ALEXANDRIA WILLIAMS V. G4S SECURE SOLUTIONS (USA) INC.
Filing
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MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR on 01/24/2018, that Plaintiff's Motion for Notice and Conditional Certification (Doc. 15 ) is GRANTED. FURTHER that the parties meet and confer to agree on a notice form and report back to this court within 21 days of the entry of this Memorandum Opinion and Order. If the parties are not able to agree, this court will hold a hearing after receipt of the parties respective position. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ALEXANDRIA WILLIAMS,
on behalf of herself and
all others similarly situated,
Plaintiffs,
v.
G4S SECURE SOLUTIONS (USA)
INC.,
Defendant.
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1:17CV51
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Presently before this court is Plaintiff’s Motion for
Notice and Conditional Certification. (Doc. 15.) Defendant G4S
Secure Solutions (USA) Inc. (“G4S”) has responded (Doc. 22) and
Plaintiff has replied (Doc. 26). This matter is ripe for
adjudication and, for the reasons stated herein, this court will
grant Plaintiff’s Motion.
After this motion was fully briefed, Plaintiff filed an
Amended Complaint, (Doc. 27), and Defendant filed an Answer.
(Doc. 28.) Although this court did not grant Plaintiff leave to
file said Amended Complaint, Defendant’s Answer will be
construed as consent to its filing and the Amended Complaint
will be permitted and considered the operative complaint.
I.
BACKGROUND
Plaintiff Alexandria Williams (“Williams”) was employed as
a security officer for Defendant G4S. (Amended Complaint (“Am.
Compl.”) (Doc. 27) ¶ 14.) G4S employs security officers
“throughout the United States, including in North Carolina, to
provide on-site security services to its clients.” (Id. ¶ 12.)
Williams brought this collective action alleging that she and
other security officers were harmed by G4S’s “practice of
failing to accurately record work time and pay its employees for
all hours worked, including overtime premiums.” (Id. ¶ 16.)
Alongside her Complaint, Williams filed opt-in forms from four
similarly situated security officers. (Complaint (“Compl.”),
Ex. 2, Consent to Join Litigation (Doc. 1-2) at 1-4.) These
opt-in forms were incorporated by reference in Williams’ Amended
Complaint. (Am. Compl. (Doc. 27) ¶ 49.)
Apart from these consent forms, and alongside her Motion
for Notice and Conditional Certification, Williams also filed
declarations from herself and two of the putative opt-in class
members. (See generally Pl.’s Mem. in Supp. of Mot. for Notice
and Conditional Certification (“Pl.’s Mem.”), Ex. 1, Alexandria
Williams Decl. (“Williams Decl.”) (Doc. 16-1); Ex. 3, Alastair
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Nicholson Decl. (“Nicholson Decl.”) (Doc. 16-3); Ex. 4, Scott
Praley Decl. (“Praley Decl.”) (Doc. 16-4).) These security
officers each declare that, pursuant to G4S pay and timekeeping
policies, they were regularly uncompensated for pre- and postshift work, resulting in deprivation of overtime premiums and/or
non-payment for the entirety of overtime hours worked. (See
Williams Decl. (Doc. 16-1) ¶¶ 4-11; Nicholson Decl. (Doc. 16-3)
¶¶ 5-12; Praley Decl. (Doc. 16-4) ¶¶ 5-12.)
Williams now moves for conditional certification of a Fair
Labor Standards Act (“FLSA”) collective action to include all
security officers who have worked for G4S during the last three
years at one or more of the following client sites: Google Data
Center in Lenoir, North Carolina; Whiting Turner in Lenoir,
North Carolina; J.E. Dunn in Lenoir, North Carolina; Frye
Hospital in Hickory, North Carolina; Fiserv in Hickory, North
Carolina; Mission Hospital in Asheville, North Carolina; and
General Electric in West Jefferson, North Carolina. (Am. Compl.
(Doc. 27) ¶ 15; Pl.’s Mem. (Doc. 16) at 11-12.)
II.
LEGAL STANDARD
The FLSA provides that an action for unpaid overtime wages
can be brought “by any one or more employees for and in behalf
of himself or themselves and other employees similarly
situated,” but that “[n]o employee shall be a party plaintiff to
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any such action unless he gives his consent in writing to become
such a party and such consent is filed in the court in which
such action is brought.” 29 U.S.C. § 216(b); see also Simmons v.
United Mortg. & Loan Inv., LLC, 634 F.3d 754, 758 (4th Cir.
2011).
“Courts employ a two-stage certification procedure for FLSA
collective actions.” Solais v. Vesuvio's II Pizza & Grill, Inc.,
No. 1:15CV227, 2016 WL 1057038, at *5 (M.D.N.C. Mar. 14, 2016);
see also Kirkpatrick v. Cardinal Innovations Healthcare
Solutions, No. 1:16CV1088, 2017 WL 3841858, at *4 (M.D.N.C.
