MacPherson et al v. Firth Rixson Limited et al
Filing
43
DECISION AND ORDER granting 3 Motion for Leave to File Excess Pages; granting 40 Motion for Leave to File NUNC PRO TUNC; granting in part and denying in part 5 Motion to Certify Class; denying 18 Motion to Dismiss; denying as moot 19 Motion to Stay; denying 20 Motion to Dismiss; denying as moot 22 Motion to Stay.. Plaintiffs application for Rule 23 class certification is denied, without prejudice, as being premature. The application for conditional certification of the FLSA colle ctive action is granted as to employees of the Monroe facility, and is otherwise denied, without prejudice. By separate order the Court is denying Defendants motion to dismiss [#18][#20]. Plaintiffs motion [#3] for an extension of page-limits and Defendants motion [#40] for leave to file a sur-reply are granted, nunc pro tunc. The remaining pending motions [#19] [#22] for a stay are denied as moot.Signed by Hon. Charles J. Siragusa on 6/27/12. (KAP)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WILLIAM MACPHERSON and LESLIE SAIERS,
on behalf of themselves and all other employees
similarly situated,
Plaintiffs,
-v-
DECISION AND ORDER
12-CV-6162 CJS
FIRTH RIXSON LIMITED and FIRTH RIXSON,
INC.,
Defendants.
APPEARANCES
For Plaintiffs:
Michael J. Lingle, Esq.
Justin M. Cordello, Esq.
Thomas & Solomon LLP
693 East Avenue
Rochester, New York 14607
For Defendants:
Robert S. Whitman, Esq.
Seyfarth Shaw LLP
620 Eighth Avenue
New York, New York 10018-1405
Richard L. Alfred, Esq.
Seyfarth Shaw LLP
World Trade Center East
Two Seaport Lane, Suite 300
Boston, Massachusetts 02210
INTRODUCTION
This is an action pursuant to the Fair Labor Standards Act (“FLSA”) and the New York
Labor Law (“NYLL”). Now before the Court is Plaintiffs’ motion (Docket No. [#5]) seeking,
inter alia, class certification of the NYLL claim under FRCP 23 and conditional certification
of the FLSA collective action under 29 U.S.C. § 216(b). The application for Rule 23 class
certification is denied, and the application for conditional certification of the FLSA collective
action is granted in part and denied in part.
BACKGROUND
Defendants manufacture metal components for a variety of manufacturing
applications. According to Plaintiffs, Firth Rixson Limited is a parent corporation and Firth
Rixson, Inc. is a wholly-owned subsidiary, but for purposes of this action Plaintiffs maintain
that the two companies are a “single, integrated enterprise.” This proposed class/collective
action is brought by two former hourly employees who maintain that Defendants routinely
failed to pay them and their co-workers for overtime work.
Plaintiffs indicate that
Defendants’ established policies deprived them of overtime pay in two ways. First, Plaintiffs
maintain that Defendants did not pay them for all hours recorded on their time sheets. In
that regard, they state that Defendants set production goals that required employees to
perform extra work before and after their regular shifts, but did not pay for such extra work.
Plaintiffs also allege that Defendants automatically deducted 30-minute meal breaks from
employees’ hours, even when employees did not take such breaks, which deductions
resulted in employees receiving less overtime pay than they would have if such breaks had
not been deducted. Second, Plaintiffs contend that when Defendants did pay employees
for overtime, they failed to pay at the correct rate. On this point, Plaintiffs maintain that
Defendants paid less than the required rate of 1.5 times the employees’ regular rate,
because they did not include bonuses when calculating the regular pay rate.
Plaintiffs indicate that Defendants operate manufacturing plants at various locations
in the United States, and this action purports to be brought on behalf of all “current and
former hourly workers who worked for defendants at . . . locations throughout the United
2
States.” Complaint [#1] at ¶ 45. Presently, though, the only four employees who have opted
into the FLSA action were all employed at one manufacturing plant located in Rochester,
New York, which the parties refer to as “Monroe.”
On March 30, 2012, Plaintiffs commenced this action. The same day, Plaintiffs filed
the subject motion [#5] seeking class certification of the NYLL claim under FRCP 23,
conditional certification of the FLSA collective action under 29 U.S.C. § 216(b). Plaintiffs
also demand a list from Defendants of all employees described in the Complaint, to enable
them to provide expedited notice to those employees.1
In support of the applications, Plaintiffs submitted affidavits from the two named
Plaintiffs, William Macpherson and Leslie Saiers, and from two other employees, Tricia Lee
Goodwin and Todd Stiteler. The affidavits are essentially two-page, “cookie-cutter” affidavits
containing the same general allegations. Specifically as to whether they were victims of a
“common policy,” Plaintiffs state that in 2005, Firth Rixson implemented a time-keeping
system called “E-Time,” and that Human Resources Director Mary Lindsay told each of them
that “Firth Rixson’s hourly employees company-wide would now use the same time keeping
system because the company was implementing the same policy to determine what swipe
time would actually be paid and what swipes would not be paid.” See, Aff. of William
Macpherson [#7-8] at ¶ 6.
In response to those affidavits, Defendants submitted an affidavit from Lindsay, who
states the following: 1) She, along with Macpherson, Saiers, Goodwin and Stiteler, were all
1
On April 24, 2012, Defendants filed a motion [#18] to dismiss the Complaint pursuant to FRCP
12(b)(6), and a motion [#19] to stay consideration of Plaintiffs’ motion for class certification until after the
motion to dismiss is resolved. By separate Order, the Court is denying the Motion to Dismiss, and the Motion
to Stay is therefore moot.
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employed by Firth Rixson, Inc., otherwise know as “Monroe,” in Rochester, New York; 2)
in the United States there are “several” entities related to Firth Rixson, Inc. and Firth Rixson
Limited, but neither of the Defendants has an ownership interest in them; 3) Monroe and
each of the related entities have their own management and human resources personnel,
and the “pay policies and practices vary widely among Monroe and the Related Entities,”
based on factors such as the preferences of the local human resources and payroll
personnel and the facilities’ production goals; 4) Monroe and the related entities have
different policies regarding meal breaks; 5) although Monroe and the related entities all use
the “E-Time” timekeeping system, they all implement it differently and customize it for their
particular needs; 6) Monroe and the related entities have different policies regarding
payment for “unapproved time,” which is the time for which an employee is “clocked in”
before or after their actual shift; and 7) bonus payments for Monroe employees were
discretionary.
DISCUSSION
The FLSA and NYLL
Plaintiffs are seeking overtime pay under both the FLSA and the NYLL. The two
statutes are similar:
The FLSA's overtime provision requires that employees receive compensation
for hours worked in excess of forty hours per week at a rate not less than one
and one-half times the regular rate at which he is employed. The statute
provides a two-year statute of limitations for actions to enforce its provisions
except that a cause of action arising out of a willful violation may be commenced
within three years after the cause of action accrued.
***
The New York Labor Law generally mirrors the guarantees and exemptions of
the FLSA with regards to overtime pay. However, some employees exempt from
the FLSA's overtime provisions are entitled to an overtime wage of at least one
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and one-half times the basic minimum hourly rate. Claims under the New York
Labor Law are subject to a six-year statute of limitations.
Williams v. Skyline Automotive Inc., No. 11 Civ. 4123 (SAS), 2011 WL 5529820 at *2-3
(S.D.N.Y. Nov. 14, 2011) (footnotes and internal quotation marks omitted).
The Request for Certification of a NYLL Class Action under FRCP 232
It is well-established that “a plaintiff must satisfy all of the requirements of Rule 23,
by a preponderance of the evidence, to obtain class certification.” Novella v. Westchester
County, 661 F.3d 128, 148-149 (2d Cir. 2011). In that regard,
Rule 23 subjects a complaint to a “rigorous analysis” before a court may certify
a class action. To qualify for certification, a plaintiff bears the burden of
proving that the putative class action meets each of the four requirements of
Rule 23(a), and also satisfies at least one of the categories provided in Rule
23(b). Courts are to determine whether to certify an action as a class action
“at an early practicable time.” Fed.R.Civ.P. 23(c)(1)(A). . . . However, a
decision about certification need not be made at the outset; a court should
delay a certification ruling until information necessary to reach an informed
decision is available. See Fed.R.Civ.P. 23(c)(1) advisory committee notes to
2003 amendments. See also Philip Morris Inc. v. Nat'l Asbestos Workers
Medical Fund, 214 F.3d 132, 135 (2d Cir.2000) (per curiam) (“[T]here can be
no doubt that it is proper for a district court, prior to certification of a class, to
allow discovery and to conduct hearings to determine whether the
prerequisites of Rule 23 are satisfied.” (quoting Sirota v. Solitron Devices, Inc.,
673 F.2d 566, 571 (2d Cir.1982))); Sirota, 673 F.2d at 571 (“[A] district court
may be reversed for premature certification if it has failed to develop a
sufficient evidentiary record from which to conclude that the requirements of
[Rule 23(a) ] have been met.”).
