Burkeen v. New Madrid County Ambulance District

Filing 24

MEMORANDUM AND ORDER re: 12 MOTION to Certify Class filed by Plaintiff Roger Burkeen, 19 MOTION to Amend/Correct Defendant's Motion to Amend Plaintiffs' Proposed "Notice of Right to Join Lawsuit Against New Madr id County Ambualnce District" as Submitted filed by Defendant New Madrid County Ambulance District. IT IS HEREBY ORDERED that plaintiff's motion to conditionally certify the class (#12) is GRANTED in part and DENIED in part, as provided herein. IT IS FURTHER ORDERED that defendant's motion to amend the plaintiff's proposed Notice (#19) is DENIED. Signed by District Judge Stephen N. Limbaugh, Jr on 3/8/13. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

ROGER BURKEEN,
on behalf of himself and all
others similarly situated,
Plaintiffs,
vs.
NEW MADRID COUNTY AMBULANCE
DISTRICT,
Defendant.

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Case No. 1:12-cv-154 SNLJ

MEMORANDUM AND ORDER
Plaintiff filed a two-count complaint against defendant New Madrid County Ambulance
District, seeking to recover from defendants for violations of the Fair Labor Standards Act, 29
U.S.C. §201, et seq. (“FLSA”). Plaintiff has filed a motion to conditionally certify the class he
seeks to represent (#12). Defendant does not contest that conditional class certification is
appropriate, but it does raise questions regarding the application statute of limitations, the
amount of information to be disclosed regarding putative class members, the method of
distribution of the class notice, and the notice itself. Defendants have also filed a motion to
amend the plaintiff’s proposed notice (#19). The matter has been fully briefed and is now ripe
for disposition.
I.

Background
Plaintiff alleges that defendant employs paramedics and emergency medical technicians

(“EMTs”) to provide emergency medical services. Plaintiff alleges that defendant required those

employees to work in excess of forty hours per workweek without paying them overtime wages,
in violation of the FLSA. Plaintiff Roger Burkeen also alleges that defendant retaliated against
him when he complained about the FLSA violations by subjecting him to disciplinary action and
suspending his employment.
II.

Motion to Conditionally Certify Class
Under 29 U.S.C. § 216(b), an employee may bring an action under the FLSA on his own

behalf as well as for those “similarly situated.” The FLSA does not define “similarly situated,”
and the Eighth Circuit has not addressed what standard should be applied to the phrase. Huang
v. Gateway Hotel Holdings, 248 F.R.D. 225, 227 (E.D. Mo. 2008). However, district courts in
this Circuit have conducted a two-step analysis to determine whether employees are “similarly
situated.” Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp. 2d 1014, 1016-17 (E.D. Mo.
2010). The first step is the “notice stage,” in which plaintiffs seek early conditional class
certification and notify potential class members of the case. Id. The second step is the “merits
stage,” which takes place after discovery and during which defendants may move to decertify the
class. Id. at 1017. We are in the first stage of that analysis.
Plaintiff’s burden at the “notice stage” is not onerous: conditional certification “requires
nothing more than substantial allegations that the putative class members were together the
victims of a single decision, policy or plan.” Id. Defendant concedes that plaintiff has met that
burden.
However, defendant takes issue with (1) the applicable statute of limitations, (2) the
plaintiff’s motion for disclosure of information relating to putative class members, (3) the

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plaintiff’s motion for facilitation of class notice, and (4) the content of the notice itself. Each of
the issues raised by defendants is discussed in turn below.
1.

