Rodkey et al v. 1-800 Flowers.com, Inc. et al

Filing 45

ENTRY AND ORDER granting 34 Plaintiff's Motion For Conditional Certification and Court-Authorized Notice Pursuant to 29 U.S.C. Section 216(b). Signed by Judge Thomas M. Rose on 6-7-2017. (de)

Case: 3:16-cv-00311-TMR Doc #: 45 Filed: 06/07/17 Page: 1 of 13 PAGEID #: 457

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
:
Case No. 3:16-cv-311
:
:
Judge Thomas M. Rose
:
:
:
Plaintiffs,
:
:
v.
:
:
:
HARRY AND DAVID, LLC, 1-800FLOWERS SERVICE SUPPORT CENTER,
:
:
INC., and DOES 1-20, INCLUSIVE,
:
:
Defendants.
:
______________________________________________________________________________
PAMELA RODKEY and CHERIE
CUMMINGS, on behalf of themselves
and all other similarly situated employees
nationwide, and on behalf of the Ohio
and Oregon Classes,

ENTRY AND ORDER GRANTING PLAINTIFFS’ MOTION FOR CONDITIONAL
CERTIFICATION AND COURT-AUTHORIZED NOTICE (DOC. 34)
PURSUANT TO 29 U.S.C. § 216(b)
______________________________________________________________________________
This case is before the Court on the Motion for Conditional Certification and CourtSupervised Notice (Doc. 34) filed by Plaintiffs Pamela Rodkey and Cherie Cummings. Rodkey
is a former employee of Defendant 1-800-Flowers Service Support Center, Inc. (“Service
Support Center”) and Cummings is a former employee of Defendant Harry and David, LLC
(“Harry and David”). Both Service Support Center and Harry and David are subsidiaries of 1800-Flowers.com, Inc. Plaintiffs allege that they were denied compensation that they were
entitled to under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216, et seq., due to
Defendants’ policy and practice of excluding incentive pay, commissions, and bonuses in
calculating nonexempt employees’ overtime compensation. Plaintiffs assert class and collective

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claims against Service Support Center, Harry and David, and several as-yet-identified
Defendants (Does 1-20) for violations of the FLSA and Ohio and Oregon law.
Plaintiffs request an order conditionally certifying a collective action under the FLSA and
authorizing notice to:
All nonexempt employees who were employed by Defendants and paid overtime
and incentive pay, commissions and/or other bonuses, within the past three years
preceding the Complaint filing date.
(Doc. 34 at 1.) Fourteen individuals have already filed notices of their intent to opt-in to this
action, if the Court certifies the proposed class. (Docs. 11-14, 16, 20, 29-30, 33, 35-36, 38, 41.)
Defendants argue that conditional certification should be denied because the class is overbroad;
Plaintiffs are not similarly situated to all class members; and Plaintiffs have not shown that
Defendants shared an unlawful “common policy or plan.” (Doc. 39 at 1.) For the reasons below,
Plaintiffs have made the showing required to obtain conditional certification at this stage of the
litigation. Accordingly, the Court GRANTS the Motion for Conditional Certification and CourtSupervised Notice (Doc. 34).
I.

LEGAL STANDARD
Congress enacted the FLSA “to aid the unprotected, unorganized and lowest paid of the

nation’s working population; that is, those employees who lacked sufficient bargaining power to
secure for themselves a minimum subsistence wage.” Moran v. Al Basit LLC, 788 F.3d 201, 204
(6th Cir. 2015) (quoting Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 n. 18 (1945)). The
FLSA establishes not only a minimum wage, but also requires employers to pay their employees
“at a rate not less than one and one-half times the regular rate” for work exceeding forty hours
per week. 29 U.S.C. § 207(a)(1). In this case, Plaintiffs allege that Defendants did not calculate
their overtime rate properly under the FLSA.

