Hicks et al v. Ampacet Ohio, LLC et al

Filing 41

OPINION AND ORDER granting 2 Motion to Certify Class; denying without prejudice 24 Motion for Summary Judgment; granting 28 Motion to Stay; denying without prejudice to renewal 30 Motion for Protective Order. Signed by Judge Michael H. Watson on 3/31/2017. (ew)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Bobby Hicks, et aL,
Plaintiffs,

Case No. 2:16-cv-182

V.

Judge Michael H. Watson
Magistrate Judge Deavers

Ampacet Ohio, LLC, et aL,
Defendants.

OPINION AND ORDER

This is a putative coiiective action under the Fair Labor Standards Act, 29

U.S.C. § 201, et seq. ("FLSA") and the Ohio Fair Minimum Wage Standards
Act, Ohio Rev. Code Ann. § 4111.01, et seq. ("OFMWSA"), which aiieges that
Ampacet Ohio, LLC and Ampacet Saies Corporation (coiiectiveiy, "Defendants")
faiied to pay overtime compensation to empioyees for time spent at mandatory
pre-shift meetings and mandatory post-shift showers in vioiation of the FLSA and
OFMWSA. Defendants now move for summary judgment on these ciaims. EOF
No. 24. Bobby Hicks, Bryan Fieshman, and Lisa Miiier (coiiectiveiy, "Plaintiffs"),

move to conditionally certify a class, move to stay this action pursuant to Federal

Rule of Civil Procedure 56(d), and move for a protective order. ECF Nos. 2,28 &
30. For the reasons that follow. Defendants' motion for summary judgment and

Plaintiffs' motion for a protective order are DENIED without prejudice. Plaintiffs'
motion to stay is GRANTED, and Plaintiffs' motion to conditionaiiy certify is
GRANTED.

I. Background

In May of 1999, Defendant Ampacet Ohio, LLC ("Ampacet Ohio"), which is
in the business of manufacturing and supplying color and additive masterbatches

to the thermoplastics industry, purchased a plant located In Heath, Ohio ("the

Heath Plant"). Am. Compl.

17-18, EOF No. 19; First Benvie^ Decl. U3, EOF

No. 15-1.^ In connection with its business, Ampacet Ohio employs Production
Technicians ("PTs") who, inter alia, operate machinery and package materials at
the Heath Plant. Am. Compl. ^ 20, ECF No. 19. In performing these duties, PTs
are required to handle chemicals and dyes used to add color to plastics, id.

Ampacet Ohio currently employs thirty-two PTs at the Heath Plant, including
Plaintiffs. First Benvie Decl. ^ 25, ECF No. 15-1

See also Am. Compl.

14-

16, ECF No. 19 (stating that Plaintiffs Hicks and Miller began working for
Defendants in or around 1996 and that Plaintiff Fleshman began working for
Defendants in or around 2000).
PTs are paid on an hourly basis, id. at f 48. When arriving at and
departing from work, PTs, including Plaintiffs, are required to clock in and clock

out using a finger-scanning device. Id. at If 21. Since at least February 28,

2013, through the present, Plaintiffs normally work five days a week on the third

^Ampacet Ohio, LLC empioys Michael Benvie as the Plant Manager. First Benvie Decl.
If 1, ECF No. 15-1. He has overall responsibility for management of the Heath Plant,
and all Heath Plant employees and managers report to him. Id.

^Ampacet Ohio, LLC purchased the Heath Plantfrom another company, Equistar. First
Benvie Decl. If 3. Prior to this purchase, Equistar employed all Heath Plantworkers. Id.
^According to Defendants, Defendant Ampacet Sales Corporation ("Ampacet Sales")
employs sales and marketing employees and has neveremployed Plaintiff Hicks or
Piaintiff Fieshman. First Benvie Deci. If 5, ECF No. 15-1.

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shift, which lasts from 11:00 p.m. until 7:00 a.m. Id. at If 33. Although

Defendants pay them for eight hours of work each day, Plaintiffs are actually
required to work more than that, from approximately 10:45 p.m. until 7:15 a.m.

each day. Id. at If 34. Specifically, Plaintiffs and other PTs attend fifteen-minute
meetings conducted by Health Plant management prior to the start of their shift
each day, which are not compensable. Id. at If^ 23-26, 35. In addition, at the
conclusion of their shifts. Plaintiffs and other PTs shower in the Defendants'

locker rooms for their own safety due to the handling of chemicals during their

shifts. Id. at ^ 28-30,45-47. While Defendants previously paid for the fifteen
minutes spent showering post-shift, in or around 2008, Defendants advised PTs

that this time would no longer be compensable. Id. at ^ 31-32. In short,

according to Plaintiffs, it is Defendants' policy at the Heath Plant to not pay
overtime compensation to any PTs for time spent in the pre-shift meetings and

for the post-shift showering in excess of forty hours per week. Id. at

51,61.

On February 29,2016, Plaintiffs filed the instant action, alleging that
Defendants violated Plaintiffs' rights under the FLSA and the OFMWSA by failing

to compensate Plaintiffs for overtime pay. Compl., EOF No. 1. Plaintiffs bring
this action on behalf of themselves and other similarly-situated persons of the

proposed opt-in class, which includes the following:
All current and former Plant Employees employed by Defendants, at
their Heath, Ohio location, for 3 years prior to the date of filing this
Complaint who were paid hourly and have not been paid overtime
pay for all hours worked in a week in excess of forty for the time
spent at mandatory 15-minute pre-shift and for the mandatory postCase No. 2:16-cv-l 82

Page 3 of 21

shift showering, (hereinafter "Plant Employees").

Am. Compl. ^ 51, ECF No. 19.^
After filing the action, Plaintiffs moved to conditionally certify the proposed

FLSA class. ECF No. 2. Defendants have moved for summary judgment on
Plaintiffs' claims, ECF No. 24, and, in response, Plaintiffs move to stay this
action. ECF No. 28. Plaintiffs also move for a protective order. The Court will

address each of the motions, which are fully briefed and ripe for resolution, in
turn.

II. Summary Judgment and Federal Rule of Civil Procedure 56(d)
In moving for summary judgment, Defendants argue that, pursuant to the
Portal-to-Portal Act, 29 U.S.C. § 254, et seq., and as interpreted by Integrity

Staffing Solutions, inc. v. Busk,

U.S.

, 135 8. Ct. 513 (2014), the PTs' pre-

shift meetings and post-shift showers are not compensable because these
activities are not "integral and indispensable" to the principal activities that the
PTs are paid to perform. The Portal-to-Portal Act exempts employers from

liability for future claims based on, inter alia, "activities which are preliminary to or
postliminary to" an employee's "principal activity or activities." 29 U.S.C.

§ 254(a)(2). The term "principal activity or activities" "embraces all activities
which are an 'integral and indispensable part of the principal activities[.]'" ISP,
inc. V. Alvarez, 546 U.S. 21, 26-30 (2005) (quoting Steiner v. MItcheii, 350 U.S.

^The originai Complaint and Amended Complaint identify the same proposed class.
Compare Compl. H 44, ECF No. 1, with Am. Compl. If 51, ECF No. 19.
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247, 252-53 (1956)). "An activity is ... integral and indispensable to the
principal activities that an employee is employed to perform if it is an intrinsic

element of those activities and one with which the employee cannot dispense if
he is to perform his principal activities." Integrity Staffing, 135 S. Ct. at 517.

Here, the parties disagree as to whether the pre-shift meetings and postshift showers are "integral and indispensable" to the PTs' "principal activities"—

and therefore are compensable—and as to whether discovery is necessary to
resolve this dispute. In support of their motion for summary judgment,

Defendants refer to a description of PTs' job duties. See PT Job Description
PAGEID # 89, ECF No. 14-1. Defendants also refer to declarations from twentyfour of the thirty-two current PTs regarding, inter aiia, job duties, pre-shlft
meetings, and post-shift showers. See PT Decls., ECF No. 14 (collectively, "PT

Declarations").® As to post-shift showers, Defendants summarized the PT
Declarations as follows:

AH twenty four of the PTs who provided declarations under penalty of
perjury agreed that post-shift showers are optional, not mandatory.
All of them stated that no manager had ever told them that post-shift
showers were mandatory. They explained that they were not aware
of any chemicals that required them to shower, that they did not
know of any reason why employees would need to shower at the
Heath plant rather than at home, and that It was possible to safely
and effectively perform their job the next day if they chose not to
shower after the end of their shift. Nearly all [twenty three] of them
explained that they could get just as clean by showering at home
rather than in the plant, and that they could eat or drink after merely
®Defense counsel interviewed at least twenty-five of the thirty-two current PTs,
including Plaintiff Miller before she was a party to this action. See id.; Miller Decl. HU 524, ECF No. 28-2.

