Hadley et al v. Journal Broadcast Group Inc

Filing 32

ORDER denying 16 Motion to Certify Class, signed by Judge William C Griesbach on 02/15/2012. The Clerk is directed to set this matter on the Courts calendar for a telephone conference to address further scheduling. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GREEN BAY DIVISION

JOSH HADLEY and
MICHAEL FISHER,
Plaintiffs,
-v-

Case No. 11-C-147

JOURNAL BROADCAST GROUP, INC.,
Defendant.

DECISION AND ORDER

In this action Plaintiffs claim that Defendant Journal Broadcast Group (JBG) had a policy
of failing to fully compensate its employees, in violation of the Fair Labor Standards Act. Presently
before me is the Plaintiffs motion to conditionally certify a class to be part of a collective action
pursuant to 29 U.S.C. § 216(b).
I. FLSA Conditional Certification
In a collective action under the FLSA, a named plaintiff sues “in behalf of himself ... 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. § 216(b). Harkins v. Riverboat Services, Inc., 385 F.3d
1099, 1101 (7th Cir. 2004). “The conditional approval process is a mechanism used by district
courts to establish whether potential plaintiffs in the FLSA collective action should be sent a notice
of their eligibility to participate and given the opportunity to opt in to the collective action.” Ervin
v. OS Restaurant Services, Inc., 632 F.3d 971, 974 (7th Cir. 2011). Unlike a class action under Rule

23(b), in which potential plaintiffs are included in the class unless they opt-out, a § 216(b)
collective action requires potential plaintiffs to opt-in to the suit by filing a written consent with the
court.
Here, the Plaintiffs ask that this Court certify the following group of employees for inclusion
in a collective action:
All persons who are or have been employed by Defendant, Journal Broadcast
Group, in Wisconsin as an hourly employee within three years prior to this action’s
filing date who have not received compensation for all hours of work, including
overtime compensation for hours worked in excess of forty (40) in a workweek.
The conditional certification process, which occurs prior to discovery, requires plaintiffs to
show that they are similarly situated to the proposed class by demonstrating the existence of a nexus
of facts common to members of that class. The evidence needed has been described by other courts
in this circuit as a “modest” or “minimal” showing.

Nicholson v. UTi Worldwide, Inc., No.

3:09–CV–722–JPG–DGW, 2011 WL 250563, at *2 (S.D.Ill. Jan.26, 2011); Howard v. Securitas
Security Servs., USA Inc., No. 08 C 2746, 2009 WL 140126, at *5 (N.D.Ill. Jan.20, 2009). Even
so, a court will not certify a class based on the plaintiffs’ say-so alone. Instead, a court will view
affidavits and other evidence to determine whether plaintiffs reasonably demonstrate that they and
the putative class members were victims of a corporate decision, policy or plan. Howard, 2009 WL
140126 at *3.
II. The Allegations
The Plaintiffs are former employees of Green Bay TV station WGBA, which is owned by
defendant JBG, a Milwaukee-based company that owns the Milwaukee Journal-Sentinel newspaper
and Milwaukee’s WTMJ television and radio stations. Plaintiffs allege that supervisors shaved time
off their records in order to prevent them from receiving overtime pay for hours worked in excess
2

of forty hours per week. They also allege that supervisors permitted or required employees to
perform work “off the clock.” These practices, they allege, were not just isolated events but part
of a company-wide policy or plan to meet budgetary constraints.
I note at the outset that the Plaintiffs appear to be relying heavily on the fact that at this stage
they are required only to make a “modest” showing of commonality. For example, their complaint
contains no specific allegations at all, and they have supported their motion with a single
declaration filed by a third plaintiff, Scott Murray, who has opted into the lawsuit. The declaration
makes a number of conclusory allegations but lacks any detail. Similarly, Plaintiffs’ briefs make
only fleeting citations to snippets of the other Plaintiffs’ deposition testimony, leaving the Court
to read the depositions to discern whether there is any merit to the motion.
A. Time Shaving
To the extent it is supported at all, the allegation that JBG had a policy of not fully
compensating its non-exempt employees is based on two alleged practices. First, Plaintiffs allege
that JBG managers engaged in “time shaving”—a practice by which a supervisor would log in to
the company’s electronic payroll records system and reduce the hours the employee had actually
recorded. Plaintiff Hadley testified that he had a contentious relationship with his supervisor, Karen
Kvitek, partly over the fact that she would occasionally edit the time he had submitted. (ECF
No. 19, Ex. 8 at 32.) He stated that he would often find that she had edited fifteen minutes off of
his time entries.
Plaintiff Fisher testified that he believed his supervisor, Bob Healey, shaved time on
occasion. Fisher also overheard other employees suggesting that the station’s general manager,
Guyanne Taylor, might have been involved as well. (ECF No. 19, Ex. 7 at 123:15-25.) Even apart
from the hearsay, Fisher’s testimony on these points was exceedingly vague. When asked how
3

many times he believed his own time had been shaved, he said, “I can’t say for sure, I believe it was
multiple.” (Id. at 193:3-5.) He could not say either how many times his time had been edited, nor
how much time he thought he’d lost. (Id. at 193:7-11.) The plaintiff who opted in, Scott Murray,
filed a declaration vaguely asserting that there had been “several instances” in which his time cards
were edited by Karen Kvitek. (ECF No. 18 at 13.)
Although Hadley possibly states a claim based on his allegation that Kvitek, his supervisor,
frequently edited his time entries, there is no commonality to the allegations because the assertions
of the other two Plaintiffs are painfully vague and wholly unsupported. Even accepting the
Plaintiffs’ allegations as true, their suggestions that time might have been cut on an unspecified
number of occasions over an undefined period of time do not give any basis for certifying a
collective action.
When the Defendant’s side of the story is heard, it becomes even clearer that there is no
merit to the allegations at all. First, Plaintiffs’ brief argues that the time shaving resulted in
employees not receiving overtime pay they were due, but this assertion is not supported by the
depositions. Plaintiff Hadley testified that he typically worked only 35 hours per week, and he
provided no examples of how shaving a few minutes here and there would have impacted his
eligibility for overtime. Plaintiff Fisher provided no testimony to that effect either. Although he
often worked more than forty hours per week, he did not know how many times his time entries had
been modified, and it appears it was in fact a very rare occurrence. Plaintiffs’ brief cites his
deposition testimony for support, but the cited testimony merely describes a discussion Fisher had
with other employees. (ECF No. 19, Ex. 7 at 69:3-5.) For his part, opt-in Plaintiff Murray stated
that there had been “several instances” in which time-shaving reduced his hours below forty. (ECF
No. 18 at ¶ 13.) But “several” could mean fifty or it could mean two; we are not told. Regardless,
4

the Defendant helpfully points out that the total number of hours “shaved” from Murray’s records
was roughly one hour per month, and none of those edits brought him below the forty-hour
overtime threshold, the sole exception being when Murray had accidently entered “a.m.” instead
of “p.m.” on two separate occasions. (ECF No. 26, ¶ 9.) Thus, I cannot conclude that there is any
evidence whatsoever that JBG had a policy or program of reducing employees’ time to bring them
under the overtime cutoff.
Plaintiffs’ brief also asserts that the time shaving was “perpetrated” by a number of
supervisors, which, if true, could be suggestive of a corporate policy or plan and thus commonality.
But there is simply nothing in the deposition testimony that indicates a broad-based program
involving a number of supervisors. Almost all of the time-shaving allegations involve a single
supervisor, Karen Kvitek. On a few discrete occasions, supervisor Bob Healey is alleged to have
edited employees’ time. Plaintiffs try to link Guyanne Taylor, the station’s general manager, to the
time-shaving allegation, but her involvement is quite limited. Plaintiff Hadley testified that he
“believed” Taylor had edited his time entries. (ECF No. 19, Ex. 8 at 43:6.) Taylor admits that on
one occasion she did edit Hadley’s time entry:
On August 23, 2010, I made an edit to Josh Hadley’s time entry for August 22,
2010. I changed the “time out” from 11:00 p.m. to 10:45 p.m. based on an email I
received from James Pelon, a director at WGBA, which stated that all production
employees, except for one (not Hadley), clocked out on August 22, 2010 at 10:45
p.m. . . . I sent Josh Hadley an email on August 23, 2010 telling him about the
change I had made to his August 22, 2010 time and asking him to contact me if he
disagreed with the edit I made. Mr. Hadley responded “I entered that when it looked
like the game was going over, and I forgot to go back and change it.”
(ECF No. 27 at ¶¶ 10-11.)
Given the fact that Taylor made a single, fifteen-minute edit, and given that the edit was an
entirely appropriate response to Hadley’s own error, the Plaintiffs’ effort to link Taylor to the time5

shaving allegations smacks of desperation. The fact is that there is nothing in the record even
suggestive of a policy or program designed to reduce employees’ time after it was submitted.
Instead, it appears a single supervisor may have edited several employees’ time records in small
amounts over long periods of time. As such, I could not certify any sort of collective action based
on “time-shaving” because there would seem to be very few individuals in the proposed class who
would have experienced what these Plaintiffs allege they experienced.
B. Working “Off the Clock”
The other allegation supporting the Plaintiffs’ claim for certification is that management had
a policy of requiring employees to perform work off the clock. Hadley testified that Kvitek told
him roughly a hundred times that various tasks she wanted him to do would be “off the clock,”
although she did not use those exact words. (ECF No. 19, Ex. 8 at 142-143.) He also testified that
on two occasions Bob Healey asked him to do things off the clock. (Id. at 144.) These occasions
involved staying ten or fifteen minutes late on certain discrete projects. (Id.) Hadley also testified
that he attended many meetings that might have begun five minutes prior to his actual start time.
(Id. at 82-83.) Hadley estimated that he worked off the clock thirty minutes to an hour per week.
(Id. at 146:6-7.) Plaintiff Fisher testified that on one occasion he put in for time he had worked at
home, but Bob Healey told him he would not be paid for that. (ECF No. 19, Ex. 7 at 60:11-14.)
Plaintiff Murray stated that his supervisors told him he was required to create story ideas on his own
time, but when he attempted to record that time Kvitek told him he could not do so. (ECF No. 18
at ¶ 10.) Many of these allegations involve ad hoc projects and random events that are not
suggestive of any kind of company policy. The only potential claim that could give rise to a
collective action involves the Plaintiffs’ common allegation that they were asked to bring story
ideas to the office with them.
6

Hadley testified that Kvetik told him he should bring story ideas to meetings even though
he was a production specialist, and thus not technically responsible for generating stories.
Generating story ideas would presumably be done at home (watching television, reading the
internet, etc.) prior to his shift. (ECF No. 19, Ex. 8 at 84.) Fisher stated that Bob Healey told him
he should bring story ideas to work with him, and Fisher therefore felt that he was required to read
news stories on the internet prior to his shift. (Id., Ex. 7 at 162-175.) Murray also stated that he
was supposed to come to work with story ideas. (ECF No. 18, ¶ 7.)1
These allegations suffer from a similar lack of support. At the outset, I note that in many
places the Plaintiffs’ brief alleges that the company “allowed” employees to work off the clock.
The work the company allegedly “allowed” them to do off the clock, however, consisted of
thinking, i.e., coming up with ideas for stories. Merely “allowing” employees to work on their own
time is something that presumably every company in the country does, at least when the off-theclock work is the kind of creative work at issue here. Thinking about the job when not at work is
both hard to stop and hard to monitor. In any event, to the extent the allegation is that the company
had a policy requiring employees to work without pay, the allegations are so individualized that
there would not likely be any common answers achieved through collective litigation.
Although these allegations are similar in that they suggest a larger managerial directive that
employees bring ideas into the office, they do not suffice to justify the certification of a collective
action. First, assuming there was such a directive, there is no evidence that any supervisors
explicitly told employees to do any “work” off the clock, at least in the traditional sense. For
example, if a number of supervisors had directed employees to research specific news stories, make

1

There are other ad hoc allegations involving small amounts of work off the clock, but they
lack any suggestion of commonality at all.
7

phone calls, interview witnesses, or drive to locations, there might be a sounder basis for a claim.
But directing employees to bring story ideas to work is hardly a specific demand that an employee
work without compensation. Instead, it is a request that employees be well-versed in the news and
be ready to contribute to the creative process. As the Plaintiffs’ depositions reflected, it would be
difficult to record time for the vague directive to bring story ideas to work, primarily because in
many cases employees are doing little more than surfing internet websites and watching TV news—
the kinds of things that most people in the news business presumably would do anyway. It is not,
in short, the kind of work that lends itself to compensation because a substantial portion of the time
spent would be better classified as “personal” rather than “work.”
But to the extent it was actual “work,” the vagueness of the directive to generate story ideas
means that would be difficult to pursue such a claim collectively because each affected employee
would have interpreted and acted on the directive differently. The three Plaintiffs’ own experience
makes this clear, as each one spent different amounts of effort attempting to produce story ideas
for one or more supervisors. (And of course there is no way to verify how much time an employee
would have spent on such matters.) Assuming there was a broader company policy or plan in place,
each employee’s own subjective interpretation of his supervisor’s directive would require an
individualized, rather than common, approach. Such a claim stands in stark contrast to a more
typical FLSA claim, where the employment practice is a commonly shared (and more easily
measured) experience. See, e.g., DeKeyser v. Thyssenkrup Waupaca, Inc., 2008 WL 5263750 (E.D.
Wis., December 18, 2008) (time spent “donning and doffing gear and equipment, showering, and
walking to and from the production floor.”)
Finally, I am satisfied that this case is not appropriate for certification because there is
almost no indication that any other employees either were affected by these alleged practices or,
8

if they were, that they are interested in joining this action. First, there has been no evidence that
there was any widespread policy at all, much less one stretching to all employees of JBG. Instead,
at most the Plaintiffs have offered their own idiosyncratic experiences working for a number of
different supervisors, all while employed at WGBA rather than throughout the company. Relatedly,
there has been almost no indication of interest from other employees since this lawsuit was filed
more than a year ago. Plaintiffs have testified that they talked to numerous other people about
joining this lawsuit. Hadley, in particular, testified that he talked to many recently terminated
employees about joining the lawsuit and gave out his attorney’s phone number, but none of them
have joined or called. (ECF No. 19, Ex. 8 at 185-190.) In addition, an email from another
employee (a union steward) asserts that members who were contacted by Hadley want “NO PART”
(sic) of the lawsuit. (ECF No. 27, Ex. B.)
If FLSA violations were as widespread as Plaintiffs allege, one would expect that more than
one person would have joined the lawsuit by now. Cf. DeKeyser, 2008 WL 5263750 at *5 (“As
sixty-seven individuals have already opted into this litigation prior to the dissemination of any
court-approved notice, there is a sufficient interest in the litigation to support conditional
certification.”) In truth, however, it should not come as a surprise that there has not been a
stampede to join this case. The time-shaving issues described above, even if true, are essentially
nickel and dime allegations that could not be expected to generate interest in participating in a
federal lawsuit. As for the “off the clock” issue, it is possible that other employees simply were less
offended by the suggestion that they bring creative ideas into the workplace. Regardless of the
reason, a demonstrable lack of interest in a collective action is a strike against certification.
Simmons v. T-Mobile USA, Inc., No. H-06-1820, 2007 WL 210008, at *9 (S.D.Tex. Jan.24, 2007)
(“[o]thers' interest in joining the litigation is relevant to whether or not to put a defendant employer
9

to the expense and effort of notice to a conditionally certified class of claimants.”); Dybach v. State
of Florida Department of Corrections, 942 F.2d 1562, 1567 (11th Cir. 1991) (“the district court
should satisfy itself that there are other employees of the department-employer who desire to
‘opt-in’”). Here, there is sufficient evidence that numerous potential plaintiffs made no effort to
join the lawsuit when informed about it. This counsels against certification.
III. Conclusion
For the reasons given above, I conclude that this case is not a good candidate for
certification as a collective action. Accordingly, the motion to certify is DENIED. The Clerk is
directed to set this matter on the Court’s calendar for a telephone conference to address further
scheduling.
SO ORDERED this 15th

day of February, 2012.

s/ William C. Griesbach
William C. Griesbach
United States District Judge

10