HUGHES et al v. THE TOWNSHIP OF FRANKLIN
Filing
25
MEMORANDUM OPINION AND ORDER: ORDERED that Plaintiffs' motion to conditionally certify this action as a collective action 10 is GRANTED IN PART; and it is further ORDERED that this action shall be conditionally designated as a collectiv e action under the FLSA; and it is further ORDERED that the parties shall, by 4/30/2014, meet and confer concerning the revised notice form; and it is further ORDERED that the parties shall, by 5/7/2014, submit an agreed upon notice form. Signed by Magistrate Judge Ann Marie Donio on 4/14/2014. (tf, )
[Doc. No. 10]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
ESTELLE HUGHES, et al.,
Plaintiffs,
Civil No. 13-3761 (AMD)
v.
THE TOWNSHIP OF FRANKLIN,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiffs,
Estelle
Hughes,
Frances
Gaetano,
Thomas
Little, and Vincent Parisi, move to conditionally certify this
Fair Labor Standards Act litigation as a collective action on
behalf of themselves and other similarly situated current and
former law enforcement officers, against Defendant, the Township
of Franklin. (See Memorandum of Law in Support of Plaintiffs’
Motion to Conditionally Certify an FLSA Collective Action and
Send Notice to the Class (hereinafter, “Pls.’ Br.”) [Doc. No.
10-1],
1.)
Defendant
does
not
oppose
certification
at
the
conditional phase, nor does Defendant take issue with providing
the last known addresses for potential plaintiffs. (See Response
to
Plaintiff’s
Application
for
Conditional
Certification
as
Collective Action (hereinafter, “Def.’s Opp’n”) [Doc. No. 22],
1, 4.)
Rather, Defendant seeks to circumscribe the manner in
which Plaintiffs provide notice of this suit to putative opt-in
plaintiffs. (Id. at 2.) The issue before the Court is whether
the employees referenced in the Complaint can be provisionally
categorized as similarly situated to the named Plaintiffs for
the purposes of conditional certification.
For the reasons that
follow, the Court grants in part and denies in part Plaintiffs’
motion. 1
In
enforcement
allege
this
action,
officers
that
for
Defendant
Plaintiffs,
the
current
Township
“fail[ed]
and
of
and
former
Franklin,
refus[ed]
to
law
generally
properly
compensate Plaintiffs for” otherwise compensable pre-shift work,
in accordance with an “established” practice incorporated into
the
parties’
officers
“to
collective
report”
ten
bargaining
minutes
agreement 2
prior
to
that
“their
shift[.]” (Complaint [Doc. No. 3], ¶¶ 25-28, 63.)
required
scheduled
Plaintiffs
therefore allege that this pre-shift requirement set forth in
Article
IX,
¶
C(1)
of
the
parties’
collective
bargaining
agreement required Plaintiffs to perform uncompensated work in
violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201, et
1
The parties consented to this Court’s jurisdiction pursuant to
28 U.S.C. § 636(c)(1), Federal Rule of Civil Procedure 73(b),
and Rule 73.1 of the Local Civil Rules for the United States
District Court, District of New Jersey.
(See Notice, Consent,
and Reference of a Civil Action to a Magistrate Judge [Doc. No.
17], 1.)
2
A collective bargaining agreement executed by and between the
New Jersey State Policemen’s Benevolent Association, PBA Local
122 and the Township of Franklin, Gloucester County, New Jersey,
concerns in part Plaintiffs’ employment with Defendant.
(See
generally Agreement [Doc. No. 10-3].)
2
seq. (hereinafter, the “FLSA” or the “Act”).
Plaintiffs
judgment
seek
civil
concerning
unenforceable”
nature
damages,
in
(Id. at ¶¶ 29-57.)
addition
the
alleged
of
“invalid,
Defendant’s
to
a
declaratory
illegal[,]
“practices
and
and
policies”
set forth in Article IX, ¶ C(1). (Id. at ¶ 67.)
In
the
pending
motion,
Plaintiffs
seek
to
conditionally certify this action as a collective action “on
behalf of all persons” during “the three years preceding” the
inception of this action, who Defendant purportedly subjected to
its “practice and policy of requiring” law enforcement officers
to perform “10 minutes” of pre-shift work without compensation. 3
(Pls.’ Br. [Doc. No. 10-1], 2, 14.)
