIPPI D/B/A
HINDS COUNTY SHERIFF’S DEPARTMENT,
MALCOLM MCMILLAN AND TYRONE LEWIS
IN THEIR OFFICIAL CAPACITIES AS THE
FORMER AND CURRENT SHERIFFS OF HINDS
COUNTY, MISSISSIPPI
DEFENDANTS
MEMORANDUM OPINION AND ORDER GRANTING CLASS CERTIFICATION
This cause is before the Court on the Plaintiffs’ Motion for conditional certification and
an order to permit court-supervised opt-in notice to potential plaintiffs under Section 16(b) of the
Fair Labor Standards Act (“FLSA”). 29 U.S.C. § 216(b). This case involves compensation
policies for non-supervisory employees of the Hinds County Sheriff’s Department and the
former and current sheriffs of Hinds County, Mississippi (“Defendants”). Employees at the
Sheriff’s Department claim that they are and have been denied overtime pay in violation of the
FLSA. 29 U.S.C. § 201. The aggrieved employees seek to bring a collective action against their
employer. Applying the Fifth Circuit’s “fairly lenient” standard, the Plaintiffs have shown that
there are additional aggrieved individuals who are similarly situated and desire to opt in to the
lawsuit. Therefore, the motion to permit court-supervised opt-in notice is granted and the class
will be conditionally certified for the purposes of discovery.
FACTUAL BACKGROUND
Plaintiffs Derius Harris and Ray Marshall, along with opt-in Plaintiff Frederick Malone,
filed this lawsuit against the Defendants seeking to recover unpaid overtime compensation under
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the FLSA, 29 U.S.C. §§ 201-219. Plaintiffs were correctional officers employed by the Hinds
County Sheriff’s Department in non-supervisory positions within the last three years. Each has
filed an affidavit which articulates the same violations alleged in the Complaint, namely, in part,
that they and other similarly situated non-supervisory employees were not paid all overtime
wages owed [as mandated by the FLSA]; that Defendants had a compensatory time policy which
only gave employees compensatory time at a rate of one hour for each hour of overtime worked;
that Defendants did not pay for all compensatory time earned when the employees’ employment
ended; that Defendants did not keep accurate records regarding compensatory time for them and
other employees; and that, at the beginning of their shift, they were required to attend a fifteenminute meeting with Defendants’ management and other employees prior to clocking in. They
state that they were never compensated for the time spent in these meetings.
The aggrieved workers seek to become party plaintiffs and represent a class of similarly
situated employees under the FLSA. Plaintiffs’ proposed class would consist of “all nonsupervisor employees who performed work for Defendants three years from the date Plaintiffs’
complaint was filed to present.” Pl’s Motion to Certify Class, Docket No. 25 (hereinafter
“Motion”). 1 The Defendants oppose the motion, arguing that the Plaintiffs have failed to meet
the burden of a modest factual showing that they and other potential opt-in plaintiffs were
“similarly situated” victims of a common policy or plan that violated the FLSA.
LEGAL STANDARD
The FLSA requires covered employers to compensate non-exempt employees at overtime
rates when they work in excess of the statutorily defined maximum number of hours. 29 U.S.C.
1
At points throughout their supporting memorandum, see Docket No. 26, Plaintiffs describe themselves as
“current and former satellite technicians,” “installers/technicians,” and “valets and valet captains.” Id. at 2, 4 and 8.
It is obvious that these are not the plaintiffs in this case and these descriptions apparently have been transported from
some other litigation. While counsel would do well to remedy these errors in advance of submitting their pleadings
to the court, they do not affect the analysis below.
2
§ 207(a).
If they are unlawfully denied overtime, Section 16(b) of the FLSA permits an
employee to bring suit against an employer “for and in behalf of himself . . . and other employees
similarly situated.” 29 U.S.C. § 216(b). Plaintiffs who desire to join in a “collective action”
must “opt in” to the case and be bound by a judgment, unlike plaintiffs in a Rule 23 class action
who must essentially “opt out.” H & R Block, Ltd. v. Housden, 186 F.R.D. 399, 399 (E.D. Tex.
