Regan et al v. Charleston SC, City of
Filing
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ORDER granting in part and denying in part 157 Motion to decertify or narrow class. Signed by Honorable Patrick Michael Duffy on 11/03/2015.(adeh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
James Regan, Jesse Faircloth,
Michael Pack, Thomas Haffey,
Jacob Stafford, and Kyle Watkins,
Each on Behalf of Himself and All Others
Similarly Situated,
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Plaintiffs,
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v.
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City of Charleston, South Carolina,
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Defendant.
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C.A. No.: 2:13-cv-3046-PMD
ORDER
This matter is before the Court on Defendant City of Charleston, South Carolina’s
(“City”) Motion to Decertify or Narrow the Class (ECF No. 157). For the reasons set forth
herein, the City’s motion is granted in part and denied in part.
BACKGROUND
Plaintiffs James Regan, Jesse Faircloth, Michael Pack, Thomas Haffey, Jacob Stafford,
and Kyle Watkins (“Plaintiffs”), current or former employees of the City’s Fire Department
(“Department”), commenced this action on November 7, 2013, on behalf of themselves and
others similarly situated, seeking unpaid overtime compensation pursuant to the collective action
provision of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b). More specifically, the
above-named Plaintiffs, as well as those who have subsequently given notice of their consent to
join this action, are current or former firefighters1 who were paid by the City pursuant to the
fluctuating workweek (“FWW”) method.
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1.
For purposes of this Order, the Court refers to all uniformed fire protection and suppression members and
employees of the Department as firefighters, without regard to rank.
On February 7, 2014, Plaintiffs moved for conditional certification of a proposed primary
class and several subclasses. Following extensive briefing and a status conference, the Court
issued an Order granting in part and denying in part Plaintiffs’ Motion for Conditional
Certification on July 16, 2014. Although the Court declined to conditionally certify Plaintiffs’
proposed subclasses, the Court did conditionally certify the following primary class:
All persons employed in a non-exempt capacity by the City of Charleston, South
Carolina at any time from November 7, 2010 to the present who served, or trained
to serve, as a uniformed suppression member of the City of Charleston Fire
Department, and who were paid pursuant to the City’s Fluctuating Workweek pay
plan.
In conditionally certifying this matter as a collective action, the Court authorized Plaintiffs to
provide putative class members with notice of the opportunity to opt-in to this lawsuit. To date,
over 200 firefighters have joined this action.
The case then proceeded to discovery, and, following that, to the summary judgment
stage. Plaintiffs and the City both filed motions for summary judgment on specific issues. This
Court granted those motions in part and denied them in part.
On July 2, 2015, the City filed the instant motion to decertify or narrow the class.
Plaintiffs filed a Response in Opposition on July 20. On July 30, the City filed a Reply in
support of its motion. Accordingly, the motion is now ripe for consideration.
LEGAL STANDARD
Under the FLSA, plaintiffs may institute a collective action against their employer on
behalf of themselves and similarly situated employees. The FLSA’s collective action provision
states that:
[a]n action to recover [unpaid overtime compensation] may be maintained against
any employer (including a public agency) 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
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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 mechanism outlined in § 216(b) is designed to facilitate the efficient
adjudication of similar claims by “similarly situated” employees, permitting the consolidation of
individual claims and the pooling of resources in prosecuting such actions against their
employers. See Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989); LaFleur v.
Dollar Tree Stores, Inc., 30 F. Supp. 3d 463, 467 (E.D. Va. 2014), reconsideration denied, 2014
WL 2121563 (E.D. Va. May 20, 2014), and motion to certify appeal denied, 2014 WL 2121721
(E.D. Va. May 20, 2014). In deciding whether the named plaintiffs in a FLSA action are
“similarly situated” to other potential plaintiffs, courts generally employ a two-stage approach.2
Purdham v. Fairfax Cty. Pub. Sch., 629 F. Supp. 2d 544, 547 (E.D. Va. 2009) (quoting Parker v.
Rowland Express, Inc., 492 F. Supp. 2d 1159, 1164 (D. Minn. 2007)); see also Pelczynski v.
Orange Lake Country Club, Inc., 284 F.R.D. 364, 367 (D.S.C. 2012); Simons v. Pryor’s, Inc.,
No. 3:11-cv-0792-CMC, 2011 WL 6012484, at *1 (D.S.C. Nov. 30, 2011); MacGregor v.
Farmers Ins. Exch., No. 2:10-cv-03088-DCN, 2011 WL 2981466, at *2 (D.S.C. July 22, 2011).
The first step is the “conditional certification” stage. Purdham, 629 F. Supp. 2d at 547.
There, “a plaintiff seeks conditional certification by the district court in order to provide notice to
similarly situated plaintiffs” that they can “opt-in” to the collective action. Pelczynski, 284
F.R.D. at 367–68. With regard to this notice phase, “[t]he Supreme Court has held that, in order
to expedite the manner in which collective actions under the FLSA are assembled, ‘district courts
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2.
Although the Fourth Circuit has not yet enunciated a test for conditional certification of collective actions,
district courts in the Fourth Circuit, including this Court, typically follow the two-stage, or two-step, approach when
deciding whether named plaintiffs are similarly situated to potential plaintiffs. E.g., LaFleur, 30 F. Supp. 3d at 467
(“District courts within . . . the Fourth Circuit . . . have uniformly employed a two-step inquiry in deciding whether
to certify a collective action under the FLSA . . . .”); Curtis v. Time Warner Entm’t, C/A No. 3:12-cv-2370-JFA,
2013 WL 1874848, at *2 (D.S.C. May 3, 2013) (“Although the Fourth Circuit has not directly addressed the
appropriate standard for certifying a collective action under § 216(b), district courts in this circuit, including this
court, follow the [two-stage] process set forth in the cases identified above.”).
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have discretion[,] in appropriate cases[,] to implement . . . § 216(b) . . . by facilitating notice to
potential plaintiffs.’” Purdham, 629 F. Supp. 2d at 547 (quoting Hoffman-La Roche, Inc., 493
U.S. at 169). At that stage, the court reviews the pleadings and affidavits to determine whether
the plaintiff has carried his burden of showing that he is similarly situated to the other putative
class members. Pelczynski, 284 F.R.D. at 368; Purdham, 629 F. Supp. 2d at 547–48. “Because
the court has minimal evidence, this determination is made using a fairly lenient standard,”
Steinberg v. TQ Logistics, Inc., No. 0:10-cv-2507-JFA, 2011 WL 1335191, at *1 (D.S.C. Apr. 7,
2011), requiring plaintiffs to make a “a modest factual showing sufficient to demonstrate that
they and potential plaintiffs together were victims of a common policy or plan that violated the
law,” Purdham, 629 F. Supp. 2d at 548. If the court determines that the proposed class members
are similarly situated, the court conditionally certifies the class. Steinberg, 2011 WL 1335191, at
*1. The putative class members are then notified and afforded the opportunity to “opt-in,” and
the case proceeds as a representative action throughout discovery. Id. (citing Scholtisek v. Eldre
Corp., 229 F.R.D. 381, 387 (W.D.N.Y. 2005)).
Second, after the court has conditionally certified the class, the potential class members
have been identified and notified, and discovery has been completed, “a defendant may then
move to decertify the collective action, pointing to a more developed record to support its
contention that the plaintiffs are not similarly situated to the extent that a collective action would
be the appropriate vehicle for relief.”
Pelczynski, 284 F.R.D. at 368.
At this optional
“decertification stage,” the court applies a heightened fact-specific standard to the “similarly
situated” analysis. Steinberg, 2011 WL 1335191, at *2; see Pelczynski, 284 F.R.D. at 368. The
plaintiffs maintain the burden of proving they are similarly situated to the opt-in plaintiffs.
Gionfriddo v. Jason Zink, LLC, 769 F. Supp. 2d 880, 886 (D. Md. 2011). If the court determines
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that the plaintiffs are not, in fact, similarly situated, it may decertify the class, dismiss without
prejudice the opt-in plaintiffs’ claims, and permit the named plaintiffs to proceed on their
individual claims. Curtis, 2013 WL 1874848, at *3; see also Randolph v. PowerComm Constr.,
Inc., No. GJH-13-1696, 2015 WL 5009958, at *15 (D. Md. Aug. 21, 2015) (“The Court has
broad discretion in determining whether the case should continue as a collective action after
discovery.”).
In the decertification context, “similarly situated” means “‘similarly situated with respect
to the legal and, to a lesser extent, the factual issues to be determined.’” Pelczynski, 284 F.R.D.
at 368 (quoting De Luna–Guerrero v. N.C. Grower’s Ass’n, 338 F. Supp. 2d 649, 654 (E.D.N.C.
2004)). “‘In FLSA actions, persons who are similarly situated to the plaintiffs must raise a
similar legal issue as to coverage, exemption, or nonpayment or minimum wages or overtime
arising from at least a manageably similar factual setting with respect to their job requirements
or pay provisions . . . .’” Id. (quoting De Luna–Guerrero, 388 F. Supp. 2d at 654) (emphasis
added in Pelczynski). “Courts have identified a number of factors to consider at this stage,
including (1) disparate factual and employment settings of the individual plaintiffs; (2) the
various defenses available to defendants that appear to be individual to each plaintiff; and
(3) fairness and procedural considerations.” Curtis, 2013 WL 1874848, at *3 (citation and
internal quotation marks omitted).
DISCUSSION
The class includes firefighters from four ranks: Fire Fighter, Assistant Engineer,
Engineer, and Captain. In the course of discovery, the parties obtained evidence on all six
named Plaintiffs and a group of forty opt-in plaintiffs whose claims were representative of the
nearly 200 opt-in class members.
Plaintiffs contend the evidence shows that on several
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occasions, the City’s FWW-based pay plan caused some firefighters’ weekly regular rates of pay
to fall below minimum wage. See Griffin v. Wake Cty., 142 F.3d 712, 715 (4th Cir. 1998)
(stating the FWW method requires, inter alia, that the employee’s fixed weekly wage “be
sufficient to provide compensation at a regular rate not less than the legal minimum wage.”
(citation and internal quotation marks omitted)). Affected firefighters included all six named
Plaintiffs and four other opt-in representatives; all ten held the rank of Fire Fighter or Assistant
Engineer. However, the parties did not identify any Engineer or Captain whose effective weekly
regular rate of pay fell below minimum wage.
The City disputes that any violations of the minimum-wage requirement occurred.3 It
argues, however, that if those violations occurred, the named Plaintiffs are not sufficiently
similar to any of the opt-in plaintiffs to warrant further class treatment of this case. The City’s
argument has two parts. First, the City contends the named Plaintiffs differ from the Engineer
and Captain opt-in plaintiffs because all the named Plaintiffs had minimum-wage violations,
while none of the Engineer and Captain opt-in representatives had any. Second, and similarly,
the City contends the opt-in plaintiffs holding the rank of Fire Fighter or Assistant Engineer
differ from the named Plaintiffs because only a handful of those opt-in plaintiffs experienced
minimum-wage violations, while all six named Plaintiffs experienced such violations.
The City’s arguments are unavailing. “Plaintiffs are similarly situated if they ‘were
victims of a common policy or plan that violated the law.’” MacGregor, 2011 WL 2981466, at
*2 (quoting Purdham, 629 F. Supp. 2d at 549). In an earlier order addressing two of the parties’
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In particular, the City asserts that when Plaintiffs calculated firefighters’ regular rate of pay, they improperly
excluded premiums paid to firefighters under the City’s Incentive Pay (“IP”) program. According to the City, those
premiums must be included in the calculations, and when they are, no minimum-wage violations occurred. The City
further asserts that even if Plaintiffs’ calculations were correct, the instances of minimum-wage violations were so
few that the City did not violate the FWW method. As explained herein, the Court need not rule on either of the
City’s arguments.
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summary judgment motions, this Court held that the City’s pay plan was incompatible with the
FWW method.
That pay plan applied to all the named and opt-in Plaintiffs in this case.
Accordingly, in the context of the present analysis, they all were “victims of a common policy or
plan that violated the law.” See also England v. New Century Fin. Corp., 370 F. Supp. 2d 504,
507 (M.D. La. 2005) (“If there is sufficient evidence of an employer’s pattern of subjecting
employees to the same improper practice, that would be sufficient to warrant a finding of
similarity justifying collective adjudication.”). That common thread supports a finding that the
named Plaintiffs are similarly situated to the class members.
The possibility that some class members’ salaries effectively fell below minimum wage
does not change this Court’s opinion. According to the City, the six named Plaintiffs and the
four opt-in representatives experienced minimum-wage violations because they volunteered for
far more unscheduled shifts than other class members. The City contends those firefighters’
extraordinary level of volunteerism differentiates them from the rest of the class to such a degree
that they are not similarly situated under § 216(b). However, the City’s argument only shows
dissimilarities in hours worked and in the amount of damages those firefighters may be able to
recover. Such differences would not warrant decertification. See LaFleur, 30 F. Supp. 3d at 470
(“While actual hours worked and wages due may vary within the collective, district courts in the
Fourth Circuit have clarified that ‘[d]ifferences as to time actually worked, wages actually due
and hours involved’ do not preclude a finding of a ‘similarly situated’ class.” (quoting Romero v.
Mountaire Farms, Inc., 796 F. Supp. 2d 700, 705 (E.D.N.C. 2011))).
Moreover, the City has based its arguments on regular-rate calculations that it stresses are
inaccurate. However, the Court need not decide whether Plaintiffs’ calculations are correct. If
one assumes that no violations of the minimum-wage requirement ever occurred, the alleged
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dissimilarity among class members regarding regular rate of pay would no longer be present.
The class members would all be similarly situated. In other words, the City’s view of the
evidence on regular rate of pay presents a stronger case for finding sufficient similarity than the
Plaintiffs’ view. Therefore, the Court rejects the City’s arguments for decertifying the class.
Of course, the named Plaintiffs still bear the burden of proving they are similarly situated
to the other members of the class. Having reviewed the parties’ briefs and the record, the Court
finds they have met their burden.
As discussed above, all class members were subject to the
same City pay plan. The Court sees no disparities in the class members’ other professional
characteristics that would warrant decertification. See Butler v. DirectSAT USA, LLC, 47 F.
Supp. 3d 300, 307 (D. Md. 2014) (“‘The first factor of the decertification analysis involves an
assessment of whether Plaintiffs have provided evidence of a company-wide policy which may
violate the FLSA, as well as an assessment of Plaintiffs’ job duties, geographic location,
supervision, and salary.’” (quoting Dorsey v. TGT Consulting, LLC, 888 F. Supp. 2d 670, 687
(D. Md. 2012))).
Second, many of the City’s defenses apply generally to the class.
See
Martinez-Hernandez v. Butterball, LLC, No. 5:07-CV-174-H(2), 2011 WL 4549606, at *4
(E.D.N.C. Sept. 29, 2011) (finding decertification not warranted where, inter alia, defendant had
asserted universally applicable defenses, such as good faith and lack of willfulness). Finally,
fairness and procedural considerations weigh against decertification.
Allowing the class
members to litigate their claims in one action will lower parties’ costs and promote judicial
efficiency by allowing the court to resolve remaining common issues of law and fact in a single
lawsuit. See id.
Alternatively, the City asks that the Court narrow the class period by one year. When the
Court granted conditional certification, it defined the class to include firefighters who worked for
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the Department at any time beginning with November 7, 2010—three years before Plaintiffs
filed their complaint. The Court used that date because Plaintiffs had met their modest burden of
proving, for the purposes of conditional certification, that the City willfully violated the FLSA.
See 29 U.S.C. § 255(a) (providing that the normal two-year limitations period for a FLSA claim
extends to three years if the violation was willful). That decision, however, was not a final ruling
on the limitations period issue. Subsequently, on summary judgment, the Court held that the
two-year limitations period applies in this case. The City asks that the Court amend the class
definition to conform to that ruling, by making November 7, 2011 the new beginning date of the
class period. Plaintiffs have not offered any response to this proposal. The Court finds the
proposed amendment appropriate.
In sum, the Court declines to decertify the class.
However, the Court amends the
definition of the class as follows:
All persons employed in a non-exempt capacity by the City of Charleston, South
Carolina at any time from November 7, 2011 to the present who served, or trained
to serve, as a uniformed suppression member of the City of Charleston Fire
Department, and who were paid pursuant to the City’s Fluctuating Workweek pay
plan.
CONCLUSION
For the foregoing reasons, it is ORDERED that the City’s Motion to Decertify or
Narrow the Class is GRANTED IN PART and DENIED IN PART.
AND IT IS SO ORDERED.
November 3, 2015
Charleston, South Carolina
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