3
Plaintiffs’ submissions do not set forth with specificity the
scope of employees included in the proposed collective action.
Rather, the scope of Plaintiffs’ proposed collective action
manifests in multiple forms.
Specifically, in one portion of
Plaintiffs’ motion, Plaintiffs seek conditional certification on
behalf of “all current and former police officer employees
employed by Franklin Township after November 20, 2010 who worked
but were not paid wages and/or overtime wages for time worked
pre and post shift.” (Pls.’ Br. [Doc. No. 10-1], 1.)
Plaintiffs’ submissions also identify the potential collective
action members as “all persons presently and formerly employed
by [Defendant], in non-exempt police positions who were or are
subject to [the] unlawful pay practices and policies described
herein and who worked for [Defendant][.]” (Id. at 2; see also
Amended Complaint [Doc. No. 3], ¶ 14.) In another portion of the
submission, the proposed collective action appears to include
all “current and former police officer[s]” who were “compensated
improperly for overtime work and/or not compensated at all for
work performed” and “were forced to use or lose accrued earned
compensatory time in violation of the FLSA[.]” (Id. at 3.) In
yet another section, Plaintiffs seek conditional certification
on behalf of all current and former law enforcement officers
3
The Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,
generally
permits
actions
to
proceed
on
a
collective
basis
provided that the plaintiffs demonstrate that they are similarly
situated
to
Specifically,
“collective
the
putative
section
action”
collective
216(b)
of
mechanism,
the
which
action
Act
plaintiffs.
sets
enables
forth
an
the
employee
alleging an FLSA violation to bring an action on “behalf of
himself” and other “similarly situated” employees, subject to
the requirement that each party plaintiff consents in writing to
join the action and files such express, written consent “in the
court in which [the] action is brought.”
similarly
situated
employee
must
29 U.S.C. § 216(b). A
therefore
affirmatively
“opt
in” to an ongoing FLSA suit. Id.
“Courts
in
[this]
Circuit
[embrace]
a
two-step
process” in determining “whether an action may properly proceed
as a collective action under the FLSA.” Camesi v. University of
Pittsburgh
Medical
Center,
729
F.3d
239,
243
(3d
Cir.
2013)
affected by Defendant’s “policy and practice” of “requiring its
police officers to report to work 10 minutes” prior to “their
shift[,]” without providing compensation. (Id. at 14.) Finally,
Plaintiffs request that the Court “conditionally certify this
action as a[n] FLSA representative action on behalf of a class
of all current and former patrol, sergeant and lieutenants of”
Defendant. (Id. at 17-18.) Despite certain inconsistencies in
Plaintiffs’
submission,
however,
counsel
for
Plaintiffs
confirmed on the record on March 5, 2014, that Plaintiffs seek
to conditionally certify this proposed FLSA collective action in
accordance with Defendant’s purportedly unlawful pre-shift
policy. The Court shall evaluate the pending motion accordingly.
4
(citing Zavala v. Wal-Mart Stores, Inc., 691 F.3d 527, 535 (3d
Cir.
2012)).
At
the
initial
phase,
courts
apply
“a
‘fairly
lenient standard’” and must make “a preliminary determination
[concerning] whether the named plaintiffs have made a ‘modest
factual
showing’
that
the
employees
identified
in
the[]
complaint are ‘similarly situated’” with respect to the alleged
policy. Id. (quoting Zavala, 619 F.3d at 536, n.4). However, a
plaintiff must produce evidence “‘beyond pure speculation[.]’”
Zavala,
691
F.3d
at
536
n.4
(quoting
Symczyk
v.
Genesis
HealthCare Corp., 656 F.3d 189, 193 (3d Cir. 2011) (citing Smith
v. Sovereign Bancorp, Inc., No. 03-2420, 2003 WL 22701017, at *3
(E.D. Pa. Nov. 13, 2003)), rev’d on other grounds, --- U.S. ---,
133
S.Ct.
assertions
fail
to
1523
of
(2013)).
widespread
establish
the
Unsubstantiated,
violations
or
requisite
general,
“terse
“modest”
and
vague
declaration[s]”
factual
showing.