1999). District courts have discretion in determining whether to order court-supervised notice to
prospective plaintiffs. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 169 (1989). 2
The Lusardi 3 method is recognized as “the favored approach by courts in the Fifth
Circuit.” 4 Kaluom v. Stolt Offshore, Inc., 474 F. Supp. 2d 866, 871 (S.D. Tex. 2007) (citing
England v. New Century Fin. Corp., 370 F. Supp. 2d 504, 509 (M.D. La. 2005)). The approach
2
While Hoffmann-La Roche involves an action under the Age Discrimination in Employment Act
(“ADEA”), its analysis of Section 216(b) remains on point because the ADEA explicitly incorporates Section 216(b)
of the FLSA through 29 U.S.C. § 626(b). Id. at 167 (“[T]he ADEA incorporates enforcement provisions of the Fair
Labor Standards Act of 1938 . . . and provides that the ADEA shall be enforced using certain of the powers,
remedies, and procedures of the FLSA.”); see also Strickland v. Hattiesburg Cycles, Inc., No. 2:09-CV-174-KSMTP, 2010 WL 2545423, at *1 n.2 (S.D. Miss. June 18, 2010).
3
Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987).
4
Courts presently follow two different approaches in determining whether to authorize notice to employees
of their right to join a collective action suit under FLSA Section 216(b). Ali v. Sugarland Petroleum, No. 4:09-cv0170, 2009 WL 5173508, at *2 (S.D. Tex. Dec. 22, 2009). The first approach was developed in Lusardi v. Xerox
Corp., 118 F.R.D. 351 (D.N.J. 1987), and involves a two-step process to determine whether employees are similarly
situated. See Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995), overruled on other grounds by
Desert Palace, Inc. v. Costa, 539 U.S. 90, 90-91 (2003)). The second approach follows Shushan v. University of
Colorado, 132 F.R.D. 263 (D. Colo. 1990), and treats the collective action authorization as coextensive with Rule 23
class certification. See Villatoro v. Kim Son Rest., 286 F. Supp. 2d 807, 809 (S.D. Tex. 2003). The Fifth Circuit has
not yet “ruled on how district courts should determine whether plaintiffs are sufficiently ‘similarly situated’ to
advance their claims together in a single § 216(b) action.” Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d
516, 518-19 (5th Cir. 2010). Despite this uncertainty, district courts in this circuit follow the Lusardi approach
rather than the Shushan approach. See, e.g., Ali, 2009 WL 5173508, at *2; Maynor v. Dow Chem. Co., No. G-070504, 2008 WL 2220394 (S.D. Tex. May 28, 2008); Villatoro, 286 F. Supp. 2d at 810; Gatewood v. Koch Foods of
Miss., LLC, No. 3:07-cv-82-KS-MTP, 2009 WL 8642001, at *12 (S.D. Miss. Oct. 20, 2009).
The application of Lusardi is consistent with the Fifth Circuit’s conclusion in LaChapelle v. Owens-Illinois,
Inc. that “[t]here is a fundamental, irreconcilable difference between the class action described by [Federal Rule of
Civil Procedure] 23 and that provided for by FLSA § 16(b) [29 U.S.C. § 216(b)],” namely the “opt out” procedure
for class members under Rule 23 as contrasted with the “opt in” procedure under Section 216(b). 513 F.2d 286, 288
(5th Cir. 1975); see also Donovan v. Univ. of Tex. at El Paso, 643 F.2d 1201, 1206 (5th Cir. 1981) (“The statutory
framework of enforcement procedures of the FLSA and those of Title VII are crucially different, but this difference
highlights even more why Rule 23 is not needed in FLSA suits. The FLSA procedure, in effect, constitutes a
congressionally developed alternative to the F.R. Civ. P. 23 procedures.”). The Fifth Circuit recently referred to the
two step approach as the “typical[ ]” manner in which collective actions proceed. Sandoz v. Cingular Wireless LLC,
553 F.3d 913, 915 n.2 (5th Cir. 2008); Tolentino v. C & J Spec-Rent Servs. Inc., 716 F. Supp. 2d 642, 646-47 (S.D.
Tex. 2010) (quoting Sandoz).
