WERTZ v. GOLD MEDAL ENVIRONMENTAL OF PA INC. et al

Filing 30

MEMORANDUM SIGNED BY DISTRICT JUDGE MARK A. KEARNEY ON 8/28/24. 8/28/24 ENTERED AND COPIES E-MAILED. (va)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RUSSELL WERTZ
v.
GOLD MEDAL ENVIRONMENTAL
OF PA, INC., PARKS GARBAGE
SERVICE INC.

: CIVIL ACTION
:
: NO. 24-2352
:
:
:
:

MEMORANDUM
KEARNEY, J.

August 28, 2024

Congress allows workers to join as parties in one collective action to seek back pay from
their employer. The collective action provides similarly situated employees with an opportunity to
voluntarily join a case without the litigation expense they would incur if they sued their employer
individually. We follow a two-step process in deciding whether one employee may invite other
employees into a collective action. We first ask whether similarly situated employees actually
exist. We then ask whether employees who decide to join the action are in fact similarly situated.
We today address a former waste disposal driver’s attempt to ask current and former drivers
who worked for the same employer from May 30, 2021 through the present to join his collective
action. He must show the other drivers have sufficiently similar claims to allow us to conditionally
certify a collective action subject to discovery and final certification. He may then notify them
about the lawsuit and they can decide whether to join. We find he meets his low burden and require
the parties work together on a schedule and proposed notice granting the co-employees sixty days
to join the case.

I.

Alleged facts and adduced evidence
Gold Medal Environmental of PA Inc., and Parks Garbage Service Inc. provide waste

collection and disposal services to commercial, industrial, and residential customers. 1 Russell
Wertz worked as a waste disposal driver for Gold Medal and/or Parks Garbage Service from 2018
until May 2024. 2
Mr. Wertz and the other drivers he seeks to join as collective members earned between
$19.00 and $22.00 per hour to transport waste to disposal sites. 3 The drivers worked at Gold
Medal’s Selinsgrove, Pennsylvania and/or Sunbury, Pennsylvania facilities in the Middle District
of Pennsylvania. 4 Gold Medal applied the same handbook and company policies to all of its
drivers. 5 Two of its policies included automatically deducting wages for thirty-minute lunch breaks
each day, although the drivers did not take lunch breaks, and calculating the drivers’ overtime
wages without factoring in the drivers’ non-discretionary safety bonuses. 6
II.

Analysis
Mr. Wertz claims Gold Medal and its related company Parks Garbage follow a common

policy of: (1) improperly deducting wages for thirty-minute lunch breaks they know the drivers do
not take; and (2) paying lower overtime wages by excluding the drivers’ non-discretionary safety
bonuses when determining their regular rates of pay. 7 He claims Gold Medal violated the Fair
Labor Standards Act. 8 He seeks to invite other drivers subject to the same policies to join his case
in a collective action of all waste disposal drivers working for Gold Medal from May 30, 2021
through the present under the Act. 9
Gold Medal argues the Act’s “similarly situated” analysis requires individualized proof and
the declarations of Mr. Wertz and the other drivers rely on inadmissible hearsay. 10 It also asks us
to decrease Mr. Wertz’s proposed notice period from ninety to sixty days. 11

2

Mr. Wertz makes the modest factual showing required for conditional certification. We
agree with Gold Medal a sixty-day notice period is sufficient.
A.

Mr. Wertz makes a modest factual showing of similarly situated employees.

Mr. Wertz asks us to conditionally certify a collective action of Gold Medal’s waste
disposal drivers. Congress allows Mr. Wertz to pursue a representative action for himself and other
employees under the Fair Labor Standards Act if (1) the employees are all similarly situated; and
(2) each collective member individually consents with the court to join the action. 12 Our Court of
Appeals directs a two-tier approach in certifying a collective class. 13 The first step is conditional
certification. 14
Conditional certification requires a “modest factual showing,” where Mr. Wertz “must
produce some evidence, ‘beyond pure speculation,’ of a factual nexus between the manner in which
the employer’s alleged policy affected [him] and the manner in which it affected other
employees.” 15 “Relevant factors include . . . whether the [employees] (1) are employed in the same
department, division, and location; (2) advance similar claims; (3) seek substantially the same form
of relief; and/or (4) have similar salaries and circumstances of employment.” 16 We do not assess
these factors under a preponderance of the evidence standard, as Gold Medal suggests. 17 We
instead consider the factors to determine whether similarly situated employees exist. 18 We apply a
lenient standard because “conditional certification is not really a certification, but is rather [an]
exercise of [our] discretionary power to facilitate the sending of notice to potential class members,
and is neither necessary nor sufficient for the existence of a representative action under the
[Act].” 19
Mr. Wertz alleges he and the other employees are all subject to the same Gold Medal
handbook and company policies. 20 He claims none of the drivers took lunch breaks. 21 They ate