Villanueva-Bazaldua v. TruGreen Ltd. Partners, 479 F. Supp. 2d
411, 415 (D. Del. 2007) (denying conditional certification in
light of the “dearth of evidence”); see also Bramble v. Wal-Mart
Stores, Inc., 2011 WL 1389510, at *4 (E.D. Pa. Apr. 12, 2011)
(“Although
plaintiffs'
burden
to
establish
a
right
to
conditional certification is modest, it is “not nonexistent and
the factual showing, even if modest, must still be based on some
substance.”)
(citation
omitted).
Rather,
a
plaintiff
must
present factual evidence, with sufficient detail, to bolster the
5
assertions. See Kronick v. bebe Stores, Inc., No. 07-4514, 2008
WL 4546368, at *3 (D.N.J. Oct. 2, 2008) (“general and vague
assertions might be tenable if Plaintiff affiants had presented
more detailed factual evidence to bolster their assertions”).
Consequently, “‘courts have not hesitated to deny conditional
certification’” where plaintiffs present insufficient evidence.
Rogers v. Ocean Cable Grp., No. 10-4198, 2011 WL 6887154, at *3
(D.N.J. Dec. 29, 2011) (quoting Dreyer v. Altchem Envtl. Servs.,
No. 06-2393, 2007 WL 7186177, at *3 (D.N.J. Sept. 25, 2007)).
Moreover, certification at this initial stage does not suffice
to establish “‘the existence of a representative action under
[the] FLSA[,]’” but rather, solely serves “‘to facilitate the
sending of notice to potential class members.’” 4 Postiglione v.
Crossmark, Inc., No. 11-960, 2012 WL 5829793, at *3 (D.N.J. Nov.
15, 2012) (quoting Symczyk, 656 F.3d at 194).
4
Though many courts have employed the “‘vernacular’” applicable
in the Federal Rule of Civil Procedure 23 context, the concept
of “‘class certification’” remains “[a]bsent from the text of
the FLSA[.]” Symczyk, 656 F.3d at 194 (quoting Kelley v. Alamo,
964 F.2d 747, 748 n.1 (8th Cir. 1992)).
Indeed, “no class”
exists in the collective action context.
Morangelli v. Chemed
Corp., 275 F.R.D. 99, 104 n.1 (E.D.N.Y. 2011) (“[T]here is no
class in a collective action.”). Rather, the certification
considered in the pending motion “‘is only the district court’s
exercise of [its] discretionary power’” to “‘facilitate the
sending of notice to potential class members’ and ‘is neither
necessary nor sufficient for the existence of a representative
action under [the] FLSA.’”
Symczyk, 656 F.3d at 194 (quoting
Myers v. Hertz Corp., 624 F.3d 537, 555 n. 10 (2d Cir. 2010)).
6
Here,
in
accordance
with
the
“‘fairly
lenient
standard’” applicable to conditional certification, Plaintiffs
must
produce
a
“‘modest
factual’”
basis,
“‘beyond
pure
speculation[,]’” to establish that the current and former law
enforcement officers are “‘similarly situated’” with respect to
Defendant’s alleged pre-shift policy. Camesi, 729 F.3d at 243
(quoting Zavala, 619 F.3d at 536 n.4.) Plaintiffs assert that
the
documentation
submitted
in
connection
with
the
pending
motion—and, in particular, the collective bargaining agreement
and the certification of Plaintiff Estelle Hughes—collectively
satisfies
the
minimal
burden
associated
with
conditional
certification. (Pls.’ Br. [Doc. No. 10-1], 14.) Specifically,
Plaintiffs assert that their proffer demonstrates the “similarly
situated” nature of all potential plaintiffs with respect to the
collective
bargaining
agreement’s
“unlawful”
policy
requiring
that law enforcement officers “report to work 10 minutes” prior
to their shift.
(Id. at 2-3, 14; see also Agreement [Doc. No.
10-3], 13; see also Amended Complaint [Doc. No. 3], ¶ 63.)