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was first applied by the Fifth Circuit in Mooney v. Aramco Services Co., 54 F.3d 1207, 1214 (5th
Cir. 1995), overruled on other grounds by Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).
Lusardi advises a two-step certification analysis: (1) the notice stage, and (2) the “opt-in,”
“merits,” or decertification stage.
In the notice stage, the Court determines whether a conditional class should be certified.
Under the Lusardi method, the court “makes a decision—usually based only on the pleadings
and any affidavits which have been submitted—whether notice of the action should be given to
potential class members.” Mooney v. Aramco Svcs. Co., 54 F.3d 1207, 1214 (5th Cir. 1995).
The court makes this determination using “a fairly lenient standard” because of the “minimal
evidence” available at that stage. Id. at 1214. Plaintiffs can achieve notice with “nothing more
than substantial allegations that the putative class members were together the victims of a single
decision, policy, or plan infected by discrimination.” Id. at 1214, n.8. If the Court decides to
conditionally certify the class, putative class members are given notice, an opportunity to opt in
to the litigation, and adequate time for discovery.
Id. at 1214; Lima v. Int’l Catastrophe
Solutions, Inc., 493 F. Supp. 2d 793, 798 (E.D. La. 2007). The Court then reexamines the class
after this period. “If the Court finds that the class is no longer made up of similarly situated
persons, then it may decertify the class. This inquiry is usually conducted upon a motion filed by
the Defendant.” Barnett v. Countrywide Credit Indus., Inc., No. 3:01-CV-1182-M, 2002 WL
1023161, at *1 (N.D. Tex. May 21, 2002).
Because the Plaintiffs have moved for court-supervised opt-in notice, this Court analyzes
the motion under the “fairly lenient standard” identified in Mooney. At this stage, a plaintiff
must make a minimal showing that “(1) there is a reasonable basis for crediting the assertions
that aggrieved individuals exist, (2) that those aggrieved individuals are similarly situated to the
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plaintiff in relevant respects given the claims and defenses asserted, and (3) that those
individuals want to opt in to the lawsuit.” Prater v. Commerce Equities Mgmt. Co., Inc., No. H07-2349, 2007 WL 4146714, at *4 (S.D. Tex. Nov. 19, 2007). The lenient standard requires at
least a “modest factual showing sufficient to demonstrate that the plaintiff and potential plaintiffs
together were victims of a common policy or plan that violated the law.” Simmons v. T-Mobile
USA, Inc., No. H-06-1820, 2007 WL 210008, at *4 (S.D. Tex. Jan 24, 2007) (citation omitted).
Only at the second stage, at the close of discovery, does the Court make a “factual
determination” as to whether the class members are similarly situated. Mooney, 54 F.3d at 1214.
A class of plaintiffs can be conditionally certified for notice despite some level of
heterogeneity. The positions compared “need not be identical, but similar” with respect to their
“job requirements and with regard to their pay provisions.” Aguilar v. Complete Landsculpture,
Inc., No. CIV.A.3:04 CV 0776 D, 2004 WL 2293842 (N.D. Tex. Oct. 7, 2004); Ryan v. Staff
Care, Inc., 497 F. Supp. 2d 820, 824-25 (N.D. Tex. 2007). A court can authorize certification if
it finds “some factual nexus which binds the named plaintiffs and the potential class members
together as victims of a particularly alleged policy or practice.” Salinas-Rodriguez v. Alpha
Svcs., L.L.C., No. 3:05-CV-44-WHB-AGN, 2005 WL 3557178, at *3 (S.D. Miss. Dec. 27, 2005)
(citing Villataro v. Kim Son Rest., L.P., 286 F. Supp. 2d 807, 810 (S.D. Tex. 2003)). Although
plaintiffs bear the burden of proof to make this factual nexus showing, this is a “fairly lenient
standard” due to the lack of evidence available during the first stage. Mooney, 54 F.3d at 1214.
Instead, a court decides whether to conditionally certify “based only on the pleadings and any
affidavits which have been submitted.” England v. New Century Fin. Corp., 370 F. Supp. 2d
504, 508 (M.D. La. 2005).
However, a court should “deny plaintiffs’ right to proceed
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collectively if the action arises from circumstances purely personal to the plaintiff, and not from
any generally applicable rule, policy, or practice.” Id. at 507.
