Bentz v. UC Synergetic, LLC
Filing
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ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION 56 AND GRANTING MOTION FOR CONDITIONAL CERTIFICATION 22 . Signed by Judge Sheryl H. Lipman on 9/28/18. (shl)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
KEVIN BENTZ, individually and on behalf
of all others similarly situated,
Plaintiff,
v.
UC SYNERGETIC, LLC,
Defendant.
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No. 2:16-cv-2700-SHL-egb
ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
AND GRANTING MOTION FOR CONDITIONAL CERTIFICATION
Before the Court is Magistrate Judge Edward G. Bryant’s Report and Recommendation
(“Report”) (ECF No. 56), filed August 25, 2017, recommending that the Court grant Plaintiff’s
First Stage Motion for Notice to Potential Plaintiffs and Conditional Certification (ECF No. 22).
Plaintiff seeks conditional class certification and approval of his proposed form of Notice and
Consent to Join under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §216(b). (ECF No.
22.) Judge Bryant issued his Report recommending that conditional class certification be granted
and that the proposed notice be approved. (ECF No. 56.) Defendant filed its Objections to
Judge Bryant’s Report on September 8, 2017, arguing that there is insufficient evidence to
sustain a conditional class certification and that notice of the kind proposed by Plaintiff would be
inappropriate. (ECF No. 57.) Plaintiff filed a Response to Defendant’s Objections on
September 29, 2017. (ECF No. 60.) For the reasons outlined below, the Court ADOPTS Judge
Bryant’s Report and GRANTS Plaintiff’s Motion for Conditional Class Certification and
APPROVES the Proposed Notice.
BACKGROUND
Plaintiff, Kevin Bentz, alleges a violation of the FLSA by his former employer,
Defendant, UC Synergetic (“UCS”). Specifically, Mr. Bentz asserts that he and others similarly
situated were pressured to underreport their hours and consequently denied overtime pay by their
supervisors at UCS. (ECF No. 1.)
Plaintiff seeks conditional certification of a class including “all current and former
hourly-paid ‘Designers’ and ‘Fielders’ who worked for UC Synergetic, LLC and whose position
was overseen or supervised by Greg Maes and Rebecca Shepherd.” (ECF No. 56 at 2.) In
support of its Motion, Plaintiff relies on his own declaration, in which he alleges that his
supervisor (Shepherd) and her supervisor (Maes) pressured him to underreport hours and forgo
compensation, as well as the declarations of two other individuals alleging similar treatment.
(ECF Nos. 22-3, 22-4, 22-5.) He additionally asserts personal knowledge of other employees
subject to the same treatment. (ECF No. 22-3 at 2.)
In addition to his Motion for conditional class certification, Plaintiff seeks approval for
his proposed Notice and Consent to Join, which he intends to distribute via physical and
electronic mail. (ECF No. 22 at 11.) He also seeks to post Notice at UCS. (Id.) Finally, he
requests that UCS provide the names, last known addresses, email addresses, and telephone
numbers of the relevant individuals. (Id.)
Judge Bryant recommended that this Court grant Plaintiff’s Motion. (ECF No. 56).
ANALYSIS
A magistrate judge may submit to a judge of the court proposed findings of fact and
recommendations. 28 U.S.C. § 636(b)(1)(B). “Within 14 days after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
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proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). A
district court reviews de novo only those proposed findings of fact or conclusions of law to
which a party specifically objects. Fed. R. Civ. P. 72(b)(3).
Defendant objects to Judge Bryant’s Report and Recommendation on several grounds,
consolidated into the groups noted here. First, it argues that Judge Bryant applied a lower
standard of proof than appropriate in evaluating whether to conditionally certify a class. (ECF
No. 2–6.) Next, it asserts that Plaintiff fails to provide sufficient evidence that he is similarly
situated to others, as required for certification under the FLSA. (Id. at 7–20.) Finally, it objects
to Judge Bryant’s conclusion that posting notice on UCS premises is appropriate, arguing that
Plaintiff has failed to indicate why mailing would be insufficient. (Id. at 20.) The Court
addresses these objections in turn. 1
I.
Standard for Conditional Certification under the FLSA
First, Defendant objects to the standard used in the Report and Recommendation to
evaluate Plaintiff’s evidence related to conditional class certification. (ECF No. 57 at 4.)
Specifically, Defendant argues that a “modest plus” standard, rather than the typical, more
lenient standard, would have been more appropriate because some discovery had been conducted
at the time of the Motion.
“An action . . . 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.” 29 U.S.C. § 216(b).
Unlike a class action, a collective action permits similarly situated persons to opt into rather than
1
For the sake of clarity, the Court has reorganized Defendant’s objections into fewer
categories and subcategories than those presented to the Court in Defendant’s Objection. (See
ECF No. 57.) Although Defendant outlines and titles its objections differently, the Court
addresses them all below.
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opt out of litigation. See Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006).
Courts typically employ a two-phase inquiry to address whether the plaintiffs are similarly
situated to the opt-in plaintiffs, the first phase occurring at discovery and the second after all optin forms have been received and discovery has concluded. Id.
During the initial evaluation, courts are to employ a “fairly lenient standard [that]
typically results in . . . certification.” Comer, 454 F.3d at 547. A “modest factual showing” from
the plaintiff will suffice. Id. In cases where some discovery has occurred, courts may use a
“modest plus” standard in evaluating the propriety of conditional certification. See Creely v.
HCR ManorCare, Inc., 789 F. Supp. 2d 819, 826–27 (N.D. Ohio 2011) (outlining when and how
the “modest plus” standard might be implemented); see also Hall v. U.S. Cargo & Courier Serv.,
LLC, 299 F. Supp. 3d 888, 895 (S.D. Ohio 2018) (noting a “slightly elevated” standard for
conditional certification may be used after discovery has commenced). The modest plus
standard is still meant to be lenient, resolving any gaps or doubts in the evidence in favor of
plaintiffs. Creely, 789 F.Supp.2d at 826–27. A court “does not weigh the relative merits of the
parties’ claims at [the] conditional certification stage.” Id. at 827. Rather, a court implementing
this standard looks for “some progress as a result of the discovery as measured against the
original allegations and defenses.” Id.
In the instant case, Defendant argues that Judge Bryant ought to have reviewed the
Motion using a modest plus standard. (ECF No. 57 at 3.) The Court disagrees. “[C]ourts
generally agree that allowing the parties to conduct some targeted discovery regarding the
conditional certification question takes the question beyond the stage one evidentiary boundaries
of the complaint’s allegations and supporting affidavits.” Id. at 826. Courts using a modest plus
standard attempt to determine “whether [p]laintiffs have advanced the ball down the field . . . as
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a result of the discovery as measured against the original allegations and defenses.” Creely, 789
F.Supp.2d at 827. Here, Plaintiff avers that he has not taken any depositions or issued written
discovery and that Defendant, for its part, has taken the deposition of the Named Plaintiff and
produced some documents as part of initial disclosures. (ECF No. 60 at 3.) Because discovery
has barely begun, there would be no way to meaningfully measure Plaintiff’s position now in
relation to his position before discovery. Therefore, Judge Bryant’s decision to employ the
traditional standard to evaluate Plaintiff’s Motion for Conditional Certification was correct, and
Defendant’s objection to the use of that standard is OVERRULED.
II.
Similarly Situated Plaintiffs
Defendant argues that Plaintiff cannot demonstrate that he is similarly situated to others
employed by UCS and thus there is no basis for class certification. (ECF No. 57 at 9.) In
support of this argument, Defendant points to differences in the situations of purported class
members, cites company policies mandating overtime reporting and provides statements from
other employees denying any policy like the one alleged by Plaintiff. (Id. at 9–22.) Defendant
additionally notes that Plaintiff did sometimes report overtime work. 2 (Id. at 12.)
A plaintiff must demonstrate that she and the other putative class members are “similarly
situated.” 29 U.S.C. § 216(b). Plaintiffs who suffer from a single, FLSA-violating policy or
whose claims are “unified by common theories of defendants’ statutory violations” are similarly
situated. O'Brien v. Ed Donnelly Enters., 575 F.3d 567, 585 (6th Cir. 2009), abrogated on other
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Defendant also asserts that Plaintiff’s lack of knowledge about the specifics of his own
hours or the hours of others in the purported class for every week in question works against him.
(Id. at 10–11.) However, at this stage, while Plaintiff cannot provide specifics for every week in
question, he is asserting that he and others were forced to work more than 40 hours without pay.
At this stage, the Court does not expect Plaintiff to provide details to the level Defendant seems
to expect in his Motion in order to allege a violation of the FLSA. Thus, the Court does not
address Defendant’s objections on these grounds beyond this note.
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grounds by Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016). This is true “even if the
proofs of these theories are inevitably individualized and distinct.” Id. The FLSA standard for
evaluating whether individuals are similarly situated is different than the standard in Federal
Rule of Civil Procedure 23 in that it is “less demanding.” Monroe v. FTS USA, LLC, 860 F.3d
389, 397 (6th Cir. 2017). Moreover, as noted previously, the evaluation of whether plaintiffs are
similarly situated at the conditional certification stage is more lenient than it is at the postdiscovery stage. See Comer, 454 F.3d at 546. Conditional certification is not the time to strictly
evaluate the factual differences and details of the purported class members:
[D]ifferences in the factual and employment settings of the class members may
preclude final certification of the collective action, or at the very least prevent all
of the opt-in Plaintiffs from remaining in the putative class. However, that is a
question the Court need only reach at the second stage of the certification process
and on the basis of a fully developed factual record.
Hoffman v. Kohler Co., No. 2:15-cv-01263-STA-egb, 2017 U.S. Dist. LEXIS 140766, at *17
(W.D. Tenn. Aug. 30, 2017) (internal citation omitted).
In its objections, which are in large part recitations of its initial response in opposition to
Plaintiff’s Motion, Defendant relies on arguments more appropriate at the final certification
stage. 3 Defendant repeatedly argues that class certification is inappropriate due to the need for
individualized inquiries. (ECF No. 57 at 3, 13, 15.) However, as noted above, questions
regarding “differences in the factual and employment settings of the class members,” while they
may prevent sustained certification, are better reserved for the second stage of certification
evaluation. Hoffman, 2017 U.S. Dist. LEXIS 140766, at *17.
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Along these lines, Defendant argues that the other individuals that Plaintiff names in his
declaration are not similarly situated, using this contention to conclude that no basis for class
certification exists as Plaintiff provides no evidence of any other employee in his proposed class
suffering from a similar violation. (ECF No. 57 at 20–22.) Because the Court leaves the
evaluation of factual and employment differences to the final certification stage, it does not
address Defendant’s argument that there is no basis to certify a collective action.
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Defendant also argues that Bentz provides no evidence of the existence of an FLSAviolating policy being applied to others. (ECF No. 57 at 13). In urging the court to find the
same, Defendant points to Medley v. S. Health Partners, Inc., No. 1:17-cv-00003, 2017 U.S.
Dist. LEXIS 129776 (M.D. Tenn. Aug. 15, 2017). In Medley, the plaintiff sought conditional
certification based on “personal knowledge” of other employees being subjected to a policy in
violation of the FLSA, but the plaintiff failed to provide names and worked in an isolated
position where her reason to be in contact with other employees would be limited. Id. at *20–21.
In contrast, Plaintiff does provide names and, insofar as the Court can tell, was not isolated from
others in the same way as the plaintiff in Medley. (ECF No. 22-3 at 2.)
Still, Defendant notes, the court in Steger found similar evidence unpersuasive, (ECF No.
57 at 15) but the court in Steger was (1) using a modest plus standard and (2) evaluating a
proposed nationwide class, Steger v. Life Time Fitness, Inc., No. 14-cv-6056, 2016 U.S. Dist.
LEXIS 7267, at *7–8, *10 (N.D. Ill. Jan. 21, 2016). Here, the Court has determined that not
enough discovery has occurred to examine the Motion using a modest plus standard. Moreover,
Plaintiff seeks to conditionally certify a much smaller class. Thus, this Court does not share the
Steger court’s concern that granting certification would result in a nationwide class dependent on
a series of individualized inquiries into the behaviors of many different supervisors.
Defendant also rightfully argues that conclusory allegations are insufficient to meet the
evidentiary standard necessary, (ECF No. 57 at 7) and urges the Court to draw from Lindsey v.
Harris County, No. H-15-630, 2015 U.S. Dist. LEXIS 150827, at *15 (S.D. Tex. Nov. 6, 2015),
in which plaintiffs sought to certify a class without presenting any information as to how they
knew other class members worked more than 40 hours (in fact presenting a witness who
indicated the opposite was true). However, important differences exist between Lindsey and the
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instant case. Most notably, Plaintiff indicates personal knowledge of the problem and provides
names of other individuals. (ECF No. 22-3 at 2.) Personal knowledge moves the Motion out of
the realm of mere conclusory allegations by asserting evidence not present in cases like Lindsey.
Defendant also provides statements from dozens of other employees noting that they
were not subjected to similar treatment. Though Defendant asserts that these are more than mere
“happy camper” statements, the Court is unconvinced. Defendant relies on Langlands v. JK & T
Wings, Inc., 2016 U.S. Dist. LEXIS 100126, at *8–10 (E.D. Mich. Aug. 1, 2016), in which the
court found a series of declarations from other employees at various locations of the business in
question to be persuasive evidence against certification. However, in that case, “there [was] only
essentially one declaration in support of the Motion,” though plaintiffs sought certification of a
class including thirty different business locations. Id. at *6. As noted, in this case, Plaintiff
provides multiple declarations and proposes a much smaller class. Langlands is therefore
factually distinct.
Generally, statements from unaffected employees are unconvincing to courts at the
conditional certification stage. See Creely, 789 F.Supp.2d at 840 (“Just as courts have not
traditionally required a plaintiff seeking conditional certification to come forward with some
threshold quantity of opt-in plaintiffs, it is no more helpful for the employer to round up a small
samples of favorable statements from employees.” (internal citation omitted)); see also Brown v.