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Section 216(b) of the FLSA allows employees to bring a collective action on behalf of
themselves and other similarly situated employees to recover compensation from their employer.
29 U.S.C. § 216(b). A principal difference between a collective action and a class action
certified under Fed. R. Civ. P. 23 is that class members in a collective action must “opt-in” to the
litigation, whereas Rule 23 requires class members to “opt-out” if they do not want to be
included.
The certification of a collective action is a two-step process: the first step, conditional
certification, occurs at the beginning of discovery and the second step occurs “after all class
plaintiffs have decided whether to opt-in and discovery has concluded.” White v. Baptist Mem’l
Health Care Corp., 699 F.3d 869, 877 (6th Cir. 2012) (citing Comer v. Wal–Mart Stores, Inc.,
454 F.3d 544, 546 (6th Cir.2006)). To obtain conditional certification, the plaintiff must “make a
modest factual showing” that the employees in the proposed class are “similarly situated.”
Comer, 454 F.3d at 546-47 (citing 29 U.S.C. § 216(b)). This is a “fairly lenient standard” that
“typically results in conditional certification of a representative class.” Id. at 547. The district
court typically should “refrain from resolving factual disputes and deciding matters going to the
merits” at this stage. Dinkel v. MedStar Health, Inc., 880 F. Supp. 2d 49, 53 (D.D.C. 2012).
At the second stage, courts apply a “stricter standard” and more closely examine “the
question of whether particular members of the class are, in fact, similarly situated.” Id. at 547.
“[P]laintiffs 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 v. Ed Donnelly Enter., Inc., 575 F.3d 567, 585 (6th Cir. 2009). If the
court determines at the second step that the plaintiffs are not similarly situated, it may decertify

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the class. At both the first and second step, the lead plaintiffs bear the burden of showing that
they are similarly situated to the opt-in plaintiffs. White, 699 F.3d at 877.
II.

ANALYSIS
The Court’s inquiry at this stage is limited to whether Plaintiffs have made a modest

factual showing that they and the proposed class members are similarly situated. Defendants
argue that conditional certification is not appropriate because the class definition is overbroad
and Plaintiffs have not shown that they are similarly situated to the class or that Defendants
subjected class members to a common policy or plan in violation of the FLSA. The Court
addresses Defendants’ overbreadth argument before turning to whether Plaintiffs have carried
their burden to obtain conditional certification.
A. Whether the Proposed Class Is Overbroad
Defendants argue that the proposed class is fatally overbroad because it includes “an
untold number of individuals who did not suffer any injury.” (Doc. 39 at 8.) According to
Defendants, the only way for the Court to determine who is in the class would be to conduct
numerous individual inquiries into the details of each class member’s employment. (Doc. 39 at
8-10 (citing Perez v. Metabolife Int’l, Inc., 218 F.R.D. 262 (S.D. Fla. 2003); Dinkel v. Medstar
Health, Inc., 880 F. Supp. 2d 49 (D.D.C. 2012); Beauperthuy v. 24 Hour Fitness USA, Inc., 772
F. Supp. 2d 1111 (N.D. Cal. 2011); Hatton v. Cablecom, LLC, 2015 U.S. Dist. LEXIS 88617
(E.D. Wis. July 8, 2015)).)
Plaintiffs define the class as all “nonexempt employees who were employed by
Defendants and paid overtime and incentive pay, commissions and/or other bonuses, within the
past three years preceding the Complaint filing date.” (Doc. 34 at 1.) Defendants do not dispute
that the employees who fall within this definition may be identified from Defendants’ records.

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Rather, Defendants argue that many of the putative class members were not injured by the
alleged unlawful compensation practices. Defendants reason that the FLSA requires employers
to include commissions (or incentive pay or bonuses) in the calculation of overtime pay rates
only when the commissions are applicable to the same period that the employee worked
overtime. The class, however, would include individuals who were paid commissions, incentive
pay or bonuses for periods during which they did not work any overtime—so long as they were
paid overtime for any period over the last three years.
Defendants also submitted a pay stub of a nonexempt Harry and David employee purportedly
showing that the employee was properly paid overtime compensation.

(Doc. 39-1.)

Thus,

Defendants also argue that the factual allegations underlying Plaintiff’s claims are unfounded.

Plaintiffs counter that it is premature to determine whether every proposed class member
has a valid claim against Defendants. (Doc. 40 at 3.) Plaintiffs further argue that the FLSA
contemplates situations in which commissions are paid long after the period during which they
were earned. (Id. at 4 (citing 29 C.F.R. § 778.119).) In such circumstances, the employer is
permitted to initially pay overtime based on the employee’s regular rate, exclusive of the
commissions. (Id.) Then, once the commissions are paid, the employer is required to pay any
additional overtime compensation owed to the employee based on an apportionment of the
commissions over the period that they were earned. (Id.) Thus, if the class included only those
employees who were paid commissions (or incentive pay or bonuses) in the same period that they
were paid overtime, the class would be under-inclusive. This is because some employees might have
been paid commissions at a later date (when the employees did not work overtime) that should have
been apportioned to an earlier period when they did work overtime. Plaintiffs also note that the pay
stub that Defendants submitted post-dates this lawsuit and, in any event, the Court should not
consider arguments directed to the merits at the conditional certification stage.