APPLICATION AND ANALYSIS
A. Evidence That Other Individuals Desire to Opt In to the Lawsuit
Plaintiffs request that the Court conditionally certify this case as a collective action on
behalf of all “‘non-supervisory employees’ who performed work for Defendants three years from
the date Plaintiffs’ complaint was filed to present.” Motion, at 1. Defendant contends that
Plaintiffs have failed to show that other employees, or potential opt-in plaintiffs, have an interest
in joining the case, despite having had time to engage in discovery. Def’s Resp. in Opp., Docket
No. 28 (hereinafter “Response”), at 6. They argue that the Plaintiffs have not provided evidence
that other aggrieved individuals would join the lawsuit because the Plaintiffs have “failed to
identify other potential plaintiffs and submit affidavits from such plaintiffs.” Id. at 4. The
Plaintiffs dispute there is any such requirement in determining whether to grant a motion for
collective action under the governing law.
In Dybach v. State of Florida Department of Corrections, 942 F.2d 1562, 1567-68 (11th
Cir. 1991), a case on which the Defendants rely in their memorandum, see Response, at 7, the
Eleventh Circuit ruled that, before conditionally certifying a class, “the district court should
satisfy itself that there are other employees of the department-employer who desire to ‘opt-in’
and who are ‘similarly situated’ with respect to their job requirements and with regard to their
pay provisions.” Although some district courts outside of the Eleventh Circuit have adopted
Dybach’s “desire to opt in” requirement, no other circuit court has adopted this requirement, and
the Fifth Circuit has not addressed this factor. See Gortat v. Capala Bros., Inc., No. 07–CV–
3629 (ILG), 2010 WL 1423018, at *10 (E.D.N.Y. Apr. 9, 2010); Simmons v. T-Mobile USA,
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Inc., No. H-06-1820, 2007 WL 210008, at *9 (S.D. Tex. Jan. 24, 2007). As the court in
Simmons which considered this factor noted, “Affidavits from potential class members affirming
their intention to join the suit are ideal for an analysis of whether the putative class members
were together the victims of a single decision, policy, or plan.” 2007 WL 210008, at *9 (internal
quotation marks omitted). However, they are not required. Id. (“Affidavits per se are not
required and a named plaintiff may submit some other form of evidence that the additional
aggrieved persons exist and want to join the suit.”); McKnight v. D. Houston, Inc., 756 F. Supp.
2d 794, 805 (S.D. Tex. 2010). The best way to determine whether a party is interested in joining
a lawsuit is to send her notice and allow her to opt in. Indeed, requiring that multiple potential
class members affirm their intention to join the suit before notice is issued would require
plaintiffs or their counsel to solicit opt-in plaintiffs without the benefit of court-approved notice –
which defeats the purpose of this stage of the litigation. See, e.g, Heckler v. DK Funding, LLC,
502 F. Supp. 2d 777, 780 (N.D. Ill. 2007); Delgado v. Ortho-McNeil, Inc., 2007 WL 2847238, at
*2 (C.D. Cal. Aug. 7, 2007) (declining to apply interest requirement because the notice stage is
designed to provide notice to potential opt-in plaintiffs who are unaware of the case); Lima v.
Int’l Catastrophe Solutions, Inc., 493 F. Supp. 2d 793, 799 (E.D. La. 2007) (finding that
affidavits from additional employees were not required at the early stage because the court could
“revisit the question later after some discovery”); Prater v. Commerce Equities Mgmt. Co., Inc.,
CIV.A. H-07-2349, 2007 WL 4146714, at *8 (S.D. Tex. Nov. 19, 2007) (finding that issuance of
notice was warranted where additional plaintiffs joined initial legal action and the allegation that
there were at least twenty potential plaintiffs showed “that at least a few similarly situated
individuals seek to join the lawsuit”) (citation omitted).
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To the extent that the factor has been considered, courts which have found insufficient
evidence to support a desire of other aggrieved individuals to opt in involve cases where
plaintiffs did not submit affidavits. See, e.g., Haynes v. Singer Co., 696 F.2d 884, 887 (11th Cir.