Ruggles v. Wellpoint, Inc., 253 F.R.D. 61, 66-67 (N.D.N.Y. 2008) (some citations omitted).
Regarding the taking of discovery, this Court’s Local Rules envision and direct that
2
Unlike the FLSA claims, this claim is just for employees who worked in New York.
5
“discovery relevant to certification of the alleged class” will be taken prior to a motion for
class certification. Local Rule of Civil Procedure 23(c)&(d).
In ruling upon a motion for class certification, the Court must accept the allegations
in the complaint as true, but must also examine affidavits and other materials outside of the
complaint to determine whether the plaintiff has met the requirements for certification:
In deciding whether the requirements of Rule 23 have been met, the Court
may examine not only the pleadings but also the evidentiary record, including
any affidavits and results of discovery. Hence, the issue on [a motion for class
certification] is whether the plaintiffs have met their burden of establishing, on
the basis of the pleadings, affidavits, and the results of discovery, that the four
prerequisites of Rule 23(a) have been met, and that the proposed class can
be maintained under Rule 23(b)(3).
Katz v. Image Innovations Holdings, Inc., 2010 WL 2926196 at *2 (S.D.N.Y. Jul. 22, 2010)
(citations omitted); but see, id. (“A motion for class certification should not, however, become
a mini-trial on the merits. The dispositive question is not whether the plaintiffs have stated
a cause of action or will prevail on the merits, but rather whether the requirements of Rule
23 have been met.”) (citations omitted).
Here, the Court finds that Plaintiffs’ Rule 23 motion must be denied as premature,
since there has been no opportunity for discovery. In that regard, the motion does not
comply with Local Rule 23. Moreover, Defendants have indicated that they need discovery
before responding to the motion. See, Def. Memo of Law [#23] at p. 4. On the other hand,
Plaintiffs have not made a compelling argument for considering the motion prior to
discovery. Accordingly, the Rule 23 motion is denied without prejudice to being renewed
once discovery has taken place in accordance with Local Rule 23.
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The Request for Preliminary Certification of an FLSA Collective Actions
Unlike class certification motions under Rule 23, motions for preliminary certification
of FLSA collective actions are more easily supported, and are designed to be made prior to
discovery.
A majority of district courts, including those within the Second Circuit, employ
a two-step process to determine whether a lawsuit should proceed as an
FLSA collective action.
At the first step—the notice stage—the court determines, based on the
pleadings, affidavits, and declarations, whether the named plaintiffs have
demonstrated that the employees they seek to notify are “similarly situated.”
The evidentiary standard is lenient at this stage, the plaintiffs need make only
a modest factual showing that they and the other putative collective action
members together were victims of a common policy or plan that violated the
law. A plaintiff's burden on this step is minimal, especially since the
determination that potential plaintiffs are similarly situated is merely a
preliminary one.
The second step occurs after discovery is complete, when the court examines
the evidentiary record and makes a factual finding as to whether the
conditionally certified plaintiffs are, in fact, similarly situated to the lead
plaintiffs. If the court determines the opt-in plaintiffs are not similarly situated,
the court will decertify the class, the claims of the opt-in plaintiffs will be
dismissed without prejudice, and the class representatives may proceed to
trial on their individual claims. Alternatively, if the class description is shown
to require modification, that can be accomplished at the second tier inquiry.
Gordon v. Kaleida Health, No. 08–CV–378S, 2009 WL 3334784 at *3-4 (W.D.N.Y. Oct. 14,
2009) (citations, internal quotation marks and footnote omitted); see also, Myers v. Hertz
Corp., 624 F.3d 537, 554-555 (2d Cir. 2010) (Indicating that while the two-step process
described above is “not required by the terms of the FLSA or the Supreme Court’s cases,”
it is nonetheless “sensible.”).
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According to the Second Circuit, plaintiffs may demonstrate that they and the
potential opt-in plaintiffs “together were victims of a common policy or plan that violated the
law,”
by making some showing that there are other employees who are similarly
situated with respect to their job requirements and with regard to their pay
provisions . . . . The modest factual showing cannot be satisfied simply by
unsupported assertions, but it should remain a low standard of proof because
the purpose of this first stage is merely to determine whether similarly situated
plaintiffs do in fact exist.