Sept. 1, 2017). During conditional certification, which is the
first stage, the court determines whether the employees’ claims
are similar enough to merit the distribution of court-approved
notice to possible class members.1 Kirkpatrick, 2017 WL 3841858,
at *4; see also Hoffmann–La Roche Inc. v. Sperling, 493 U.S.
165, 169 (1989) (“[D]istrict courts have discretion, in
appropriate cases, to implement . . . § 216(b) . . . by
facilitating notice to potential plaintiffs.”).
During the second stage – known as “decertification” and
occurring only after a defendant moves to decertify a
conditionally certified class – courts “apply a heightened fact
specific standard to the ‘similarly situated’ analysis.” Solais
v. Vesuvio’s II Pizza & Grill, Inc., No. 1:15CV227, 2016 WL
1057038, at *6 n.7 (M.D.N.C. Mar. 14, 2016) (citation omitted).
This second stage is not presently at issue.
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The plaintiff bears the burden of demonstrating that notice
is appropriate. See, e.g., Purdham v. Fairfax Cty. Pub. Schs.,
629 F. Supp. 2d 544, 548 (E.D. Va. 2009), aff’d, 637 F.3d 421
(4th Cir. 2011). “Conditional certification is appropriate when
it would serve judicial efficiency, and the court must be
mindful that granting conditional certification expands the
scope of the litigation and begins a process of class-wide
discovery.” Kirkpatrick, 2017 WL 3841858, at *4 (citations
omitted). The “similarly situated” requirement, “although
certainly not a ‘rubber-stamp approach,’ remains relatively
modest.” Adams v. Citicorp Credit Servs., Inc., 93 F. Supp. 3d
441, 453 (M.D.N.C. 2015) (citation omitted). While parties
generally “have minimal evidence at this point in the
proceedings[,] . . . [m]ere allegations will not suffice; some
factual evidence is necessary.” Id. (citations omitted) (second
alteration in original). That evidence must tend to show that
there exists a “common policy, scheme, or plan” that violates
the FLSA, but it “need not . . . enable the court to determine
conclusively whether a class of similarly situated plaintiffs
exists, and it need not include evidence that the company has a
formal policy of refusing to pay overtime.” Id. (citation
omitted). The class certification determination “is ‘usually
based only on the pleadings and any affidavits that have been
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submitted’ during the initial stages of litigation.” Cerrato v.
Durham Pub. Schs. Bd. of Educ., No. 1:16CV1431, 2017 WL 2983301,
at *5 (M.D.N.C. Mar. 17, 2017) (quoting Mooney v. Aramco Servs.,
Co., 54 F.3d 1207, 1214 (5th Cir. 1995)). “At this stage, ‘the
Court does not resolve factual disputes, decide substantive
issues on the merits, or make credibility determinations.’”
Kirkpatrick, 2017 WL 3841858, at *4 (citation omitted).
III. ANALYSIS
G4S opposes conditional certification on primarily two
grounds. First, it argues that Williams has only made conclusory
allegations and has failed to make a factual showing that a
similarly situated group of plaintiffs exists. (Def.’s Mem. of
Law in Opp’n to Pl.’s Mot. for Notice and Conditional
Certification (“Def.’s Mem.”) (Doc. 22) at 8.) Specifically, G4S
asserts that Williams has not identified an actual G4S policy,
has not offered any evidence of policies at four of the
identified G4S client sites, and fails to acknowledge unique
factual issues at various G4S client sites. (Id. at 8-12.)
As noted above, plaintiffs seeking conditional
certification are not required to conclusively establish that a
formal policy which violates the FLSA exists. Adams, 93 F. Supp.
3d at 453; Kirkpatrick, 2017 WL 3841858, at *4. Instead, a
plaintiff’s “evidence must tend to show that there exists a
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‘common policy, scheme, or plan’ that violates the FLSA[.]”
Kirkpatrick, 2017 WL 3841858, at *4 (citation omitted). But see
Grayson v. K Mart Corp., 79 F.3d 1086, 1095 (11th Cir. 1996)
(articulating an even lower standard, holding that “a unified
policy, plan, or scheme of discrimination may not be required to
satisfy the more liberal ‘similarly situated’ requirement of
§ 216(b)”). Therefore, Williams’ failure to identify a formal
G4S policy that violates the FLSA is inconsequential.
Looking specifically to the evidence presented by Williams
and the putative opt-in Plaintiffs in their declarations, each
states that during their employment at G4S they were required to
complete pre- and post-shift tasks for which they were not
compensated. (Williams Decl. (Doc. 16-1) ¶¶ 4-12; Nicholson
Decl. (Doc. 16-3) ¶¶ 5-13; Praley Decl. (Doc. 16-4) ¶¶ 5-13.)
Collectively, during their employment at G4S, Williams and the
putative opt-in Plaintiffs provided security services at each of
the client sites at issue with the exception of General Electric
in West Jefferson, North Carolina. (See Williams Decl. (Doc. 161) ¶ 2; Nicholson Decl. (Doc. 16-3) ¶ 3; Praley Decl. (Doc. 164) ¶ 3). Williams declares that she spoke to G4S employees
stationed at this General Electric facility who told her they
were subjected to the same complained-of policy. (William Decl.