As
set forth supra, Plaintiffs generally allege that Defendant’s
“unlawful[]”
policy
required
Plaintiffs,
and
those
similarly
situated former and current law enforcement officers, “to report
to
work
shift[,]”
10
minutes”
without
prior
providing
to
“their
compensation
7
officially
assigned
“for
required
this
time” in accordance with “regular” and/or “overtime rates of
pay[.]”
(Amended Complaint [Doc. No. 3], ¶ 63.)
In support of the pending motion, Plaintiffs rely upon
the
express
overtime
policy
prescribed
by
the
parties’
collective bargaining agreement. (See Agreement [Doc. No. 10-3],
14.)
That
express
policy
requires
that
law
enforcements
officers “be prepared to assume normal patrol duties ten (10)
minutes prior” to the start of their shift. (Id. at 14.) To the
extent this pre-shift time requires any incidental accrual of
overtime
hours,
the
collective
bargaining
agreement
provides
that officers will receive overtime compensation, but only “at
the
discretion
of
the
Chief
of
Police[.]”
(Id.)
Plaintiffs
further allege that they are similarly situated in light of the
provision’s
uniform
(Pls.’
[Doc.
Br.
application
No.
10-1],
to
all
14-15.)
potential
Defendant
plaintiffs.
presents
no
contrary evidence to rebut this purported uniform application.
Notwithstanding
Plaintiffs,
several
however,
the
express
Plaintiffs’
deficiencies.
Namely,
the
policy
proffer
relied
does
certification
upon
suffer
of
by
from
Estelle
Hughes generally states that Defendant “established a practice”
set forth in the parties’ collective bargaining agreement, which
required that “uniformed police officers” perform work “ten (10)
minutes” pre-shift, without compensating Plaintiffs, and those
similarly
situated,
for
that
time.
8
(Certification
of
Estelle
Hughes [Doc. No. 10-4], ¶¶ 3-6.) Plaintiffs do not, however,
substantiate these allegations concerning Defendant’s failure to
compensate through the submission of pay stubs, W-2s, and/or
other
similar
pay
information,
which
might
demonstrate
the
uncompensated nature of this pre-shift time. Nor do Plaintiffs
specifically assert that Defendant provided compensation solely
in accordance with scheduled shift time, thereby bolstering any
inference
that
uncompensated.
pre-shift
time
(i.e.,
nonscheduled
time)
went
Moreover, Plaintiff Estelle Hughes does not set
forth the basis for her assertions concerning the compensation
of other officers.
Notably, Plaintiff Estelle Hughes does not
predicate
her
assertion
on
officers,
nor
does
indicate
knowledge
of
she
Defendant’s
specific
conversations
that
compensation
she
with
possesses
scheme.
other
personal
Rather,
she
vaguely asserts that Defendant “does not compensate” officers
for
pre-shift
Estelle
Hughes
time.
may
Therefore,
set
forth
though
evidence
the
of
an
certification
individual
of
FLSA
claim, Plaintiffs must also present evidence demonstrating the
“similarly situated” nature of all potential collective action
plaintiffs with respect to Defendant’s alleged violation. See
Wright v. Lehigh Valley Hosp., No. 10-431, 2010 WL 3363992, at
*4 (E.D. Pa. Aug. 24, 2010) (finding plaintiff’s argument that
defendants “must have violated other [putative collective action
members’] rights because their uniform policies and procedures
9
allegedly
violated
her
rights”
insufficient
“to
satisfy
the
modest factual showing”).
The
Court
limited
further
present,
pause
four
Plaintiffs
number
in
opt-in
evaluating
Plaintiffs
asserts
of
gives
the
pending
motion.
At
the
comprise
that
Plaintiffs
this
Defendant
action.
presently
However,
“employs
approximately twenty-five (25) full time and permanent police
officers[,]” 5
and
Plaintiffs
have
presented
no
evidence
to
suggest forthcoming opt-in plaintiffs. (Amended Complaint [Doc.
No. 3], ¶ 13.)
