SCHWARTZ et al v. VICTORY SECURITY AGENCY, L.P.

Filing 91

MEMORANDUM OPINION. Signed by Judge Mark R. Hornak on 3/31/14. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ANDREW CAMPBELL, for himself and all
others similarly situated,
Plaintiffs,

v.
VICTORY SECURITY AGENCY, L.P.,
Defendant.

DORA SCHWARTZ, for herself and all
others similarly situated,
Plaintiffs

v.

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Civil Action No.2: ll-cv-00489
Judge Mark R. Hornak

Civil Action No. 2:11-cv-01267
Judge Mark R. Hornak

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VICTORY SECURITY AGENCY, INC.,
Defendant

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MEMORANDUM OPINION
Mark R. Hornak, United States District Judge

These actions are consolidated for pretrial proceedings and are brought under the Fair
Labor Standards Act C"FLSA"), 29 U.S.C. § 216 et seq., against two companies, Victory
Security, L.P. and Victory Security Inc.] The lead Plaintiffs are security guards who perfonned
work for each company at various times, and now claim that they were not properly credited for

1 Looming on the litigation horizon is Thomas v. Victory Security Agency, L.P., et aI., Civil Action No. 13-942. That
case appears to overlap substantially with this case as to its FLSA claims and allegations, and it also seeks to assert
claims under parallel provisions of Pennsylvania wage and hour law as a Fed. R. Civ. P. 23 class action. The Court
at this point comes to no conclusion on how or whether that case can co-exist with these cases, or how that knot
would be untangled. The Court would also note that Mr. Thomas is represented by counsel other than Plaintiffs'
counsel in these cases. By an Order of this date, the Court is dismissing the Complaint in Thomas, but with leave to
amend to provide the Plaintiff there with one (1) opportunity to flesh out his "joint employer" allegations. If that
hurdle is cleared in Thomas, then all of this will have to be sorted out.

all hours they worked, and as a result, they were denied overtime compensation as required by
the FLSA. Before the Court are their respective Motions for Conditional Certification and
Authorization, (ECF No. 87 in 11-489; ECF No. 17 in 11-1267), for the issuance of Preliminary
Notice to other potential "opt-in" participants as collective action Plaintiffs in this case. Those
Motions have been fully briefed by all parties, are vigorously opposed by the respective
Defendants, and are now ripe for disposition. For the reasons which follow, the Motion as to
Victory Inc. will be granted on the terms set forth in this Memorandum Order because the
Plaintiffs have rather easily met the bar set by the substantive rule of law for such conditional
certification and preliminary notice. Disposition of the Motion as to Victory L.P. is a much
closer call, but will likewise be granted.
The facts as to the general outline of the claims common to both cases are set forth in this
Court's Opinion of September 28, 2012, ECF No. 70 in No. 11-489, reported at 2012 WL
4506566 (W.D. Pa. Sept. 28, 2012), and they will not be repeated at length. All parties to this
action are represented by the same lawyers in each case, and they and the parties are well­
familiar with the factual record. In the Schwartz Opinion,2 this Court held that the Plaintiff Ms.
Schwartz, had not provided sufficient factual support for such notice as to the Defendant Victory
L.P. (notwithstanding the substantial record support she was able to provide as to Victory Inc.

based on her work experience there). That Motion was denied, but without prejudice to its

reassertion if and when further factual development and support was forthcoming. As explained

in that Opinion, the problem was that compared to her work history with Victory, Inc., Ms.

Schwartz's work experience at Victory L.P. was relatively sparse, arising from only three (3)

assignments, and she had little or no personal knowledge of the work assignment and

compensation issues as to any other employee working on a Victory L.P. assignment.

2

Referred to hereafter as "Schwartz".

