Creed v. Benco Dental Supply Company

Filing 45

MEMORANDUM & OPINION - For the reasons set forth in this memorandum opinion, and pursuant to the FLSA, the Court will grant Plaintiffs motion for conditional class certification of similarly situated Service Technicians, and other persons employed in like jobs, and who work or worked for Defendant. The Court declines to permit Plaintiff to communicate any notice to potential class-members at this time. An appropriate order follows.Signed by Honorable Robert D. Mariani on 12/18/12. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DOUGLAS CREED

Plaintiff

v.

3:12-cv-1571
(JUDGE MARIANI)

BENCO DENTAL SUPPLY COMPANY
Defendant
MEMORANDUM OPINION

Presently before the Court is a motion by Plaintiff Douglas Creed ("Plaintiff') to
proceed as acollective action and for approval of notice pursuant to the Fair Labor
Standards Act ("FLSA") in his suit against Defendant Benco Dental Supply Company
("Defendant"). For the reasons set forth below, the Court will grant Plaintiffs motion for
conditional class certification.
BACKGROUND

Plaintiff spent several years working as a Service Technician for Defendant. Plaintiff
claims that he and other similarly situated employees often worked in excess of forty hours
each week, and that they were not appropriately compensated by Defendant because of
alleged illegalities surrounding Defendant's compensation policy. Plaintiff claims that he
and other putative class members were deprived of proper compensation under the FLSA,
as they were denied overtime pay as a matter of corporate policy. Plaintiff and the other

putative class members assert that they all occupy or occupied the same type of position,

engaged in similar work, and were subject to the same compensation policy.
DISCUSSION
Plaintiff has moved for this Court to permit him to proceed as a collective action
pursuant to the FLSA. The FLSA permits an action to be brought "by anyone or more
employees for and in behalf of himself or themselves and other employees similarly
situated. No employee shall be a party plaintiff to any such action unless he gives his
consent in writing to become such a party and such consent is filed in the court in which
such action is brought." 29 U.S.C. § 216(b). The burden is upon the plaintiff to show that
he is similarly situated to the proposed class members. See Burkhart-Deal v. CitiFinancia/,
Inc., No. 07-1747, 2010 WL 457127, at *1 (W.O. Pa. Feb. 4, 2010).

The term "similarly situated" is not defined in the text of the FLSA. and neither the
Third Circuit nor the United States Supreme Court have provided clear guidance as to how
this standard should be applied. See Bell v. Citizen Financial Group, Inc., No. 10-320,2010
WL 3463300, at *2 (W.O. Pa. Sept. 2, 2010). Nevertheless. district courts within the Third
Circuit have developed a two-part test to determine the propriety of certification. See Craig

v. Rite Aid Corp., No. 08-2317. 2009 WL 4723286. *2 (M.D. Pa. Dec. 9. 2009). "First. the
court must decide whether a class should be certified conditionally in order to give notice to
the potential class members and to allow for pretrial discovery regarding the individual
claims." Id. (citing Woodward v. FedEx Freight East, Inc.• 250 F.R.D. 178, 190-91 (M.D. Pa.
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Feb. 19,2009)). !lAfter the class has been conditionally certified, notice and opportunity to

opt-in has been given to the potential plaintiffs, and discovery has been conducted, the
court may then 'be asked to reconsider the conditional class certification to determine
whether the 'similarly situated' standard has been met.'" Id. (quoting Stanislaw v. Erie
Indem. Co., 2009 WL 426641, *1 (W.O. Pa. Feb. 20, 2009)). "Final certification requires a
higher level of proof than initial conditional certification." Id. (citing Harris v. Healthcare
Services Group, Inc., 2007 WL 2221411 (E.D. Pa. Jul. 31, 2007).
During the first stage, when a Plaintiff is requesting that the Court provide conditional
certification, "a plaintiffs burden to demonstrate that the named class is similarly situated is
'relatively light.'" Craig, 2009 WL 4723286, at *2 (citing Stanislaw, 2009 WL 426641, at *1)).
The "initial determination usually results in conditional certification." Id. (citing Woodward,
250 F.R.D. at 191)). "The burden in this preliminary certification is light because the risk of
error is insignificant: should further discovery reveal that the named positions, or
corresponding claims, are not substantially similar the defendants will challenge the
certi'fication and the court will have the opportunity to deny final certification." Id. To make a
determination at this initial stage, courts generally look to the pleadings and affidavits of the
parties. See Aquilino v. Home Depot, Inc., No. 04-4100,2006 WL 2583563, at *1 (D.N.J.
Sept. 7, 2006).
In the present matter, Plaintiff submitted the affidavits of eight potential opt-in
Plaintiffs, each of which contains allegations of "substantial similarity" between potential
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class members. See Service Technician Sworn Statements, ECF Dkt. 22-4. The sworn

