Harper v. Government Employees Insurance Company

Filing 58

MEMORANDUM AND ORDER - This court has reviewed Defendant's objections to the order of Magistrate Judge Lindsay which granted conditional collective action certification and concludes that the order appealed from should be affirmed. Accordingly, Plaintiffs objections are hereby overruled and the Order of Magistrate Judge Lindsay appearing as docket entry number 46 is affirmed. The Clerk of the Court is directed to terminate the motions appearing at docket entries numbered 36 and 46. Ordered by Senior Judge Leonard D. Wexler on 10/13/2011. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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CANDACE HARPER,
MEMORANDUM AND ORDER

cv 09-2254

Plaintiff,

(Wexler, J.)

-againstGOVERNMENT EMPLOYEES
INSURANCE COMPANY,
Defendant.

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APPEARANCES:

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KLAFTER OLSEN &LESSER LLP
BY: SETH R. LESSER, ESQ.
FRAN L. RUDICH, ESQ.
JEFFREY A. KLAFTER, ESQ.
Attorneys for Plaintiff
2 International Drive, Suite 350
Rye Brook, New York 10573
THORNTON & NAUMES, LLP
BY: ROBERT M. BYRNE, ESQ.
MARILYN McGOLDRICK, ESQ.
JOSEPH R. DONOHUE, ESQ.
Attorneys for Plaintiff
100 Summer Drive, 301h Floor
Boston, Massachusetts, 0211 0
BERGER ATTORNEY, P.C.
BY: BRADLEY I. BERGER, ESQ.
Attorneys for Plaintiff
321 Broadway
New York, New York 10007
SHA WE & ROSENTHAL, LLP
BY: BRUCE S. HARRISON, ESQ.
ERIC HEMMINDINGER, ESQ.
Attorneys for Defendant
20 S. Charles Street, 11th Floor
Baltimore, Maryland 21201
DORSEY & WHI1NEY LLP
BY: LAURA M. LESTRADE, ESQ.
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Attorneys for Defendant
250 Park Avenue
New York, New York 10177-1500
WEXLER, District Judge
In this case Plaintiff Candace Harper ("Plaintiff' or "Harper") seeks overtime
compensation pursuant to the Fair Labor Standards Act, 29 U.S.C. § 207 (the "FLSA"), and a
parallel provision ofNew York State law, against her former employer, Government Employees
Insurance Company ("Defendant" or "GEICO"). Previously before the court was Defendant's
motion for summary judgment. That motion argued that Plaintiff is statutorily exempt from the
requirement that overtime compensation be paid. This court denied that motion and ordered that
the parties begin discovery.
Presently before the court is Defendant's appeal of an order of Magistrate Judge Arlene
Rosario Lindsay granting Plaintiffs request for conditional collective action certification
pursuant to 29 U.S.C. §216(b). For the reasons that follow, Defendant's objections are overruled
and the order ofthe Magistrate Judge is affirmed.
DISCUSSION
I.

Standard of Review
A motion to authorize a collective action, unlike a motion for class certification pursuant

to Rule 23 of the Federal Rules of Civil Procedure, is a non-dispositive motion upon which a
Magistrate Judge has authority to rule. Gortat v. Capala Bros., Inc., 2010 WL 1423018 *8
(E.D.N.Y. 2010); Mazur v. Olek Lejbzon & Co., 2005 WL 3240472 *2 n.l (S.D.N.Y. 2005).
Accordingly, pursuant to Rule 72 ofthe Federal Rules of Civil Procedure this court will modify
or set aside any part of the order appealed from only if such matter is "clearly erroneous or
contrary to law." FRCP 72(a).
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II.