Myers v. Hertz Corp., 624 F.3d at 555.
In this case, at the outset the Court observes that the Complaint [#1] discusses just
two companies, Defendant Firth Rixson Limited and Defendant Firth Rixson, Inc. The
former is the parent company located in the United Kingdom, and the latter, also known as
Monroe, is located in Rochester, New York. According to the undisputed statement of Mary
Lindsay, Firth Rixson Inc. “is a private company with operations in one facility located in
Rochester, New York.” Lindsay Aff. ¶ 2. To the extent that Plaintiffs maintain that “Firth
Rixson Inc.” includes related entities outside of New York State, the record does not support
that conclusion.
Although the Complaint alleges that “Defendants operate factories throughout the
United States and within New York State” and that “plaintiffs and class members” “worked
for defendants at its locations throughout the United States,” the Complaint does not name
the related factories located outside of New York State, or discuss them further, except
perhaps for the allegation that Firth Rixson Limited used the E-Time timekeeping program
“throughout its operations, including Firth Rixson, Inc.” Complaint [#1] at ¶ 16.
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The
Complaint does not specifically contend that any of the complained-of pay practices
occurred at the related factories.
The Court finds that Plaintiffs have made the necessary showing to warrant the
preliminary certification of a collective action limited to employees of the Monroe facility, but
not as to a nationwide class. On this point, the Court finds that Plaintiffs’ purported factual
contentions regarding other facilities are mere “unsupported assertions,” which are
contradicted by Lindsay’s affidavit. In fact, Plaintiffs do not offer any evidence regarding
specific related entities. Instead, Plaintiff’s affidavits’ references to “Firth Rixson” pertain
only to the Monroe facility, where all four affiants were employed. See, e.g., MacPherson
Aff. [#7-8]. None of the four claim to have any personal knowledge regarding practices at
the related facilities, and no affidavits were submitted from employees at those facilities.3
At most, Plaintiffs’ affidavits indicate that Lindsay told them, “in approximately 2005,”
that “Firth Rixson’s hourly employees company-wide would now use the same time keeping
system because the company was implementing the same policy to determine what swipe
time would actually be paid and what swipe time would not be paid.” See, e.g., Macpherson
Aff. [#7-8] at ¶ 6 (emphasis added). This statement, though, is ambiguous regarding the
particular “company” to which Lindsay was allegedly referring. That is, Lindsay maintains
3
Plaintiffs maintain that this Court should approve a nation-wide FLSA collective action, relying upon
the Court’s prior decision in Barrus v. Dick’s Sporting Goods, Inc., 2006 WL 3373117 (W.D.N.Y. Nov. 3,
2006), which adopted a Report and Recommendation of the Hon. Jonathan W. Feldman, United States
Magistrate Judge. However, that decision is factually inapposite, since the plaintiffs in that case submitted
affidavits from employees at multiple store locations around the U.S. in order to establish the existence of a
common policy. See, Barrus v. Dick’s Sporting Goods, Inc., 465 F.Supp.2d 224, 227 (W.D.N.Y. 2006) (report
& recommendation) (“Plaintiffs have submitted affidavits suggesting that the automatic deduction policy, the
lack of training and supervision over the policy, and the loss of otherwise compensable time to employees was
not limited to the stores in the Rochester, New York area.”); see also, id. at 230 (That the offending practices
alleged in the affidavits were factually similar in various store locations in different states throughout the
country (and for relatively long periods of time) only serves to reinforce the conclusion that plaintiffs have met
their minimal burden of showing company-wide practices or policies for which employees in the classes
alleged would be “similarly situated.”).
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that Firth Rixson, Inc., also known as Monroe, is a company “with operations in one facility
located in Rochester, New York.” Id. at ¶ 2.
Lindsay further states that her position is
Human Resources Manager solely for Monroe. Id. Accordingly, even assuming that Lindsay
made the statement attributed to her, it does not seem that she would have been speaking
about practices at other facilities.