statements contain similar language, with each contending: (1) that the potential class
member works or worked for Defendant as aService Technician; (2) Defendant "classified
Service Technicians as exempt employees entitled to aset weekly wage and not entitled to
overtime pay"; (3) the employee worked in excess of forty (40) hours each week, and
usually in excess of 50; (4) Defendant automatically deducted hours for commuting time; (5)
Defendant did not accurately track hours, and did not have a proper mechanism to track
hours; (S) to the best of the affiant's knowledge, Defendant paid all Service Technicians
under the same compensation plan; (7) under Defendant's compensation plan for Service
Technicians, Defendant "paid them a set weekly wage regardless of how many hours they
worked during any work week"; and (8) Defendant did not pay Service Technicians overtime
regardless of hours worked.
Defendant argues that the affidavits contain inadmissible hearsay to support the
potential class members' claims of commonality. While the Court should only consider
admissible evidence in deciding § 21S(b) motions, and courts disregard § 21S{d)
declarations containing hearsay, see Kuznyetsov v. West Penn Allegheny Health System,

Inc., No. 09-379, 2009 WL 1515175, *10-11 (W.O. Pa. Jun. 1,2009), Defendant does not
adequately demonstrate that the Service Technician's sworn statements contain such
hearsay. In fact, the affidavits contain a sufficient quantity of non-hearsay statements that
they easily meet the burden to establish that the potential plaintiffs are similarly situated at
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the conditional certification stage. All potential plaintiffs work for the same employer, in the

same job, claim that a universal policy enacted by Defendant inappropriately deprives them
of pay, and that they are entitled to similar relief. Any potential hearsay is overwhelmed by
statements based upon 'first-hand knowledge. In addition, the first hand personal
knowledge of Plaintiff and other putative class members was reflected in each paragraph of
their affidavits which, taken together, provide evidence of the basic features of a
compensation plan pursuant to which service technicians employed by Defendant were paid
a set weekly wage irrespective of hours worked, and more specifically, a set weekly pay that
did not compensate service technicians at one and one-half times an established rate for all
hours worked over 40, or for all hours worked over 60.
Plaintiff need only make a "modest" factual showing to demonstrate the propriety of
conditional class certification. See Outlaw v. Secure Health, LP., No. 11-602, 2012 WL
3150582, *3 (M.D. Pa. Aug. 2, 2012). Accordingly, in order to grant Plaintiffs "motion for
conditional class certification, the court must be convinced that plaintiff and the potential
class members are 'similarly situated' under the 'modest factual showing' standard." Id. In
the present case, Plaintiff meets the modest burden of demonstrating that he and other
potential class members are "similarly situated"-essentially, that they are the "victims" of a
single policy or practice enacted by Defendant for which they are now allegedly entitled to
compensation.

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Defendant further objects to conditional certification on the grounds that "there is no

modest showing that [Defendant] improperly administered Plaintiffs and/or any other
putative class members' Belo agreement." See Def.'s Br. in Opp. Conditional Cert. at 7,
ECF Dkt. 26. Defendant argues that Plaintiff has made no attempt in his motion for
conditional certification to "proffer any evidence to show a common violation" of the Belo
agreements between Defendant and Plaintiff, and between Defendant and the putative
class members. To consider the Belo agreements, however, Defendant would require the
Court to engage in a factual analysis at a premature stage. The effect, if any, of purported
Belo agreements on certification should be determined at the second stage of the
certification analysis, and not in the conditional certification inquiry where a su'fficient
number of facts have been produced to overcome the "modest burden" required to show the
existence of "similarly situated" prospective class members.
Finally, it is within this Court's discretion to facilitate notice to putative class members
by authorizing judicial notice of a class action. See Hoffmann-La Roche Inc. v. Sperling,
493 U.S. 165, 170-71, 110 S.Ct. 482, 107 L.Ed.2d 480 (1989). Nevertheless, both the
substance of the notice and the means by which such notice will be communicated should
first be determined by the parties. Accordingly, the parties shall meet and confer to discuss
the specifics of the notice process, including all substantive details regarding the notice
itself, and report to the Court as to whether they could agree upon a substantive form, and
methods of communicating that form to potential class members, within sixty (60) days of
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the issuance of this memorandum. If the parties are unable to come to a mutual agreement,
they should cross-file their proposals, and the Court will intervene.
CONCLUSION

For the reasons set forth in this memorandum opinion, and pursuant to the FLSA,
the Court will grant Plaintiffs motion for conditional class certification of similarly situated
Service Technicians, and other persons employed in like jobs, and who work or worked for
Defendant. The Court declines to permit Plaintiff to communicate any notice to potential
class-members at this time. An appropriate order follow__ . . .
s._.

DATE: December 18, 2012
obert D. Mariani
United States District Judge

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