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washing their hands (not showering). Seven PTs stated that they do
not take post-shift showers at all. (One even stated in 20 years
working at the plant he had never showered at the facility.) Among
the [fifteen] PTs who do regularly shower at the plant, they all stated
that they were aware of other PTs who chose not to shower at the
plant. Even though the test of compensablllty does not require that
activities be for the benefit of the employee to be non-compensable,
several® PTs also Indicated that the showers are available for the
benefit of the PTs—not for Ampacet's benefit—because employees
who do not shower may track color dust Into their car or homes. No
employee—Including Plaintiffs—has ever been disciplined for falling
to shower after the conclusion of his or her shift. . . . Most

Importantly, 23 PTs stated In their declarations that post-shift
showers are not Integral and Indispensable to their principal
activities, and that they are able to perform their principal activities
without taking post-shift showers.
Def. Mot. 13, ECF No. 24 (footnotes with citations omitted) (emphasis In original).
Similarly, Defendants also summarized the PT Declarations as to pre-shlft
meetings:

All twenty four PTs who signed declarations described principal
activities that do not Include pre-shlft meetings. Twenty three of the
PTs testified that It Is not necessary for them to attend pre-shlft
meetings In order to be able to perform their jobs. Many [twenty
three] of them explained that the Information discussed at the preshlft meetings can easily be obtained by looking at the "Dally Notes"
document posted on the production floor or having a short
conversation with a co-worker or the floor supervisor. In fact, many
[twelve] PTs stated that they have performed their principal activities
without difficulty after missing a pre-shlft meeting.
Id. at 16 (footnotes with citations omitted).
Defendants go on to argue that, contrary to Plaintiffs' allegations, this
evidence establishes that the pre-shlft meetings and post-shift showers are not

®Defendants represent that"several" PTs Indicated thatthe showers are available for
the benefit of the employees, but Defendants cite to only one declaration for that
assertion. See 0pp. 14 n.27, ECF No. 24 (citing Kemerer Dec!. H31, EOF No. 14-17).
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mandatory- And even if these activities were mandatory, that fact alone does not
automatically render them compensable. Instead, Defendants argue, the sole
question is whether the activities are ones that the PTs cannot dispense with if
they are to perform their principal activities. Defendants contend that the PT

Declarations establish that pre-shift meetings and post-shift showers are not
integral and indispensable to their principal activities.
In response to Defendants' motion for summary judgment. Plaintiffs move

for a stay pursuant to Federal Rule of Civil Procedure 56(d), which establishes
the procedure that must be followed when a party determines that additional
discovery is necessary to respond to a motion for summary judgment:
When Facts Are Unavailable to the Nonmovant. If a nonmovant

shows by affidavit or declaration that, for specified reasons, it cannot
present facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take discovery;
or

(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d). In determining whether to grant a request for additional
discovery pursuant to Rule 56(d), the Court considers
a number of factors, including: "(1) when the [moving party] learned

of the issue that is the subject of the desired discovery; (2) whether
the desired discovery would have changed the ruling Q; (3) how long
the discovery period had lasted; (4) whether the [moving party] was
dilatory in Its discovery efforts; and (5) whether the [opposing party]
was responsive to discovery requests."
Thomason v. Amalgamated Local No. 863,438 F. App'x 358, 361 (6th Cir. 2011)
Case No. 2:16-cv-182

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(quoting CenTra, Inc. v. Estrin, 538 F.3d 402,420 (6th CIr. 2008)).
Here, the parties focus on the second factor, disagreeing as to whether the

proposed discovery would change a ruling on summary judgment.' Plaintiffs first
point out that no formal discovery has been taken, which militates against
granting Defendants' motion for summary judgment. Plaintiffs also contend that
they need written discovery and testimony from some or all of the PTs from
whom Defendants obtained declarations regarding the following issues:
The nature of the Production Technicians' job duties; the policies
and procedures related to the pre-shlft meetings and post-shift
showers; Production Technicians' understanding of if and why both
the meetings and showers are required; information or
demonstrations explained at the pre-shlft meetings; information
regarding the "Daily Notes" board; types of chemical, dyes, and/or
pigments Production Technicians come into contact with; and the
need to, as well as the consequences of[,] failing to shower at the
plant.

Mansell Aff.

10, ECF No. 28-1. Plaintiffs go on to explain that they expect that

such discovery

will reveal discrepancies in the Production Technicians' testimony
and a lack of understanding as to the legal meaning of the language
contained in their declarations. This will create a genuine issue of
fact as to the precise nature of the Production Technicians' principal
job activities, including their duties, the discussions and other tasks
that take place at pre-shlft meetings, the nature of the chemicals,
dyes, and pigments Productions [sic] Technicians come into contact
with, and the ability of the Production Technicians to perform their
jobs if the pre-shift meetings or showers were eliminated. The
conflicting testimony between the Production Technicians'

descriptions makes summary judgment on this issue inappropriate[.]

/of. at

11. Plaintiffs also seek discovery from the five unidentified remaining

' Discovery has been stayed pending resolution ofthe present motions.
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current PTs from whom Defendants did not obtain deciarations. Mansell Aff. IT
12, ECF No. 28-1. Finaliy, Plaintiffs argue that the nature of the interviews may
have impacted the substance of the PT Declarations. See Miller Decl.

6-24,

ECF No. 28-2 (describing the interview process and averring that the process
was intimidating to her and "made me fearful to provide truthful testimony that did
not support the company's position").

Defendants oppose Plaintiffs' motion to stay, arguing, inter alia, that the

requested discovery is unnecessary because Defendants' arguments that the
pre-shift meetings and post-shift showers are not compensable turn on questions
of law; whether those activities are integral and indispensable to Plaintiffs'

principal activities. In light of the PT job description and the PT Declarations,
Defendants contend that the nature and details of the PTs' job duties "is

essentially undisputed." Def. 0pp. 5, ECF No. 29. Defendants further argue that
each category of discovery identified by Plaintiffs cannot change the Court's
ruling on summary judgment.
Defendants' arguments are not well taken. Although Defendants provided
a description of PT job duties and the PT Declarations refer to such duties, the

Court is not persuaded at this time that such evidence is dispositive of the

question of whether pre-shift meetings and post-shift showers are integral and
indispensable to Plaintiffs' and other PTs' principal activities. For example.

Plaintiffs have not had the opportunity to depose any current or former PTs

regarding, inter alia, the nature and details of their job duties, pre-shift meetings.
Case No. 2:16-cv-182

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and post-shift showers. This Is particularly significant where Defendants have
had the benefit of interviewing the PTs and deciding what information to highlight
or omit in the PT Declarations. In addition, simply because the PI Declarations

use the legal terms such as "intrinsic and indispensable" and legal conclusions,°
does not mean that the PTs fully understood such terms and conclusions and

therefore that the PT Declarations sufficiently captured the nature and types PT
duties. Moreover, the present record suggests that there may be some

variations and additional duties beyond those identified in the job posting and PT
Declarations, which in turn informs whether the preliminary and postliminary

activities are integral and indispensable to the PTs' principal activities.^ Finally,
the fact that the "Daily Notes" purportedly explain projects being worked on
during the shifts and are posted in the working area and outside a supervisor's

office does not foreclose discovery on the "Daily Notes." Further inquiry into this

®Most ofthe PT Declarations—nineteen ofthem—purport to identify the PTs' "principal
activities" and "intrinsic and indispensable activities." See Anderson Decl. tftf 7-9, EOF
No. 14-1; Baker Decl. Iftl 7-9, ECF No. 14-2; Carney Decl. Iftf 7-9, EOF No. 14-7;
DeVore Decl. Iftl 7-9, ECF No. 14-8; Duncan Decl. tftf 6-8, ECF No. 14-9; Finney Decl.
UU 5-8, ECF No. 14-10; Guilliams Decl.
7-9, ECF No. 14-11; Hartshorn Decl. thj 79, ECF No. 14-12; Hinkle Decl.
7-9, ECF No. 14-13; Johnson Decl. Iftf7-9, ECF No.
14-14; Joseph Decl. Iftj 7-9, ECF No. 14-15; Kelly Decl. Iftf 7-9, ECF No. 14-16;
Kemerer Decl.

7-9, ECF No. 14-17; Leavitt Decl.

6-9, ECF No. 14-18; Morical

Decl. ini 7-9, ECF No. 14-19; Pozzuoli Decl. 6, ECF No. 14-20; Rodgers Decl. Iftl 79, ECF No. 14-22; Spring Decl. Vi 7-9, ECF No. 14-23; Yoder Decl.
7-9, ECF No.
14-24. The remaining five PT Declarations purport to describe the PTs' "principal
activities." See Booher Decl.
5, 7-8, ECF No. 14-3; Booze Decl.
5, 7-8, ECF No.
14-4; Boring Decl. tl 7, ECF No. 14-5; Britton, Jr. Decl.
7-9, ECF No. 14-6; Preston
Decl. HH 7-9, ECF No. 14-21.

^Indeed, Defendants' apparent inability to secure declarations from the remaining five
current PTs, as well as the lack of unanimity on certain topics, see Def. Mot.12-18, ECF
No. 24, suggest that at least some of the current PTs have relevant information beyond
what Defendants presented on summary judgment.

Case No. 2:16-cv-182

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information, i.e., whether they routinely contain the same information as that

covered in the pre-shift meetings and/or whether they are truly a substitute for
the pre-shift meetings, further illuminates whether the preliminary activities are

integral and indispensable to the PTs' principal activities. For all of these

reasons,^® the Court concludes at this time that discovery could change the ruling
on summary judgment. Accordingly, Defendants' motion for summary judgment,

EOF No. 24, is DENIED without prejudice, and Plaintiffs' motion to stay
pursuant to Rule 56(d), EOF No. 28, Is GRANTED.
III. Conditional Class Certification

A.

Standard

The FLSA provides a private right of action to "any one or more employees
for and in behalf of himself or themselves and other employees similarly

situated." 29 U.S.C. § 216(b). "Similarly situated" persons are permitted to 'opt
into' the suit." Swigart v. Fifth Third Bank, 276 F.R.D. 210,213 (S.D. Ohio 2011)

(quoting Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006)).
This Court and others typically use a two-phase inquiry to determine whether
proposed opt-in plaintiffs are similarly situated to the named plaintiffs within the

meaning of the FLSA. See, e.g., id. (citing Comer, 454 F.3d at 546); Stanley v.
Turner Oil & Gas Prop., Inc., No. 2:16-cv-386, 2017 WL 127481, at *4 (S.D. Ohio
Jan. 13, 2017) (same).

The articulated reasons and issues discussed herein are not intended to be an
exhaustive list.

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At the first phase, i.e., the "initial notice" stage, the Court "must determine

whether to conditionally certify the collective class and whether notice of the
lawsuit should be given to putative class members." Swigart, 276 F.R.D. at 213.

With little or no discovery available at this time, the Court applies "a fairly lenient

standard[.]" Comer, 454 F.Sd at 547 (internal quotation marks and citations
omitted). See also Colley v. Scherzinger Corporation, 176 F. Supp. 3d 730, 732

(S.D. Ohio 2016) ("This burden Is not as stringent as that applied to class
certification under Fed. R. Civ. P. 23."). To show at this stage that they are
similarly situated, the named plaintiff must show that "they suffer from a single,
FLSA-violating policy, and [that] proof of that policy or of conduct In conformity

with that policy proves a violation as to all the plaintiffs." O'Brien v. Ed Donnelly

Enter., Inc., 575 F.3d 567, 585 (6th Cir. 2009), abrogated on other grounds by
Campbell-Ewald Co. v. Gomez,

U.S.

, 136 8. Ct. 663 (2016). See also

Comer, 454 F.3d at 546-47 (explaining that a named plaintiff need not show that
he is identically situated to, only similarly situated to, the putative class

members); Swigart, 276 F.R.D. at 213 (stating that the named plaintiffs "can
show that they are similarly situated by showing that 'their claims [are] unified by
common theories of defendants' statutory violations, even if the proofs of these

theories are inevitably individualized and distinct'") (quoting O'Brien, 575 F.3d at
585). "Courts typically look at the following issues: (1) were all the plaintiffs

subject to the same employment classification, (2) were none of the plaintiffs paid
overtime, (3) did all of the plaintiffs have the same or similar job duties, (4) did
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the plaintiffs share the same job title." Stanley, 2017 WL 127481, at *5 (citing
Swigart, 276 F.R.D. at 213). "The named plaintiffs may meet their burden by
submitting "evidence establishing at least a colorable basis for their claim that a

class of 'similarly situated' plaintiffs exists." Id. (quoting Olivo v. GMAC Mortg.
Corp., 374 F. Supp. 2d 545, 548 (E.D. Mich. 2004)). See also Comer, 454 F.3d
at 547 (stating that the initial notice stage may be "based on a modest factual

showing") (internal quotation marks and citations omitted).
Accordingly, this lenient standard at the first stage "typically results in
conditional certification of a representative class." Comer, 454 F.3d at 547

