McKnight V. Honeywell Safety Products Inc.

Filing 124

MEMORANDUM AND ORDER granting 109 MOTION Extend Equitable Tolling of FLSA Claims . So Ordered by Magistrate Judge Patricia A. Sullivan on 4/17/2020. (Saucier, Martha)

Case 1:16-cv-00132-MSM-PAS Document 124 Filed 04/17/20 Page 1 of 5 PageID #: 3296

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
BARBARA MCKNIGHT and
SHEILA ANDERSON,
Individually and on behalf of all
Other Persons Similarly Situated,
Plaintiffs,
v.
HONEYWELL SAFETY PRODUCTS
USA, INC., HONEYWELL
INTERNATIONAL, INC., DAVID M.
COTE, CARL JOHNSON, and MARK R.
JAMES, in their Official and Individual
Capacities,
Defendants.

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C.A. No. 16-132MSM

MEMORANDUM AND ORDER
PATRICIA A. SULLIVAN, United States Magistrate Judge.
Now pending is the motion (ECF No. 109) of Plaintiffs Barbara McKnight and Sheila
Anderson to further extend equitable tolling of the statute of limitations applicable to the Fair
Labor Standards Act (“FLSA”) claims of the potential collective action class members based on
the delays caused by the discovery strategy implemented by Defendants Honeywell Safety
Products USA, Inc., Honeywell International, Inc., David M. Cote, Carl Johnson and Mark R.
James (collectively, “Defendants”). This motion seeks to protect the parties alleged to be
“similarly situated” in this § 216(b) case, who must affirmatively opt-in to toll the limitations
period. See 29 U.S.C. § 256 (explaining that an FLSA action is not considered to be commenced
for a similarly situated party until he submits written consent to join the case). For the reasons
that follow, the motion is granted.
This FLSA putative opt-in collective action is over four years old and is finally reaching
the point that is supposed to happen at earliest possible stage – conditional certification. For the

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lack of such documents as “job descriptions,” Plaintiffs’ early attempt at conditional certification
failed. McKnight v. Honeywell Safety Prod. USA, Inc., C.A. No. 16-132 S, 2017 WL 3447894
(D.R.I. Aug. 11, 2017) (“McKnight I”). Now, after years of limited discovery, as to which the
Court finds Plaintiffs have been entirely diligent, Plaintiffs have returned to the Court with
enough factual-based evidence to support the Court’s determination to conditionally certify the
collective. ECF No. 123. In the meantime, the Court has already found that Defendants’
approach to this limited phase one discovery has caused substantial delays, sufficient to create an
“exceptional circumstance.” Text Order of Aug. 23, 2019.
In the course of my review of Plaintiffs’ renewed motion for conditional certification, the
Court’s finding of delay was confirmed; that is, it is even more clear that Defendants’ resistance
to discovery has substantially slowed the pace of the case and particularly slowed progress
towards conditional certification. By way of just one example, as noted above, Defendants
resisted producing “job descriptions,” asserting that they do not exist, and that absence was a
pivotal feature of the Court’s adverse decision in McKnight I, 2017 WL 3447894, at *3, *7-9
(relying on Defendants’ representation that “there is no job description for any of these
positions”). Yet belatedly produced documents and the testimony of long-delayed Fed. R. Civ.
P. 30(b)(6) designees now establish substantial evidence of “job descriptions.” And this delay
has an insidious impact that is unique to the circumstances of this case. An affidavit evidences
that Defendants have been shifting the work performed by United States-based members of the
collective to locations outside the United States. If true, a statute of limitations that is not tolled
despite delay could trim the collective down to nothing.
Over the four years that the case has been pending, the Court has twice granted Plaintiffs’
motions to equitably toll the applicable statute of limitations. Text Orders of Mar. 24, 2017;

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Aug. 23, 2019. The Court is now addressing the third such motion. ECF No. 109. Plaintiffs ask
the Court to toll the statute of limitations from August 23, 2019, through the last date the Court
sets for members of the collective to file consent forms to opt-in as plaintiffs. To support the
motion, Plaintiffs do not focus on specific conduct by Defendants that prevented individual
potential members of the collective from opting in or filing their own actions. 1 Instead, they ask
the Court to continue equitable tolling because it is unfair to this far-flung (comprised of
individuals working at diverse locations across the country, some remotely from home) and
shrinking collective to allow their claims to evaporate because of Defendants’ go-slow approach
to discovery compliance. See Nash v. CVS Caremark Corp., 683 F. Supp. 2d 195, 199-200
(D.R.I. 2010). That is, continued tolling is appropriate when the undue delays with discovery are
outside of the control of potential opt-in plaintiffs, whose interests the Court seeks to safeguard.
Id. (“FLSA actions are more vulnerable to manipulation than Rule 23 actions . . . [s]imply put, it
is easier to drown collective actions than class actions).
Defendants’ opposition to the motion marshals equitable tolling decisions in other
contexts. E.g., Vazquez-Rivera v. Figueroa, 759 F.3d 44, 50 (1st Cir. 2014) (Rehabilitation Act
claim); Zab v. Rhode Island, C.A. No. 18-070 WES, 2018 WL 2023510, at *3 (D.R.I. May 1,
2018) (post-conviction relief case). They also direct the Court to cases where equitable tolling
was denied because the delay was the fault of the plaintiff, and where there is “no reason to
conclude . . . that an earlier decision on the motion to certify would have allowed time-barred