AK Lawncare, Inc., No. 14-14158, 2015 U.S. Dist. LEXIS 139399, at *11 (E.D. Mich. Oct. 14,
2015) (noting, when defendants presented evidence of employees contradicting plaintiffs, that
“the notice stage is not the time for the Court to weigh dueling affidavits and to evaluate the
merits of the underlying claim”). Relying on the lenient standard employed at this stage, the
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Court here declines to weigh the evidence or evaluate the merits of these competing statements,
instead looking to what Plaintiff has provided.
Finally, the Court is not persuaded by any of the additional evidence against certification
Defendant provides. Defendant argues that UCS policies “emphasize reporting all time worked.”
(ECF No. 57 at 10.) However, Plaintiff does not question UCS’s written policies. Rather, he
argues that mandates from supervisors to underreport exist in violation of the FLSA. (ECF No.
22-3.) Similarly, Defendant presents evidence that Plaintiff reported and was paid for overtime
for some of the weeks at issue in the case. (ECF No. 57 at 9–10.) The Court assumes this
information is meant to suggest there could not possibly be a policy or practice in violation of the
FLSA because overtime was reported and paid during some of the dates in question. However,
that Plaintiff reported and was compensated for some overtime does not void his claim that a
practice in violation of the FLSA existed.
Because the Court is unpersuaded by Defendant’s various arguments that Plaintiff has
failed to demonstrate sufficient evidence that he is similarly situated to purported class members,
Defendant’s objections as to that issue are OVERRULED.
III.
Posting Notice on the UCS Premises
Finally, Defendant objects to Judge Bryant’s recommendation that Bentz’s request to post
notice on UCS premises be granted. (ECF No. 57 at 22.) It argues that the posting could be
disruptive, and that Bentz has failed to justify posting notice on the premises by demonstrating
that mailed notice is insufficient. (Id.)
The FLSA allows similarly situated employees to opt-in to collective actions, and its
effectiveness depends “on employees receiving accurate and timely notice concerning the
pendency of the collective action, so that they can make informed decisions about whether to
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participate.” Hoffmann-La Roche v. Sperling, 493 U.S. 165, 170 (1989). “The district court may
use its discretion to authorize notification of similarly situated employees to allow them to opt
into the lawsuit.” Comer v. Wal-Mart Stores, Inc., 454 F.3d 544, 546 (6th Cir. 2006); see also
Hoffmann-La Roche 493 U.S. at 170. Courts have allowed plaintiffs to post notice on work
premises without demonstrating notice by mail would be insufficient. See Gunn v. NPC Int'l,
Inc., No. 13-1035, 2016 U.S. Dist. LEXIS 172059, at *25 (W.D. Tenn. Dec. 13, 2016) (noting
that courts routinely grant these requests); see also Whitehorn v. Wolfgang's Steakhouse, Inc.,
767 F. Supp. 2d 445, 449 (S.D.N.Y. 2011) (granting motion to post in “conspicuous” locations in
the relevant restaurants). But see Young v. Hobbs Trucking Co., No. 3:15-cv-991, 2016 U.S.
Dist. LEXIS 72147, at *10 (M.D. Tenn. June 1, 2016) (declining to allow notice to be posted
where no demonstration of insufficiency of notice by mail was provided).
Here, Defendant argues that posting in common spaces might be disruptive as other types
of employees work in the relevant offices and not all possible class members would see the
postings in the offices in any case. (ECF No. 57 at 22.) The Court is not convinced by these
arguments. As to the first, the Court fails to see how the posting would be disruptive or
confusing, as Plaintiff has defined his limited conditional class, and, thus, any confusion would
ostensibly be eliminated immediately by the details of the posting. As to the second, Plaintiff
additionally seeks to mail and email potential class members; posting notice at UCS is only an
attempt to make sure that potential class members are aware, an important goal under the FLSA,
where plaintiffs must opt-in rather than opt-out.
Defendant seemingly does not object to the other aspects of Plaintiff’s Proposed Notice
or Judge Bryant’s Report. Therefore, Defendant’s objection is OVERRULED and Plaintiff’s
Proposed Notice is APPROVED, with the related request for names, last known addresses,
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email addresses, and telephone numbers of the relevant individuals being GRANTED. A
scheduling conference will be held on Thursday, October 4, 2018 at 10:00am to establish
deadlines for this matter.
CONCLUSION
For the foregoing reasons, Defendant’s Objections are OVERRULED, Judge Bryant’s
Report and Recommendation is ADOPTED and Plaintiff’s Motion is GRANTED.
IT IS SO ORDERED, this 28th day of September, 2018.
s/ Sheryl H. Lipman
SHERYL H. LIPMAN
UNITED STATES DISTRICT JUDGE
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