3

their lunch in their trucks due to the length of their routes. 22 He claims Gold Medal miscalculated
all of the drivers’ overtime rates because it did not include their non-discretionary safety bonuses
in its calculations. 23 Mr. Wertz also argues he and the other drivers are similarly situated because
they share the same job description and perform the same work. 24 He alleges the drivers are hourly
employees non-exempt under the Act who transport waste to disposal sites for Gold Medal’s
customers. 25 They earned between $19.00 and $22.00 per hour working at the company’s
Selinsgrove, Pennsylvania and/or Sunbury, Pennsylvania facilities. 26 All of the drivers request
unpaid overtime and liquidated damages under the Act. 27
Mr. Wertz adequately alleges the drivers perform similar jobs out of the same one or two
facilities, earn similar wages, advance the same claims, and seek the same relief. We find he makes
a “modest factual showing” Gold Medal’s automatic wage deductions and method of calculating
overtime similarly impacted all of them. A written policy ostensibly requiring the drivers to take a
thirty-minute meal break, if such a policy exists, does not defeat conditional certification. 28
Gold Medal relies on our Court of Appeals’s opinion in Ferreras v. American Airlines, Inc.
to argue the drivers’ claims require an individualized analysis. 29 It urges us to assess whether each
individual driver worked through his or her lunch breaks or received non-discretionary safety
bonuses. 30 Its reliance on our Court of Appeals’s analysis in Ferreras is misplaced. The Ferreras
employees sought class certification under Federal Rule of Civil Procedure 23, not collective
certification under the Act. 31 The Court of Appeals reversed the trial court’s decision not because
conditional certification requires individualized evidence but because the trial court did not apply
the proper standard for class certification. 32 Our Court of Appeals required the employees to offer
individualized proof under the commonality and predominance analysis of Rule 23. 33 Rule 23’s
class certification analysis is inapplicable here. 34

4

Mr. Wertz meets his modest burden at this stage. We provisionally categorize the other
drivers as similarly situated to Mr. Wertz for the purpose of providing notice.
B.

Mr. Wertz produces sufficient direct evidence to support his motion.

Gold Medal also argues we should deny conditional certification because Mr. Wertz and
the other drivers’ declarations contain inadmissible hearsay. 35 We do not agree the contents of the
declarations warrants denial.
“[T]he United States Court of Appeals for the Third Circuit has not directly addressed
whether declarations containing hearsay are admissible for purposes of conditional certification.” 36
“Many courts in this Circuit have determined that such declarations may be considered.” 37 Gold
Medal identifies a number of decisions in this Circuit denying conditional certification for the
same reason. We find these decisions distinguishable or otherwise unpersuasive. In most of these
cases the employee provided no evidence of similarly situated employees beyond his own hearsay
statements, or the record contained factual disputes. 38 For example, in Lin v. Lee’s House
Restaurant, Inc., the parties’ affidavits contained conflicting statements about the policy itself. 39
In its opposition brief Gold Medal neither disputes the existence of the policies which Mr.
Wertz alleges are unlawful nor produces conflicting evidence. It argues Mr. Wertz’s evidence of
those policies is inadmissible. 40 But the drivers’ declarations contain several personal knowledge
statements concerning their experience with Gold Medal’s policies. 41 We do not need to decide
whether certain other portions of the declarations constitute inadmissible hearsay. Nor do we need
to decide whether we may properly consider inadmissible hearsay in a motion for conditional
certification. The drivers’ statements demonstrating their personal knowledge of the policies
satisfy our lenient standard at this stage. 42 Gold Medal may ask us to deny final certification if
discovery reveals the drivers are not in fact similarly situated.

5

C.

The parties shall prepare a Notice with a sixty-day notice period.