2

By the same token, the Court noted that she had plenty of first-hand knowledge about
both her situation at Victory Inc. and that of others at that organization. Thus, this Court denied
the Motion, but without prejudice to the Plaintiff taking another run at the issue, if she could
advance sufficient evidentiary support as to the actual practices at Victory L.P. Thus, apparently
as a result of that ruling, Plaintiff Campbell was added as a named Plaintiff in that action, further
factual development of the record occurred, and the Motion was refiled in No. 11-489 as to
Victory L.P. As to No. 11-1267, the Plaintiff has also filed a similar Motion based on the record
now developed, and relying on factual support from both Ms. Schwartz and Mr. Campbell.
The Court set out the applicable legal standard in Schwartz, and more recently considered
the standard applicable to the disposition of these Motions in Stallard v. Fifth Third Bank, et ai,
12-cv-l092 (the rules did not change in the interim), and issued a Memorandum Order allowing
for Conditional Collective Action certification and notice to potential opt-in participants on
December 12,2013. In that Order, the Court noted:
In this Circuit, such conditional certification is governed by the two-tier approach
set out in Symczyk v. Genesis HealthCare Corp., 656 F. 3d 189 (3d Cir. 2011),
rev'd on other grounds, 133 S. Ct. 1532 (2013); see Zavala v. Wal-Alart Stores,
Inc., 691 F.3d 527, 536 (3d Cir. 2012). In applying that test, this Court is to
determine preliminarily whether the employees enumerated in the Amended
Complaint, ECF No.4, can be provisionally categorized as "similarly situated" to
a named Plaintiff. Moore v. PNC Bank, N.A., 2013 WL 2338251, at *2 (W.D. Pa.
May 29, 2013) This showing is a "modest" one. See Hively v. Allis-Chalmers
Energy, Inc., 2013 WL 5936418, at *3 (W.D. Pa. Nov. 5, 2013). The Plaintiff
must then show, by the production of some evidence that goes beyond
speculation, that there is a factual nexus between the manner in which the
employerlDefendant's challenged policy or policies applies to the named
Plaintiff(s) and those asserted to be similarly situated. Id Where, as here, there
has been some discovery aimed at these matters, arguably an incrementally higher
standard applies, but it is not so substantially greater as to convert the question
before the Court to one involving a dispositive merits resolution of the issues at
hand.

3

Id, ECF No. 77 (footnote omitted); see also Hively v. Allis-Chalmers Energy, Inc., No. 13-106,

2013 WL 5936418 (W.O. Pa. Nov. 5,2013); Vargas v. General Nutrition Centers, Inc., No. 10­
867,2012 WL 3544733 (W.O. Pa., Aug. 16,2012).
Of particular note is the analysis employed by Judge Fischer in Hively, namely that at this
stage of the proceedings, the focus is not on a determination of the merits of the claims or
defenses, or the resolution of factual disputes, but only on whether the plaintiffs have made a
"modest factual showing" that the proposed plaintiffs are similarly situated, demonstrated by
"some evidence", "beyond mere speculation", of a factual nexus between how the Defendants'
policies affected the Plaintiff(s) and how it affected others in the same boat. /d. at *3.
The core of the Plaintiffs' Motions for Conditional Certification/Preliminary Notice in
these cases is that supervisors of both Victory L.P. and Victory Inc. issued directives to these
security guard Plaintiffs to arrive for work before their scheduled start time to gamer a report
from the guard that they were relieving, and to then, from time to time, stay after their scheduled
shift's conclusion as necessary to cover for the relieving guard, and to make any necessary
hand-off reports, all without accurately recording all time actually worked. They support their
position with the testimony of Mr. Schwartz and Mr. Campbell that this was the practice that
they were not only directed to follow, but in fact did follow, while employed by each of the
Defendants. Schwartz at

*1.

Mr. Campbell and Ms. Schwartz testified that these conditions

consistently applied as to the times that they were employed/assigned by Victory Inc., and in the
case of both Ms. Schwartz and Mr. Campbell, that they in fact followed that practice when they
worked under the auspices of Victory L.P.
The principal opposing arguments of both Defendants, who are represented by the same
counsel in both actions, are along the following lines.

4

Defendants first contend that the record reveals that both Victory entities had written
policies that required all employees to work only as scheduled, and to reflect on their timesheets
all hours actually worked. It appears uncontested that this is what those policy documents do say,
but that is not necessarily the issue under the FLSA, since a covered employer is obligated to
"count" and then pay for (at the appropriate rate) all hours worked, even if such work is
performed contrary to the employer's policy. Under the FLSA, an employer may not "suffer"
work and not pay for it. See 29 C.F.R. §§ 785.11, 785.13.
In some measure, the whole point of the Plaintiffs' cases, as they plead them, is that no
matter what the written policy says, the actual operational procedures, as defined by the
expectations of the Plaintiffs' supervisors, was that Plaintiffs, and those in similar situations,
were to ignore the rules and do as they were told. In the end, it may tum out that the Plaintiffs'
situations were idiosyncratic to them, but now is not the time to make that call. That comes later
in the process. Thus, while this "defense" may provide some shelter to the Defendants at the
merits stage of the case, or may knock out one or more opt-in Plaintiffs if their individual facts
demonstrate that they did not act contrary to the policies Defendants proffer and say were the
actual "rules of the road" in real life, this argument is premature at this point. 3

Nonnally, this Court would not comment on record evidence submitted by a party that it did not consider, but it is
the exception that demonstrates the rule. Victory L.P. submitted "declarations" of Jeffrey Brueckner, Sandra OJ.
Welshans, Terrance Hamlett, Vincent Hughes, Francisco Deanda, Charles A. Millar, Jerome T. Moore, and Michael
Dougherty. ECF No. 89-1 in 11-489 at 85-107. The Court has done the best it can with the spelling of the
declarants' names, since neither the declarants nor Defendant's counsel typed or printed the names of the declarants
in the heading of each declaration. The Court apologizes in advance to any declarant whose name is misstated.
3

The wording in these declarations is essentially identical (there appear to be two basic versions, one with twelve
same-stated paragraphs, the other with fourteen). The only thing that the declarants appeared to do was print in their
own name on the first line of the declaration, along with their first date of their employment in paragraph 2,
followed by signing and dating the declaration at the end. Given these circumstances, which cast substantial doubt
on the validity of the declarations and the actual personal knowledge of the declarants, the Court concludes that they
are not at all helpful to its consideration of the Defendant's arguments (if even relevant, since the declarations really
go to the merits stage of the case). In the same vein, the Defendant Victory Inc. levels the same charge as to
declarations submitted by Plaintiffs from Mark Thomas and Mr. Campbell, ECF No. 33 in 11-1267 at 23-26.

5

The second defense erected by the Defendant Victory L.P. is that Campbell's deposition
testimony was that while he acted contrary to the stated "Victory" policies when he was
supposedly directed to do so by a Victory Inc. supervisor, Mr. Perry Hite, he (Campbell)
admitted that he was never so directed by any supervisor on job sites that were staffed by guards
working under the express auspices of Victory L.P. This argument has some facial merit, but not
enough to preclude notice at this point. The issue here is that Campbell testified that he followed
the same "work extra/don't write it down" approach on those Victory L.P. jobs, which could put
Victory L.P. on the hook for such FLSA claims if they were aware of it and thereby "suffered"
this work by Mr. Campbell. Recall that this was also Ms. Schwartz's testimony in Schwartz.
Thus, neither Ms. Schwartz, nor Mr. Campbell, is necessarily a lone outlier. They have each
testified under oath that while they were on Victory L.P. jobs, they did what they did while they
were on Victory Inc. jobs, namely, worked as they understood they were expected to, and did not
record all of their time worked. While two such witnesses is not exactly a groundswell, given the
entire record before the Court, and the very modest showing required at this point, it is in the
Court's estimation enough to move to the next step of the process.
This result is buttressed by the deposition and documentary record which reveals that
employees such as the Plaintiffs here were routinely shuffled between the companies for
assignments and work, and the record also reveals that the commonly-used employment policies
for both entities provided that "Victory Security Agency is composed of two companies, Victory
Security L.P., Victory Security Inc. under one umbrella".4 This is telling for several reasons.

The Court would specifically caution all counsel that it takes seriously the obligation to proffer to the Court only
evidence based on personal knowledge, in an admissible form. Submitting form declarations like these really pushes
the edges of that envelope.
ECF No. 37-1 at 5, 11·1267. Even defense counsel refers to the Defendants simply as "Victory". ECF No. 89 in
11-489 at 6, and plenty of times thereafter. The Court notes this not as a criticism, nor as a "gotcha", but simply to
point out that the record and entity labels are not all that far apart.

4

6

First, there is no party in this case denominated simply as "Victory Security Agency" as such,
but the nomenclature chosen to describe this overall operation would support an inference that
from both the Defendants' perspective and that of employees, they were operated under a
common hub ("one umbrella") with ad hoc job assignments coming from one spoke or another
of that "Victory" umbrella as the circumstances dictated. Further, it would also appear to allow
an inference that would square with both Ms. Schwartz's and Mr. Campbell's testimony, namely
that she and he legitimately followed the directives received from the supervisor of one company
(Victory Inc.) when they worked under the sub-"umbrella" of either enterprise. Therefore, while
the merits-related issue of how many guards actually followed the same practices as described by
Ms. Schwartz and Mr. Campbell may well come into play at the next stage of the case, it is not
dispositive of the issue now before the Court. More importantly, this argument gives the required
weight to the testimony of Ms. Schwartz as to her personal and observed work practices, as
explained by the Court in Schwartz.
Next up to the defense plate (as to both entities) is the argument that because Campbell is
now a supervisor, he cannot serve as Plaintiff any longer in either case as to a class/collection of
front-line guards. From the Court's perspective, now that his testimony has demonstrated that
Ms. Schwartz's situation was not, on the record, unique, his current status does not conclude this
issue in Defendants' favor, since Ms. Schwartz is no longer flying solo as to the evidentiary
record flowing from her own jobsite experiences.