See, e.g., Goldstein v. Children’s Hosp. of
Phila., No. 10-1190, 2012 WL 5250385, at *5 (E.D. Pa. Oct. 24,
2012) (finding that the limited “evidence of opt-ins despite 10
months of discovery” weighed against conditional certification);
Wright,
2010
dearth
of
WL
3363992,
record
at
evidence
*4
of
(finding
a
“[t]he
factual
conspicuous
nexus
between
[plaintiff’s] experiences and those of other [registered nurses
employed
by
the
defendant]
fatal
to
the
proposed
class,”
particularly in light of the fact that plaintiff “had ample time
to recruit other registered nurses to support her claim”).
5
The Court notes that Plaintiffs seek to proceed on behalf of
all current and former law enforcement officers employed by
Defendant. (See generally Pls.’ Br. [Doc. No. 10-1].) The record
before the Court, however, lacks any indication at this time
concerning the number of former law enforcement officers
employed by Defendant during the three-year period relevant to
this action.
10
Notwithstanding
these
deficiencies,
the
Court
notes
that Defendant does not oppose the pending motion, nor dispute
the
uniform
nature
of
the
policy
prescribed
by
the
parties’
collective bargaining agreement. (Def.’s Opp’n [Doc. No. 22], 5
(“defendant does not object and has submitted no objection to
the court entering an order granting plaintiff’s application for
conditional certification as a collective action”).
Moreover,
the express language of the policy relied upon by Plaintiffs
inherently demonstrates the “similarly situated” nature of the
potential collective action members with respect to Defendant’s
pre-shift requirement. See Sperling v. Hoffmann-La Roche, Inc.,
118 F.R.D. 392, 407 (D.N.J. 1988) (noting that plaintiffs must
establish “nothing more than substantial allegations that the
putative class members were together the victims of a single
decision,
policy,
or
plan”
in
order
to
warrant
conditional
certification); Andrako v. U.S. Steel Corp., 788 F. Supp. 2d
372,
380
(W.D.
Pa.
2011)
(denying
defendant’s
motion
to
decertify a collective action in part in light of the parties’
undisputed
and
“longstanding
portal-to-portal
activities”
policy
in
of
non-compensability
accordance
with
the
of
parties’
collective bargaining agreement). Consequently, for the purposes
of
this
Court
unopposed
concludes
provisionally
motion
that
categorize
for
conditional
Plaintiffs’
the
potential
11
certification,
proffer
opt-in
the
suffices
to
plaintiffs
as
similarly
situated
employment
to
policies,
Plaintiffs
practices,
with
and
respect
to
compensation
Defendant’s
scheme. 6
See
Altenbach v. Lube Center, Inc., No. 08-2178, 2009 WL 3818750, at
*1
(M.D.
Nov.
13,
“sufficient”
to
warrant
certification”
of
plaintiff’s
therefore
Pa.
grants
2009)
Plaintiffs’
(finding
“the
plaintiff’s
unopposed
“proposed
motion,
and
conditional
class”).
shall
showing
The
Court
conditionally
designating this action as a collective action under the FLSA.
See
Bowe
v.
Enviropro
Basement
Sys.,
No.
12-2099,
2013
WL
6280873, at *8 (D.N.J. Dec. 4, 2013) (finding that plaintiff
“met
his
burden”
showing[,]”
other
“that
employees[,]”
to
he
demonstrate,
is
and
similarly
granting
by
a
situated
plaintiff’s
“modest
to
factual
[d]efendants'
unopposed
motion
for conditional certification).
The Court now turns to Plaintiffs’ request for Courtapproved notice. With respect to notice, Plaintiffs generally
request as follows: (1) the last known addresses of potential
opt-in plaintiffs; (2) “the date[] of birth and social security
number [of] any class member[] whose mailed notice” is returned
as undeliverable; (3) the ability to send “follow-up postcard[s]
to any class members” who fail to respond within “thirty days
after” mailing “of the initial notice[;]” and (4) permission to
6
The Court is not at
Plaintiffs’ FLSA claims.
this
time
12
addressing
the
merits
of
post “notice” at “Defendant’s City Hall and within the Police
Department[.]” (Pls.’ Br. [Doc. No. 10-1], 15-16.) As set forth
supra,
Defendant
does
not
oppose
“providing
the
last
known
addresses for potential class members[.]” (Def.’s Opp’n [Doc.