FLSA Actions Seeking Overtime Compensation and CertifYing a Collective Action
The FLSA requires that those who work more than forty hours per week be compensated

at the rate of one and one-halftimes the minimum wage. 29 U.S.C. § 207(a)(l); Howard v. Port
Authority ofNew York, New Jersey, 684 F. Supp.2d 409, 412 (S.D.N.Y. 2010). In addition to
providing for compensation, the FLSA provides that "one or more employees" may move to have
their case certified as a collective action "for and in behalf of ... themselves and other employees
similarly situated." 29 U.S.C. § 216(b). A court may authorize "condition certification" as a
collective action and thereafter authorize the sending of notice to all who may be so similarly
situated. Those receiving such notice have the ability to "opt in" as members of the collective
action and participate therein. Jason v. Falcon Data Com, Inc., 2011 WL 2837488 *4 (E.D.N.Y.
2011). Unlike class actions sought to be certified pursuant to Rule 23 of the Federal Rules of
Civil Procedure, a collective action may be certified without reference to the factors of
numerosity, typicality, commonality or nature of representation. See Moore v. Eagle Sanitation,
Inc., 2011 WL 2784239 *2 (E.D.N.Y. 2011); Young v. County ofNassau, 2010 WL 161593 *1
(E.D.N.Y. 2010). Instead, the court considers only whether the employees to whom notice is
requested to be sent are similarly situated to the plaintiff.
The Second Circuit has approved of use of a two step process in the FLSA certification
process. See Myers v. Hertz Corp., 624 F.3d 537, 554-55 (2d Cir. 2010). First, the district court
makes an initial determination as to whether to send "opt in" notice to individuals who may be
similarly situated to the plaintiff and are therefore potential class members. The order to send
such notice can be based upon a modest showing of similarity, in that the potential members and
the named plaintiff were all "victims of a common policy or plan that violated the law." Myers,
634 F.3d at 555 (citation omitted). Importantly, the first stage of the process, although referred to
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as "certification," is merely the exercise of the discretionary power to send out notice to the
potential "opt-ins." Myers, 624 F.3d at 555 n.lO. At the second stage ofthe proceeding the
court, with the benefit of a "fuller record," can determine whether it is appropriate to continue the
matter as a collective action. At that stage, the court can determine whether those who have opted
in are, in fact, similarly situated to the named plaintiff. In the event the court finds that such
individuals are not so situated, the court may de-certify the collective action. Upon decertification, the opt in plaintiffs are dismissed and the case proceeds as an action on behalf of
only the named plaintiff. Myers, 624 F.3d at 537.
III.

Disposition of the Appeal
The court has reviewed the decision of the Magistrate Judge and the submissions of the

parties. Upon that review, the court holds that the decision providing for conditional collective
certification and the sending of notice to potential opt-in members of the class should not be
disturbed. First, it is clear that the Magistrate Judge applied the correct legal standard, following
the procedure set forth in Myers. Thus, that court properly considered whether the modest factual
showing necessary to order conditional certification and the sending of opt-in notice was met. In
support of the order, the Magistrate Judge noted that the class of employees argued to be
similarly situated perform the same essential duties and are all considered as exempt. The
employees identified all use the same claims manual and the same "Claims IQ" program. These
showings are sufficient to support conditional collective action certification at this point in the
proceeding.
Defendant's main objection is that because some discovery has been completed, the
Magistrate Judge erred in applying the first tier analysis, as set forth above in Myers. Instead, it
is argued that the a more stringent post-discovery analysis should have been applied, and that
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such analysis would have revealed clearly that the proposed class of opt-in plaintiffs is not, in
fact, similarly situated to the Plaintiff. Defendant cites no binding authority for application of
such a standard and the court finds none. Instead, courts in this circuit hold generally that until
the completion of discovery, the first tier analysis set forth in Myers applies.

See,~'

Jason,

2011 WL 2837488 *4 (second step of Myers inquiry typically occurs "after the completion of
discovery"); Cano v. Four M Food Corp., 2009 WL 5710143 *4 (E.D.N.Y. 2009) (same).
In view of the fact that some, but not all discovery has been completed, the court holds
that the Magistrate Judge used the proper legal standard to the assessment of whether a collective
action should be conditionally certified. The application of that standard to the facts here was
equally appropriate, and was neither clearly erroneous nor contrary to law.
CONCLUSION
This court has reviewed Defendant's objections to the order of Magistrate Judge Lindsay
which granted conditional collective action certification and concludes that the order appealed
from should be affirmed. Accordingly, Plaintiffs objections are hereby overruled and the Order
of Magistrate Judge Lindsay appearing as docket entry number 46 is affirmed. The Clerk of the
Court is directed to terminate the motions appearing at docket entries numbered 36 and 46.
SO ORDERED

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Dated: Central Islip, New York
October 13, 2011

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LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE