MacGregor et al v. Farmers Insurance Exchange
Filing
90
ORDER granting 75 Motion for conditional certification Signed by Honorable David C Norton on 7/20/12.(jsch, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
DAVID MACGREGOR, ET AL.,
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Plaintiffs,
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vs.
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FARMERS INSURANCE EXCHANCE,
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Defendant.
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______________________________________ )
Civil No. 2:10-CV-03088
ORDER
This matter is before the court on plaintiffs’ motion for conditional
certification. For the reasons set forth below, the court grants plaintiffs’ motion. In
order to assist the parties with their pending mediation, this court issues the current
order in brief, but reserves the right to file a more detailed order if necessary.
On December 3, 2010, plaintiffs David MacGregor, James Cantrell, and
Debra Carnahan filed a complaint against Farmers Insurance Exchange (Farmers) for
quantum meruit and violations of the Fair Labor Standards Act (FLSA). On March 4,
2011, plaintiffs moved for conditional certification of a class of all Farmers property
claims representatives (PCRs). Though plaintiffs each worked in the Atlanta regional
zone the last three years and under the same supervisor for some time, plaintiffs
initially requested certification of a nationwide class. The court denied that motion
on July 22, 2011 because plaintiffs failed to allege a common policy or plan
materially uniting the proposed class. On January 31, 2012, plaintiffs requested
reconsideration of the court’s ruling on conditional certification or, in the alternative,
to renew their motion for conditional certification of a narrower class. On April 30,
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2012, the court denied plaintiffs’ motions, but granted plaintiffs leave to resubmit
their motion to renew if they could explain the parameters of the narrower class.
On May 15, 2012, plaintiffs moved for conditional certification of a more
limited class “including all property claims representatives who worked under the
Plaintiffs’ supervisory chain headed by Michael Flynn, Defendant’s Branch Claims
Manager of its Atlanta Zone, during the three years predating the filing of this
motion.” Pls.’ Mot. 1. On June 1, 2012, defendant responded, and plaintiffs filed a
reply on June 8, 2012.
Under the FLSA, plaintiffs may institute a collective action against their
employer on behalf of themselves and other employees. Section 216(b) of the FLSA
states,
An action . . . may be maintained against any employer . . . in any
Federal or State court of competent jurisdiction by any one 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.
“The Supreme Court has held that, in order to expedite the manner in which
collective actions under the FLSA are assembled, ‘district courts have discretion in
appropriate cases to implement . . . § 216(b) . . . by facilitating notice to potential
plaintiffs.’” Purdham v. Fairfax Cnty. Pub. Schs., 629 F. Supp. 2d 544, 547 (E.D. Va.
2009) (quoting Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989)).
Under this regime, a plaintiff moves for conditional certification to permit notice to
similarly situated employees prior to discovery. If the court grants conditional
certification, the defendant may move for decertification of the class after discovery
is substantially underway. At that point, the court makes a factual determination as to
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whether the class is truly “similarly situated” and class adjudication would be
manageable. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1103 (10th
Cir. 2001).
At the “notice stage,” plaintiffs must demonstrate that notice is “appropriate.”
D’Anna v. M/A-COM, Inc., 903 F. Supp. 889, 894 (D. Md. 1995). Notice is more
likely to be appropriate when “‘[t]he facts and the circumstances of the case illustrate’
that a class of ‘similarly situated’ aggrieved employees exists,” and the “multiple
claims . . . do not require substantial individualized determinations for each class
member.” Purdham, 629 F. Supp. 2d at 547-49 (quoting Hoffmann-La Roche, Inc.,
493 U.S. at 170)). “[C]ourts apply a ‘fairly lenient standard’ for determining whether
the plaintiffs are truly similarly situated” at this stage. Anderson v. Cagle’s, Inc., 488
F.3d 945, 953 (11th Cir. 2007) (quoting Mooney v. Armaco Servs. Co., 54 F.3d 1207,
1214 (5th Cir. 1995)). However, while the burden of showing that the potential class
members are similarly situated is “not onerous,” it is also “not invisible.” Purdham,
629 F. Supp. 2d at 548. “Mere allegations will not suffice; some factual evidence is
necessary.” Bernard v. Household Int’l, Inc., 231 F. Supp. 2d 433, 435 (E.D. Va.
2002).
Courts have noted that the “fairly lenient” standard is appropriate at the notice
stage because plaintiffs have not yet had time to “conduct discovery and marshal their
best evidence.” Davis v. Charoen Pokphand, Inc., 303 F. Supp. 2d 1272, 1276 (M.D.
Ala. 2004). However, “where the parties have already engaged in substantial
discovery . . . [some] district courts apply an intermediate standard” and utilize a
somewhat heightened amount of scrutiny when reviewing the plaintiffs’ motion.
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McClean v. Health Sys., Inc., No. 11-3037, 2011 WL 6153091, at *4 (W.D. Mo. Dec.
12, 2011) (noting that there is not a consistent method of applying of this standard);
see also Davis, 303 F. Supp. 2d at 1276 (requiring a “more searching inquiry . . .
[when] plaintiffs have had an opportunity to conduct discovery with respect to
defendant’s policies and procedures”).