No.
22],
3.)
Defendant
does,
however,
oppose
the
subsequent
provision of additional identifying information concerning the
potential
plaintiffs,
Plaintiffs’
proposed
latitude
to
send
“follow-up post cards[,]” and the posting of workplace notices.
(Id.
at
period”
3-4.)
be
Defendant
limited
to
further
not
longer
requests
than
that
the
forty-five
“opt-in
(45)
days.
(Id. at 4.) In support of these proposed limitations, Defendant
relies upon a number of cases in this District concerning courtapproved notice in the context of FLSA collective actions. (Id.
at 1-2.) In Steinberg v. TD Bank, N.A., No. 10-5600, 2012 WL
2500331
(D.N.J.
considered
the
June
27,
appropriate
2012),
contours
for
of
example,
the
court-approved
court
notice.
Id. at *10. The Steinberg plaintiffs requested a “120-day opt-in
period[,]”
“social
security
numbers”
for
all
potential
plaintiffs, and the ability to post additional “notice[s]” at
defendant’s worksites. Id. at *10. The Steinberg court, however,
rejected plaintiffs’ request, and noted that plaintiffs failed
to
proffer
“compelling
reasons
to
[permit]
notice
mechanisms
beyond first class mail or contact information beyond mailing
addresses[.]” Id. at *10 (citing Bredbenner v. Liberty Travel,
13
No.
09-905,
release
first
2009
social
class
WL
2391279,
security
mail
at
numbers
proves
*3
n.
only
3
(“Courts
after
insufficient.”);
generally
notification
Ritzer
v.
UBS
via
Fin.
Servs., Inc., No. 08–01235, 2008 WL 4372784, at *3 (D.N.J. Sept.
22,
2008)
(“Unless
insufficient,
notification
social
security
via
first
numbers
class
and
mail
proves
telephone
numbers
should not be released.”); Martinez v. Cargill Meat Solutions,
265 F.R.D. 490, 500 (D. Neb. 2009) (declaring that first class
mail
would
personal
be
sufficient
mailing
will
because
be
an
“[t]here
unreliable
is
means
no
of
evidence
delivering
notice to the putative plaintiffs”); Reab v. Elec. Arts, Inc.,
214 F.R.D. 623, 631 (D. Colo. 2002) (“First class mail ensures,
at the outset, that the appropriately targeted audience receives
the intended notification and maximizes the integrity of the
notice process.”)). Nor had the Steinberg plaintiffs “offered
[any]
reason”
day[s][.]”
Id.
to
support
The
Court
Steinberg
to
prejudice
Plaintiffs’
mailing
be
addresses
a
opt-in
finds
persuasive,
request
and
for
period
the
in
excess
of
set
forth
reasoning
and
therefore
for
information
latitude
to
denies
“45in
without
in
excess
of
provide
notice
to
potential plaintiffs in a manner other than first class mail.
The
Court
further
finds
a
brief
45-day
opt-in
period
to
be
appropriate in this action in light of the limited number of
potential plaintiffs in this action. (Amended Complaint [Doc.
14
No. 3], ¶ 13.) The parties shall, by April 30, 2014, meet and
confer concerning the revised notice form, in accordance with
the Local Civil Rules and the Court’s Memorandum Opinion and
Order.
Consequently, for the reasons set forth herein, and
for good cause shown:
IT IS on this 14th day of April 2014,
ORDERED
that
Plaintiffs’
motion
to
conditionally
certify this action as a collective action [Doc. No. 10] shall
be, and hereby is, GRANTED IN PART; and it is further
ORDERED
that
this
action
shall
be
conditionally
designated as a collective action under the FLSA; and it is
further
ORDERED that the parties shall, by April 30, 2014,
meet
and
confer
concerning
the
revised
notice
form,
in
accordance with the Local Civil Rules and the Court’s Memorandum
Opinion and Order; and it is further
ORDERED that the parties shall, by May 7, 2014, submit
an
agreed
upon
notice
form
in
accordance
with
the
Court’s
Memorandum Opinion and Order.
s/ Ann Marie Donio
ANN MARIE DONIO
UNITED STATES MAGISTRATE JUDGE
15
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