5

5 What is pretty clear now is that if Mr. Campbell no longer has a valid FLSA claim, he cannot be the sole
"champion" for the FLSA collective action as to the time in which he had not claims as a matter of law, as that was
the central point of the Supreme Court's ruling in Symczyk. What is not so clear is that if Mr. Campbell did have
valid FLSA claims prior to assuming supervisory status, he cannot serve in that capacity as to that timeframe.

Also, in their Second Amended Collective Action Complaint, the Plaintiffs misconstrue the core of the Court's
analysis in Schwartz. Conditional certification was denied in that Opinion not because Ms. Schwartz's status as a
"fill-in" at Victory L.P. somehow made her ill-suited as a matter of law to serve as a collective action lead Plaintiff,

7

This is followed by the argument that Mr. Campbell has not proffered the testimony of
any other guard who can buttress his allegations as to Victory L.P. or Victory Inc. First, this
ignores this Court's conclusion in Schwartz that Ms. Schwartz appeared to have plenty of
personal knowledge, testimonial evidence as to the actual work practices at Victory Inc.,
Schwartz at *5. As to the Defendants' arguments that there will be, of necessity, "highly

individualized" inquiries obviating the propriety of conditional certification as to either entity,
this too may well be belied by the ultimate number of opt-in Plaintiffs. Or, if as Defendants
contend, even when considered together Ms. Schwartz and Mr. Campbell are the odd situations,
that would minimize the risk of individual issues overtaking collective issues. In any event, if it
turns out that there was in fact a common workplace practice of setting the expectation that no
matter what the written policies stated, guards were to, and did, work "off the clock", it would
seem to the Court that the "individualized" component of that issue would be the individual
calculation of damages, rather than an individualized assessment of liability.6 Nonetheless, this
is not the stage of the case for the resolution of that issue.

but because there was an insufficient factual record that anyone else followed the same worksite practices as she did
or that she worked more than forty hours in any workweek while under the auspices of Victory L.P. See Schwartz at
fn.4. Now we have Mr. Campbell's testimony.
Is all of that overwhelming? No, but as noted at the beginning of this Opinion, it need not be at this point. What is in
the record is the testimony of two employees, assigned to different Victory L.P. worksites, at different times, to the
effect that their understanding was that they were expected to routinely work some meaningful amount of "off the
clock" time while on those assignments. When this is coupled with the "one umbrella" self-identification of the
overall Victory operation and the rather commonplace shuffling of guards between those entities, the record
evidence advanced clears the low hurdle at this stage of the case, even ifnot by much.
In this regard, the Defendants seem to take an approach laden with internal tension. On the one hand, they each
make a big deal of their uniform, written policy that guards only work as scheduled and that they record the exact
actual times that they work. They then, on the other hand, wave the "highly individualized issues" wand, pointing to
varying "post orders" at each job site, a multiplicity of supervisors and actual varying client-driven work situations
and the like to argue that individual issues will overtake any commonality. If the former is true, then the latter would
seem to not matter at all. At this point, the Court need not sort out which may tum out to be the case, or to what
degree. That is for the merits phase of the case.

6

8

As to the other defenses raised as to the relief sought as to Victory Inc. they too, fail at
this stage for similar reasons. The guts of those defenses is that if any employee was directed to
report early/stay late, it was not backed up with disciplinary action or threats, was sporadic, and
because of the involvement of different job sites and schedules, the case would be rife with
individualized analyses. As to the first issue, as noted above, an employer may nonetheless be
liable under the FLSA if it permits work to be done and then does not count it as hours worked
under the applicable FLSA regulations, regardless of whether the failure to work "off the books"
was enforced by a threat of discipline. Second, the allegedly limited volume of such work may
well go to the merits of assessing ultimate liability, of the ultimate "commonality" of specific
situations, or even the number of opt-in Plaintiffs, but does not at this stage direct the Court's
analysis. Finally, at this stage, the Court is unable to conclude as a matter of law that the
"individualized analyses" asserted by Victory Inc. would so outweigh the potential application of
common operating practices so as to make collective action treatment legally impermissible. 7
The Court may conclude that later, when and if there are more individual situations in the case to
be considered, but it cannot so rule as a matter of law at this point.
As to the claims against Victory L.P., if considered alone, the claims advanced by Mr.
Campbell would suffer from the same problems as to this entity as the Court identified in
Schwartz as to Ms. Schwartz. 8 Mr. Campbell testified that the directive that he received to work

extra time before and after shifts came from Mr. Perry Hite, a Victory Inc. supervisor, in
In the same vein, the Defendants' argument that there is not a lot of support from other employees for the
Plaintiffs' cases misses the point. At least one thing that will come of conditional certification/notice is the testing of
that hypothesis, and if there are not many who seek to join, or whose claims have sufficient support to have legs,
then the Defendants' prediction will have been vindicated. If the opposite turns out to be true, and there are a
number ofjoining participants who tum out to have meritorious claims, then the Congressional policies embodied in
the FLSA will have been vindicated.
7