Mr. Wertz offers a proposed notice and consent form for our review. He seeks ninety days
for the employees to opt-in to his collective action. 43 Gold Medal does not oppose Mr. Wertz’s
proposed method of notice dissemination. It instead argues his proposed ninety-day notice period
is unreasonable and suggests a sixty-day period is sufficient. 44 We agree “[a]n opt-in period of 60
days is sufficient time to provide putative class members with notice, while not needlessly delaying
litigation.” 45
We have no basis to find Mr. Wertz will have difficulties locating or notifying the other
drivers because Gold Medal knows which employees fall within the collective class and has each
employee’s contact information on record. Gold Medal agrees to provide this information. All of
the drivers worked for Gold Medal within the approximately last three years. Mr. Wertz replies
“90-day notice periods are regularly approved[,]” but only cites one case where a judge approved
a ninety-day period. 46 And Judge Gibson did not specify in Daniell v. Figure 8 Commc’ns, Inc.
why she granted the employee ninety days to notify other employees about the lawsuit.
Gold Medal does not otherwise object to Mr. Wertz’s proposed notice schedule, which (1)
requires it to disclose the names, addresses, email addresses, and telephone numbers of all drivers
within seven days of our Order approving notice to putative collective members, (2) requires Mr.
Wertz to send notice to the drivers within twenty-one days of our Order approving notice, and (3)
authorizes Mr. Wertz to send a reminder letter halfway through the notice period. The new sixtyday notice period requires the parties adjust some of these proposed deadlines in their proposed
notice schedule.

6

III.

Conclusion
We conditionally certify a collective action under the Fair Labor Standards Act of all waste

disposal drivers working for Gold Medal Environmental of PA Inc. and/or Parks Garbage Service
Inc. anywhere in the United States from May 30, 2021 through present. We order the parties to
submit a joint proposed notice and consent form next week for our review and prompt
dissemination to the collective.
1

ECF No. 1 ¶¶ 28, 29. We refer to Gold Medal Environmental of PA Inc. and Parks Garbage
Service Inc. collectively as “Gold Medal.” To the extent Mr. Wertz seeks to certify a collective
class of drivers anywhere in the United States, it appears only Gold Medal’s parent company, Gold
Medal Environmental, Inc., has a national presence. See ECF No. 24-1 at 1.
2

ECF No. 1 ¶ 15; ECF No. 25 ¶ 2.

3

ECF Nos. 24-3, 24-4, 24-5, 25 ¶¶ 4, 5.

4

ECF No. 25 ¶¶ 2, 5.

5

ECF No. 24-1 at 3.

6

Id. at 4 –5.

7

Id. at 2, 4–5.

8

Id. at 2.

9

ECF No. 24 at 1.

10
11

ECF No. 27 at 5–8.
Id. at 8–9.

12

29 U.S.C. § 216(b).

13

See Zavala v. Wal Mart Stores Inc., 691 F.3d 527, 536 (3d Cir. 2012).

14

Reynolds v. Turning Point Holding Co., LLC, No. 19-1935, 2020 WL 7336932, at *8 (E.D. Pa.
Dec. 14, 2020).
15

Zavala, 691 F.3d at 536 n.4 (quoting Symczyk v. Genesis HealthCare Corp., 656 F.3d 189 (3d
Cir. 2011)), rev’d on other grounds, 569 U.S. 66 (2013).
7

16

Weirbach v. Cellular Connection, LLC, 478 F. Supp. 3d 544, 548 (E.D. Pa. 2020).

17

Gold Medal recites these factors as part of the ad-hoc analysis applied during the final
certification step, which requires employees to satisfy their burden by a preponderance of the
evidence. ECF No. 27 at 5–6 (quoting Zavala, 691 F.3d at 536–37).
18

See Zavala, 691 F.3d at 536 n.4 (first alteration in original) (describing “this initial step as
‘determin[ing] whether “similarly situated” plaintiffs do in fact exist[]’” (quoting Myers v. Hertz
Corp., 624 F.3d 537, 555 (2d Cir. 2010))).

19

Boyington v. Percheron Field Servs., LLC, No. 14-90, 2015 WL 3756330, at *1 (W.D. Pa. June
16, 2015) (citing Zavala, 691 F.3d at 536).
20

ECF No. 24-1 at 3.

21

Id. at 4.

22

Id.

23

Id. at 5. Mr. Wertz claims this bonus policy applies to all facilities in Pennsylvania but argues it
applies to all putative collective members. Id. Mr. Wertz seeks to certify a collective action of
drivers anywhere in the United States. ECF No. 24 at 1. Gold Medal does not argue a Pennsylvania
policy cannot apply to drivers outside of Pennsylvania. We expect this issue will arise again in
attempts to certify a class under Rule 23 and/or during final collective certification.
24

ECF No. 24-1 at 3.

25

Id. at 9.

26

ECF Nos. 24-3, 24-4, 24-5, 25 ¶¶ 2, 4, 5.

