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, )
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
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