Shanks v. St. Louis County, Missouri

Filing 43

OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs' Combined Motion to Conditionally Certify Class, Order Disclosure of Putative Class Members' Names and Contact Information, and to Facilitate Class Notice [Doc. No. 37] is gr anted. IT IS FURTHER ORDERED that the Court conditionally certifies a class of all current and former hourly-paid animal control officers employed by Defendant during the period of three (3) years from the date of this Order. IT IS FURTHER ORDERED th at Plaintiffs Notice of Your Right to Join Lawsuit and Consent Form, (Ex. 12) are approved and shall be disseminated by regular mail and email and by posting notice in the company's breakrooms. IT IS FURTHER ORDERED that Defendant shall provide to Plaintiffs counsel within 10 days from the date of this Opinion a computer readable data file containing the name, last known mailing address and email address, and dates of employment for each putative member of the conditionally certified class. IT IS FURTHER ORDERED the parties will provide a status report to the court within 90 days of the date of this order and every 90 days thereafter. 37 ( Response to Court due by 5/18/2016.) Signed by District Judge Henry Edward Autrey on 2/18/16. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHAD SHANKS, individually and
on behalf of others similarly situated,
Plaintiff,
vs.
ST. LOUIS COUNTY, MISSOURI,
Defendant.

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CASE NO. 4:14CV1599 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiffs' Combined Motion to
Conditionally Certify Class, Order Disclosure of Putative Class Members' Names
and Contact Information, and to Facilitate Class Notice [Doc. No. 37). Defendant
opposes the motion. For the reasons set forth below, the Motion will be granted.
BACKGROUND
Plaintiff was employed by Defendant as an hourly-paid animal control
officer worker. He filed a Complaint on September 12, 2014, alleging, inter alia,
violations of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et
seq. Plaintiff purports to bring this FLSA putative collective action on behalf of
similarly situated animal control officers from September 2009 to the present to
recover unpaid wages and overtime compensation.

Specifically, Plaintiff alleges in Count I that Defendant failed to pay
overtime wages for time worked in excess of 40 hours per week and unpaid
straight time in violation of the FLSA. Plaintiff asserts Missouri law claims of: a
breach of contract claim in Count II, a quantum meruit claim in Count III, and an
unfair enrichment claim in Count IV.
DISCUSSION
Motion for Conditional Class Certification
Plaintiff identifies the putative class as hourly-paid animal control officers
employed by Defendant between September 2009 and the present. Defendant
opposes the motion, arguing that Plaintiff has presented no evidence to support his
request to conditionally certify this case as a collective action.
Section 7 of the FLSA mandates that an employer may not subject nonexempt employees to work a week in excess of forty hours, unless the employee is
compensated for his or her overtime with additional pay of at least one and onehalf times his or her regular hourly wage. 29 U.S.C. § 207. A collective action
under the FLSA to recover overtime compensation and liquidated damages may be
maintained, “by any one or more employees for and in behalf of himself or
themselves and other employees similarly situated.” 29 U.S.C. § 216(b). Unlike a
Rule 23 class action, a collective action under the FLSA is pursued on an opt-in
basis, requiring employees to provide their consent in writing to join the action. 29

U.S.C. § 216(b); Schmaltz v. O'Reilly Auto. Stores, Inc., No. 4:12-CV-1056-JAR,
2013 WL 943752, at *2 (E.D. Mo. March 11, 2013).
District courts within the Eighth Circuit conduct a two-step analysis to
determine whether employees are “similarly situated” for purposes of a collective
action. Littlefield v. Dealer Warranty Servs., LLC, 679 F. Supp. 2d 1014, 1016
(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.”
Bilskey v. Bluff City Ice, Inc., No. 1: 13-CV-62 SNLJ, 2014 WL 320568, at *1
(E.D. Mo. Jan. 29, 2014) (quoting Littlefield, 679 F. Supp. 2d at 1016). The
plaintiffs’ burden at this stage is not an onerous one; instead, “ ‘[c]onditional
certification at the notice stage requires nothing more than substantial allegations
that the putative class members were together the victims of a single decision,
policy or plan.’ ” Littlefield, 679 F. Supp. 2d at 1016 (quoting Schleipfer v. Mitek
Corp., No. 1:06CV109 CDP, 2007 WL 2485007, at *3 (E.D. Mo. Aug. 29, 2007)).
“Plaintiffs may satisfy this burden through affidavits, supported by admissible
evidence.” Bilskey, 2014 WL 320568, at *2 (citation omitted). However, plaintiffs
may not meet their burden through unsupported allegations of additional plaintiffs
or widespread violations of the FLSA. Id. The Court does not reach the merits of
the plaintiffs’ claims or determine whether class members are actually similarly
situated at this stage of the litigation. Id. If the Court conditionally certifies the