Applicable Statute of Limitations

Plaintiff seeks conditional class certification of all paramedics and EMTs who have
worked for defendant at any time in the last three years. Defendants agree to a two-year time
period. The FLSA requires that a civil enforcement action be commenced within two years after
the cause of action accrued, except that a cause of action arising out of a “willful” violation may
be commenced within three years. Laughlin v. Richland Shoe Co., 486 U.S. 128, 128-36 (1988).
In order to invoke the three-year statute of limitations, plaintiff must show that the employer
knew or showed reckless disregard for the matter of whether its conduct was prohibited by
statute. Id. at 133.
Whether a violation is willful is a fact question that is often addressed at summary
judgment or at trial. Littlefield v. Dealer Warranty Services, LLC, 679 F. Supp. 2d 1014, 1019
(E.D. Mo. 2010) (citing Houston v. URS Corp., 591 F. Supp. 2d 827, 836 (E.D.Va. 2008)); see
also Jarrett v. ERC Props., Inc., 211 F.3d 1078, 1082 (8th Cir. 2000) (jury determined
willfulness). At this stage in the proceedings, judicial economy is served by conditionally
certifying a larger, more inclusive class. Littlefield, F. Supp. 2d at 1019 ; see also Kautsch v.
Premier Comms., 504 F. Supp. 2d 685, 690 (W.D. Mo. 2007) (approving notice to class with
three-year statute of limitations). Defendant argues that, despite numerous allegations regarding
willfulness in plaintiff’s complaint, plaintiff’s affidavits submitted with their motion for
conditional class certification do not support the allegations of willful conduct. Plaintiff’s
declarations state that they heard the defendant’s managers and supervisors state “that the District
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does not pay overtime rates (over and above the regular hourly rates) to paramedics and EMTs
for time worked over 40 hours in a workweek, and that this pay practice was the District’s
policy.” Although defendant is correct that, standing alone, plaintiff’s declarations do not
support that the defendant knew its policy violated statute, the allegations in the complaint make
clear that plaintiff Burkeen complained about the policy, and, in fact, Burkeen alleges that he was
retaliated against for his complaints. The Court will thus conditionally certify the a class with a
three-year statute of limitations.
2.

Disclosure of information related to putative class members

Plaintiff has requested that defendant be ordered to supply plaintiff’s counsel with
putative class members’ names, addresses, phone numbers, e-mail addresses, dates of
employment, and location of employment in a readable electronic format. Plaintiff seeks the
information so that they may notify potential class members of the litigation and offer them an
opportunity to opt in. Defendant objects on the grounds that the request is overly broad,
duplicative, and not necessary — defendant proposes that it provide only names, dates of
employment, and last known addresses. This Court has denied requests for phone numbers in the
past (see Littlefield, 679 F.Supp 2d at 1018), but this Court has also, at times, permitted
disclosure of phone numbers and e-mail addresses (see Simmons v. Enterprise Holdings, Inc.,
4:10cv625 AGF, 2011 WL 855669 (E.D. Mo. Mar. 9, 2011) (phone numbers and e-mails);
Greenwald v. Phillips Home Furnishings Inc., 4:8cv1128 CDP, 2009 WL 259744 (E.D. Mo. Feb.
3, 2009) (phone numbers)). The Court does not agree that plaintiff’s request calls for duplicative
information. Information such as e-mail addresses and phone numbers, in addition to physical
addresses, may be helpful if the defendant’s employees have moved. To the extent the defendant
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possesses information regarding telephone numbers and e-mail addresses, they will be ordered to
provide that information. However, because it is not clear to the court why “location of
employment” is information necessary to locate potential class members, particularly in light of
the other information disclosed and the methods of distribution, the Court will not order that
defendant provide that information.
3.

Facilitation of class notice

Plaintiff requests that the Court authorize him to disseminate notice to the putative class
members at their last-known mailing address, by e-mail, by requiring defendant to conspicuously
post the notice in any and all break rooms during the opt-in period, and by ordering defendant to
distribute notices with pay stubs or pay checks. Defendant objects to posting notices in its
breakrooms and distributing notices with pay stubs or pay checks. With respect to posting
notices in breakrooms, defendant contends that doing so would interfere with its operation of
providing emergency services by “jeopardiz[ing] the cohesiveness necessary to provide . . .
medical services in a rural area.” Defendant provides no elaboration or citation in support of this
contention, and the Court will overrule the objection.
With respect to including notices with pay stubs or pay checks, defendant objects because
it would force defendant to bear the cost of disbursement. Plaintiff responds that because the
checks are already being mailed, the inclusion of the court-approved notice will not create any
additional costs. The Court agrees in principle; however, without knowing more about how the
defendant distributes its pay stubs and paychecks (e.g., through a third party, or through on-site
means; by mail, e-mail, or otherwise), it may be that including a multi-page notice with the pay
stubs or pay checks would create undue burden. It also seems unnecessary given that current
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employees may be reached by methods (perhaps more than one method) already approved by the
Court — by mail, e-mail, and posting in breakrooms — and thus mailings with pay stubs or pay
checks do not appear to be necessary at this time.
4.

Content of the Notice

Defendant has a few interrelated substantive objections to the plaintiff’s proposed Notice
itself. First, defendant contends that the plaintiff’s proposed Notice should state that the
plaintiffs are free to select their own counsel, and that the Notice should not require (as it does in
its proposed form) the opt-in plaintiffs to accept the current plaintiffs’ counsel. Plaintiff argues
that including the information proposed by defendant would be confusing and would invite
unnecessary complexity. The Court agrees with plaintiff. Defendant has cited no authority in
support of its position. As plaintiff points out, if a putative class member intends to join this
existing lawsuit and signs the consent, then he or she agrees to become part of the class and be
represented by class counsel. Otherwise, the individual can choose to pursue a separate action
against defendant or simply not participate at all. The text of the Notice already makes that point
clear, and defendant’s objection is therefore overruled.
Second, defendant proposes adding a statement to the Notice setting forth the legal
obligations that the putative plaintiff may incur by participating in the class action. Defendant
proposes the following language:
I understand that by electing to participate in this lawsuit, I will be required to
fulfill my legal obligations in order to participate in this litigation, including
answering written requests for information and personally appearing to testify at
designated times for depositions, hearings, and even trial.

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Plaintiff argues that potential class members reading that language would likely be discouraged
from opting-in to the lawsuit. Defendant argues that the language should be included in the
interest of complete accuracy; in fact, this Court has recently ordered that similar language be
included in FLSA class action notices. See Halsey v. Casino One Corp., 4:12cv1602-CDP, 2012
WL 6200531, *3-5 (E.D.Mo. Dec. 12, 2012); Kennedy v. Boulevard Bank, 4:12cv40-JCH, 2012
WL 3637766, *4-5 (E.D.Mo. Aug. 22, 2012). However, plaintiff’s proposed notice already
includes the statement, “If you choose to join this lawsuit, you may be required to respond to
written requests for information and documents, and appear for depositions, hearings or trial.”1
The Court finds plaintiff’s proposed language to be adequate.
Finally, defendant requests that its attorneys’ contact information be included “so as to
avoid any unfair prejudice to defendant through unequal access by putative plaintiffs or other
parties interested in obtaining more information about the position of the defendant.” Defendant
provides no support for this suggestion, which the Court finds to be likely to lead to confusion.
Defendant’s request is denied.
III.

Conclusion
The Court conditionally certifies the class with a three-year statute of limitations.

Defendant shall provide plaintiffs with putative class members’ names, addresses, phone
numbers, e-mail addresses, and dates of employment in a readable electronic format within 21
days. Plaintiff may disseminate the proposed Notice filed with plaintiff’s motion to the putative
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Plaintiff objects to defendant’s proposed language because it uses the plural “depositions
and hearings.” Defendant agreed to change the language to the singular form of the words. The
Court is puzzled, however, because plaintiff’s proposed language also uses the plural
“depositions and hearings.” The plaintiff’s original proposed language will be adopted.
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class members by means of mailing to last-known mailing address and by e-mail, and the
defendant shall also conspicuously post the notice in any and all break rooms during the opt-in
period.
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion to conditionally certify the class
(#12) is GRANTED in part and DENIED in part, as provided herein.
IT IS FURTHER ORDERED that defendant’s motion to amend the plaintiff’s proposed
Notice (#19) is DENIED.

Dated this

8th

day of March, 2013.

_________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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