In this regard, the efforts of Plaintiffs' counsel in 11-489 to describe Mr. Campbell's experience with Victory L.P.
as being "vast", ECF No. 88 at 15, or the evidentiary record submitted by him as "ample", id. really is a bit much.

g

9

connection with his one (1) assignment to a project staffed by Victory Inc. at the Tanger Outlet
stores. The balance of the job sites at which he worked were each being handled by Victory L.P.,
namely at Engle Well, Franklin Lakeview, Independent Field, and Talisman Energy. Mr.
Campbell did not testify that he was directed by anyone labelled as being a supervisor from
Victory L.P. to work extra, "off the books" at any such Victory L.P. location, nor did he testify
that he observed others regularly and routinely doing so. His testimony does support the
conclusion that he kept "doing what he was doing" based on what Mr. Hite directed when he
(Mr. Campbell) was working at the Tanger Outlet location.
Here, as was the case with Ms. Schwartz in Schwartz, Mr. Campbell's testimony, if
considered alone, is not the sort of record evidence which would allow for the conclusion that as
to the proposed class in Victory L.P., Mr. Campbell is likely similarly situated to its members.
But, and it is a big "but", the record advanced on this point demonstrates that just like Ms.
Schwartz in Schwartz, Mr. Campbell can speak with some authority as to what he did while at
Victory Inc., (which meshes with Ms. Schwartz's testified-to experiences at that entity). What is
also clear now is that at this point, neither he nor Ms. Schwartz stands alone, given their parallel
testimony as to their o\vn experiences with Victory L.P. On top of this are the business records of
the "Victory" entities, in which they are self-described as being part of one "umbrella", coupled
with the documentary and testimonial record that employees shuffle back and forth between
them. All of that is enough to clear the rather low bar in place at this point.

9

9 Victory L.P. also "defends" on the basis that Mr. Campbell was "actively solicited" to be a named Plaintiff. ECF
No. 89 in 11-489 at 25. First, there is no record evidence of any sort of "litigation abuse" by Plaintiffs' counsel in
this regard, if that were the case. On top of that, this Court's Opinion in Schwartz, which granted the Plaintiffs leave
to amend on the issue of collective action lead Plaintiff, pretty much foreshadowed the possibility of the Plaintiffs
identifying another or different named Plaintiff, so they can hardly be faulted for looking for and finding one that
they believed would fit the bill. Finally, it cannot be said from the Court's perspective that this case is necessarily a
"frivolous fishing expedition", ECF No. 89 in 11-489, at 26. Defendants may turn out to have a winner on the
merits, but the Court cannot conclude at this point that Plaintiffs necessarily have, and could have, "no case", the
seeming prerequisite for a "frivolous fishing expedition" conclusion.

10

For each and all of the above stated reasons, the Plaintiffs' Motions for Conditional
Collective Action Certification as to the classes asserted as to Victory Security, Inc. and Victory
L.P. will be granted.

1O

The parties are to meet and confer promptly, and submit to the Court

within thirty (30) days of the date of this Opinion and Order a joint status report on the issue of
content and scope of notice, along with a proposed Order for entry by the Court. The status
report shall also note any specific areas of disagreement between the parties, and shall state,
succinctly, the respective positions of each party as to any disputed point. Should there be any
points of dispute, the Court will convene a conference of counsel, and will resolve each such
point of disagreement.

Dated: March 31, 2014
cc: All counsel of record

10 A class (and subordinate sub-classes) of all Pennsylvania residents employed by Victory Security, Inc. as security
guards from April 14, 2008 to present who were permitted or suffered to perform more than de minimis pre-shift and
post shift work for the Defendant's benefit, but were not properly compensated for the work, as to Victory, Inc.
(ECF No. I in 11-1267). The proposed class and sub-classes as to Victory, L.P. are described in a similar fashion
with the only difference being the temporal limits being defined as "within" the applicable limitations period. (ECF
No. 73 in 11-489).

1I