Dr. Archie Earl v. Norfolk State University et al

Filing 42

ORDER re: 38 Motion to Certify Class. For the reasons set forth above, Plaintiff's Motion for Conditional Class Certification and for an Order Authorizing Court Notice to Potential Class Members, ECF No. 38, is GRANTED IN PART and DENIED IN PART. As to certification of a collective action pursuant to 29 U.S.C. § 216(b), Plaintiff's motion is GRANTED and the Court CONDITIONALLY CERTIFIES a collective action by the following class: All salaried male teaching faculty members wh o worked for Norfolk State University at any time since March 21, 2010. As to Plaintiff's request for court-ordered discovery of potential collective action members, the Court GRANTS IN PART and DENIES IN PART Plaintiff's motion. The Cour t DENIES Plaintiff's motion to the extent it seeks an order requiring Defendants to provide Plaintiff with the email addresses and telephone numbers of putative collective action members and to post notice in conspicuous locations on the NSU cam pus, including NSU's website. The Court GRANTS Plaintiff's motion to the extent he seeks an order requiring Defendants to provide his attorney with the names and addresses of putative collective action members. Defendants are DIRECTED to pr ovide to Plaintiff's counsel, in a list in electronic format, the names and last known addresses of all potential members of the conditionally certified collective action within fourteen (14) days of the entry of this Opinion and Order. Further , the Court DIRECTS that such information only be disseminated among Plaintiff's counsel and DIRECTS that Plaintiff's counsel may use such information only in connection with this litigation. The Court PROVIDES Defendants with leave to fil e objections to Plaintiff's proposed notice, ECF No. 38-7, or to propose their own form of notice, within fourteen (14) days after the entry of this Opinion and Order. The Court PROVIDES Plaintiff with leave to file a reply within seven (7) days after Defendants file any such objection or proposed notice. It is SO ORDERED. Signed by District Judge Mark S. Davis and filed on 11/18/14. Copies distributed to all parties 11/19/14. (ldab, )

Download PDF
UNITED STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA Norfolk Division DR. ARCHIE EARL, Plaintiff, Civil No.: v. 2:13cvl48 NORFOLK STATE UNIVERSITY, THE BOARD OF VISITORS OF NORFOLK STATE UNIVERSITY, THE COMMONWEALTH and OF VIRGINIA. Defendants. OPINION AND ORDER This matter is before the Court on a Motion for Conditional Class Certification and for an Order Authorizing Court Notice to Potential Class Members filed on September 15, 2014 by Archie Earl ("Plaintiff" or "Earl") in his Equal Pay Act action against Visitors Virginia of Norfolk State State (collectively examining the oral Norfolk argument University University, is and "Defendants"). briefs and the record, unnecessary ("NSU"), the ECF the ("EPA") Board of Commonwealth No. 38. the facts of After the Court determines because Dr. and that legal contentions are adequately presented and oral argument would not aid in the decisional process. Loc. R. 7 (J) . For the Fed. reasons set R. Civ. forth P. 7 8(b); below, E.D. Va. Plaintiff's Motion for Conditional Class Certification is GRANTED IN PART and DENIED IN PART. I. FACTUAL AND PROCEDURAL HISTORY1 Plaintiff Professor in University, is a the a "66 year Department "state the of male at university Associate Norfolk located State in "the PL's Second Am. Compl. U 1, ECF No. In 2006, according to Plaintiff's Second Amended Complaint, Faculty Salary began to ^1 10. study Issues "gross Research Committee inequities in ("the faculty Committee") salaries." Id. The purpose of the Committee's study was to "advise the NSU administration of its findings, could be taken uncovered." the Black, Mathematics supported" Commonwealth of Virginia." 23.2 old, Id. relevant claims to that redress such in order that remedial steps inequities, if any, as may be Plaintiff alleges that the Committee requested "data from the NSU Human Resources Office," but "the data provided were filled with serious errors that would have led to unreliable results." 1 In its June 26, 2014 Opinion and Order, Id. Plaintiff does the Court set out, in detail, the factual and procedural history of this case. ECF No. 33. Accordingly, the Court sets forth only those facts necessary to resolve the instant motion. 2 On February 27, "Amended Complaint." 2014, Plaintiff See ECF Nos. 22-23. filed two documents titled The description associated with the first filing states that the Second Amended Complaint is "against Dr. Archie Earl," ECF No. 22, and the second filing is "against All Defendants," ECF No. 23. The documents themselves appearing to be identical, the Court refers to the second filing "against all Defendants" as Plaintiff's Second Amended Complaint. ECF No. 23. not describe the nature of the alleged errors found in the data. The "Committee then "only sample data" Id. H 11. "that it was Plaintiff to be Plaintiff, resolved "based asserts "woefully NSU the to analyze own departments. advised reasonably, inadequate" and on the he that the Committee salary inequities amicably, discovered younger faculty, "he was responsibilities equivalent." analyses" of Id. of and faculty." Id. the results of that his "recent and female with own analysis," salary hires, and was white although least as qualified" at faculty," and that job[s] "[U]sing the sample data, ongoing to the fl 12. discriminating against (over 40) Committee's compared Plaintiff alleges that provide study" Id. Meanwhile, was its preparing its own study of may dispatch." "the modify promising to reveal the results of this study so that matter faculty, to from the Committee members' According question, the decided were essentially inferential statistical the Committee determined that NSU "[b]lack faculty," HH 14-16. "men," and "aged However, Plaintiff does not the Committee's "inferential statistical analyses" or otherwise describe the results of the study, except with respect to his own salary. Among Complaint, other causes Plaintiff of alleged Id. action, that in his Defendants Second have Amended violated the EPA by creating an "inequity in pay as between female faculty at NSU, for equal work on jobs requiring equal skill, responsibility . . . ." Id. U 19. effort and In addition, Plaintiff has sought to pursue his EPA action as a collective action pursuant to 29 U.S.C. § 216(b). On June 26, Id^ H 8. 2014, the Court issued an Opinion and Order dismissing all of Plaintiff's claims except his EPA claim. No. 33. In that Opinion and Order, ECF the Court advised him that, "if Plaintiff still wishes to proceed as a collective action on his EPA claim ... he should file a motion certification, pursuant to 29 U.S.C. § 216(b)." Court conditional noted however, his "[t]o Plaintiff will own obtain 'to Id. September 15, certification provide to Plaintiff, database form, (including support (quoting Inc., 231 F. Supp. 2d 433, class Id. at 64. The certification, [his] allegations that [have] a company-wide policy resulting in potential violations.'" On conditional likely need to present facts far beyond department defendant[s] FLSA that for with 435 (E.D. Va. 2014, and Bernard an moved order within fourteen days, home telephone addresses numbers and Household Int'l, 2002)). Plaintiff sought v. and email for conditional "directing [NSU] to a list in electronic contact information addresses) of all salaried male teaching faculty who were employed by NSU for some period of notice "in time during conspicuous the last places three on years" campus, and to including provide the NSU website" to potential class members. Class Certification at 1-2. PL's Mot. for Conditional In support of his motion, Plaintiff submitted affidavits of three male teaching faculty belonging to three different NSU departments, Class Certification Exs. affidavits of Drs. 4-6, see PL's Mot. ECF Nos. 38-4, for Conditional 38-5, 38-6. The Abatena and Agyei are practically identical and state, in pertinent part, that: I . . . grant [Plaintiff] permission to file a class action lawsuit, on my behalf, against [Defendants], for discriminating against me by violating the Federal Equal Pay Amendment [sic] (EPA) , by paying me a lower salary than certain female members of my department, school, or university . . . sometime during the period of September 2003 thru [sic] March 2013. Id. Exs. 4-5. Dr. Meshesha's Plaintiff permission to on Dr. Meshesha's Defendants Equal file a class behalf; "discriminat[ed] Pay Amendment [sic] affidavit similarly action against Defendants however, it only (EPA), of by paying me contends warrant brief that he conditional supporting has made the fact formulated and that the that lower based on salary schools, or Id. Ex. 3. motion, factual Plaintiff showing allegations in to the the affidavits attached to his motion, "NSU's executed instant sufficient certification Second Amended Complaint, and a a other departments, universities as prohibited by the Federal EPA." his states against me by violating the Federal than certain faculty members In grants by compensation the practice Administration or for policy the is entire teaching faculty." Certification contends at Br. 2, ECF No. the that concerning PL's Second "statistical Supp. 39. Mot. More specifically, Amended analyses for Conditional Complaint's done by, Class Plaintiff allegations and in, various departments of the University" indicate the existence of a class of persons addition, similarly to support situated his to Plaintiff. contention that See "NSU's id. In compensation practice or policy is formulated by the Administration for the entire teaching faculty," contracts are President or approved Plaintiff alleges that by, and Vice-President for signed Academic by, " [a]11 faculty the University Affairs/Provost" and that NSU applies "the same compensation policy and practice" to teaching faculty in NSU's "ancillary sites" as it teaching faculty at its central, Park Avenue facility. at 3. Plaintiff also conditionally certifies argues that, in the collective the action, event it does to See id. the Court would not be unreasonably burdensome to require Defendants to "provide a list of potential class members in a computer datafile format." at Id. 5. On September 29, motion. Def.'s Certification, failed to Opp'n Br. ECF No. present certification 2014, of an 40. Defendants responded to Plaintiff's to for Conditional Class Defendants argue that Plaintiff has sufficient EPA PL's Mot. facts collective to action warrant because conditional professors outside him. Plaintiff's See id. person at 3-4. outside comparator department not similarly Defendants contend that, Plaintiff's for are EPA department purposes, could male situated to to the extent a not serve teaching as faculty a in departments outside of Plaintiff's department are not similarly situated to Plaintiff. See id. at 2-3. Defendants have attached NSU's faculty performance policy to their brief, Def.'s Opp'n Br. A, ECF to PL's Mot. for Conditional Class Certification Ex. No. 40-1, development and and contend service, that the university service evaluation criteria will October 2, 2014, service, professional and community involve considerations not "uniform among NSU's departments." On research, that are Id. at 4. Plaintiff filed a rebuttal brief reiterating his contention that he has presented a sufficient factual basis to support conditional certification. in Rebuttal to Certification, of three Def.'s Resp. ECF No. 41. professors departments also exist. Conditional Class Plaintiff argues that the affidavits outside potential claimants exist, Opposing PL's Br. of establish that and that comparators in each of such Thus, his the department parties have fully briefed the matter and it is now ripe for disposition. II. The EPA amended the STANDARD Fair OF Labor REVIEW Standards proscribe an employer from discriminating: Act ("FLSA") to within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex 29 U.S.C. FLSA's § 206(d). enforcement provisions.'" 03743(LGS), Anderson w,As part of the FLSA, mechanisms *4 State 1999), vacated FLSA's enforcement on (S.D.N.Y. July Univ. of N.Y. , other grounds, mechanisms collective actions. 827, serve 831 (E.D. the facilitating and employs its Va. 2008). important a vindication of 8, 2014) definitional 169 528 include F.3d 117, U.S. a 1111 resolution in plaintiffs' a embodied single 165, 170-71 Cir. The authorizing "are 2d intended to the FLSA of by claims and to aid in the rights by lowering the 493 U.S. (2d (2000)). proceeding Id. (quoting 591 F. Supp. in law and fact, costs by pooling claims and resources." Sperling, 119 provision Collective actions objectives No. 11 Civ. (published) See Houston v. URS Corp., stemming from common issues of Roche Inc. v. the EPA utilizes the Kassman v. KPMG LLP, 2014 WL 3298884, at v. .... individuals' (citing Hoffman-La (1989)). The FLSA's collective action provision provides: 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. 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. 29 U.S.C. under § 216(b). Section Thus, 216(b) 'similarly situated,' collective requires and (2) (1) action that the "certification plaintiffs that the plaintiffs are included in the class 'opt-in' by filing with the court consents to join the suit." Houston, Fairfield 2006)); 2002) 591 Resorts, cf. Inc., Jarvaise (stating F. that v. Supp. 475 Rand "[t]he 2d F. at 831 Supp. Corp., only (citing 2d 212 557, 562 F.R.D. requirement Choimbol (E.D. 1, for 4 a v. Va. (D.D.C. collective action under the Equal Pay Act is that the represented employees be similarly situated to the representative employees . . . ."). "[T] o expedite the manner in which collective actions under the FLSA are assembled, appropriate facilitating Faifax Cnty. cases 'district to notice implement to This ... potential Pub. Sch. , 629 F. Supp. (omissions in original) 169) . courts notice have § discretion 216(b) 547 of a collective by v. (E.D. Va. 2009) (quoting Hoffman-La Roche, stage ... Purdham plaintiffs.'" 2d 544, in 493 U.S. action referred to as the "conditional certification" stage. is at often See id. Although issue, the Fourth "'[c]ourts deciding whether similarly generally the situated (citation omitted) F. v. Mart (affirming to Dollar (noting use Stores, that a other yet considered two-stage the approach when in an FLSA action [is] potential plaintiffs.'" Id. Inc., 492 (D. Minn. 2007)); see also, e.g., Zavala Inc., of 691 F.3d a two-step 551 Inc., "we follow not (quoting Parker v. Rowland Express, Stores the has named plaintiff[] Supp. 2d 1159, 1164 Wal Circuit F.3d have 527, 536 approach); 1233, sanctioned a 1260 (3d Cir. Morgan v. (11th two-stage 2012) family Cir. 2008) procedure for district courts to effectively manage FLSA collective actions in the pretrial phase"); 7B Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, ed. at 487 (3d 2005). At "the Federal Practice & Procedure § 1807, the court first stage, the determines whether reasonably determine that similarly situated collective action conditional initial notice of Houston, 591 differently, determine exist." F. "the whether Myers v. the enough and there is certification sufficient proposed to provide class evidence certify the members class are with the action and the opportunity to Supp. 2d purpose at of 'similarly Hertz Corp., 831 this (citations first situated' 624 10 is plaintiffs 555 'opt-in.'" omitted) . stage F.3d 537, to members conditionally potential stage, Put merely do in (2d Cir. to fact 2010) (emphasis in original). In considering whether a plaintiff has met first his burden at the lenient standard.'" stage, Houston, 591 F. Choimbol, 475 F. Supp. 2d at 562).3 has not settled FLSA action," "'a modest and on it a test appears for that courts a "'fairly 2d at 831 Supp. apply (quoting Although "the Fourth Circuit conditional Plaintiff certification must provide in at least factual showing sufficient to demonstrate that potential plaintiffs together were policy or plan that violated the law.'" 2d at 548 (quoting Choimbol, 475 F. [he] victims of Purdham, 629 F. Supp. Supp. 2d at 563) . a an common However, "'[m]ere allegations will not suffice; some factual evidence is necessary.'" Id. (quoting Bernard, 231 F. Supp. 2d at 435). "[W]here multiple claims can be adjudicated efficiently because they share common underlying facts substantial individualized determinations and do not require for each class member, a court should conditionally certify the proposed class." (citing Houston, 3 See also, Id. 591 F. Supp. 2d at 831-32) . e.g. , Myers, 624 F.3d at 555 (stating that the standard of proof at the first stage should "remain a low standard of proof"); Morgan, 551 F.3d at 1260-61 (second alteration in original) (internal citations omitted) (noting that "[w]e have described the standard for determining similarity, at this initial stage, as 'not particularly stringent,' 'fairly lenient,' 'flexib[le],' 'not heavy' . . . ."); Byard v. Verizon W. Va., Inc., 287 F.R.D. 365, 369 (N.D. W.Va. 2012); Whalen v. United States, 85 Fed. CI. 380, 384 (2009) (stating that "[t]he inquiry at this stage is not particularly searching"),- Wright et al., supra, § 1807, at 488 (stating that "[i]n the first stage of the certification process, the court may grant conditional certification applying a very lenient burden of proof."). 11 In addition, "discretion, in at the first appropriate stage, cases, the to Court facilitate potential class members by allowing discovery of addresses of action." Houston, Nonetheless, must assess exercise potential plaintiffs 591 F. "[t]his second files is an discretion.'" Quality Mgmt. Inc., defendant is stage, a as motion notice to the names and (citations omitted). unfettered; appropriate 516, a for not Id. 200 F.R.D. the or by some other appropriate 2d at 832 discretion 'whether this [its] The Supp. has case (quoting in court which Camper 519 (D. Md. general the v. to Home 2000)). rule, occurs decertification. when "After the most of the discovery has taken place and the matter is ready for trial, the defendant can initiate the second stage of inquiry by moving to 'decertify' "At this step, to the the class." 629 courts apply a heightened, 'similarly-situated' at 832 Purdham, (citing Choimbol, analysis," F. Supp. 2d at 547. fact-specific standard Houston 591 475 F. Supp. 2d at 563), F. Supp. 2d and "the court makes a factual determination as to whether the class is truly 'similarly situated,'" Purdham, 629 F. Supp. 2d at 547 (citing Parker, 4 92 F. Supp. 2d at 1164). III. A. In seeks the Conditional Certification proposed notice conditional DISCUSSION attached certification 12 of a to his class motion, of "[a]11 Plaintiff salaried male teaching faculty who worked for Norfolk State University at any time during the past three years and so were potentially similarly situated as Plaintiff, Dr. Archie Earl." for Conditional Class Certification Ex. the reasons standard" stated the e.g., Houston, below, Court must in 7, light apply in of PL's Mot. ECF No. the deciding 38-7.4 "fairly this For lenient motion, see, 591 F. Supp. 2d at 831, the Court concludes that, for the purposes of the "modest factual resolving this motion, showing sufficient Plaintiff has to demonstrate" made that he and all salaried male teaching faculty who worked for NSU at any time during the past three years "together were common policy or plan that violated the law," victims of see Purdham, a 629 4 The Court notes that Plaintiff has not consistently characterized the proposed class of potential plaintiffs in the collective action for which he seeks conditional certification. In Plaintiff's motion, he defines the proposed collective class as "all similarly situated (as Plaintiff) salaried male faculty at Norfolk State University (NSU) who were employed during the past three years." PL's Mot. for Conditional Class Certification at 1. He further states that "[b]y 'similarly situated' we mean that the male faculty member belongs to the proposed collective class, and was paid measurably less than a comparably qualified female faculty member who was teaching under similar working conditions." Id. at 1-2. However, in his brief, Plaintiff refers to the proposed class as consisting of "all those salaried male faculty members that were employed at NSU at some time during the past three years, and were paid measurably less than some female faculty members who were doing the same or similar work, requiring equal or equivalent skill, and under working conditions that were essentially equal or the same." PL's Br. Supp. Mot. for Conditional Class Certification at 3. Both such definitions differ from that stated in the proposed notice attached to Plaintiff's motion. However, "approve Class the to Notice Certification the as at extent Plaintiff herein proposed," 5, the Court has PL's will asked Mot. the for consider whether conditionally certify Plaintiff's collective action based definition of the class contained in the proposed notice. 13 Court to Conditional on to the F. Supp. 2d at 548, through two affidavits he submitted and the faculty performance policy attached as Exhibit A to Defendants' brief in opposition. To begin, allegations the in his Court notes that, alone, Second Amended Complaint Plaintiff's and his brief in support of this motion do not provide a sufficient factual basis to conditionally certify a Second Amended Complaint collective contains action. allegations Plaintiff's that statistical analyses demonstrate that NSU "was impermissibly discriminating against men, and in Equal Pay Act." favor of women Second Am. Compl. the instant motion, ... in violation of t 15. Likewise, the to support Plaintiff's brief states that he "offers the statistical analyses done by, and in, various departments of the University" as reflected in Paragraphs 11 Amended Complaint. PL's Br. Certification at 2 (citing Second Am. addition, practice Plaintiff or also policy Administration for is the Supp. Mot. alleges Compl. HU 11, "NSU's and teaching at 3. standard However, in although considering 15). faculty" by and Court Plaintiff's "mere allegations will not suffice" 14 applies a motion, as the "[a]11 the University for Academic Affairs/Provost." the In compensation executed faculty contracts are approved by, and signed by, President or Vice-President the Second for Conditional Class that formulated entire and 15 of fairly stated Id. lenient above, to demonstrate the existence of a class Purdham, has similarly 629 F. merely existence have of teaching the EPA, faculty, contracts, the determining rather statistical violated potential Supp. 2d at 548. alleged, of situated and whether than presented evidence suggesting single compensation a uniform will not system for consider Plaintiff See To the extent that Plaintiff analyses a Court plaintiffs. has that for approving the the Defendants policy such made of, all faculty allegations modest in factual showing necessary for the Court to grant his motion. On the other hand, policy—that Defendants such policy as affidavits that the evidence of NSU's faculty evaluation put Exhibit A into to Plaintiff the record their brief submitted, when they attached in opposition—and the taken together, present a "modest factual showing" of the existence of a putative class of persons who are similarly situated to plaintiff. evaluation policy is evidence that all are subject extent that assuming faculty Plaintiff the to "a common policy Plaintiff truth subject because to alleges of such such those faculty against NSU based on that policy. submitted by Plaintiff are are might 15 id. violated other male similarly also Indeed, evidence See policy allegations, policy faculty teaching faculty at NSU or plan." such The that To the EPA, teaching situated assert the EPA to claims two of the affidavits other male teaching faculty at NSU besides Plaintiff claim that Defendants discriminated against them in violation of the EPA. The evidence in the record of NSU's faculty evaluation process establishes a sufficient factual basis for the Court to conclude NSU that Plaintiff has made a modest evaluates regardless of affects pay. "modest teaching faculty department, and that the such same criteria evaluation In determining whether a plaintiff has factual showing" necessary certification of an EPA collective evidence using factual showing that that a defendant to action, applied the support courts process made conditional will consider same compensation policy to the plaintiff as other members of the purported class. Kassman, to 2014 WL 3298884, conditionally plaintiff conditional evidence of .").5 had a an EPA "modest certification based, [the defendant's] Here, See at *6 (holding, in determining whether certify made the collective factual in action, showing" part, on that the warranting "documentary firm-wide compensation policies . there is documentary evidence that NSU has a faculty performance policy that establishes a common evaluation 5 See also Moore v. Publicis Groupe, S.A., No. 11 Civ. 1279(ALC), 2012 WL 2574742, at *10-11 (S.D.N.Y. June 29, 2012) (unpublished) (conditionally certifying an EPA collective action when, among other evidence, the plaintiffs submitted evidence that members of the purported class were subject to the same compensation policies); cf. Choimbol, 475 F. Supp. 2d at 563 (indicating that Plaintiff must provide at least "a modest factual showing sufficient to demonstrate that [he] and potential plaintiffs together were victims of a common policy or plan that violated the law."). 16 scheme for all teaching faculty at NSU. PL's Mot. See Defs.' Opp'n Br. to for Conditional Class Certification Ex. policy indicates that " [a]11 teaching Teaching Faculty Evaluation Faculty Evaluation and Merit Faculty Evaluation and Merit Moreover, the faculty are "Annual required evaluation of renewal, and 6) 3) promotion, based research, service, to teaching post-tenure faculty Review on faculty 4) compensation criteria Exhibit A for as for all a whole, the ." "all in 2) Court contract contract NSU time, evaluates service, university using finds the teaching, In short, uses faculty. of categories: and NSU Id. teaching Exhibit A on all teaching faculty, faculty, teaching . pay, Additionally, Id. at 2. that teaching . "consists change development Process," Teaching which merit evaluation and community service. Review 5) Id. common professional 1) 6.1.4 . adhere," for tenure, review." five and Teaching and to required to 6.1.3 Procedures Process," review suggests that NSU has imposed, "Annual Performance Such 6.1.2 Criteria Categories, Pay at 1. faculty are review and adhere to 6.1.1 Annual Review Process, for A to the determine same Accordingly, that it a common the evaluation considering is evidence that all teaching faculty at NSU are subject to a common evaluation process—the compensation. compensation "Annual To policy Review the to Process"—that extent all that teaching 17 NSU affects applies faculty, their a common even across departments, that policy, coupled with Plaintiff's allegations that NSU's compensation policy violates the EPA by impermissibly discriminating for against Conditional Plaintiff has male Class made a faculty, see Certification modest PL's at factual 4, showing teaching faculty at NSU during the previous Br. Supp. Mot. suggests that that male all three years are a class of persons who are similarly situated to Plaintiff because they might also have EPA claims predicated on such compensation policy. See, e.g., Two of his Kassman, the also motion affidavits indicate 2014 WL 3298884, at *6. that that factual showing necessary for EPA collective action. Plaintiff As submitted to support Plaintiff has conditional evidence of made the modest certification of the existence of a of plaintiffs similarly situated to the named plaintiff, consider affidavits from other employees who assert his class courts that a defendant has violated their rights in the same manner as those of the named plaintiff. cf. Pollard v. 4103199, that grant at the *3 plaintiffs that plaintiffs). NSU Invs. , LLC, (E.D. conditional affidavits that GPM See Moore, 2012 WL 2574742, Action No. Va. Oct. 18, had made a certification 2010) In violated this the case, EPA Drs. by (unpublished) based factual on *10-11; 2010 showing the Abatena me lower to plaintiffs' and Agyei a WL (holding similarly situated to "paying 18 3:10-cv-115, sufficient other employees were at the each aver salary than certain female members of my department, school, or university" "sometime" during a period that includes the three-year period defining the Plaintiff's Conditional Class proposed class. Certification Exs. See 4-5. PL's for those Although Mot. two affidavits present only skeletal, conclusory allegations against NSU, they are motion, sufficient, to demonstrate faculty other for that the purposes two male members than Plaintiff of of resolving NSU's this teaching also claim that NSU violated the EPA.6 Importantly, the teaching faculty similarly situated Court outside to rejects Defendants' Plaintiff's him because NSU criteria differently across departments. argument department applies that cannot its be evaluation Defendants argue that the Court should deny Plaintiff's motion because the differences among NSU's departments render teaching faculty members outside Plaintiff's Defs.' department Opp'n Certification criteria Br. at across not to 3-4. teaching similarly PL's Mot. Although faculty, NSU situated for uses to him. Conditional common Defendants claim See Class evaluation that NSU 6 Plaintiff also submitted an affidavit of Dr. Meshesha. PL's for Conditional Class Certification Ex. 6. However, Dr. Meshesha's allegations that Defendants "discriminat[ed] against me by Mot. violating the Federal EPA, by paying me a lower salary than certain faculty members of other departments, schools, or universities . . ." do not suggest that he is similarly situated to Plaintiff because he has alleged a violation of the EPA based on discrepancies between his pay and those of faculty members in "other departments, schools, or universities," rather than at NSU. 19 applies such department criteria and, differently therefore, to Defendants faculty within contend that each faculty outside Plaintiff's department cannot be similarly situated to him. See id. EPA claim, Defendants correctly note that, to establish an Plaintiff cannot rely on a comparator in a different department at NSU where different departments require members with different skills and responsibilities. Strag v. Bd. Soble Univ. v. of However, it teaching Trustees, of faculty situated to does Md. , not 55 F.3d 943, 950 Cir. 1995); (4th Cir. 1985). F.2d 164, 167 follow from that proposition Plaintiff. other departments Rather, such male EPA, of the has paid female comparators within their departments, claims that female comparators within though NSU apply across putative outside NSU has might violated the his its departments—thereby collective conclusion that department. preventing action members their departments—that teaching fact faculty similarly that they claim them less just as Accordingly, criteria Plaintiff than even differently or other from relying on comparators does not alter in departments the Court's different Plaintiff's department can be similarly situated to him. 20 than Plaintiff EPA by paying him less evaluation male teaching faculty are that violation that are not to the extent in e.g., (4th similarly situated to Plaintiff NSU, See, 778 in NSU's faculty from Therefore, Drs. Abatena the Court finds that through the affidavits of and Agyei, Exhibit A of Defendants' in conjunction with the evidence brief in opposition that NSU applies a common compensation policy to all teaching faculty, has made a modest in factual showing sufficient reasonably determine that all male for Plaintiff the Court to teaching faculty who worked at NSU during the past three years are similarly situated enough to Plaintiff for the Court to conditionally certify a collective action. See Houston, court GRANTS 591 F. Supp. 2d at 831. Plaintiff's motion and will Accordingly, the conditionally certify Plaintiff's proposed collective action. B. Next, Notice to Potential Class Members the Court considers Plaintiff's request for an order "directing NSU to provide to Plaintiff, list in electronic form, with home within fourteen days, addresses and a contact information (including telephone numbers and email addresses) of all salaried male teaching faculty who were employed by NSU for some period of for Conditional time during the Class last three years." Certification opposition to Plaintiff's motion, any argument why the at 2. In PL' s Mot. their brief in Defendants have not presented Court should deny Plaintiff's request for notice. As notice stated above, to potential this Court has "discretion to facilitate class members by allowing discovery of 21 the names and addresses of potential plaintiffs." Supp. 2d at 832 (citations omitted). not contested discovery Plaintiff's of information potential discretion exercise of its However, the Court for collective Defendants, finds that an order action the Court is 591 F. Given that Defendants have request from Houston, authorizing members' contact concludes appropriate in that this the case. neither requiring Defendants to provide Plaintiff with the telephone numbers and email addresses of potential class members, notice "in website," conspicuous nor mandating that Defendants place places on campus, including the NSU see PL's Mot. for Conditional Certification at 2, necessary to facilitate notice at this time.7 is See Houston, 591 F. Supp. 2d at 832 & n.8 (ordering the defendants to provide the plaintiff members, with but the names refusing and to addresses require the of potential defendant to telephone numbers of such potential class members). the Court GRANTS Plaintiff seeks Plaintiff's IN an counsel PART Plaintiff's order requiring with the names and request provide Therefore, to the Defendants to addresses class of extent provide putative collective action members and DENIES IN PART Plaintiff's request 7 If notice mailed to putative collective action members is returned undeliverable as to any such members, Plaintiff's counsel may request from Defendants the phone numbers and email addresses of such members to allow Plaintiff's counsel obtain a current mailing address. n.8; 97 see also, (D.D.C. e.g. , Blount v. to contact See Houston, U.S. 2010). 22 Sec. those individuals to 591 F. Supp. 2d at 832 Assocs., 945 F. Supp. 2d 88, to the extent he seeks an order requiring Defendants to provide Plaintiff with putative the email collective conspicuous To collective action locations website. addresses on protect members the the action members, and NSU and Court to of notice in including interests will numbers post campus, privacy the telephone of NSU's potential impose a protective order and require that Defendants produce putative collective action members' and that contact Plaintiff's connection with this information to Plaintiff's counsel only litigation. use See, such e.g., counsel information Russell Bell Tel. Co. , 575 F. Supp. 2d 930, 939 (N.D. 111. 2008) Acevedo v. 2008)).8 Ace Coffee Bar, Inc., 248 F.R.D. only 550, 554 v. in 111. (citing (N.D. 111. Plaintiff's counsel shall not disclose the addresses of potential collective action members to Plaintiff. The Court notes that Plaintiff attached to the instant motion a draft of a proposed notice to potential class members. However, in their brief, Defendants sufficiency of such proposed notice. Court has stated 8 The Court that recognizes "[i]n did not address the The United States Supreme exercising the discretionary that directing Defendants to provide putative collective action members' contact information to Plaintiff's counsel could implicate such members' privacy interests. At this stage, the Court believes that limiting disclosure of putative collective action members' contact information only to Plaintiff's counsel, who is an officer of the Court with corresponding responsibilities to the Court, will sufficiently protect such members' privacy interests. However, if Defendants have any concerns regarding such privacy interests, they should inform the Court immediately. 23 authority to oversee the notice-giving process, scrupulous to respect judicial neutrality. courts must be To that end, trial courts must take care to avoid even the appearance of judicial endorsement of the merits of the action." U.S. at 174. Accordingly, Hoffman-La Roche, given the importance of the content of the notice to potential collective action members, will provide Defendants 4 93 with an opportunity the Court to raise any objections to Plaintiff's proposed notice or to submit their own proposed notice to the Court within fourteen (14) days after the entry of this Opinion and Order. If Defendants do so, Plaintiff may file a reply to such submission within seven (7) days after Defendants' filing. IV. For the Conditional reasons Class set CONCLUSION forth Certification above, and Plaintiff's for Court Notice to Potential Class Members, an Order ECF No. Motion for Authorizing 38, is GRANTED IN PART and DENIED IN PART. As U.S.C. to certification of § 216(b), CONDITIONALLY a collective action pursuant Plaintiff's CERTIFIES a motion is collective GRANTED action and by the the to 29 Court following class: All salaried male teaching faculty members who worked for Norfolk State University at any time since March 21, 2010. As to potential Plaintiff's collective request for action members, 24 court-ordered the Court discovery GRANTS IN of PART and DENIES IN Plaintiff's PART motion Defendants Plaintiff's to the to provide motion. extent The seeks an with Plaintiff it the Court order email DENIES requiring addresses and telephone numbers of putative collective action members and to post notice in conspicuous including NSU's website. locations on the NSU campus, The Court GRANTS Plaintiff's motion to the extent he seeks an order requiring Defendants to provide his attorney with the names and addresses of putative collective action members. Plaintiff's and last Defendants counsel, known in a are list addresses DIRECTED to in electronic of all provide format, potential to the names of the conditionally certified collective action within fourteen (14) days of the entry of this Opinion and Order. DIRECTS that such information only be members Further, the Court disseminated among Plaintiff's counsel and DIRECTS that Plaintiff's counsel may use such information only in connection with this litigation. The Court PROVIDES Defendants with leave to file objections to Plaintiff's their own proposed form of notice, notice, within entry of this Opinion and Order. with leave to file a ECF reply No. fourteen 38-7, (14) or to days propose after the The Court PROVIDES Plaintiff within seven (7) days after Defendants file any such objection or proposed notice. The Clerk is REQUESTED to send a copy of Order to all counsel of record. 25 this Opinion and It is SO ORDERED /s/ Mark S. Davis UNITED STATES DISTRICT JUDGE Norfolk, Virginia November \Q ,2014 26

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?