27

ECF No. 1 ¶ 133(c).

28

ECF No. 24-1 at 11; see also Shakib v. Back Bay Rest. Grp., Inc., No. 10-4564, 2011 WL
5082106, at *3 (D.N.J. Oct. 26, 2011) (“[A]rguments concerning actual payment of overtime hours
or the existence of a written policy to do so go to the merits of a case, and are thus inapplicable at
this stage of the litigation.” (citing Anyere v. Wells Fargo, Co., No. 09-2769, 2010 WL 1542180
(N.D. Ill. Apr. 12, 2010))).
29

946 F.3d 178 (3d Cir. 2019).

30

ECF No. 27 at 6.

31

Ferreras, 946 F.3d at 180.
8

32

Id. at 183–84 (explaining the lower court “in effect certified the class conditionally” even though
Rule 23 does not permit conditional certification).
33

Id. at 185.

34

Id. at 186.

35

ECF No. 27 at 7–8.

36

Jordan v. Meridian Bank, No. 17-5251, 2019 WL 1255067, at *8 (E.D. Pa. Mar. 19, 2019)
(alteration in original) (quoting Meals v. Keane Frac GP LLC, No. 16-1674, 2017 WL 2445199,
at *4 (W.D. Pa. June 6, 2017)).
37

Id. at *8 (first quoting Jones v. Alliance Inspection Mgmt., LLC, No. 13-1662, 2014 WL 1653112,
at *3 (W.D. Pa. Apr. 24, 2014); then quoting Bredbenner v. Liberty Travel, Inc., No. 09-905, 2009
WL 2391279, at *2 n.1 (D.N.J. July 31, 2009)).
38

See Lin v. Lee’s House Rest., Inc., No. 23-3111, 2024 WL 2392976, at *3 (E.D. Pa. May 23,
2024) (denying certification where the employee’s lone affidavit was “mere hearsay” and stated
the opposite of defendant’s affidavit); Reed v. Empire Auto Parts, Inc., No. 13-5220, 2015 WL
761894 (D.N.J. Feb. 23, 2015) (denying certification where the employee testified he did not know
if other drivers took their 30 minute lunch break); White v. Rick Bus Co., 743 F. Supp. 2d 380, 388
(D.N.J. 2010) (denying certification where the employee and his counsel submitted certifications
based on hearsay instead of “presenting certifications or affidavits from the individuals with whom
[they] spoke”); Stanislaw v. Erie Indem. Co., No. 07-1078, 2009 WL 426641, at *2 (W.D. Pa. Feb.
20, 2009) (denying certification where the employee’s only evidence was his own affidavit and he
“offer[ed] no first-hand evidence from any other employee alleging in their own words that these
practices were regularly applied”).
39

Lin, 2024 WL 2392976, at *3 (“[W]hile Plaintiff’s affidavit indicates that each of these types of
workers – regardless of category – were paid flat monthly rates . . . Defendants’ affidavit states
precisely the opposite.”).
40

ECF No. 27 at 7–8.

41

See ECF Nos. 24-3, 24-4, 24-5, 25 ¶¶ 8, 9, 12, 13, 14, 15.

Gold Medal also cites to Dreyer v. Altchem Env’t Servs., Inc., No. 06-2393, 2007 WL 7186177,
at *4 (D.N.J. Sept. 25, 2007), where Judge Kugler denied conditional certification in part because
the employee affidavits the plaintiff submitted were “bereft of detail[.]” We are not persuaded; we
reviewed details from personal knowledge and the Act enables us to later “reconsider the
conditional class certification.”Stanislaw, 2009 WL 426641, at *1.
42

43

ECF No. 24-10. “Once a court grants conditional certification, the court has the discretionary
authority to oversee and facilitate the notice process.” Reynolds, 2020 WL 7336932, at *9.
44

ECF No. 27 at 9.

9

45

Greene v. Cnty. of Essex, No. 23-572, 2023 WL 4526029, at *4 (D.N.J. July 13, 2023) (first
citing Hagans v. Nat’l Mentor Healthcare, Inc., No. 22-128, 2023 WL 2554159, at *6 (D.N.J. Mar.
17, 2023); then citing Sanchez v. Santander Bank, N.A., No. 17-5775, 2019 WL 6050738, at *4
(D.N.J. Nov. 15, 2019)).
46

ECF No. 28 at 4–5 (citing Daniell v. Figure 8 Commc’ns, Inc., No. 20-125, 2021 WL 5312225,
at *3 (W.D. Pa. Oct. 1, 2021)).

10