(internal quotation marks and citations omitted). Certification of a class at the
notice stage, however, is "conditional and by no means final." Id. at 546 (internal
quotation marks omitted). "The sole consequence of conditional certification is
the sending of court-approved written notice to employees,... who in turn
become parties to a collective action only by filing written consent with the
court[.]" Genesis Healthcare Corp. v. Symczyk,

U.S.

, 133 S.Ct. 1523,

1530 (2013) (internal citations omitted). Later, at the second phase of the
proceedings, after discovery is completed and the opt-in forms have been
submitted, the Court will more closely examine whether the putative plaintiffs are

similarly situated. Stanley, 2017 WL 127481, at *4. At that stage, the defendant

may move to decertify the conditionally certified class "if appropriate based on
the individualized nature of the plaintiffs claims." Swigart, 276 F.R.D. at 213.

Here, the issue presently before the Court is whether Plaintiffs have met
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their burden at the initial notice stage in showing that they are similarlysituated to
the putative class members, which is discussed infra.
B.

Discussion

Plaintiffs seek to conditionally certify the proposed opt-in class:

All current and former Plant Employees employed by Defendants, at
their Heath, Ohio location, for 3 years prior to the date of filing this
Complaint who were paid hourly and have not been paid overtime
pay for all hours worked in a week in excess of forty for the time
spent at mandatory 15-minute pre-shift and for the mandatory postshift showering.

Am. Compl. H51, EOF No. 19. See also Mot. to Certify 9,11, ECF No. 2
(identifying "an FLSA class consisting of all Defendants' current and/or former

Plant Employees, as defined above, at Defendants' Heath, Ohio plant, who [were
employed from March 22,2014, to the present and who] could conceivably
pursue claims for overtime wage violations under the FLSA"). Plaintiffs clarify
that the proposed class is composed of only PTs employed at Defendants' Heath

Plant, not any individual employed at the Heath Plant during the relevant period.
Reply 2-3, ECF No. 27.
1.

Similarly Situated

The parties argue at length whether Plaintiffs are similarly situated to the
putative class. Defendants take the position that the PT Declarations establish

that Plaintiffs are significantly different from the putative class because the preshift meetings and post-shift showers are not integral and indispensable to the

PTs' principal activities. In advancing these arguments, Defendants contend that
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the PT Declarations and other evidence demonstrate, inter alia, that not all PTs

had the same job duties; that not all PTs take post-shift showers; if PTs do

shower, the showers vary in length of time; PTs take showers at different points
in the day, sometimes before a shift ends; that, while mandatory, the estimated
length of time of pre-shift meetings varies widely; and that Plaintiffs often clocked
out at or before the end of their shifts. Plaintiffs, however, contend that

Defendants' arguments in this regard essentially require that Plaintiffs and the
putative class be identically situated instead of similarly situated.
Plaintiffs' arguments are well taken. Plaintiffs have satisfied their burden of

presenting a modest factual showing that they are similarly situated to the
putative class. Specifically, Plaintiffs present evidence that they and the other
PTs were hourly employees who attended mandatory, but unpaid, pre-shift
meetings and took mandatory unpaid post-shift showers. First Fleshman Deck

inf 6-18, ECF No. 2-1; Second Fleshman Decl. ^ 5-12; First Hicks Decl. IHf 618, ECF No. 2-1; Second Hicks Decl. M 5-12, ECF No. 27-1; Miller Decl. ITU 2,
15-17, ECF No. 28-2. In addition. Plaintiffs offer evidence that they share the
same Job title—PT—and similar Job duties as other PTs. First Fleshman Decl.
3-5, ECF No. 2-1; Second Fleshman Decl. ^ 4-6, 8-12; First Hicks Decl. ^
3-5, ECF No. 2-1; Second Hicks Decl.