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Based on the limited record before the Court, the class definition is not fatally overbroad.
The proposed class is ascertainable, i.e., the parties can determine who is in and who is out of the
class. The Court acknowledges the possibility that Defendants may later show that some would-be
plaintiffs do not have a viable claim against Defendants. At this stage, however, there has not been a
showing that the number of plaintiffs without claims will be so large or the process for determining
which plaintiffs have viable claims will be so tedious that maintaining a collective action is not
appropriate. Plaintiffs defined the class to include all employees affected by the Defendants’ alleged
error in calculating overtime compensation. A more narrow class definition would fail as underinclusive—a more concerning issue, at this stage, since the purpose of an FLSA collective action is
to allow “plaintiffs the advantage of lower individual costs to vindicate rights by the pooling of
resources” and facilitate the efficient resolution of common issues in one proceeding. Hoffmann–La
Roche, Inc. v. Sperling, 493 U.S. 165, 170 (1989).

B. Whether Plaintiffs Are Similarly Situated To Proposed Class Members
Plaintiffs have met their burden of making a modest factual showing that they are
similarly situated to the putative class members. Plaintiffs assert that, for each week that they
worked, they were paid an hourly rate for non-overtime hours and a separate rate for their
overtime hours. They allege that Defendants miscalculated the rate for their overtime hours by
failing to include their incentive pay, commissions and bonuses in the calculation of their
applicable base pay rate. Plaintiffs submitted declarations from eleven other Service Support
Center and Harry and David employees. (Docs. 34-4 – 34-13.)1 Like Plaintiffs, these employees
also assert that they were paid one hourly rate for non-overtime hours and a different rate for

1

In addition to the eleven employees who submitted declarations in support of Plaintiffs’ motion for
conditional certification, fourteen employees of 1-800 Flowers.com, Inc. or its subsidiaries have filed
notice of their intent to join this litigation if it is certified as a collective action. (Docs. 11-14, 16, 20, 29,
30, 33, 35, 36, 38, 41.) Their declarations assert the basic requirements to become a member of the class,
but do not contain information about their positions or responsibilities.

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overtime hours, and that their employers miscalculated their overtime rate by failing to account
for their incentive pay, commissions and bonuses. (Id.)
Plaintiffs also present evidence that Defendants shared the same compensation policies
and practices. Plaintiffs allege that 1-800 Flowers.com, Inc. requires all of the employees at its
subsidiaries to follow the policies and procedures in its Employee Handbook—portions of which
Plaintiffs submitted with their memorandum. (Doc. 21 at ¶ 13; Doc. 34-14.) The Employee
Handbook includes policy statements on employment classification and compensation for
overtime hours. (Doc. 34-14.) The policy statements are not detailed, but they generally stand
for the proposition that 1-800 Flowers.com, Inc. requires its subsidiaries to pay overtime
compensation in compliance with the FLSA and state and local law. (Id.) The Employee
Handbook supports an inference that—at some level—1-800 Flowers.com, Inc. set its
subsidiaries’ employee basic compensation policies, which would include those of Service
Support Center and Harry and David. This inference is further supported by the fact that both
Service Support Center and Harry and David used the same payroll company. (Doc. 32 at 2-3.)
The employee declarations also support the inference that Defendants shared common
policies regarding overtime compensation. The employees worked in a variety of positions for
both Service Support Center and Harry and David. Yet, they all assert the same basic facts—that
the compensation that they were paid for overtime hours failed to take into account the incentive
pay, commissions and bonuses that they were paid during the same period.

Thus, the

miscalculation of overtime compensation was not unique to a particular position or Defendant.
The precise manner in which overtime was miscalculated is not alleged, but it could be inferred
that Service Support Center and Harry and David made the same mistake as a result of a flawed
compensation policy set by 1-800 Flowers.com, Inc.