class, the potential class members are given notice and an opportunity to opt-in.
Wilson v. PNK (River City), LLC, No. 4:15CV00380 AGF, 2015 WL 5098716, at
*2 (E.D. Mo. Aug. 31, 2015).
The second step is the “merits stage” and occurs when the defendant moves
to decertify the class, typically after the close of discovery. Bilskey, 2014 WL
230568, at *2. “Applying a stricter standard, the court at the second step makes a
factual determination on the similarly situated question.” Wilson, 2015 WL
5098716, at *2.
Upon consideration of the motion, the Court finds that, in light of the lenient
notice standard, Plaintiff “ha[s] cleared the relatively low hurdle of demonstrating
that conditional certification of the collective action is appropriate.” Bowman v.
Doe Run Res. Corp., No. 4:13CV2519 CDP, 2014 WL 3579885, at *4 (E.D. Mo.
July 21, 2014). In support of Plaintiff’s claim, Plaintiff presents his declaration
indicating that during the period of employment, he and other hourly-paid animal
control workers sometimes worked more than 40 hours per week.
In response, Defendant argues that Plaintiff has failed to produce any
evidence of a common plan resulting in unpaid overtime. Plaintiff counters by
pointing out that he has produced time records demonstrating that pre-shift and
post-shift work performed was not compensated. Moreover, Plaintiff responds to
Defendant’s claim that uncompensated “break time” is not forbidden; Plaintiff

argues that animal control officers working for Defendant very often worked
through their “break time” without compensation.
The Court finds this to be sufficient evidence to demonstrate the putative
class members were victims of a single decision, policy, or plan. See Davenport v.
Charter Commc'ns, LLC, No. 4:12CV0007 AGF, 2014 WL 1272783, at *5 (E.D.
Mo. Mar. 27, 2014) (conditionally certifying class where declarants “stated that
specific supervisors and trainers knew about and directed them to follow
procedures resulting in unpaid work”); Schmaltz, 2013 WL 943752, at *6 (finding
sworn statements of management personnel trained in and carrying out the timekeeping practice, as well as statements from employees with direct knowledge of
time record alterations to be sufficient for conditional certification); but see
Wacker v. Personal Touch Home Care, Inc., No. 4:08CV93 CDP, 2008 WL
4838146, at *3 (E.D. Mo. Nov. 6, 2008) (finding the complaint and a single
affidavit did “not constitute substantial allegations that they and the other members
of the proposed collective action were victims of a single decision, policy, or plan
to deprive them of pay for actual hours worked an corresponding overtime”).
Based upon the allegations and the declaration presented by Plaintiff, the Court
finds that Plaintiff has met his modest burden to show that conditional certification
is proper. Bowman, 2014 WL 3579885, at *6.
Notice to Class Members

Defendants argue that, in the event this Court conditionally certifies the
class, the notice should be modified to remove the notice that it is authorized by
the Court because it implies that the Court endorses the action. The Court finds
that such change is not warranted. Indeed, “the court should not alter plaintiffs
proposed notice unless certain changes are necessary.” Littlefield, 679 F. Supp. 2d
at 1018 (citation omitted). Nothing in the notice indicates this Court’s
endorsement, rather, the notice advises prospective class members that the action is
authorized by the Court. These are separate concepts that are not interchangeable.
See White v. 14051 Manchester, Inc, 2012 WL 5994263 (E.D. Mo Nov. 30, 2012).
Defendants also argue that Plaintiff incorrectly seeks to notify a three year
putative class when the class should consist of a two year putative class. Plaintiff
argues that the three year statute of limitations is proper. Plaintiff has pled
willfulness in this matter, and therefore, at the present time, the three year reach of
the notice is proper. Id.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs' Combined Motion to
Conditionally Certify Class, Order Disclosure of Putative Class Members' Names
and Contact Information, and to Facilitate Class Notice [Doc. No. 37] is granted.

IT IS FURTHER ORDERED that the Court conditionally certifies a class
of all current and former hourly-paid animal control officers employed by
Defendant during the period of three (3) years from the date of this Order.
IT IS FURTHER ORDERED that Plaintiff’s Notice of Your Right to Join
Lawsuit and Consent Form, (Ex. 12) are approved and shall be disseminated by
regular mail and email and by posting notice in the company's breakrooms.
IT IS FURTHER ORDERED that Defendant shall provide to Plaintiff’s
counsel within 10 days from the date of this Opinion a computer readable data file
containing the name, last known mailing address and email address, and dates of
employment for each putative member of the conditionally certified class.
IT IS FURTHER ORDERED the parties will provide a status report to the
court within 90 days of the date of this order and every 90 days thereafter.
Dated this 18th day of February, 2016.

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HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE