Gregory v. Belfor USA Group, Inc.

Filing 49

MEMORANDUM OPINION AND ORDER - IT IS ORDERED that pursuant to 29 U.S.C. § 216(b), a Conditional Class Certification and Notice under the FLSA is GRANTED for the named Plaintiffs to include the following employees in the collective action: All in dividuals who worked for Belfor as Administrative Assistants or Office Managers at any time during the three years prior to January 5,2012.IT IS FURTHER ORDERED that the Defendants shall provide to Plaintiffs' counselthe names, last known mailin g addresses, home and/or mobile phone numbers, and email addresses of all potential members of the conditionally certified class within fifteen (15) days of the date ofthis Order. IT IS FURTHER ORDERED that, within fifteen (15) days of the date of th is Order, the parties shall submit an appropriate protective order specifying that the potential class members' names, home/email addresses, and phone numbers are to be used and distributed only for effecting notice of this litigation. IT IS FUR THER ORDERED that within fifteen (15) days of the date ofthis Order the parties shall provide the Court with a joint proposed form of notice to potential members to be approved by the Court. IT IS FURTHER ORDERED that Plaintiffs' counsel shall circulate notices of pendency and consent to joinder to all potential members of the conditionally certified class. IT IS FURTHER ORDERED that, if necessary, the parties are granted leave for sixty (60) days from the date of this Order to conduct li mited discovery solely on the issue of 29 U.S.C. § 216(b) class certification; the parties shall immediately confer and stipulate to any relevant disputed facts in order to tailor the scope of and the need for discovery; and the parties shall al so confer with the Court with respect to the determination of scope and parameters of such discovery. IT IS FURTHER ORDERED that any consents to joinder in this action by which additional persons join this litigation as plaintiffs under 29 U.S.C. &# 167; 216(b) must be filed with the Clerk of the Court no later than sixty (60) days after either the date that this Court approves the form of notice to the class or the date that Defendant provides to Plaintiffs' counsel the names, last known m ailing addresses, home and mobile phone numbers, and email addresses of all potential members of the conditionally certified class, which ever date is later. IT IS FURTHER ORDERED, to facilitate settlement, that Plaintiffs shall provideDefendant with the number of unpaid overtime hours allegedly owed Plaintiffs, if known, with supporting documentation, if any, no later than September 15, 2012. IT IS FURTHER ORDERED that the parties shall participate in a settlement conference on a date to be determined by the Court. IT IS FURTHER ORDERED, that the filing of all dispositive motions are STAYED until further order of this Court. Signed by District Judge Raymond A. Jackson and filed on 7/26/12. (jcow, )

FILED

IN THE UNITED STATES DISTRICT COURT j
FOR THE EASTERN DISTRICT OF VIRGINL
Norfolk Division

JUL 2 6 20J2

^'"^.UISIRICT COURT
.NORFOLK VA
'

LISA GREGORY, on behalf of herself

and all others similarly situated,
Plaintiff,

CIVIL ACTION NO. 2:12cvll

BELFOR USA GROUP, INC.,
Defendant.

MEMORANDUM OPINION AND ORDER

Before the Court is Plaintiffs Motion to Conditionally Certify a Fair Labor Standards
Act Collective Action and to Authorize Notice to be Issued to the Class ("Motion to

Conditionally Certify"), pursuant to the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et

seq., and specifically the collective action provision of the FLSA, 29 U.S.C. § 216(b). For the
reasons set forth herein, Plaintiffs Motion to Conditionally Certify is GRANTED.
I. FACTUAL AND PROCEDURAL HISTORY

BelforUSA Group, Inc. ("Belfor") is a corporation engaged in providingdisaster
recovery and property restoration services to businesses in the Commonwealth of Virginia.

Compl. \ 16. Belfor employedPlaintiff Lisa Gregory ("Gregory") as an administrative assistant
and then office manager between August 1, 2006 and June 29, 2011. Compl. fU 17-18. Gregory
alleges that during her period of employment with Belfor, she routinely worked more than forty
hours per week and that Belfor failed to pay her for these additional hours. Compl. 1fl| 20-21.

On January 5, 2012, Gregory filed a Complaintagainst Belfor, alleging that Belfor

violated provisions of the FLSA by failing to pay Gregory, and others similarly situated to her,
for lawfully owed wages. Compl. U1. Plaintiffs action is broughtpursuant to the FLSA, 29
U.S.C. § 201 etseq., and specifically, the FLSA's collective action provision, 29 U.S.C. §
216(b). On January 26, 2012, Joyce Guarducci signed a consent form to join the lawsuit as a
plaintiff, and this form was filed with the Court on February 6, 2012. ECF. No. 13. On February
14,2012, Belfor filed its Answer, in which it denied violating the FLSA and stated that Gregory
was not entitled to compensation for overtime because she was exempt from the FLSA. Answer

ffll 1,21,24. On March 6,2012, Gregory filed a Motion to Conditionally Certify. Belfor filed its
Memorandum in Opposition to the Motion to Conditionally Certify on March 19,2012. On

March 26, 2012, Gregory filed her Reply to Belfor's Opposition to the Motion to Conditionally

Certify ("Reply"). On May 24,2012, Belfor then filed a Motion to Strike certain portions of
Gregory's Declarations, the Motion to Conditionally Certify, and the Reply ("Motion to Strike").
The Court denied the Motion to Strike on June 15,2012. The Motion to Conditionally Certify is

fully briefed and ripe for judicial determination.1
II. LEGAL STANDARDS

The FLSA "embodies a federal legislative scheme to protect covered employees from
prohibited employer conduct." Houston el. al. v. URSCorp. et al., 591 F. Supp. 2d 827, 831
(E.D. Va. 2008). The FLSA allows a plaintiff alleging a violation of the statute to bring suit on
her own behalf or on behalf of other employees who are similarly situated. See 29 U.S.C. §
216(b). Section 216(b) of the FLSA expressly provides for the procedures for representative or
class actions as follows:

1While the Court notes that Defendant has requested ahearing inthis matter, the Court declines tohold ahearing
because the facts and legal contentions are presented adequately in the materials before the Court, and argument

would not aid in the decisional process.

An action to recover the liability prescribed ... [underthe FLSA] may be maintained
against any employer (including a public agency) in any Federal or State court of
competentjurisdiction 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 ... [a collective] 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 court
in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs,
allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.
Id. Thus, class certification under the FLSA requires: "(1) that the Plaintiffs in the class be
'similarly situated,' and (2) that the plaintiffs included in the class 'opt in' by filing with the

Court their consent to the suit." Choimol v. FairfieldResorts, Inc., 475 F. Supp. 2d 557, 562
(E.D. Va. 2006).

The FLSA does not define "similarly situated" and the United States Court of Appeals for
the Fourth Circuit ("Fourth Circuit") has not yet applied a standard for when plaintiffs are

similarly situated in the context of an FLSA class certification action. Choimol, 475 F. Supp. 2d
at 562. However, federal courts, including this Court, have developed a two-step analysis for

establishing "similarly situated" plaintiffs and granting conditional certification. Id. The first

step is the notice stage, where "the district court decides whether to provide initial notice of the
action to potential class members." Id. If the court decides to notify the class, potential plaintiffs
may opt-in to the action. "[T]his determination is made using a fairly lenient standard," because
the court, and the parties, have minimal evidence at this point in the proceedings. Id. (citations
omitted). In general, "courts appear to require nothing more than substantial allegations that the

putative class members were together the victims of a single decision, policy, or plan infected by
discrimination." Sperling v. Hoffmann-La Roche, Inc., 118 F.R.D. 392 (D.N.J. 1988), aff'din

part, 862 F.2d 439,444 (3d Cir. 1988), aff'd, 493 U.S. 165 (1989). "Because the statuteof
limitations continues to run on unnamed class members' claims until they opt into the collective

action... courts have concluded that the objectives to be served through a collective action

justify the conditional certification of a class of putative plaintiffs early in a proceeding, typically
before any significant discovery, upon an initial showing that the members of the class are
similarly situated." Houston, 591 F. Supp. 2d. at 831.
On the other hand, the "similarly situated" requirement is not "invisible." Houston, 591
F. Supp. 2d. at 831 (citing, inter alia, Bernardv. Household Int 'I, Inc., 231 F. Supp. 2d 433,435
(E.D. Va. 2002)) ("Mere allegations will not suffice.")). "There must be sufficient reason to

believe that there are issues common to the proposed class that are central to the disposition of
the FLSA claims and that such common issues can be substantially adjudicated without

consideration of facts unique or particularized as to each class member." Id. This Court, in
Houston v. URS Corporation, has explained this standard as follows:

That is not to say that there can be no differences among class members or that an
individualized inquiry may not be necessary in connection with fashioning the specific
reliefor damages to be awarded to each class member. Rather, the inquiry is whether the

presence of common issues allows the class-wide claims to beaddressed without
becoming bogged down by individual differences among class members. In this regard,
courts have observed that the requirements for class certification of a collective action
under FLSA are similar, but not identical, to those that pertain to certification of a class
under Fed. R. Civ. P. 23.
Id.

Further, the district court has discretion to "facilitate this notice by allowing discovery of

the names and addresses of potential plaintiffs, by authorizing a notice for plaintiffs counsel to
send to potential plaintiffs, or by some otherappropriate action." Choimol, 475 F. Supp. 2d at
563 (quoting DeAsencio v. Tyson Foods, Inc., 130 F. Supp. 2d 660,663 (E.D. Pa. 2001));
Houston, 591 F. Supp. 2d. at 832. "This discretion is not unfettered; the court must assess

'whetherthis is an appropriate case in which to exercise [its] discretion.' " Houston, 591 F. Supp.

2d. at 832 (citing Camper v. Home Quality Management Inc., 200 F.R.D. 516, 519 (D. Md.
2000)) (alteration in original). Ultimately, "[t]he plaintiff has the burden on [sic] demonstrating

that notice is 'appropriate.' " Houston, 591 F. Supp. 2d. at 832 (quoting D 'Anna v. M/A-COM,
Inc., 903 F. Supp. 889, 894 (D. Md. 1995)).

If the court grants conditional certification of the class, the case proceeds to the second
step, provided the defendant files a motion to decertify, typically after discovery is almost
complete. Id. (citations omitted). "Upon a determination that the plaintiffs establish the burden

of proving they are 'similarly situated[,]' the collective action proceeds to trial." Id. By contrast,
"if the court determines that the plaintiffs are in fact, not 'similarly situated[,]' the class is

decertified and the original plaintiffs proceed on their individual claims." Id.
III. DISCUSSION

A. Motion to Conditionally Certify an FLSA Collective Action

PlaintiffGregory moves this Court to conditionally certify the following opt-in class:
All individuals who worked for Belfor as Administrative Assistants or Office Managers

at any time during the three years prior to the filing of the Complaint in this matter.

Mem. Supp. Mot. Conditionally Certify at 1-2. In support of this motion, Gregory argues that
she has demonstrated sufficiently that she has met the "similarly situated" standard. Gregory has
submitted a declaration, as well as the declarationof Joyce Guarducci, in which both plaintiffs

allege that they and others similarly situated to them were required to work overtime without pay
while employed at Belfor. Specifically, both Gregory and Guarducci statethat they performed
strictly administrative tasks as Administrative Assistants and, for Gregory, as an Office Manager.
Gregory and Guarducci allege that when they began their respective periods of employment with
Belfor, it was with the understanding that they would be paid a specific annual salary to

compensate them for workingforty hours per week. They further allege that they were required
to work more than forty hours per week consistently and that Belfor provided them with cell

phones to work after office hours and on weekends. Gregory also alleges that, during certain

especially busy periods, Belfor paid for Gregory to stay in a hotel nearthe office so thatshe

could work more hours. Gregory states that she complained repeatedly to her manager about the
fact that she was not receiving additional compensation for overtime. In response, Gregory's
manager allegedly told her that he was working to address this issue and that he would "take
care" of her.

Gregory and Guarducci further allege that Belfor's central Human Resources department,
which is headquartered in Birmingham, Michigan, handles payroll and is responsible for

determining an employee's entitlement to overtime compensation. In support of this allegation,

Gregory and Guarducci assert in their declarations that, in their capacities as Administrative

Assistants for Belfor, they sent partially-completed "New Hire and Information Checklists" for
new hires to Belfor's Human Resources department. According to Gregory and Guarducci, the
central Human Resources department then designated employees as "Exempt" or "Non-exempt"
under the FLSA. Gregory further asserts that when she contacted Belfor's Human Resources

department, Shannon Harrison informed Gregory that she was classified as "Administrative
Exempt" under the FLSA. Both Gregory and Guarducci affirm that they also encountered other
Administrative Assistants and Office Managers employed at Belfor whose duties were similar to

theirs, who were subject to the same payroll and timekeeping practices, policies, and procedures,
who worked more than forty hours per week withoutovertime compensation, and whose
compensable work time was not recorded.

In response to Gregory and Guarducci's allegations, Belfor argues that conditional
certification should not be granted for the following reasons: (1) Belfor does not have a

corporate-wide description for Office Managers or Administrative Assistants; (2) Belfor does not
have a corporate-wide practice or plan which identify the duties of Administrative Assistants or

Office Managers; (3) Belfor does not have a corporate-wide practice of classifying
Administrative Assistants or Office Managers as exempt or non-exempt; and (4) the duties of
each Administrative Assistant and Office Manager, and thus, their FLSA classification, are

determined by local management in overone hundred offices. Alternatively, Belfor contends
that, if the Court grants the Motion to Conditionally Certify, Gregory's proposed notice to the
opt-in class is inappropriate and should not be adopted by the Court.
The Court's concern at this first stage is whether Gregory has met her burden under the
"similarly situated" analysis, wherein plaintiffs "need only make 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." Choimol, 475 F. Supp. 2d at 564 (citations omitted). The
Court finds that Gregory and Guarducci have made the requisite showing for conditional
certification under the "stage one" analysis. First, while Gregory, Guarducci, and others

similarly situated worked at different Belfor locations, they allege that they all have performed
strictly administrative tasks as Administrative Assistants and/or Office Managers. Moreover,

they allege that they were required to work more than forty hours per week without
compensation on a consistent basis. Gregory and Guarducci have submitted declarations in
support of these allegations. Second, Gregory and Guarducci assert that the mechanism Belfor
employed to deprive them of their overtime pay was to misclassify them as "Exempt" when in
fact they should not have been so classified. In effect, Gregory and Guarducci argue that
Belfor's common policy or plan was to misclassify as "Exempt" certain Administrative
Assistants and Office Managers with strictly administrative duties and, in so doing, to deny them
lawfully owed wages.

On the other hand, Belfor proffers counter-examples of Administrative Assistants and

Office Managers whose duties allegedly varied from Gregory's and Guarducci's. Belfor denies

that Gregory and Guarducci were misclassified as "Exempt" but argues that even if theywere,
local management in Belfor's many offices made these decisions, not Belfor's central Human
Resources department. In these ways, Belfor denies both the existence of similarly situated
employees and a common plan or policy of denying overtime wages to said employees. Belfor
further argues that its lack of a corporate-wide job description for Administrative Assistants or

Office Managers means that the circumstances of each plaintiff- and consequently, each
manager's decision to classify them under the FLSA - need to be assessed on an individualized
basis such that class certification is inappropriate.

However, Belfor's arguments against conditional certification are unavailing, especially
in light of the lenient standard by which courts should assess these motions. Belfor's contentions

amount to factual disputes between the parties that go to the merits of Plaintiffs' case, where, for
example, the parties are asserting that different actors at Belfor make the FLSA classification
decision. Moreover, the requirement of a common plan or policy "is not to say that there can be
no differences among class members or that an individualized inquiry may not be necessary in
connection with fashioning the specific relief or damages to be awarded to each class member."
Houston, 591 F. Supp. 2d at 831; see also Choimol, 475 F. Supp. 2d at 563 ("...[T]he Court will
examine whether the Plaintiffs '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 and pay provisions, but their situations need not be
identical.' ") (citations omitted).

Moreover, at this stage, the Court declines Defendant's invitation to "engage in resolving
factual disputes, decide substantive issues going to the merits of the case, or make credibility
determinations." Hargrove v. Ryla Teleservices, Inc., No. 2:1 lcv344, slip op. at *16(E.D. Va.
Jan. 3,2012) (Report and Recommendation of United States Magistrate Judge), aff'd, No.
2:1 lcv344, slip op. at *2-*3 (E.D. Va. Feb. 13, 2012) (Order Adopting United States Magistrate
Judge's Report and Recommendation). These factual disputes should be addressed at the
second stage of certification, should Belfor move for decertification of the class following
discovery. See, e.g., Houston, 591 F. Supp. 2d at 832. Further, Belfor's denial of a common

plan or policy to misclassify certain Administrative Assistants and Office Managers under the
FLSA "should not be conflated into a failure by Plaintiffs to identify any such policies."

Longcrier v. HL-A Co., Inc., 595 F. Supp. 2d 1218, 1240 (S.D. Ala. 2008). To the contrary,
Belfor's submissions to the Court demonstrate that there are other Administrative Assistants and

Office Managers who were classified as "Exempt" under the FLSA, notwithstanding that there
may be other Administrative Assistants and Office Managers who were classified as "Non-

exempt." At this stage, the Court simply is not in a position to determine whetherPlaintiffs were
properly classified. See, e.g., Houston, 591 F. Supp. 2d at 834-35 ("At this stage in the

proceedings, this Court is not in a positionto determine the applicability of this exemption, nor is
it necessary to do so prior to conditionally certifying a class. The applicability of this exemption
and its effect on the Court's ability to adjudicate Plaintiffs' claims on a class basis is most
appropriately addressed on summary judgment or in a motion to decertify.").
In sum, Plaintiffs have alleged sufficient facts to make the requisite showing both that

there are other potential plaintiffs similarly situated to Gregory and Guarducci and that Belfor
has a common plan or policy of denying these employees overtime wages by misclassifying

them as "Exempt" under the FLSA. See, e.g., Houston, 591 F. Supp. 2d at 834(granting motion
for conditional certification under the FLSA where plaintiffs alleged misclassification under the
FLSA); Black v. Settlepou, P.C., No. 3:10-CV-1418-K, 2011 WL 609884 (N.D. Tex. Feb. 14,

2011) (granting conditional class certification where the only common policy allegedly in
violation of the FLSA was the misclassification of paralegals as "exempt"). Accordingly,
Plaintiffs' Motion to Conditionally Certify a FLSA Collective Action is GRANTED.
B. Notice to Prospective Class Members

Plaintiffs submitted a proposed notice to be sent to the opt-in class as part of their Motion
to Conditionally Certify. See Mot. Conditionally Certify, Ex. 1. Belfor has objected to the

proposed notice on several grounds, including that the parties have not conferred to agree on the
language of said notice. See Mem. Opp'n Mot. Conditionally Certify at 21-23. Belfor also

proposes a thirty-day opt-in period. Id. at 21-22. In response to Belfor's objections, Plaintiffs
assert that the proposed notice is sufficient under the law, and they also request a ninety-day opt-

in period. See Reply Mem. Opp'n Mot. Conditionally Certify at 21-23. However, Plaintiffs are
amenable to conferring with opposing counsel regarding the language of the proposed notice. See
id. The Court believes that a mutually-agreeable form of notice to potential members of the class
would be most appropriate in this case. Accordingly, the parties shall provide the Court with a
joint proposed form of notice for approval by this Court.
IV. CONCLUSION

IT IS ORDERED that pursuant to 29 U.S.C. § 216(b), a Conditional Class Certification
and Notice under the FLSA is GRANTED for the named Plaintiffs to include the following

employees in the collective action:
AH individuals who worked for Belfor as Administrative Assistants or Office Managers
at any time during the three years prior to January 5,2012.
10

IT IS FURTHER ORDERED that the Defendants shall provide to Plaintiffs' counsel

the names, last known mailing addresses, home and/or mobile phone numbers, and email
addresses of all potential members of the conditionally certified class within fifteen (15) days of
the date of this Order.

IT IS FURTHER ORDERED that, within fifteen (15) days of the date of this Order,

the parties shall submit an appropriate protective order specifying that the potential class
members' names, home/email addresses, and phone numbers are to be used and distributed only
for effecting notice of this litigation.

IT IS FURTHER ORDERED that within fifteen (15) days of the date of this Order the

parties shall provide the Court with a joint proposed form of notice to potential members to be
approved by the Court.
IT IS FURTHER ORDERED that Plaintiffs' counsel shall circulate notices of

pendency and consent to joinder to all potential members of the conditionally certified class.
IT IS FURTHER ORDERED that, if necessary, the parties are granted leave for sixty
(60) days from the date of this Order to conduct limited discovery solely on the issue of 29
U.S.C. § 216(b) class certification; the parties shall immediately confer and stipulate to any
relevant disputed facts in order to tailor the scope of and the need for discovery; and the parties
shall also confer with the Court with respect to the determination of scope and parameters of
such discovery.
IT IS FURTHER ORDERED that any consents to joinder in this action by which

additional persons join this litigation as plaintiffs under 29 U.S.C. § 216(b) must be filed with the
Clerk of the Court no later than sixty (60) days after either the date that this Court approves the
form of notice to the class or the date that Defendant provides to Plaintiffs' counsel the names,
11

last known mailing addresses, home and mobile phone numbers, and email addresses of all
potential members of the conditionally certified class, which ever date is later.
IT IS FURTHER ORDERED, to facilitate settlement, that Plaintiffs shall provide

Defendant with the number of unpaid overtime hours allegedly owed Plaintiffs, if known, with
supporting documentation, if any, no later than September 15,2012.
IT IS FURTHER ORDERED that the parties shall participate in a settlement
conference on a date to be determined by the Court.
IT IS FURTHER ORDERED, that the filing of all dispositive motions are STAYED
until further order of this Court.

The Clerk is DIRECTED to send a copy of this Memorandum Opinion and Order to

counsel and parties of record.
IT IS SO ORDERED.

Raymond AUackson

United States District Judge
Norfolk, Virginia

July J?L ,2012

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