Grant v. Convergys Corporation

Filing 107

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that defendants request for reconsideration [Doc. #99] is denied. IT IS FURTHER ORDERED that defendants alternative request for certification for interlocutory appeal [Doc. #99] is granted. IT IS HEREBY OR DERED that the Memorandum and Order entered on March 1, 2013 [Doc. # 97] is amended to certify the following question for immediate appeal under 28 U.S.C. § 1292(b): Is the provision in defendants employment application containing plaintiffs wa iver of the right to bring or participate in class or collective litigation or claims against defendant unenforceable as a violation of substantive rights protected by the National Labor Relations Act, 29 U.S.C. § 151 et seq.? IT IS FURTHER ORDE RED that all proceedings in this case are stayed pending resolution of the defendants application to the United States Court of Appeals for the Eighth Circuit for an interlocutory appeal. IT IS FURTHER ORDERED that defendants motion for an extension of time to file a reply is moot. Signed by District Judge Carol E. Jackson on 4/3/2013. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
HOPE GRANT, on behalf of herself and
all others similarly situated,
Plaintiff,
vs.
CONVERGYS CORPORATION,
Defendant.

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Case No. 4:12-CV-496 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion for reconsideration or, in
the alternative, to certify issues for interlocutory appeal pursuant to 28 U.S.C. §
1292(b). Plaintiff has responded in opposition.
I.

Background

Plaintiff brings claims against her employer, defendant, to recover unpaid
overtime wages pursuant to the Fair Labor Standards Act (FLSA) claim, 29 U.S.C. §§
201 et seq., and the Missouri Minimum Wage Law (MMWL), Mo. Rev. Stat. § 290.527.
She seeks to bring her claims as collective and class actions, on behalf of herself and
other similarly situated current and former employees. Defendant moved to strike
plaintiff’s class and collective allegations, relying on a waiver signed by plaintiff
agreeing to pursue any claim or lawsuit against defendant individually. On March 1,
2013, the Court denied defendant’s motion to strike. The Court concluded that the
waiver provision violated the National Labor Relations Act, 29 U.S.C. §151 et seq., and
was therefore unenforceable.
Defendant argues that the Court, in distinguishing the instant case from cases
involving waiver provisions contained in arbitration agreements, placed arbitration

agreements and other contracts on unequal footing, in contravention of the Supreme
Court’s decisions in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991)
and AT&T Mobility LLC. v. Concepcion, 131 S.Ct. 1740, 1745-46 (2011). Defendant
further argues that the Court should have adopted a broader interpretation of Owen
v. Bristol Care, 702 F.3d 1050 (8th Cir. 2013). Similar arguments were raised by
defendant, and carefully considered by the Court, prior to the Court’s denial of
defendant’s motion to strike.

The Court disagrees with defendant’s broad

interpretation of Supreme Court and Eighth Circuit precedent, and finds no manifest
errors of law requiring reconsideration. Therefore, the Court will deny defendant’s
request for reconsideration. However, for the following reasons, the Court will grant
defendant’s request for certification of interlocutory appeal.
II.

Legal Standard

28 U.S.C. § 1292(b) provides a mechanism through which a party can pursue
an interlocutory appeal. To satisfy the § 1292(b) requirements, a case must involve
an issue that concerns “(1) a controlling question of law as to which there is (2) a
substantial ground for difference of opinion and upon which (3) a decision will
materially advance the ultimate termination of the litigation.” Paschall v. Kansas City
Star, Co., 605 F.2d 403, 406 (8th Cir. 1979).
It has “long been the policy of the courts to discourage piece-meal appeals.”
White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994) (internal quotations omitted). Motions
to certify issues for interlocutory appeal should be “granted sparingly and with
discrimination.” Id. Therefore, § 1292(b) should be used only in “exceptional cases
where a decision on appeal may avoid protracted and expensive litigation.” Id. The

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movant bears the burden of demonstrating that the case is an exceptional one,
justifying immediate appeal.
III.

Discussion

Defendant has demonstrated that the three requirements for interlocutory
appeal under 28 U.S.C. § 1292(b) have been met in this case, and that the issue of the
legality of the class waiver is an exceptional one, deserving of immediate appellate
review.
First, the issue presents a controlling question of law. The Court’s conclusion
that the class action waiver provision violates the NLRA and is therefore unenforceable
is a conclusion of law that would be subject to de novo review by the Eighth Circuit.
See Emerson Elec. Co. v. Yeo, 4:12-CV-1578 (JAR), 2013 WL 440578, at *2 (E.D. Mo.
2013) (“The question for appeal must be a question of law as opposed to a question
of fact or matter for the court’s discretion.”). The question of the legality of the waiver
provision is “controlling,” because “resolution of the issue on appeal could materially
affect the outcome of the litigation in the district court.” Id. (quoting Newsome v.
Young Supply Co., 873 F.Supp.2d 872, 876 (E.D. Mich. 2012)).
According to defendant, the putative class may consist of more than 8,000
employees. If appellate consideration of the legality of the waiver is delayed until the
proceedings in the district court are concluded, then a large class might be needlessly
certified and litigation expenses needlessly incurred. This threshold issue significantly
affects the structure of this litigation, and it merits conclusive resolution before the
litigation proceeds any further.
Second, there is substantial ground for difference of opinion. Indeed, a district
court in another circuit has enforced a waiver identical to the one at issue in this case.

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Palmer v. Convergys, Corp., No. 7:10-CV-145 (HL), 2012 WL 425256, at *7 n.2 (M.D.
Ga. Feb. 9, 2012). The court in Palmer, however, made only a fleeting reference to
the NLRA. While the NLRB has consistently concluded that collective and class litigation
is protected concerted activity under the NLRA, a broad reading of Owen and other
cases upholding class waivers in arbitration agreements complicates the issue and
creates room for reasonable jurists to disagree.
Third, an interlocutory appeal will materially advance the ultimate termination
of this litigation. If the court of appeals determines that the waiver provision is valid,
then the manner in which this litigation proceeds will be fundamentally altered. All
employees who signed a waiver will be precluded from joining this suit. While the
plaintiff’s concern about the statute of limitations (which continues to run for potential
class members until they opt-in under the FLSA) is a valid one, it is in the interests of
efficiency, judicial economy, and fairness to all parties, to settle this contested legal
question before a potentially large class is certified.
In sum, the Court finds that the enforceability of the waiver in the context of the
NLRA involves a controlling question of law as to which there is substantial ground for
difference of opinion and an immediate appeal from the March 1, 2013 order may
materially advance the ultimate termination of this litigation.
Accordingly,
IT IS HEREBY ORDERED that defendant’s request for reconsideration [Doc.
#99] is denied.
IT IS FURTHER ORDERED that defendant’s alternative request for certification
for interlocutory appeal [Doc. #99] is granted.

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IT IS HEREBY ORDERED that the Memorandum and Order entered on March
1, 2013 [Doc. # 97] is amended to certify the following question for immediate appeal
under 28 U.S.C. § 1292(b):
Is the provision in defendant’s employment application containing
plaintiff’s waiver of the right to bring or participate in class or collective
litigation or claims against defendant unenforceable as a violation of
substantive rights protected by the National Labor Relations Act, 29
U.S.C. § 151 et seq.?
IT IS FURTHER ORDERED that all proceedings in this case are stayed pending
resolution of the defendant’s application to the United States Court of Appeals for the
Eighth Circuit for an interlocutory appeal.
IT IS FURTHER ORDERED that defendant’s motion for an extension of time
to file a reply is moot.

___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of April, 2013.

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