4-6, 8-12, ECF No. 27-1. To the

extent that Defendants contend that the time records undermine Plaintiffs'

representations about the amount of unpaid time Plaintiffs worked. Plaintiffs offer

sworn testimony addressing that the disparities reflected in their time records.
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explaining that Defendants employ a "rounding system," which does not always
accurately reflect the actual times Plaintiffs clocked out at the end of their shift.

Second Hicks Decl. ^ 3; Second Fleshman Decl. If 3.

While Defendants offer competing evidence and arguments that Plaintiffs
were not similarly situated, those arguments largely go to the merits of Plaintiffs*

claims. The Court is satisfied that, under the lenient standard applied at this
initial stage of the proceedings, Plaintiffs have met their modest burden of

showing that they have a colorable basis for their claim that a class of similarlysituated plaintiffs exists. Notably, "[a]t the notice stage, district courts within the
Sixth Circuit typically do not consider the merits of the plaintiffs claims, resolve
factual disputes, make credibility determinations, or decide substantive issues."

Swigart, 276 F.R.D. at 214. Accordingly, although Defendants' arguments "may
be compelling, the Court finds it inappropriate to engage in a merits analysis at

this stage of the lawsuit." Id. See also Stanley, 2017 WL 127481, at *8 (same).
In short. Plaintiffs have made a sufficient showing that they are similarly situated
to hourly PTs at the Heath Plant who were not paid for overtime.
2.

Notice Period

Plaintiffs seek to apply a three-year statute of limitations to their claims, but

Defendants argue that a two-year limitation is appropriate. Although a two-year
statute of limitations applies to FLSA actions, a three-year statute of limitations

period applies if the action arises out of a "willful violation." 29 U.S.C. § 255(a).
An employer willfully violates the FLSA when it "either knew or showed reckless
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disregard for the matter of whether its conduct was prohibited by the statute."

McLaughlin v. RIchland Shoe Co., 486 U.S. 128,133 (1998) (citing Trans World
Airlines, inc. v. Thurston, 469 U.S. Ill, 127 (1985)). See also Stanley, 2017 WL

127481, at *9 (citing McLaughlin, 486 U.S. at 133). In determining whether to
find a willful violation, this Court has required only a "modest showing" at this
initial phase of the proceedings, id. (finding that a "modest showing" was
appropriate because "what could Plaintiffs produce that would tend to show

willfulness at this stage").
Here, at this initial notice stage, Plaintiffs allege facts sufficient to support
the inference that Defendants recklessly disregarded whether they violated the
FLSA by falling to properly pay Plaintiffs' overtime pay, triggering the application
of the three-year statute of limitations. See Am. Compl. ^ 37 ("Plaintiff Fleshman
voiced his concern with the unpaid pre-shift meetings to management during one
of Defendants' plant-wide meetings. Plaintiff received no response from
Defendants."), ^ 39 ("Plaintiff Hicks asked the Plant Manager why he was not
getting paid for his time spent attending the meetings if they were mandatory.
Plaintiff Hicks did not receive a response."); If 42 ("Plaintiff Miller inquired as to

why she had to be at the meetings on time if the Production Technicians were
not paid for the time spent in the meetings."); Iflf 59-60 ("Defendants knew or
should have known it was required to pay Plaintiffs and the [similariy situated

persons] overtime pay for their attendance at the mandatory pre-shift meetings
and for the time spent showering after completion of their shifts.... In fact,
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Plaintiffs Hicks, Fleshman, and Miller have all brought the issue of entitlement to

pay for attendance at the meetings to the attention of Defendants' management.
Yet, no action was taken by Defendants."), ECF No. 19. See also First Fleshman

Decl. ^11, ECF No. 2-1 ("I have expressed my concern with the unpaid pre-shift
meetings to management during one of Defendants' plaint-wide meetings;
however, my concerns were never addressed."); First Hicks Decl.

11, ECF No.

2-1 ("I inquired as to why I was not getting paid for time spent in the [pre-shift]
meetings if the meetings were mandatory. The Plant Manager did not give me a
response."). Having found enough support in the record to find a willful violation
at this stage, the Court concludes that Plaintiffs may provide notice to the
following putative class:

All current and former Production Technicians employed by
Defendants, at their Heath, Ohio location, for three years prior to the
date of filing this Complaint who were paid hourly and have not been
paid overtime pay for all hours worked in a week in excess of forty
for the time spent at 15-minute pre-shift meeting and for the postshift showering.
3.

Sufficiency of Notice

"Accurate and timely notice concerning the pendency of the collective

action promotes judicial economy because it discourages class members from

filing numerous identical suits and instead allows them to pursue their claims in
one case where the same issues of law and fact are already being addressed."

Swigart, 276 F.R.D. at 214.

Here, Plaintiffs proffer a proposed notice and opt-in form to the putative
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class. See Notice, ECF No. 2-2. Defendants argue that the proposed notice and
opt-In form contain a number of deficiencies; Plaintiff has agreed to confer with
Defendants and prepare a mutually-agreeable notice and opt-In form. Under

these circumstances, the Court finds that an additional fourteen days from the
date of this Opinion and Order Is necessary to revise and prepare a sufficient
notice and opt-In form.

In short. Plaintiffs' motion to conditionally certify a class, ECF No. 2, Is
GRANTED with the caveat that the parties meet and submit a revised notice and
opt-In form.
IV. Protective Order

Finally, Plaintiffs move, pursuant to 29 U.S.C. §§ 215(a)(3) and 216(b), for
entry of a protective order Instructing Defendants to cease and desist all
unilateral communications with potential opt-In plaintiffs, striking from the record

the twenty-four PI Declarations,^^ and Issuing an expedited orderconditionally
certifying the proposed FLSA class. ECF No. 30. In light of the Court's rulings
supra, however. Plaintiffs' requests for an order striking the PT Declarations and

conditionally certifying the putative class are now moot.
As to communicating with potential opt-In plaintiffs, the Court notes that

pre-FLSA class certification communication Is generally not forbidden. Cf. Oil
Co. V. Bernard, 452 U.S. 89,101-02 (1981). However, courts have recognized

The Court notes that Plaintiffs did not move to strike the PT Declarations until

approximately two months after they were filed.
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appropriate limitations on such communications when they are a "misleading,
coercive, or an improper attempt to undermine Rule 23 by encouraging class
members not to join the suit." Belt v. Emcare, Inc., 299 F. Supp. 2d 664, 667

(E.D. Texas 2003) (citing cases).
Here, based on the present record and after considering the arguments of
the parties, the Court is not persuaded that a protective order is warranted at this
time. The Court will DENY without prejudice to renewal Plaintiffs' motion for

protective order, ECF No. 30. Plaintiffs may renew, if appropriate, following the
commencement of discovery. Defendants, however, are ADVISED that the
Court will not tolerate any improper communications, see Belt, 299 F. Supp. 2d at
667, with the putative plaintiffs.
V. Conclusion

In sum, for the foregoing reasons. Defendants' motion for summary

Judgment, ECF No. 24, is DENIED without prejudice. Plaintiffs' motion to stay
pursuant to Federal Rule of Civil Procedure 56(d), ECF No. 28, is GRANTED.

By separate Order, the Court will establish a schedule for discovery. Any
concerns regarding the scope of discovery and any appropriate limitations to

discovery shall be addressed to the assigned United States Magistrate Judge.
In addition. Plaintiffs' motion to conditionally certify a class, ECF No. 2, is

GRANTED consistent with the foregoing. In particular, the parties are

ORDERED to meet and confer to develop a mutually agreeable notice and opt-in

form and, within fourteen days from the date of this Opinion and Order, submit a
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proposed notice and opt-In form. To the extent that the parties are unable to

agree completely on such language.^^ the parties are FURTHER ORDERED to
submit a proposed notice and opt-In form that clearly Identifies what language Is

agreed upon and, to the extent there Is disagreement, what language each party
proposes.

Finally, Plaintiffs' motion for protective order, ECF No. 30, Is DENIED

without prejudice to renewal. Ifappropriate, following the commencement of
discovery.
The Clerk Is DIRECTED to remove ECF Nos. 2, 24, 28, & 30 from the

Court's pending motions list.
IT IS SO ORDERED.

s/Michael H. Watson

MICHAEL H. WATSON. JUDGE
UNITED STATES DISTRICT COURT

The Court strongly urges the parties to work together and exhaust all extrajudlclal
efforts to develop mutually agreeable language.
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