1983) (affirming denial of certification where the plaintiffs failed to present either affidavits of
potential opt-in class members or any evidence whatsoever that there were other aggrieved
employees, and “counsel’s unsupported assertions that FLSA violations were widespread and
that additional plaintiffs would come from other stores” were insufficient); D’Anna v. M/ACOM, Inc., 903 F. Supp. 889, 894 (D. Md. 1995) (affidavits are advisable so an employer should
“not be unduly burdened by a frivolous fishing expedition conducted by plaintiff at the
employer’s expense”).
In this case, however, the named Plaintiffs and the opt-in Plaintiff point to a single policy
and have each submitted affidavits which make the same allegations including failure to pay
overtime wages owed, the use of an improper compensatory time policy, and non-payment for
hours worked off the clock. Docket Nos. 25-2; 25-3; 25-4. Indeed, as another court found on
similar facts, “the filing of three opt-in notices provides strong evidence that others desire to join
the class.” Carmody v. Fla. Ctr. for Recovery, No. 05-14295-CIV, 2006 WL 3666964, at *3
(S.D. Fla. Nov. 8, 2006). These affidavits along with allegations in the complaint have satisfied
the Court that there are other plaintiffs who desire to opt in and who are similarly situated. See
Dybach, 942 F.2d at 1567-68; Simmons, 2007 WL 210008, at *9 (discussing and citing authority
for the requirement that there should be a showing “that at least a few similarly situated
individuals seek to join the lawsuit”) (emphasis added); Doucoure v. Matlyn Food, Inc., 554 F.
Supp. 2d 369, 374 (E.D.N.Y. 2008) (finding that allegations in complaint are sufficient to
support collective action).
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B. Whether Proposed Class Members Meet “Similarly Situated” Requirement
1. Job Responsibilities
Potential class members are considered similarly situated to the named plaintiff if they
are “similarly situated in terms of job requirements and similarly situated in terms of payment
provisions.” Ryan, 497 F. Supp. 2d at 825 (citing Dybach, 942 F.2d at 1567-68). The positions
“need not be identical” for conditional certification. Pedigo v. 3003 South Lamar, LLP, 666 F.
Supp. 2d 693, 698 (W.D. Tex. 2009). If the job duties among putative class members vary
significantly, however, then class certification should be denied. See, e.g., Dreyer, 2008 WL
5204149, at *3 (“As long as plaintiffs are able to show that other employees are similarly
situated, the lack of a common decision, policy, or plan should not be fatal.”) (internal quotation
marks omitted); Aguirre v. SBC Commc’ns, Inc., No. H-05-3198, 2007 WL 772756, at *9 (S.D.
Tex. Mar. 12, 2007).
Defendants oppose certification, claiming that the proposed class is “overly broad”
because it includes employees that have different job responsibilities than the Plaintiffs. The
Plaintiffs and the opt-in Plaintiff are all detention officers. The class that they have proposed,
which they define as “all non-supervisor employees,” would include, according to the
Defendants, persons in positions other than detention officers, such as medical staff,
maintenance, and office personnel. Response, at 8. The Defendants argue that class certification
should be denied because the duties of the potential class members vary significantly, or in the
alternative, that the potential class members should be limited only to detention officers.
In this case, the potential class members would all be similarly situated to the extent that
they were subject to the same compensatory time policy and worked in non-exempt positions as
Plaintiffs allege. While the current named Plaintiffs were employed as detention officers for the
9
Defendants, the fact that they have different job duties than other non-supervisory employees
that are not detention officers such as secretaries, bookkeepers, janitors, bailiffs and deputies,
would not make them any less similarly situated to those non-supervisory employees. “Whether
at the notice stage or on later review, collective action certification is not precluded by the fact
that the putative plaintiffs performed various jobs in differing departments and locations.”
Donohue v. Francis Servs., Inc., No. Civ.A. 04-170, 2004 WL 1161366, at *2 (E.D. La. May 24,
2004).
The Court recognizes the differences among the job duties of the potential class
members. But “the terms of the FLSA’s collective action provision allow for differences. To
pursue claims against an employer, plaintiffs must be similarly situated. They do not have to be
identically situated.”
Johnson v. Big Lots Stores, Inc., Nos. 04-3201; 05-6627, 2007 WL
5200224, at *9 (E.D. La. Aug. 21, 2007) (emphasis in original). The potential class as framed by
the named plaintiffs has already limited the class to non-supervisory positions, which excludes
all employees of the Department who work or have worked in a supervisory capacity during the
relevant period. To the extent that the potential class members were subject to different pay
provisions, it is more appropriate to make those distinctions after notice has been issued and
further discovery has taken place. Finally, the Defendant has not alleged or provided any
evidence that other non-supervisory employees were subject to different compensatory time or
overtime policies than the current named plaintiffs or detention officers in general. Thus, there is
currently no basis to limit the potential class only to detention officers.
2. Subject to Same Illegal Pay Plan or Scheme
The Defendants argue that the Plaintiffs’ proposed class is “overly broad” because they
have only submitted affidavits from detention officers, which they claim suggests that “only
detention officers appear to be affected by the FLSA allegations.” Response, at 9. They also
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argue that the proposed notice does not allege an illegal compensatory plan or overtime plan in
violation of the FLSA. Thus, the allegations are insufficient to establish that the Plaintiffs and
proposed class members were subject to the same illegal pay plan or scheme. Plaintiffs contend
that they have alleged that the Defendants have adopted an illegal compensatory time and
overtime policy and that it applies to all non-supervisory employees.
Based on the documents currently submitted, the Court finds that the Plaintiffs have met
the fairly lenient standard for court-supervised notice identified in Mooney. The Defendant
would have the Court indulge in a fact finding determination on the merits of whether the alleged
payment practices took place and whether the putative plaintiffs conclusively are similarly
situated. Neither of these determinations is proper at this point; the Plaintiff’s complaint,
motion, and supporting affidavits all allege facts sufficient to satisfy the Court’s inquiry at this
early stage of the litigation. Leuthold v. Destination America, 224 F.R.D. 462, 468 (N.D. Cal.
2004) (“Defendants’ arguments in their opposition brief focus on the more stringent second tier
analysis and raise issues that may be more appropriately addressed on a motion for
decertification after notice is given to the proposed class.”); Goldman v. Radioshack Corp., No.
Civ.A. 2:03-CV-032, 2003 WL 21250571, at *8 (E.D. Pa. Apr. 16, 2003) (“A fact-specific
inquiry is conducted only after discovery and a formal motion to decertify the class is brought by
the defendant.”); Felix De Asencio v. Tyson Foods, Inc., 130 F. Supp. 2d 660, 663 (E.D. Pa.
2001) (“While this information [submitted by the Defendant] may play a more significant role
after discovery and during an analysis of the second and final similarly situated tier, Plaintiffs
have advanced sufficient evidence to meet their low burden at this first tier of the similarly
situated question.”).
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Utilizing the “fairly lenient” standard to be employed at this stage of the litigation, the
Court is persuaded that the Plaintiffs’ motion for conditional certification should be granted. The
Plaintiffs are similarly situated to potential collective action members. The named plaintiffs and
putative collective action members are current and former employees of the Defendants who
allege that the Defendants failed to pay them time and one half their regular rates of pay for
hours worked over forty (40) in a workweek. They allege that the Defendants have adopted an
improper compensatory time policy that does not account for all hours worked, does not give
compensatory time at the proper rate, has no limit as to the amount of compensatory time that
can be given, and does not pay all overtime wages owed when an employees’ employment is
ended. This factual nexus arising from an alleged violation of the FLSA is satisfactory for
purposes of a conditional certification.
Finally, in connection with the motion to certify,
Plaintiffs have submitted affidavits and other documentary evidence in support of these
allegations.