Even assuming that Lindsay intended to include related entities when she stated that
E-Time was going to be used “company wide,” such statement does not indicate the
existence of “a common policy or plan that violated the law.” Moreover, although Lindsay
admits that Monroe and the related facilities all use the same timekeeping program, she
insists that they all customize that program “to fit [their] particular needs and to
accommodate the requirements of local law.” Lindsay Aff. at ¶ 9. In addition, while she does
not explain the basis for her knowledge, Lindsay states that she is familiar with the
“timekeeping and payroll policies and practices” at other related facilities, and that they “vary
widely.” Id. at ¶ 7. Lindsay’s affidavit is essentially uncontested on these points. In that
regard, Plaintiffs have submitted affidavits contesting certain aspects of Lindsay’s affidavit,
but they have not challenged the points in her affidavit that are discussed above. See,
Docket Nos. [#38-1] & [#38-2].4
Notice and Disclosure of Information Concerning Potential Opt-in Plaintiffs
Defendants have raised a number of objections to Plaintiffs’ demand for information
concerning potential opt-in plaintiffs, and to Plaintiffs’ proposed notice form. Clearly, the
4
The Court is aware that on a motion for preliminary certification of an FLSA collective action, it need
not resolve issues of fact. Here, although the Court discusses the points raised in Lindsay’s affidavit, it is not
resolving disputed issues of fact. The Court believes that Plaintiffs have failed to carry their minimal burden
even without regard to Lindsay’s affidavit.
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proffered notice should be modified to omit information concerning the proposed NYLL class
action, since the Court is denying the motion for certification of such class. Moreover,
Plaintiffs’ request for the potential opt-in plaintiffs’ social security numbers, birth dates and
telephone numbers is denied at this time for the privacy reasons discussed in Jacob v.
Duane Reade, Inc., No. 11–cv–0160 (JPO), 2012 WL 260230 at *9 (S.D.N.Y. Jan. 27, 2012)
(collecting cases); see also, Guan Ming Lin v. Benihana Nat. Corp., 275 F.R.D. 165, 179
(S.D.N.Y. 2011) (“The plaintiffs' request for the social security numbers of these employees
remains premature and invasive of the employees' privacy. The plaintiffs have proffered no
new reason for requesting this information and instead re-state their prior argument that
social security numbers are necessary to perform skip traces on notices returned as
undeliverable. This argument is insufficient to overcome the privacy concerns of the
defendants[.]”); see also, Gordon v. Kaleida Health, No. 08-CV-378S, 2009 WL 3334784 at
*9 (W.D.N.Y. Oct. 14, 2009) (denying request for opt-in plaintiffs’ phone numbers, social
security numbers, dates of birth and email addresses). However, Defendants shall provide
employees’ names, last-known addresses (mail and email) and dates of employment. The
Court also declines to order Defendants to email notices to their employees, or to post or
publish notices at the work site or in employee newsletters.
As for Defendants’ objections to the proposed notice, the Court believes that the
proposed notice adequately explains that potential class members have the right to retain
their own attorneys, and that it provides a reasonable time (60 days) for potential class
members to opt in. Furthermore, the Court does not believe that the inclusion of the Court’s
name or the statement, “A court authorized this notice,” will mislead potential plaintiffs into
thinking that the case has merit. In that regard, the proposed notice states that, “The Court
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has not decided whether Firth Rixson did anything wrong. There is no money available now,
and no guarantee there will be.”
Plaintiffs’ counsel shall prepare a new notice and settle and submit a proposed order
approving the same. As limited above, Defendants shall provide the requested information
concerning potential opt-in plaintiffs5 to Plaintiffs’ counsel within twenty-one (21) days from
the date of this Decision and Order.
CONCLUSION
Plaintiffs’ motion (Docket No. [#5]) seeking class certification of the NYLL claim under
FRCP 23 and conditional certification of the FLSA collective action under 29 U.S.C. § 216(b)
is granted in part and denied in part. Plaintiffs’ application for Rule 23 class certification is
denied, without prejudice, as being premature. The application for conditional certification
of the FLSA collective action is granted as to employees of the Monroe facility, and is
otherwise denied, without prejudice. By separate order the Court is denying Defendants’
motion to dismiss [#18][#20]. Plaintiffs’ motion [#3] for an extension of page-limits and
Defendants’ motion [#40] for leave to file a sur-reply are granted, nunc pro tunc. The
remaining pending motions [#19] [#22] for a stay are denied as moot.
SO ORDERED.
Dated:
June 27, 2012
Rochester, New York
/s/ Charles J. Siragusa
CHARLES J. SIRAGUSA
United States District Judge
5
Hourly non-exempt employees at the Monroe facility during the three years prior to the date of this
Decision and Order.
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