When plaintiffs filed their first request for nationwide notice, they cited only
Farmers’ written policies and individual supervisor misconduct to support their
argument that the proposed class was similarly situated. This court reviewed the
Farmers policies and procedures submitted by plaintiffs and found that the written
policies did not violate the FLSA, and thus did not materially unite the proposed class
plaintiffs sought to litigate on behalf of. See July 22, 2011 Order (“Requiring
supervisor approval for work hours, automatically deducting lunch breaks, and
[Farmers]’s method of assigning work do not violate the FLSA without more.”); see
also Mahoney v. Farmers Ins. Exch., 2011 WL 4458513, at *7-9 (S.D. Tex. Sept. 23,
2011) (“In light of Farmers’ official policy, we cannot accept [plaintiff’s] allegation
that Farmers had a policy of not paying employees for overtime work.”). Thus,
plaintiffs were left only with allegations that their individual supervisors had violated
Farmers’ written policies and the FLSA. Furthermore, while plaintiffs alleged that
their “supervisors” violated the FLSA, they only pointed specifically to wrongful
conduct by one supervisor, Bryan Meyers, who supervised the three plaintiffs at the
same time.
Plaintiffs produced an email Meyers sent to at least the PCRs he supervised
including plaintiffs potentially evincing a violation of Farmers’ policies and the
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FLSA requirements on overtime compensation; however, they could not provide
anything beyond “mere allegations” that Farmers had an illegitimate nationwide
policy affecting all PCRs around the country and could not point to any source of this
alleged policy. The court found that because plaintiffs failed to allege a common
policy or plan materially affecting the purported class, individual inquiries were likely
to predominate and the nationwide class was inappropriate. See July 22, 2011 Order.1
In the present motion, plaintiffs request a more limited class confined to PCRs
who worked under Farmers’ supervisory chain headed by Michael Flynn, the Branch
Manager of the Atlanta Zone for three years prior to the filing of their motion.
Plaintiffs claim that the members in this class are similarly situated because each
member was subject to the unwritten policies implemented by the Atlanta Zone
Branch Manager. Under Farmers’ management structure, as the Atlanta Zone Branch
Manager, Flynn supervised four to six claims supervisors, who each managed four to
seven PCRs. Viewed generously, plaintiffs’ claim is that Flynn had an unwritten
policy to violate Farmers’ FLSA compliant written policy by discouraging PCRs
from accurately reporting their hours and that this unwritten policy was promulgated
by the claims supervisors who were under Flynn’s chain of command and sometimes
by Flynn himself.
To support the allegation of an Atlanta Zone unwritten policy, plaintiffs
submitted Cantrell’s deposition, wherein Cantrell claimed that Flynn instructed him
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See also Berry v. Quick Test, Inc., No. 11-4435, 2012 WL 1133803 (N.D. Ill. Apr. 4, 2012)
(granting conditional certification to employees at the same office but denying a nationwide
class); Ware v. T-Mobile USA, 828 F. Supp. 2d 948 (M.D. Tenn. 2011) (granting notice to
two call centers, but denying nationwide notice); Hinojos v. Home Depot, Inc., No. 06-0108,
2006 WL 3712944, at *3 (D. Nev. Dec. 1, 2006) (denying conditional certification of a
nationwide class, partially because of the necessity of individualized determinations).
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to lie on his time cards if he worked through lunch so that his timecard would reflect
an unpaid lunch break even though Cantrell worked those hours. Furthermore,
Cantrell explained that his supervisors’ discussions of overtime made him feel he
would suffer adverse consequences up to termination if he requested overtime.
Plaintiffs also relied on the Meyers email, which Flynn agreed violated the Farmers
policy on overtime at his deposition, and their previously submitted declarations
which stated that their supervisors failed to approve pre- and post-requested overtime
and did not compensate them for working through their lunch breaks even when the
supervisors were aware of the actual work. Finally, Flynn’s deposition supported
plaintiffs’ contentions that it was impossible to accurately predict the number of hours
a PCR would work in an upcoming week, and that the number of actual hours worked
may “substantially” differ from the number of hours requested.
Since plaintiffs rely on evidence recovered during discovery to provide the
basis for the alleged unwritten policy violating the FLSA, it would be “inequitable . . .
to allow plaintiffs to proceed with the more lenient standard applied in cases where
the parties have not yet begun discovery.” McClean, 2011 WL 6153091, at *4.
Nevertheless, because there is only limited discovery before the court, only limited
additional scrutiny is necessary. The discovery presented demonstrates that
“plaintiffs have made [a] sufficient showing beyond their original allegations that
would tend to make it more likely that a class of similarly situated employees exists,”
necessary to justify conditional certification of the requested class. Creely v. HCR
ManorCare, Inc., No. 09-2879, 2011 WL 2259132, at *7 (N.D. Ohio June 9, 2011).
Importantly, plaintiffs have alleged a common policy uniting the purported class and
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provided “something more” than “mere allegations.” Although this court is applying
the “intermediate standard,” the inquiry here is less demanding than plaintiffs will
face at the next stage of certification and the depositions that provide the foundation
for conditional certification may create difficulties for plaintiffs when they are subject
to heightened scrutiny.
III. CONCLUSION
For the foregoing reasons, the court GRANTS plaintiffs’ motion for
conditional certification.
AND IT IS SO ORDERED.
__________________________________
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
July 20, 2012
Charleston, South Carolina
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