Petty v. Russell Cellular, Inc.
Filing
29
OPINION AND ORDER granting 12 Motion to Certify Class. Signed by Judge James L Graham on 3/28/2014. (ds)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Shelonda Petty,
Plaintiff,
v.
Case No. 2:13-cv-1110
Russell Cellular, Inc.,
Defendant.
OPINION AND ORDER
This is an action with class allegations filed by plaintiff
Shelonda Petty, asserting violations of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §201, et seq. against her former employer,
Russell
Cellular,
Inc.
Count
One
of
the
complaint
alleges
violations of the FLSA overtime provisions, 29 U.S.C. §207(a)(1).
Count
Two,
which
alleged
that
defendant
violated
the
FLSA’s
recordkeeping requirements, was dismissed by order dated January
30, 2014.
In Count Three, plaintiff seeks a declaratory judgment,
specifically, a declaration that she and other similarly-situated
employees are entitled to be paid for the hours they expended
making bank deposits required by defendant after the end of their
paid shifts. This matter is before the court on plaintiff’s motion
for conditional certification of a collective action pursuant to 29
U.S.C. §216(b) and court-authorized notice.
The FLSA provides a private cause of action against an
employer “by any one or more employees for and in behalf of himself
or themselves and other employees similarly situated.”
§216(b).
This type of suit is called a “collective action,” which is
distinguishable from the opt-out approach used in class actions
under Fed. R. Civ. P. 23.
Comer v. Wal-Mart Stores, Inc., 454 F.3d
544, 546 (6th Cir. 2006).
The determination whether to allow an
action to proceed as a collective action is left to the trial
court’s discretion.
certification
of
Id.
a
A two-stage procedure is employed in the
collective
certification is conditional.
action.
Id.
At
the
first
stage,
Section 216(b) imposes two
requirements for conditional certification: 1) the plaintiff must
actually be “similarly situated” with other proposed class members,
and 2) all plaintiffs must signal in writing their affirmative
consent to participate in the action.
Id.
At the second stage,
following notice to class members and discovery, the trial court
examines more closely the question of whether particular members of
the class are, in fact, similarly situated.
See id. at 547.
At
that stage, the defendant can move to decertify the collective
action
on
the
ground
that
the
plaintiffs
are
not
similarly
situated, see Harrison v. McDonald’s Corp., 411 F.Supp.2d 862, 86465 (S.D. Ohio 2005), or based on the individualized nature of
plaintiff’s claims, see Swigart v. Fifth Third Bank, 276 F.R.D.
210, 213 (S.D. Ohio 2011).
Plaintiff bears the burden of showing
that the opt-in plaintiffs are similarly situated to her as the
lead plaintiff. O’Brien v. Ed Donnelly Enterprises, Inc., 575 F.3d
567,
584
(6th
Cir.
2009);
Harrison,
411
F.Supp.2d
at
865
(plaintiffs must establish a colorable basis for their claim that
a class of “similarly situated” plaintiffs exists).
However, the
“similarly situated” requirement in §216(b) is less stringent that
the requirements for certification of a Rule 23 class action.
O’Brien, 575 F.3d at 584-85.
violations is not required.
Showing a “unified policy” of
Id.
Plaintiff is only required to
show that her position is similar, not identical, to the positions
2
held by the putative class members.
Comer, 454 F.3d at 546-47;
Pritchard v. Dent Wizard Int’l Corp., 210 F.R.D. 591, 595 (S.D.
Ohio 2002).
Plaintiffs are similarly situated “when they suffer
from a single, FLSA-violating policy, and when proof of that policy
or of conduct in conformity with that policy proves a violation as
to all the plaintiffs.”
O’Brien, 575 F.3d at 585.
Although some courts hold that plaintiff can demonstrate that
potential class members are “similarly situated” for purposes of
receiving notice, other courts require plaintiff to produce some
factual support for the allegations before issuance of notice.
Pritchard, 210 F.R.D. at 595-96.
Because the court has minimal
evidence at this stage, the determination is made “using a fairly
lenient standard.” Swigart, 276 F.R.D. at 213; see also Comer, 454
F.3d at 547 (noting that application of this lenient standard
typically results in conditional certification of a representative
class).
Authorized notice need only be based on a modest factual
showing, which may include affidavits of potential plaintiffs or
evidence of a widespread policy or plan.
Id. at 596.
In determining whether a factual basis exists to support an
allegation of class-wide FLSA violations, courts consider: 1)
whether potential plaintiffs were identified; 2) whether affidavits
of potential plaintiffs were submitted; 3) whether evidence of a
widespread illegal plan was submitted; and 4) whether, as a matter
of sound class management, a manageable class exists.
Lewis v.
Huntington National Bank, 789 F.Supp.2d 863, 868 (S.D. Ohio 2011).
Potential plaintiffs have been identified in this case.
Plaintiff alleges in her complaint that she worked for defendant as
a cellular phone sales person in defendant’s store in Gallipolis,
3
Ohio, from August 21, 2009, through November 1, 2013.
Complaint,
¶ 10. She alleges that she worked as a full-time employee, working
at least forty hours per week, and that she was frequently required
to take checks and cash from the store to the bank for deposit in
defendant’s account following the end of her shift, which involved
a substantial time commitment.
She alleges that she was not paid
for this post-shift work. Complaint, ¶¶ 14-15.
Plaintiff further
alleges that defendant’s requirement that employees make bank
deposits after the end of their paid shifts constituted a written,
company-wide policy.
Complaint, ¶ 16.
Prior to commencing her
employment with defendant, plaintiff was required to sign an
agreement which stated that bank deposits were to be made at the
end
of
the
day.
Complaint,
¶
17.
Plaintiff
alleges
that
defendant’s requirement that employees make bank deposits at the
end of their paid shifts is applicable to hourly employees in all
of its stores.
Complaint, ¶ 18.
She alleges that the persons
similarly situated to her are “[a]ll present and former non-exempt
employees who worked for Russell Cellular, Inc. at one of its
retail stores during the three years preceding the commencement of
this action.”
Complaint, ¶ 23.
Plaintiff has submitted a declaration in which she states that
she was a full-time hourly wage employee for defendant from August
21, 2009, through November 1, 2013, at defendant’s store in
Gallipolis, Ohio.
Petty Decl., ¶¶ 1-2.
Plaintiff has also
submitted declarations from nine employees who are either current
or former employees of the defendant, and who worked for defendant
during the time period beginning in 2010 as sales representatives,
assistant managers or managers in defendant’s stores in different
4
locations throughout the country.
In these declarations, the
employees state that they are or were full-time employees, and that
they were required to make bank deposits after the end of their
paid shifts.
Defendant
argues
that
these
employees
are
not
similarly
situated because only plaintiff’s declaration states that she
worked forty hours per week.
However, plaintiff also stated that
she was a full-time employee, and the other employees state in
their declarations that they were full-time employees.
Therefore,
it is reasonable to infer that they also worked forty hours per
week.
With her reply memorandum, plaintiff has also presented
supplemental declarations from Calvin Boekhoven and Artica Ray, in
which they state that as full-time employees at defendant’s stores,
they worked forty hours per week unless some matter such as a sick
day arose.
See Ray Decl., ¶ 1 (stating that “[f]ull-time at
Russell Cellular meant forty hours per week[.]”)
Defendant has
submitted the declaration of Robert Lister, Vice-President of
Finance, who states that in 2013, the average number of hours
worked by wireless specialists throughout defendant’s system was
38.81 hours per week.
Lister Decl., ¶ 11.
This figure simply
amounts to forty-hour work weeks with approximately eight days
vacation or sick leave per year.1
The court also notes that the fact that some of the employees
plaintiff seeks to include in the collective action are managers
and assistant managers, whereas some, including plaintiff, are
1
This figure is demonstrated by the following ratio:
38.81 hours
40.00 hours
=
50.453 weeks per year
52 weeks per year
5
sales representatives, does not preclude these employees from being
similarly situated. Plaintiff’s claim involves the narrow issue of
whether defendant committed an FLSA violation by requiring her to
make bank deposits after going off the clock, a task which was
allegedly performed by all of the putative class members.
See
O’Brien, 575 F.3d at 586 (rejecting argument that managers could
not be similarly situated because “managers could also have been
cheated by defendants”).
The declarations plaintiff has submitted
indicate that sales representatives and managers were required to
make after-hours bank deposits.
Thus, even though they may have
occupied different positions in the stores, they were all allegedly
impacted the same way by the alleged FLSA violation, and they are
similarly situated in that respect.
Plaintiff
allegations
has
of
a
also
submitted
widespread
plan.
evidence
to
Plaintiff
support
stated
in
her
her
declaration that she was required to sign a “Sales Person Signature
Agreement.”
Petty Decl., ¶ 3.
She has submitted a copy of the
agreement, which states that “[b]ank deposits are to be made at the
end of each day.”
Plaintiff further stated that after she began
her employment at the store, she learned that every day on which
she received money as customer payments, she had to deposit that
money in the defendant’s bank after her shift and off the clock.
Petty Decl., ¶ 4.
Plaintiff stated that whenever she questioned
this
supervisors
policy,
her
directed
her
attention
to
the
agreement she had signed, and told her that she had already agreed
to make these off-the-clock deposits.
Petty Decl., ¶ 5.
Plaintiff has also submitted two audio recordings which were
obtained by Terri Spradlin, the store manager at the defendant’s
6
store in Englewood, Ohio.
declaration
authenticating
Plaintiff has submitted Spradlin’s
these
recordings.
The
first
conversation Spradlin had was with her district manager, David
Cohen.
Cohen told her that “you’re supposed to clock out and then
take your deposit” and that “you’re doing it for business even
though you’re not technically clocked in.”
Ex. 5.
The second
conversation is a phone conversation between Spradlin and Kaitlyn
Van Huis of defendant’s human resources department in Springfield,
Missouri.
Spradlin asked if she could stay clocked in, leave and
make the bank deposit, and then return to the store to clock out.
Van Huis told Spradlin “you did sign an agreement saying that you
would take your deposits to the bank ... off the clock, you did
agree to that ... at time of hire.”
Ex. 6.
Defendant contends that its policy of requiring employees to
make bank deposits after the end of their shifts is not illegal
under the FLSA.
Defendant argues that under 29 C.F.R. §785.47, it
is not required to pay employees for time beyond scheduled working
hours that is insubstantial or insignificant, and that plaintiff
has failed to show a company-wide policy of not paying for extra
time that was substantial or significant.
Defendant also asserts
that a collective action should not be certified because, under 29
U.S.C. §254(a)(1), it is not required to pay for the amount of time
employees spend traveling to and from work.
Defendant posits that
some of its employees may have simply made the bank deposits in
question while on their way home, and that such time should not be
chargeable as overtime.
In determining whether to conditionally certify a collective
action under §216(b), “district courts within the Sixth Circuit
7
typically do not consider the merits of the plaintiff’s claims,
resolve factual disputes, make credibility determinations, or
decide substantive issues.”
Swigart, 276 F.R.D. at 214 (noting
that it was inappropriate at the certification stage of the lawsuit
to engage in a merits analysis of defendant’s good faith defense);
see also Struck v. PNC Bank N.A., No. 2:11-CV-982, 2013 WL 571849
at *4 (S.D. Ohio Feb. 13, 2013)(court will not evaluate the merits
of defendant’s argument that its policy was not unlawful at prediscovery stage of proceedings); Lewis, 789 F.Supp.2d at 867
(noting that because the commencement of a collective action under
§216(b) does not toll the statute of limitations period for
plaintiffs who have failed to opt in, the motion for conditional
class certification should be addressed before employer’s defense
on the merits was ripe).
The parties have not yet engaged in discovery.
In addressing
the issue of conditional certification, this court does not have
sufficient evidence before it to consider the merits of these
defenses posed by defendant.
These arguments do not constitute a
barrier to conditional class certification.
All plaintiff is
required to show at this stage is that the potential plaintiffs are
“unified by common theories of” defendant’s statutory violations.
O’Brien, 575 F.3d at 585 (emphasis supplied). Plaintiff, Boekhoven
and Ray all stated in their declarations that they and other
employees spent substantial time making after-hours deposits at the
banks where defendant’s accounts were located.
The evidence
submitted by plaintiff is sufficient to support a colorable claim
that a company-wide policy illegal under the FLSA existed for
purposes of conditional certification.
8
In regard to the fourth factor, whether a manageable class
exists,
defendant
argues
that
certification
is
inappropriate
because individual questions, such as the amount of time spent on
deposits by each employee, the hours worked by each employee on a
given day, the location of the banks, and the dates of the
deposits, will predominate. In his declaration, Lister stated that
defendant has 191 retail stores, and employed over 2,000 different
hourly employees from November 8, 2010, through January 27, 2014.
Lister Decl., ¶¶ 5-6.
Lister also stated that not every hourly
employee made a deposit on each and every day that the employee
worked.
Lister Decl., ¶ 8.
However, §216(b)’s similarly situated requirement is less
stringent than the requirement under Fed. R. Civ. P. 23(b)(3) that
common questions predominate.
See O’Brien, 575 F.3d at 584-85
(noting that the district court improperly applied a Rule 23
analysis when it reasoned that the plaintiffs were not similarly
situated because individualized questions predominated).
The
claims of plaintiff and the employees she seeks to include in the
collective action are unified by the common theory of defendant’s
alleged FLSA violation, and therefore they are similarly situated
even if the proofs of this theory is “inevitably individualized and
distinct.”
Id.
Plaintiff notes that defendant has computerized
records which would reflect the time at which employees clocked out
for the day, which could be compared with bank records noting the
time of the deposits. See Sisson v. OhioHealth Corp., No. 2:13-cv517, 2013 WL 6049028 at *7 (S.D. Ohio Nov. 14, 2013)(finding that
proposed class of employees who were allegedly required to work
“off the clock” was manageable). At this stage of the process, the
9
court finds that the proposed collective action is manageable.
If
discovery
so
later
shows
the
plaintiffs’
claims
to
be
individualized as to render a collective action unmanageable, then
defendant may move to decertify the collective action at the second
stage of the certification proceedings.
Struck, 2013 WL 571849 at
*5 (S.D. Ohio Feb. 13, 2013); Swigart, 276 F.R.D. at 213.
The
court
finds
to
provide
sufficient
that
a
plaintiff
factual
has
basis
submitted
for
the
evidence
conditional
certification of a collective action in this case, and plaintiff’s
motion
for
conditional
certification
(Doc.
12)
is
granted.
Pursuant to §216(b), the court hereby conditionally certifies a
collective action on behalf of plaintiff and others similarly
situated, to consist of:
All present and former non-exempt hourly employees who:
1) worked for Russell Cellular, Inc., at one of its
retail stores during the three years preceding the
commencement of this action on November 6, 2013; 2)
worked as a full-time employee (forty hours per week) for
at least part of that period; and 3) were required as
part of their job duties to make bank deposits to a
Russell Cellular, Inc., bank account after the end of
their regular paid shift.
Plaintiff
has
also
moved
similarly situated employees.
discretion
to
authorize
for court-authorized notice to
The district court may use its
notification
of
similarly
employees to allow them to opt into the lawsuit.
at 546.
situated
Comer, 454 F.3d
Accurate and timely notice concerning the pendency of a
collective action promotes judicial economy because it discourages
class members from filing numerous identical suits and allows them
to pursue their claims in one case where the same issues of law and
fact are already being addressed.
10
Hoffmann-La Roche Inc. v.
Sperling, 493 U.S. 165, 170 (1989).
Judicial notice is also
appropriate in this case because timely notification is necessary
to preserve the claims of potential plaintiffs whose statutes of
limitation continue to run until they file written consent with the
court.
Wolfram v. PHH Corp., No. 1:12-cv-599, 2012 WL 6676778 at
*3 (S.D. Ohio Dec. 21, 2012).
It is also appropriate to order
defendant to produce a list of putative members of the collective
action with their home and email addresses and dates of employment.
See id., 2012 WL 6676778 at *3-4 (ordering defendant to produce the
names,
mailing
addresses
and
email
addresses,
and
dates
of
employees); Swigart, 276 F.R.D. at 215 (compelling defendant to
produce list of putative class members).
Plaintiff’s motion for court-authorized notice is granted.
The court orders that notice be sent by United States mail and by
email to all employees and former employees within the collective
action conditionally certified above.
Within fourteen days of the date of this order, the parties
are directed to jointly submit a proposed notice informing the
present and former employees within the collective action of the
pendency of this action, and permitting them to opt into the case
by signing an opt-in and consent form and submitting the form to
the court.
Within fourteen days of the date of this order, defendant
shall provide to plaintiff’s counsel a roster of present and former
employees included within the collective action conditionally
certified
above,
including
their
full
names,
their
dates
of
employment, and their last known home addresses and personal email
addresses.
All employee information disclosed in accordance with
11
this order shall be used solely for the purpose of sending notice
in this litigation.
The court further directs that within thirty days of the
approval of the form of notice by the court, said notice shall be
sent to the present and former employees listed on the roster using
the home and email addresses provided on the roster.
In the event
that a new, updated, or corrected mailing address or email address
is later found for any of these present or former employees,
duplicate copies of the notice may be sent to the new address.
It is so ordered.
Date: March 28, 2014
s/James L. Graham
James L. Graham
United States District Judge
12
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?