(Doc. 16-1) ¶ 19.) G4S contends that this statement in Williams’
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declaration constitutes inadmissible hearsay and should not be
considered by this court. (Def.’s Mem. (Doc. 22) at 22.) As this
court has previously stated when confronted with an identical
argument, however, “courts in the Fourth Circuit that have
addressed the issue have held that hearsay evidence in an
affidavit supporting a motion for conditional certification may
be considered so long as it is based on personal knowledge.”
Hollis v. Alston Pers. Care Servs., LLC, No. 1:16CV1447, 2017 WL
3327591, at *2 (M.D.N.C. Aug. 3, 2017) (quoting McCoy v. RP,
Inc., C.A. No. 2:14-CV-3171-PMD, 2015 WL 6157306, at *3 (D.S.C.
Oct. 19, 2015)). Hearsay within supporting affidavits is
“appropriate given the ‘modest factual support’ required at this
stage.” Id. (quoting McCoy, 2015 WL 6157306, at *3).
Consequently, this court is unpersuaded by G4S’s argument.
G4S next contends that Williams failed to submit reliable
evidence as to the existence of a uniform policy at four of the
client sites at issue and argues that the Motion for Notice and
Conditional Certification fails to acknowledge “unique issues
involving posts where equipment time is unnecessary[.]” (Def.’s
Mem. (Doc. 22) at 11-12.) These arguments are without merit. As
outlined above, Williams and the putative opt-in Plaintiffs have
submitted declarations that, although brief, outline their
experience as G4S security officers. “Declarations are, of
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course, factual support. They are not pleadings or mere
allegations; they are sworn statements and part of the factual
record.” Kirkpatrick, 2017 WL 3841858, at *5. G4S’s arguments
amount to challenges to the credibility of these declarations.
The court need not resolve such factually specific arguments at
this time. Id.; Solais, 2016 WL 1057038, at *6 (“[W]hen
evaluating conditional certification, ‘the Court does not
resolve factual disputes, decide substantive issues on the
merits, or make credibility determinations.’” (citation
omitted)).
Second, G4S argues that the claim advanced by Williams does
not present manageably similar facts. (Def.’s Mem. (Doc. 22) at
13-18.) In support of this argument, G4S details at length
factual distinctions that exist as to pre- and post-shift
equipment pick up and drop off practices at the various client
sites. (Id.) While these factual distinctions might exist,
“courts have routinely recognized that where an employer has a
common practice of failing to pay employees for all hours
worked, factual distinctions [of this type] provide no basis to
deny initial certification of a collective action under the
FLSA.” McLaurin v. Prestage Foods, Inc., 271 F.R.D. 465, 470
(E.D.N.C. 2010) (citing Abadeer v. Tyson Foods, Inc., No.
3:09-00125, 2009 WL 4110295, at *1 (M.D. Tenn. Nov. 25,
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2009) (“The factual variances cited by the Defendants do not
justify denying class certification.”); Russell v. Ill. Bell
Tel. Co., 575 F. Supp. 2d 930, 938 (N.D. Ill. 2008); Dominquez
v. Minn. Beef Indus., Inc., Civ. No. 06–1002 (RHK/AJB), 2007 WL
2422837, at *3 (D. Minn. Aug. 21, 2007); Benbow v. Gold Kist,
Inc., 3:06–CV–02751-MBS, slip op. at 4–5 (D.S.C. Apr. 16, 2007)
(unpublished); Allen v. McWane, Inc., No. Civ.A.2:06–CV–158(TJ),
2006 WL 3246531, at *3 (E.D. Tex. Nov. 7, 2006); Frank v. Gold'n
Plump Poultry, Inc., No. Civ. 041018JNERLE, 2005 WL 2240336, at
*3 (D. Minn. Sept. 14, 2005)). This court finds no compelling
reason to depart from this practice in the present case.
This court finds that Williams has made the “relatively
modest factual showing that [] a common policy, scheme, or plan
[that violated the law] exists.” Adams, 93 F. Supp. 3d at 453
(alteration in original). Specifically, Williams has
sufficiently alleged that G4S has a common policy of not
compensating security guards for pre- and post-shift work,
resulting in deprivation of overtime premiums and/or non-payment
for the entirety of overtime hours worked. Accordingly, this
court will grant Plaintiff’s motion to conditionally certify
this collective action.
IV.
CONCLUSION
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For the reasons stated above, IT IS HEREBY ORDERED that
Plaintiff’s Motion for Notice and Conditional Certification
(Doc. 15) is GRANTED.
IT IS FURTHER ORDERED that the parties meet and confer to
agree on a notice form and report back to this court within 21
days of the entry of this Memorandum Opinion and Order. If the
parties are not able to agree, this court will hold a hearing
after receipt of the parties’ respective position.
This the 24th day of January, 2018.
___________________________________
United States District Judge
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