“In making this decision, the court is aware that discovery may show that certain
plaintiffs are not similarly situated, and if this is the case, the court can decertify the class or can
create subclasses.” King. v. Koch Foods of Miss., LLC, No. 3:06-CV-301-TSL-JCS, 2007 WL
1098488, at *4 (S.D. Miss. Apr. 10, 2007) (citing Rodolico v. Unisys Corp., 199 F.R.D. 468, 484
(E.D.N.Y. 2001) (“If, at a later point in the litigation, the Court finds that a collective action
cannot accommodate the proposed individual defenses, the Court has the discretion to create
subclasses or to dismantle the collective action.”)); White v. NTC Transp., Inc., No. 4:11-CV007, 2013 WL 5874566, at *2 (N.D. Miss. Oct. 31, 2013) (court may decertify class following
discovery when the court has more information and must look beyond the pleadings and
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affidavits and make its determination in light of all information gathered during post opt-in
discovery).
Given these facts, and the lenity with which conditional certification decisions must be
made under Mooney, the Court approves the issuance of notice of the suit and finds that an FLSA
class should be conditionally certified to include:
Non-supervisory employees who worked for or are working for Defendants and
were not paid overtime within the three years prior to the Complaint being filed.
The Defendant has contested the Notice, arguing that the proposed notice does not
include the following: 1) the alleged FLSA violation of an improper compensatory time policy as
stated in the Plaintiffs’ complaint, see Complaint, Docket No. 1, at ¶¶ 7-15, 17-18 (outlining
FLSA claims based on Defendants’ compensatory time policy); and 2) any specific illegal
overtime plan. The Plaintiff argues that the Defendants have not provided any authority which
requires that the Notice mention compensatory time, but it is willing to modify the proposed
notice to include this language.
In motions for conditional certification of FLSA collective actions, the Supreme Court
has declined to determine what form court-approved notice must take or its contents and instead
has delegated these tasks to the district court’s broad discretion. Hoffmann-La Roche, Inc. v.
Sperling, 493 U.S. 165, 171 (1989) (“Because trial court involvement in the notice process is
inevitable in cases with numerous plaintiffs where written consent is required by statute, it lies
within the discretion of the district court to begin its involvement early, and at the point of the
initial notice, rather than at some later time.”); Tolentino v. C & J Spec-Rent Servs. Inc., 716 F.
Supp. 2d 642, 655 (S.D. Tex. 2010) (exercising discretion to resolve disputes over whether
proposed notice “serves to inform prospective class members of their ability to join the lawsuit”
and recommending modifications to the language).
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The Court has determined that the Plaintiffs’ proposed notice has clearly stated the
allegation that the Defendants’ overtime policy violates the FLSA. See Notice, Docket No. 25,
Ex. A, § 2 (“This case involves the allegation that non-supervisor employees were denied
overtime compensation when they worked more than forty (40) hours in a work week in
violation of the Fair Labor Standards Act.”). No further specificity is required. The Court,
however, deems it appropriate for the Notice to refer to the alleged improper compensatory time
policy, in accordance with the Defendants’ objection.
Therefore, the Court approves the
proposed Notice attached at Docket No. 26, Exhibit A, with the exception that the parties will
determine the proper language to reflect the Plaintiffs’ allegations of the use and implementation
of a compensatory time policy which does not comply with the FLSA.
CONCLUSION
For the reasons discussed above, it is hereby ORDERED as follows:
1) Plaintiffs’ motion to certify a collective class of persons “similarly situated” pursuant
to Title 29 U.S.C. 216(b) is GRANTED, for the limited purposes of notice and discovery only.
At this preliminary stage, sufficient evidence exists to warrant a determination that the Plaintiffs
are “similarly situated” for purposes of class certification; additional discovery will guide the
Court in determining whether a collective action is appropriate at all, and if so, whether the
prospective class should be further limited;
2)
Defendants are ORDERED to disclose the names, last known addresses, email
addresses, and last four digits of the individual’s social security number of the Potential Plaintiffs
to Plaintiffs’ counsel, according to the terms of the Notice. This information shall be provided
within twenty-one (21) days from the entry of the Court’s Order and in usable electronic form to
reduce any delays in sending out the Notices; and
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3) The parties are ORDERED to jointly submit to the Court, no later than fourteen (14)
days from entry of this Order, a proposed notice to potential class members, revised in
accordance with all aspects of this Court’s order.
4) Within five (5) days of Court approval of the Notice, the parties shall contact the
Chambers of the Magistrate Judge for purposes of entering a revised scheduling order.
SO ORDERED this the 4th day of February, 2014.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
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