Harger v. Fairway Management, Inc. et al
Filing
66
ORDER. Plaintiff Harger's motion for conditional class certification, Doc. 52, is granted, and the plan for notice is approved as set in the Order. Signed on 6/8/16 by District Judge Nanette K. Laughrey. (Matthes, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
Suzanna Harger, individually and on behalf
of all others similarly situated,
Plaintiff,
v.
Fairway Management, Inc.;
FWM Payroll Clearing, Inc.; and
Bear Holdings, Inc. d/b/a JES Holdings, Inc.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
No. 2:15-cv-04232-NKL
ORDER
Plaintiff Suzanna Harger moves for conditional class certification, and approval of her
proposed notice plan. Doc. 52. The motion for conditional certification is granted, and the plan
for notice is approved as set out below.
I.
Background
Harger alleges that Defendants violated 29 U.S.C. § 207(a) of the Fair Labor Standards
Act (FLSA) by failing to make sure their Property Managers received overtime compensation for
working more than 40 hours in a week. Section 207(a)(1) of the FLSA states:
Except as otherwise provided in this section, no employer shall
employ any of his employees who in any workweek is engaged in
commerce or in the production of goods for commerce, or is
employed in an enterprise engaged in commerce or in the
production of goods for commerce, for a workweek longer than
forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate of not
less than one and one-half times the regular rate at which he is
employed.
The FLSA provides a remedy for violations, in the form of unpaid overtime compensation and an
“additional equal amount as liquidated damages.” § 216(b).
In support of her motion for conditional certification, Harger submitted materials
including Property Manager job descriptions and job postings; a list of full-time Property
Managers who were classified as exempt and not paid overtime; business descriptions and
listings of rental properties from Defendants’ websites; policy and procedures relating to the
Property Manager job duties; materials used to train Property Managers; and the declarations of
Harger and another Property Manager, Gyla Calvin, who both worked for Defendant Fairway.
Docs. 52-1 – 52-10. According to Harger’s submissions, Defendants are responsible for the
maintenance, compliance, marketing, and business administration of more than 120 apartment
communities and five, single-family rental subdivisions in Missouri and several other states.
Defendants’ housing communities include low-income and senior housing provided to persons
who receive state and federal benefits based on certain needs, and Defendants are therefore
subject to state and federal guidelines to ensure their residents qualify for the housing.
Since March 2013, Defendants have employed over 140 Property Managers who were
treated as exempt from overtime, and who supervised less than two full time employees. In each
location in which they advertise for potential Property Managers, Defendants’ job advertisement
describes the position identically. According to the job description, Property Managers execute
the business, financial and marketing plan for the community; provide customer service; collect
and deposit rent, and follow up on delinquencies; conduct daily tours of the community to ensure
curb appeal and proper maintenance; work with the property management team; adhere to all
company policies; provide information to the supervisor; forward purchase orders to the
supervisor for approval and assist in preparing a yearly budget; analyze physical needs of the
community and recommend solutions; perform inspections; work extended work hours as
needed; participate in training; and must have a high school diploma or equivalent. According to
2
the policies and procedures, the Property Managers must obtain management approval for a
variety of decisions, such as which prospective tenants may rent properties, most purchases,
transfer of residents from one apartment to another, and recertification of residents for continued
occupancy. Property Managers must adhere to additional rules, such as how to dress, advertise,
collect rent, and perform other aspects of the job. The rules do not vary from site to site and
Property Managers cannot deviate from them.
In Harger’s declaration, Doc. 52-8, she states she worked as a Property Manager for
Defendant Fairway from July 2007 to February 2015; was compensated as a salaried-exempt
employee; supervised less than two full-time employees; worked more than 40 hours per week,
nearly every week; and performed jobs that were virtually all clerical in nature. Property
Managers are required only to have a high school diploma or equivalent. Harger used property
management software to perform her job, and her performance was largely judged on occupancy
rates of the apartment complexes where she worked. All decisions regarding tenants had to be
submitted to her regional director and the compliance department, she was told how to do almost
every aspect of her job, and she could not deviate from Fairway’s rules and regulations. If she
had an occupancy rate lower than 90%, she was required to work weekends and extra hours to
take more rental applications for approval by the compliance department. Calvin states in her
declaration, Doc. 52-9, that she worked as a Property Manager from September 2012 through
December 2014, typically for 50 hours per week and without overtime pay. Her description of
her job is largely the same as Harger’s.
Harger proposes conditional certification of a class consisting of all current and former
Property Managers who worked for Defendants at any time in the past three years, who
supervised fewer than two employees, and who were not paid overtime for services performed in
3
excess of 40 hours per week.
II.
Discussion
A.
Conditional Certification
Harger brings her motion for conditional certification under § 216(b), the collective
action provisions of the FLSA, which provides that an action to recover FLSA liability “may be
maintained against any employer . . . by any one or more employees for and in behalf of himself
or themselves and other employees similarly situated.”
Though the Eighth Circuit has not set out a standard for determining when plaintiffs are
similarly situated for purposes of § 216(b), district courts in the circuit generally follow a twostage certification process, consisting of: (1) the conditional certification or notice stage, and (2)
the opt-in or merits stage. Davis v. NovaStar Mortg., Inc., 408 F. Supp. 2d 811, 814-15 (W.D.
Mo. 2005); Meriwether v. Beverly Hills Liquor & Grocery Inc., 2014 WL 200355, at *3 (E.D.
Mo. 2014). At the first stage of the litigation, the Court does not reach the merits of the
plaintiff’s claims. Uwaeke v. Swope Community Enterprises, Inc., 2013 WL 3467062, at *1
(W.D. Mo. 2013). Once the Court conditionally certifies the class, potential class members are
given notice and the opportunity to opt-in. At the second stage, the defendants may move to
decertify the class, which is “typically done after the close of discovery when the Court has
much more information and is able to make a more informed decision.” Id.
The FLSA requirements for conditional class certification differ markedly from class
certification rules under Federal Rule of Civil Procedure 23. The FLSA provides for an opt-in
procedure for class membership, rather than the opt-out procedure that is generally part of
certification under the Federal Rules. Compare § 216(b), and Rule 23(c)(3).
In determining
whether conditional certification is appropriate under the FLSA, the Court is to apply a “lenient
4
standard” that requires only a “modest” factual showing. Renfro v. Spartan Computer Servs.,
Inc., 243 F.R.D. 431, 432 (D. Kan. 2007); Boyd v. Jupiter Aluminum Corp., 2006 WL 1518987,
at *3 (N.D. Ind. 2006). A plaintiff need only substantially allege that there are others who are
similarly situated, that is, “that the putative class members were together the victims of a single
decision, policy, or plan.” Davis v. NovaStar Mortgage, Inc., 408 F.Supp.2d 811, 815 (W.D.
Mo. 2005).
The “substantial allegations” required by the FLSA are much less than the showing and
intensive inquiry required under Rule 23. Greenwald v. Phillips Home Furnishings Inc., 2009
WL 259744, at *4 (E.D. Mo. 2009). However, “plaintiffs must present more than mere
allegations[.]…[S]ome evidence to support the allegations is required.” Young v. Cerner Corp.,
503 F.Supp.2d 1226, 1229 (W.D. Mo. 2007).
Harger has submitted sufficient evidence to justify conditional certification of the class,
including Defendants’ own documents and two declarations. She has substantially alleged that
Property Managers were governed by the same policies regarding job duties and compensation,
and were not paid overtime. Uwaeke, 2013 WL 3467062, at *2 (“The class members have the
same job titles, are governed by the same written job description, and were treated the same in
terms of whether (or not) they received overtime compensation.”); see also Meriweather v.
Beverly Hills Liquor & Grocery Inc., 2014 WL 200355, at *3 (E.D. Mo. 2014) (distinguishing
“evidence of a common policy” from “an unlawful record-keeping system”). “[T]he issue is not
whether each class member was identically injured by an illegal policy, but rather [whether all
Property Managers] were . . . subject to the same policy,” Chapman v. Hy-Vee, Inc., 2012 WL
1067736, at *3 (W.D. Mo. 2012), and Harger has made a sufficient showing at this stage of the
litigation.
5
Furthermore, Harger alleges a willful violation of the FLSA, for which the FLSA
provides a three-year statute of limitations, rather than the otherwise applicable two-year period.
§ 255(a).
Conditional certification should thus extend to Property Managers affected by
Defendants’ overtime policy over the last three years. Littlefield v. Dealer Warranty Services,
LLC, 679 F.Supp.2d 1014, 1019 (E.D. Mo. 2010) (“[J]udicial economy is served by
conditionally certifying a larger, more inclusive class, at this stage in the proceedings.
Accordingly, the statute of limitations is a three-year period.”); Roebuck v. Hudson Valley
Farms, Inc., 239 F.Supp.2d 234 (N.D.N.Y. 2002) (when willfulness is disputed, conditional
certification of a class including members affected within a three-year period preceding class
certification is appropriate).
Defendants’ arguments against conditional certification are unpersuasive. Defendants
submitted the declaration of Fairway’s vice president, and focus on alleged differences in the
manner in which individual Property Managers perform aspects of their jobs, such as applying
different regulatory criteria depending on the type of community. Such arguments miss the
mark, inasmuch as they go to the second, or merits, stage of the litigation. The focus at the
conditional certification stage is on whether a plaintiff has substantially alleged that there are
others who are similarly situated, that is, whether the putative class members “were together the
victims of a single decision, policy, or plan.” Davis, 408 F.Supp.2d at 815. It is a lenient
standard that “typically result[s] in conditional certification of a representative class.” Kautsch v.
Premier Communications, 504 F.Supp.2d 685, 688 (W.D. Mo. 2007). “The more stringent
factual inquiry as to whether the plaintiffs ‘are similarly situated’”—Defendants’ focus here—is
reserved for the second stage, Campbell v. Amana Co., L.P., 2001 WL 34152904, at *2 (N.D.
Iowa Jan. 4, 2001), “when the Court has much more information and is able to make a more
6
informed decision,” Kautsch, 504 F.Supp.2d at 688. In Morgan v. Family Dollar Stores, Inc., for
example, despite apparent differences in workload and duties, conditional certification of a class
of store managers was appropriate where an employer “exempted all [of them] from overtime
pay requirements, without regard to store size, sales volume, region, district, or hiring and firing
authority.” 551 F.3d 1233, 1263 (11th Cir. 2008). That is a common “decision, policy or plan”
that warrants conditional certification in an FLSA collective action, Davis, 408 F.Supp.2d at 815,
as is the case here.
The declaration of Fairway’s vice president does state that Property Managers are
“classified as exempt and non-exempt and depending on location supervise a number of
employees[.]” Doc. 59-2, p. 2. But nowhere do Defendants state that Property Managers who
supervise fewer than two people are paid overtime compensation, nor that any Property
Managers are paid overtime compensation. Regardless, fleshing out the factual record is for the
next step in the litigation. Harger necessarily seeks conditional certification of the class on an
incomplete factual record at this stage, and as discussed above, has submitted sufficient evidence
to justify conditional certification at this time.
Accordingly, Harger’s motion for conditional certification is granted.
B.
Notice to Prospective Class Members
Harger submitted a proposed notice form and consent to join, and proposes a plan for
providing notice. Defendants did not make any objections to the proposals. 1
1
Defendants’ suggestions in opposition to Harger’s motion solely focused on
conditional certification. At the end of their suggestions, Defendants briefly state they “reserve
the right to file objections to [Harger’s] proposed Notice[,]” “in the event the Court orders
conditional certification[.]” Doc. 59, p. 24. The Court considers the failure to object,
notwithstanding the reservation, as a waiver.
7
1.
Proposed notice form and consent to join
Once a class had been conditionally certified, the plaintiff may proceed to notify putative
class members of their right to opt in and participate in the pending litigation. The Court has
“both the duty and the broad authority to exercise control over a class action and to enter
appropriate orders governing the conduct of counsel and the parties.” Hoffmann-La Roche Inc.
v. Sperling, 493 U.S. 165, 171 (1989).
The Court has reviewed the proposed form notice and consent to join provided by
Harger, Doc. 52-11. They are substantially identical to forms the Court has approved in other,
recent FLSA litigation, and are modeled after examples provided by the Federal Judicial Center.
The Court approves Harger’s proposed form notice and consent to join.
2.
Proposed Notice Procedure
Harger proposes a four-part procedure for notifying putative class members, and asks the
Court to order Defendants to provide certain contact information concerning the putative class
members within ten days.
Specifically, Harger proposes following procedure for notice:
•
Mailing notice and consent forms by first-class mail to all
employees subject to the described policy;
•
Reminder notice sent by email to putative class members 30 days
before the 60-day opt-in deadline;
•
Posting notice in conspicuous locations where Property Managers
are employed (including lunch room bulletin boards or bulletin
boards where job notices are posted); and
•
Placing notices in three separate paychecks for each current
Property Manager.
Mailing the notice and consent forms by first-class mail is appropriate because it is
practical and efficient. Emailing a reminder notice 30 days before the opt-in period is similarly
8
appropriate. Nobles v. State Farm Mut. Auto. Ins. Co., 2011 WL 5563444 (W.D. Mo. 2011)
(“Email notice is also being used simply as a supplement to notice by first class mail.”); Oliver v.
Aegis Communications Group, Inc., 2008 WL 7483891, at *4-5 (N.D. Tex. 2008) (allowing
mailing of reminder notices); and Helton v. Factor 5, Inc., 2012 WL 2428219, at *7 (allowing
reminder postcard to be sent to potential plaintiffs 30 days before the deadline for opting in to the
action). The Court therefore approves the mailing of the notice and emailing of the reminder.
Harger is also permitted to post notice of the pending suit in conspicuous locations where
Property Managers are employed, including lunch room bulletin boards or bulletin boards where
job notices are posted.
Such means of notice is reasonable. See, e.g., Armstrong v. Genesh,
Inc., 2011 WL 6151416, at *3 (D. Kan. Dec. 12, 2011) (approving plaintiff’s request to post
notice of the suit as reasonable and similar to orders entered by court in other cases in which
conditional certification was granted); Sherrill v. Sutherland Global Servs., Inc., 487 F.Supp.2d
344, 351 (W.D.N.Y. 2007) (allowing notice to be posted at the defendant’s place of business for
90 days, in addition to mailing).
But the Court will not approve Harger’s proposal to include notice in putative class
members’ paychecks. Harger does not state how many putative class members receive paper
paychecks, or how such notice would work with respect to persons who are paid by direct
deposit. In any event, such notice appears to be impractical. It also appears unnecessary, in that
the other proposed means of notice approved above—mailing, emailing, and posting—seem
amply sufficient.
Finally, Harger requests that Defendants be ordered to produce a list, within ten days and
in electronic and hard copy format, of putative class members’ names, telephone numbers, lastknown mailing addresses, email addresses, social security numbers, and dates of birth. In
9
support of this broad request for information, Harger states that she believes Defendants’
workforce has experienced significant turnover over the years, and that all of the information is
necessary to ensure she can locate putative class members.
The Court concludes Harger has only demonstrated a need to be provided putative class
members’ names, mailing addresses, and email addresses, in ten days and in electronic and hard
copy format, at this time. Limiting Harger to this information in lieu of everything she has
requested strikes an appropriate balance between notification, and undue intrusion into the
privacy of putative class members. In the event of returned notices or other logistical issues
Harger encounters in notifying putative class members, Defense counsel is to work with Harger’s
counsel to ensure a comprehensive distribution of the notice materials in a timely fashion.
III.
Conclusion
Plaintiff Harger’s motion for conditional class certification, Doc. 52, is granted, and the
plan for notice is approved as set out above.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 8, 2016
Jefferson City, Missouri
10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?