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Defendants argue that Plaintiffs and the putative class members are not similarly situated
because they had “different job titles, with different responsibilities and different terms and
conditions of employment.” (Doc. 39 at 12.) Defendants also assert that the class members
“were all subject to, and may have been eligible for, different payment programs from their
respective employers.” (Id.) Defendants claim that overtime compensation was calculated
properly in some of these payment programs, thereby undercutting Plaintiffs’ allegation that
Defendants miscalculated overtime compensation for all nonexempt employees. (Id.)
A review of Plaintiffs’ declarations shows that members of the proposed class did, in fact,
have different job titles and responsibilities. These differences, however, do not defeat a finding
that they are similarly situated at this stage. Plaintiffs have shown that the class members are
similarly situated as to the relevant details of their employment for purposes of the FLSA claim
asserted—namely, that their overtime compensation was miscalculated due to the same policy or
practice. The argument that individual differences make this case unsuitable to proceed as a
collective action are better suited to the second stage of certification. See Waggoner v. U.S.
Bancorp, 110 F. Supp. 3d 759, 769 (N.D. Ohio 2015); Ribby v. Liberty Health Care Corp., Case
No. 3:13-cv-613, 2013 WL 3187260, at *2 (N.D. Ohio June 20, 2013); Zaniewski v. PRRC Inc.,
848 F. Supp. 2d 213, 229 (D. Conn. 2012).
Defendants’ argument that they did not miscalculate overtime compensation for some
employees within the class goes to the merits of Plaintiffs’ claims. At this stage, the Court does
not consider such arguments, but they may be relevant at the second stage of certification if they
demonstrate that the case is unmanageable or ill-suited to proceed as a collective action.

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C. Plaintiffs’ Proposed Notice
“The FLSA ‘grant[s] the court the requisite procedural authority to manage the process of
joining multiple parties in a manner that is orderly, sensible, and not otherwise contrary to
statutory commands or the provisions of the Federal Rules of Civil Procedure.’” Heaps v.
Safelite Sols., LLC, No. 2:10-CV-729, 2011 WL 1325207, at *7 (S.D. Ohio Apr. 5, 2011)
(quoting Sperling, 493 U.S. at 170). Courts may facilitate notice to putative class members “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.” Sperling, 493 U.S. at 168–69. Court-authorized
notice of a collective action under the FLSA must be “timely, accurate, and informative.” Id. at
172. Once conditional certification has been granted, sending notice as soon as possible is

important in an FLSA collective action because the statute of limitations continues to run until
individuals affirmatively opt-in to the action. Struck v. PNC Bank N.A., 931 F. Supp. 2d 842,
845 (S.D. Ohio 2013).
Plaintiffs submitted a proposed Judicial Notice of Lawsuit (the “Notice”) with their
motion for conditional certification. (Doc. 40-1) The Notice contains basic information about
the lawsuit, who may opt-in to the lawsuit, and the timing and manner in which to do so.
Plaintiffs propose that the Notice be posted on Defendants’ intranet site and sent to potential
class members via email and United States mail. Plaintiffs also request that putative class
members be given sixty days to opt-in to the lawsuit.
In order to facilitate dissemination of the Notice, Plaintiffs request that Defendants be
ordered to disclose the names and contact information for all putative class members. (Doc. 34-1
at 16-17.) Plaintiffs further request that, if Plaintiffs’ counsel is notified that any of the notice
and consent forms are returned as undeliverable because of an incorrect mailing address,

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Defendants’ counsel shall—upon request—provide Plaintiffs’ counsel with the last known
telephone number, date of birth, and last four digits of the employee’s Social Security number, if
available. (Id. at 17.)
Defendants object to the Notice for several reasons. First, they object to dissemination of
the Notice by any means except ordinary United States mail. Second, they object to the sixtyday notice period, arguing that forty-five days is more common and sufficient.

Third,

Defendants argue that the content of the Notice is deficient in that it fails to notify individuals of
their right to retain their own attorney and obligation to participate in discovery if they opt-in to
the lawsuit. Finally, Defendants object to Plaintiffs’ request for information about putative class
members as overbroad. In light of these objections, Defendants request that the Court allow the
parties thirty days to meet and confer on the notice and notification process if certification is
granted.
The Court addresses each of Defendants’ objections to the proposed Notice below.
1. Dissemination of the Notice
Defendants cite Reab v. Electronic Arts, Inc., 214 F.R.D. 623 (D. Colo. 2002) for the
proposition that dissemination of notice electronically “could compromise the integrity of the
notice process.” Id. at 630. The Court is not convinced that either intranet posting or email
would create such a hazard.

