Rosenbohm v. Cellco Partnership
Filing
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ORDER granting 21 Motion to Conditionally Certify an FLSA Collective Action and to Authorize Notice. Signed by Judge Algenon L. Marbley on 9/17/2018. (cw)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
NEIL ROSENBOHM,
Plaintiff,
v.
CELLCO PARTNERSHIP,
Defendant.
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Case No. 2:17-cv-731
JUDGE ALGENON L. MARBLEY
Magistrate Judge Vascura
OPINION & ORDER
This matter is before the Court on Plaintiff’s Motion to Conditionally Certify an FLSA
Collective Action and to Authorize Notice (“Motion to Conditionally Certify”). (ECF No. 21).
For the reasons set forth below, Plaintiff’s Motion to Conditionally Certify is GRANTED.
I. BACKGROUND
A. Factual Background
Plaintiff Neil Rosenbohm worked for Defendant Cellco Partnership (d/b/a “Verizon”) as a
“Solution Specialist” at three locations from August 2013 to January 2017, in Hawaii, Ohio, and
West Virginia. Mr. Rosenbohm alleges that Verizon engaged in a scheme not to pay Solution
Specialists and similarly-situated employees for the work they performed at Verizon store
locations. (ECF No. 1). Specifically, Mr. Rosenbohm alleges that Solution Specialists and
similarly-situated employees were required to do off-the-clock work at the end of shifts and that
employees were required to participate in lengthy unpaid online training courses. (Id. at 4-5). He
also alleges that Verizon failed to maintain accurate records of hours worked, including overtime
work. (Id. at 6).
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B. Procedural History
On August 19, 2017, Plaintiff Neil Rosenbohm initiated this collective action against
Verizon for violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, the Ohio
Minimum Fair Wage Standards Act (“OMFWSA”), R.C. 4111.03, and other claims. On January
21, 2018, Mr. Rosenbohm filed the pending motion seeking conditionally to certify the class and
notify potential opt-in plaintiffs. The Motion is fully briefed and ripe for decision.
II. LEGAL STANDARD
The FLSA provides that a court may certify a collective action brought “by 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 employees are permitted to “opt into” the
collective action. Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006). The lead
plaintiff bears the burden to show that the proposed class members are similarly situated to the
lead plaintiff. O’Brien v. Ed Donnelly Enters., Inc., 575 F.3d 567, 584 (6th Cir. 2009), abrogated
on other grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). The FLSA does
not define “similarly situated” and neither has the Sixth Circuit. Id. But notably, plaintiffs seeking
to certify a collective action under the FLSA face a lower burden than plaintiffs seeking class
certification under Federal Rule of Civil Procedure 23. Id. In FLSA class actions, “class
certification typically occurs in two stages: conditional and final certification.” Frye v. Baptist
Mem’l Hosp., Inc., 495 F. App’x 669, 671 (6th Cir. 2012).
In the first phase, the conditional-certification phase, conducted at the beginning of the
discovery process, named plaintiffs need only make a “modest factual showing” that they are
similarly situated to proposed class members. Waggoner v. U.S. Bancorp, 110 F. Supp. 3d 759,
764 (N.D. Ohio 2015) (quoting Comer, 454 F.3d at 547). The standard at the first step is “fairly
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lenient . . . and typically results in ‘conditional certification’ of a representative class.” Comer,
454 F.3d at 547 (quoting Morisky v. Pub. Serv. Elec. & Gas Co., 111 F. Supp. 2d 493, 497 (D.N.J.
2000)). Courts generally consider factors such as “employment settings, individual defenses, and
the fairness and procedural impact of certification.” Frye, 495 F. App’x at 672 (citing O’Brien,
575 F.3d at 584). 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. Showing a “unified policy” of
violations is not required. Id. at 584. The named plaintiff “need only show that his position is
similar, not identical, to the positions held by the putative class members.” Lewis v. Huntington
Nat’l Bank, 789 F. Supp. 2d 863, 867-68 (S.D. Ohio 2011) (alteration omitted); see also Comer,
454 F.3d at 546-57.
At this stage, a court “does not generally consider the merits of the claims, resolve factual
disputes, or evaluate credibility.” Waggoner, 110 F. Supp. 3d at 765 (citing Swigart v. Fifth Third
Bank, 276 F.R.D. 210, 214 (S.D. Ohio 2011)). In determining conditional certification, courts
have considered “whether potential plaintiffs were identified; whether affidavits of potential
plaintiffs were submitted; and whether evidence of a widespread . . . plan was submitted.” Castillo
v. Morales, Inc., 302 F.R.D. 480, 486 (S.D. Ohio 2014) (quoting H & R Block, Ltd. v. Housden,
186 F.R.D. 399, 400 (E.D. Tex. 1999)). If conditional certification is granted, “plaintiffs are
permitted to solicit opt-in notices, under court supervision, from current and former employees.”
Cornell v. World Wide Bus. Servs. Corp., No. 2:14-CV-27, 2015 WL 6662919, at *1 (S.D. Ohio
Nov. 2, 2015).
At the second stage, the final certification phase, conducted after the conclusion of
discovery, courts “examine more closely the question of whether particular members of the class
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are, in fact, similarly situated.” Comer, 454 F.3d at 547. At this stage, the court has much more
information on which to base its decision of whether the proposed plaintiffs are similarly situated
and, “as a result, it employs a stricter standard.” Id. (alteration, quotation marks, and citation
omitted).
III. ANALYSIS
A. Similarly Situated Analysis
Mr. Rosenbohm seeks conditionally to certify the following collective action class under
the FLSA:
All former and current Solution Specialists employed by Cellco Partnership nationwide
during any period of time between August 19, 2014, and the present.
(ECF No. 21 at 10).
In addition to the allegations advanced in his Complaint, Mr. Rosenbohm submitted to the Court
a declaration indicating that he and putative opt-in plaintiffs are similarly-situated because they
were “employed as solution specialists,” had “substantially similar job duties and responsibilities,”
were subjected to the same policies and procedures, were paid in the same fashion, were “classified
by Verizon as non-exempt employees,” worked “in excess of 40 hours in a workweek,” “were not
permitted to leave after clocking out at the end of each day” because they were required to
complete off-the-clock closing tasks, were not paid for the closing tasks, and were not paid
overtime for the work in excess of 40 hours per week. (ECF No. 21-2). Moreover, putative optin plaintiffs Alyssa Bettis, Joy Blount-Harvey, Brandon Bodenhammer, Robert Daly, Sherry
Diggs, Justin Dominick, Justin Downs, Miranda Egan, Hector Garcia, Ricardo Germendia, Jessica
Harmon, Jonathan Horning, Renee Jaeger, Jenn Kelley, LaiShawn LaBorde, Anthony Mondesir,
Adeyemi Obanjoko, Shailesha Pnachal, Noah Shepardson, Scott Tilton, Jessica Tucker, Andrew
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Vives, and Roberta Willis submitted declarations of their own stating that they, too, were required
to complete close-out tasks after clocking out. (ECF No. 21-3).
These sworn statements are sufficient at this “fairly lenient” stage to show that Mr.
Rosenbohm is similarly situated to other putative class members because they “suffer from a
single, FLSA-violating policy.” See Comer, 454 F.3d at 547 (internal quotations omitted);
O’Brien, 575 F.3d at 585; see also Myers v. Marietta Mem’l Hosp., 201 F. Supp. 3d 884, 896 (S.D.
Ohio 2016) (Marbley, J.) (granting motion for conditional collective action certification and noting
that “in at least one instance a court in this district has certified a class based only on two
declarations”); Flexter v. Action Temp. Servs., No. 2:15–cv–754, slip op. at 9 (S.D.Ohio Mar. 25,
2016) (Smith, J.) (denying a conditional-certification motion but noting that “[i]n some instances,
two declarations may be sufficient to show that other employees are similarly situated to the
plaintiff and FLSA conditional certification is appropriate” and that “[o]ne such instance might
arise where a declarant has personal knowledge of widespread violations”).
Defendants’ arguments to the contrary are unavailing. They aver first that Plaintiff has not
submitted evidence of a common policy or practice that would result in FLSA violations. (ECF
No. 30 at 9-11). As a threshold matter, the Court notes that showing a “unified policy” of
violations is not required. O’Brien, 575 F.3d at 585. Even so, the Court received declarations
from individuals who worked at thirty-seven separate Verizon locations. If the declarations are to
be credited at all—as they must at the conditional certification stage—the Court may infer that a
common policy existed that led to uniform declarations of uncompensated off-the-clock work.
The argument that the declarations are insufficient evidence of a widespread plan (ECF No. 30 at
11-18) goes to the merits of the underlying FLSA dispute and is thus not properly considered at
the conditional certification stage.
See Waggoner, 110 F. Supp. 3d at 765 (“During this
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preliminary stage, a district court does not generally consider the merits of the claims, resolve
factual disputes, or evaluate credibility.”) (citing Swigart, 276 F.R.D. at 214). It may ultimately
be true that the evidence does not support Plaintiff’s claims, but it is expected that there would not
be evidence only acquirable through discovery at this stage – that is why courts generally decline
to opine on factual disputes in determining motions for conditional certification. See Waggoner,
110 F. Supp. 3d at 76. Instead, the Court asks “whether potential plaintiffs were identified;
whether affidavits of potential plaintiffs were submitted; and whether evidence of a widespread . .
. plan was submitted.” Castillo v. Morales, Inc., 302 F.R.D. 480, 486 (S.D. Ohio 2014). In these
regards, the declarations are amply sufficient.
Next, Defendant argues that the class is unmanageable because the claims and defenses as
to each of the 33,000 potential class members could differ as to “establishing the nights he/she was
scheduled to close; whether he/she remained on-site until all closing procedures were completed;
whether time records reflect time paid after business hours; and whether a putative class member
claims he/she is owed overtime pay . . . .” (ECF No. 30 at 16-17). But this Court has consistently
held that any argument related to the level of individualized scrutiny required should Plaintiff’s
claims be valid is “inappropriate” at the conditional class certification stage. Musarra v. Digital
Dish, Inc., No. C2-05-545, 2008 WL 818692, at *5 (S.D. Ohio Mar. 24, 2008) (Marbley, J.).
The Court therefore finds that conditional certification of the proposed class is appropriate.
Defendants, of course, may file a motion for decertification at a later date if discovery reveals that
the members of the putative class are not similarly situated.
B. Notice
Having conditionally certified the class, this Court has the authority to supervise notice to
potential plaintiffs. Lewis v. Huntington Nat. Bank, 789 F. Supp. 2d 863, 870 (S.D. Ohio 2011)
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(citing Hoffman-La Roche, 493 U.S. 165, 172 (1989)).
By “monitoring preparation and
distribution of the notice, a court can ensure that it is timely, accurate, and informative.” Hall v.
U.S. Cargo & Courier Serv., LLC, 299 F. Supp. 3d 888, 897–98 (S.D. Ohio 2018) (quoting
Hoffman-La Roche, 493 U.S. at 172)). The Court may facilitate notice to the putative class “so
long as the court avoids communicating to absent class members any encouragement to join the
suit or any approval of the suit on its merits.” Swigart, 276 F.R.D. at 214.
Verizon objects to Mr. Rosenbohm’s proposed notice for three reasons. First, it argues that
“the appropriate period, should any class be conditionally certified, is the three-year period
preceding the date notice is approved by this Court, but extending no farther than June 8, 2015,
the date clocking in/out capabilities were added to Company iPads.” (ECF No. 30 at 19). Mr.
Rosenbohm has no objection to this modification provided that Defendant “provide proof” that
June 8, 2015, is the relevant date on which the putative violations began. (ECF No. 32 at 2). Here,
Defendant has provided at least some proof in the form of a declaration of Amanthi Chandraratna,
who indicated that “[o]n June 8, 2015, the Mobile POS Tablet application was added to iPads in
all retail stores enabling Solutions Specialists to clock in and out on the Verizon-provided iPads
that Solutions Specialists use to facilitate their sales work.” (ECF No. 30-1). Moreover, this Court
generally approves FLSA conditional certification for employees who worked at any time during
the three years prior to the granting of such certification. See, e.g., Nazih v. Café Istanbul of
Columbus, No. 2:17-cv-947, 2018 WL 4334613 at *5 (S.D. Ohio Sept. 11, 2018) (Marbley, J.);
Crescenzo v. O-Tex Pumping, LLC, No. 15-CV-2851, 2016 WL 3277226, at *5 (S.D. Ohio June
15, 2016) (Marbley, J.) (“Courts in the Sixth Circuit have found that class certification is
appropriately limited to three years prior to the date of approval of the notice, and not the filing of
the lawsuit.”) (citing Atkinson v. TeleTech Holdings, Inc., No. 3:14-CV-253, 2015 WL 853234, at
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*3 (S.D. Ohio Feb. 26, 2015)). Although the three-year timeline may be slightly over- or underinclusive depending on evidence later adduced, it is a helpful starting point, and it is proper to limit
conditional certification to three years in this case. Should evidence later suggest that the class
definition should be modified, the parties may of course file a motion to that effect.
Next, Plaintiffs seek to send notice via First Class mail and email, with the option to contact
individuals via telephone if mail and email notices are returned as undeliverable “for the sole
purpose of obtaining the correct and most current address from them.” (ECF No. 32 at 19). As
this Court very recently noted, the “trend in the Southern District of Ohio . . . is ‘to allow notice
by mail and email to ensure that putative class members receive notice of the pending action.’”
Nazih, 2018 WL 4334613 at *5 (quoting Hall v. U.S. Cargo and Courier Serv., 299 F. Supp.3d
888, 899-900 (S.D. Ohio 2018). The Court therefore concludes that notice by mail and email is
appropriate in this case and mitigates any risk of improper solicitation posed by the production of
telephone numbers for all putative class members.
Finally, Mr. Rosenbohm asks that the parties be allowed 10 days to negotiate the content
of the notice. Verizon seeks 30 days to negotiate the notice, but the sole reason it advances is “the
nature of Plaintiff’s claims.” (ECF No. 30 at 20). The Court finds that argument unconvincing.
Given the importance of timely notice to FLSA claims, there is no need to unduly extend the
negotiation process. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989) (noting
that the remedial purpose of the FLSA “depend[s] on employees receiving accurate and timely
notice concerning the pendency of the collective action . . . .”). The Court does, however, find
merit in Verizon’s request that it be allowed “14 days from the date notice is approved to provide
the putative class list data ordered by this Court (as opposed to the 14 days from any order granting
conditional certification that Plaintiff proposes)” because the putative class contains a great
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number of potential opt-in plaintiffs. (ECF No. 30 at 20). The Court will permit Verizon 14 days
from the date notice is approved to compile such information.
IV. CONCLUSION
For the reasons stated above, the Court hereby GRANTS Plaintiff’s Motion to
Conditionally Certify (ECF No. 21) and conditionally certifies the following collective action
class:
All former and current Solution Specialists employed by Cellco Partnership nationwide at
any time during the three years prior to the granting of this motion to the present.
The Court ORDERS that within TEN DAYS of the date of this Order, the parties shall
submit to the Court proposed language for notification and consent forms to be issued via FirstClass Mail and Email, apprising potential plaintiffs of their rights under the FLSA to opt in as
parties to this litigation.
The Court further ORDERS that within FOURTEEN DAYS of the date the notice is
approved, Defendant shall answer Plaintiff’s Opt-In Discovery, and shall provide to Plaintiff and
the Court an Excel spreadsheet containing the name, last known home address (including zip
code), last known email address, and employment dates (in Microsoft Office Excel format) of all
former and current Solution Specialists employed by Cellco Partnership nationwide during the
three years prior to the granting of this Order.
IT IS SO ORDERED.
/s/ Algenon L. Marbley___
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: September 17, 2018
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