A reason for equitable tolling that is not applicable in this case arises when the members of the collective are
deterred from suing or opting in by their employer, the defendant. See, e.g., Perez v. Shucks Maine Lobster LLC,
2:15-cv-00348-JAW, 2016 WL 6304674, at *11 (D. Me. Oct. 27, 2016) (failure to post required FLSA notices is
“extraordinary circumstance” that permits the Court to equitably toll the statute of limitations); Blake v. CMB
Constr., Civ. No. 90-288-M, 1993 WL 840278, at *6 (D.N.H. Mar. 30, 1993) (“[F]ailing to post the required notice,
misleading plaintiff with regard to her ‘salaried’ employment status, failing to correct the obvious confusion
concerning administrative staff overtime pay rights under the Act, and engaging in a general course of conduct
likely to confuse administrative staff employees with regard to their overtime compensation rights, all militate in
favor of applying the equitable tolling doctrine.”).
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plaintiffs to opt-in.” Powers v. Centennial Commc’ns Corp., No. 1:08-cv-208-PPS, 2010 WL
746776, at *4 (N.D. Ind. Feb. 26, 2010). And Defendants rely on decisions that delay deciding
whether to toll until the opt-ins have joined the case; however, “[m]any courts have nonetheless
addressed the equitable tolling issue for putative plaintiffs at the conditional certification stage.”
Roberts v. TJX Cos., Civil Action No. 13-cv-13142-ADB, 2017 WL 1217114, at *7 (D. Mass.
Mar. 31, 2017) (citing Kampfer v. Fifth Third Bank, Case No. 3:14 cv 2849, 2016 WL 1110257,
at *7 (N.D. Ohio Mar. 22, 2016) (collecting cases where courts equitably tolled statute of
limitations for FLSA putative collective action members)).
Courts apply equitable tolling in FLSA cases where extraordinary circumstances beyond
plaintiffs’ control resulted in the failure to file timely claims, such as where a defendant’s
conduct caused untoward delay. Pike v. New Generation Donuts, LLC, Civil Action No. 1212226-FDS, 2016 WL 707361, at *5 (D. Mass. Feb. 20, 2016) (equitable tolling denied because
plaintiffs’ actions and decisions caused delay). This includes the kinds of delays that may be
seen as inherent in such litigation. Penley v. NPC Int’l, Inc., 206 F. Supp. 3d 1341, 1348 (W.D.
Tenn. 2016). Thus, in Penley, the defendant’s dilatory tactics caused a protracted delay, during
which “the vast majority of potential opt-in plaintiffs were never informed of either the FLSA
lawsuit or of Defendant’s potential wage violations, and they will not be advised of such until the
Court approves a notice mechanism. . . [, by which] time, it is most likely that a substantial
portion of those claims will already be untimely.” Id. at 1350-51. Based on the delays caused by
the defendant’s approach to discovery, Penley held that the plaintiffs’ claims should be tolled as
of the date that the first motion for conditional certification could have been fully briefed until
ninety days after the issuance of notice to potential class members. Id. at 1351. Penley’s focus
on discovery delays by the defendant contrasts with Osman v. Grube, Inc., Case No. 16-cv-802,

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2017 WL 2908864, (N.D. Ohio July 7, 2017), in which the court noted that the claimant’s
counsel’s engaged in an active campaign to notify potential plaintiffs on social media, permitting
the finding that the failure of the potential plaintiffs to opt-in earlier reflected a lack of diligence.
Id. at *9-10.
The evidence here establishes nothing that would have provided notification to potential
class members; to the contrary, the parties’ submissions in connection with conditional
certification demonstrate that the approximately four hundred potential class members worked in
many different locations across the country, including that many Honeywell employees work
remotely. E.g., Mayda Dep., ECF No. 108-2 at 4. Therefore, the Court finds that there has been
no lack of diligence by them or by Plaintiffs. The evidence further establishes that Defendants
have used an array of strategies to slow down the discovery process and to deflect Plaintiffs from
the discovery that is at the heart of issues pertinent to certification. While Defendants are right
that the specific delayed deposition (Mayda) that is highlighted in Plaintiffs’ motion ended up
being completed on the end date of the prior tolling order, August 23, 2019, the Court finds that
Defendants’ discovery delays affected far more than a single deposition and that the
pervasiveness of the strategy amounts to an “exceptional circumstance.”
Based on the foregoing, Plaintiffs’ motion for equitable tolling (ECF No. 109) is granted.
The limitations period is tolled from August 23, 2019, though the last date that the Court will set
for class members to file consent forms to opt-in as plaintiffs.
So ordered.
ENTER:
/s/ Patricia A. Sullivan
PATRICIA A. SULLIVAN
United States Magistrate Judge
April 17, 2020
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