Rather, as Judge Rice determined when granting conditional

certification of another FLSA collective action before this Court, service of notice by mail and
electronic means “advances the remedial purpose of the FLSA” because it “increases the
likelihood that all potential opt-in plaintiffs will receive notice of the lawsuit, and of their
opportunity to participate.” Atkinson v. TeleTech Holdings, Inc., No. 3:14-CV-253, 2015 WL

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853234, at *5 (S.D. Ohio Feb. 26, 2015). Defendants’ objection to dissemination of notice via
intranet posting and email is overruled.
2. Sixty Day Notice Period
Defendants argue that a forty-five day notice period is standard in FLSA cases, and that
Plaintiffs have not provided sufficient reasoning to extend the notice period to sixty days. (Doc.
39 at 18.) Plaintiffs only note that this Court has approved of sixty-day notice periods in other
cases. (Doc. 40 at 15 (citing Swigart v. Fifth Third Bank, No. 1:11-cv-00088-SJD (S.D. Ohio
Sept. 7, 2011) at Doc. Nos. 41-42; Ganci v. MBF Inspection Servs., Inc., No. 2:15-cv-02959GCS-TPK (S.D. Ohio Oct. 6, 2016) at Docs. 28-1, 29).) In both of the cases cited by Plaintiffs,
however, the Court merely approved the proposed notice agreed upon by the parties. Here, a
forty-five day notice period should be sufficient, especially in light of the Court’s approval of
dissemination of the notice via intranet posting, email and United States mail.
3. Right to Retain Attorney and Participation in Discovery
Defendants argue that the Notice should inform putative class members that they have the
right to retain their own attorney. In response, Plaintiffs revised the Notice to include the
following statement: “If you choose to bring your own lawsuit, you have a right to choose your
own counsel.” (Doc. 40-1 at 3.) As Plaintiffs’ revision resolves Defendants’ objection, no
further action is required.
Defendants also argue that class members should be notified that they may be required to
participate in discovery. Plaintiffs respond that the FLSA does not require such information in a
notice and that this Court has authorized FLSA notices without such language. Plaintiffs also
argue that including such language could chill participation in these kinds of cases.

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In the balance, notifying potential class members of their discovery obligations is
warranted. Many people—if familiar with any type of class litigation—are familiar with class
actions brought under Fed. R. Civ. P. 23. In Rule 23 class actions, such as those involving
securities fraud or product liability, class members often do not participate in the litigation
beyond reading the notice and mailing in a completed claim form. In a collective action,
however, the likelihood that individual class members will be required to provide information or
sit for a deposition is much greater. Potential class members are entitled to know that their
involvement in the lawsuit is a real possibility. Moreover, the risk of chilling participation in the
action can be mitigated by choosing language that describes class members’ obligations without
undue emphasis. Another court faced with this issue ordered the plaintiffs to add the following
language to their notice:

“While the suit is proceeding, you may be required to provide

information, sit for depositions, and testify in court.” Byard v. Verizon W. Virginia, Inc., 287
F.R.D. 365, 374 (N.D.W. Va. 2012) (quoting Fisher v. Michigan Bell Telephone Co., 665
F.Supp.2d 819, 829 (E.D. Mich. 2009); Russell v. Illinois Bell Tele. Co., 575 F.Supp.2d 930
(N.D. Ill.2008)). This language is also appropriate in this case. Plaintiffs are therefore ordered
to amend their Notice to include it.
4. Plaintiffs’ Request for Information About Putative Class Members
Defendants argue that Plaintiffs do not need all of the information about putative class
members that they have requested. This argument does not make sense in light of the Court’s
rulings regarding dissemination of the Notice. Plaintiffs will need class members’ names, email
addresses and mailing addresses for that purpose.

The other information requested is

discoverable and its production now will contribute to the “just, speedy and inexpensive
determination” of this action. Fed. R. Civ. P. 1. The Court further grants Plaintiffs’ request for

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additional information regarding class members for whom the notices and consent forms are
returned as undeliverable due to an incorrect mailing address.
In sum, the Court approves the proposed Notice (Doc. 40-1), as revised to reflect the
Court’s rulings on Defendants’ objections.
III.

CONCLUSION
For the foregoing reasons, the Court GRANTS the Motion for Conditional Certification

and Court-Authorized Notice (Doc. 34).
DONE and ORDERED in Dayton, Ohio, this Wednesday, June 7, 2017.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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