Tom v. Generac Power Systems Inc

Filing 58

ORDER signed by Chief Judge William C Griesbach on 11/9/18 denying 52 Motion for Reconsideration. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

TIMOTHY TOM, JR.,
Plaintiff,
v.

Case No. 17-C-1413

GENERAC POWER SYSTEMS, INC.,
Defendant.

ORDER DENYING MOTION FOR RECONSIDERATION

Plaintiff Timothy Tom, Jr., filed this action on behalf of himself and other similarly situated
manufacturing employees throughout Wisconsin employed by Defendant Generac Power Systems, Inc.
(Generac). Tom alleges that Generac’s pay policy violates the Fair Labor Standards Act of 1938
(FLSA), 29 U.S.C. § 201, et seq., because it rounds manufacturing employees’ start and end time to
their scheduled times, resulting in an alleged failure to compensate them for hours worked in excess
of forty during the week. Currently before the court is Tom’s motion for reconsideration of the court’s
August 3, 2018 decision (ECF No. 51) denying his motion for conditional certification and courtfacilitated notice. Because I remain convinced the denial was not in error, Tom’s motion for
reconsideration (ECF No. 52) will be denied.
LEGAL STANDARD
“‘Motions for reconsideration serve a limited function; to correct manifest errors of law or fact
or to present newly discovered evidence.’” Rothwell Cotton Co. v. Rosenthal & Co., 827 F.2d 246,
252 (7th Cir. 1987) (quoting Keene Corp. v. Int’l Fidelity Ins. Co., 561 F. Supp. 656, 665 (N.D. Ill.

1982), aff’d 736 F.2d 388 (7th Cir. 1984)).

“A ‘manifest error’ is not demonstrated by the

disappointment of the losing party. It is the ‘wholesale disregard, misapplication, or failure to recognize
controlling precedent.’” Oto v. Metro. Life Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (quoting
Sedrak v. Callahan, 987 F. Supp. 1063, 1069 (N.D. Ill. 1997)). “To be within a mile of being granted,
a motion for reconsideration has to give the tribunal to which it is addressed a reason for changing its
mind.” Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004).
ANALYSIS
Tom asserts that the court made a manifest error of law by holding him to a higher evidentiary
burden then is required at this stage of class certification—specifically, requiring Tom to submit
admissible evidence in support of his claim. Tom states “[t]he focus of the inquiry should not be
whether Plaintiff will ultimately be successful in proving an FLSA violation exists, but whether he has
a reasonable basis for believing that he and other Manufacturing Employees at Defendant are
similarly situated.” Pl.’s Brief at 5, ECF No. 53.
More than just a reasonable belief, however, is required to support a finding in favor of
conditional class certification. “[T]he plaintiff must still muster some factual support such as
‘affidavits, declarations, deposition testimony, or other documents’ to demonstrate ‘a factual nexus
between the plaintiff and the proposed class or a common policy that affects all the collective
members.’” Martinez v. Regency Janitorial Servs., Inc., No. 11-C-259, 2012 WL 252230, at *1
(E.D. Wis. Jan. 26, 2012) (quoting Nehmelman v. Penn Nat’l Gaming, Inc., 822 F. Supp. 2d 745, 750
(N.D. Ill. 2011)); see also Howard v. Securitas Sec. Servs., USA, No. 08 C 2746, 2009 WL 140126
(N.D. Ill. Jan. 20, 2009). As this court said in Adair v. Wisconsin Bell, Inc., No. 08-C-280, 2008 WL
4224360 (E.D. Wis. Sept. 11, 2008), requiring the modest factual showing to be supported by
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meaningful evidence “provides a meaningful basis upon which the Court may determine whether to
exercise its discretion with regard to a request for court-facilitated notification of potential class
members.” Id., at *8. In addition, “the legislative history of the collective action procedure, and
Congress’s expressed concern for the financial burden it may impose, supports the requirement of at
least a modest factual showing that such collective action is appropriate before a class is even
conditionally certified.” Id. at *4. Although the courts, including those in this circuit, are split as to
whether admissible or inadmissible evidence may be relied upon to make the requisite factual showing
for conditional certification, see id., at *8, Tom points to no binding case law that shows requiring
admissible evidence is a “wholesale disregard, misapplication, or failure to recognize controlling
precedent.” Oto, 224 F.3d at 606 (quoting Sedrak, 987 F. Supp. at 1069). The court did not require
Tom “to make a prima facie showing by admissible evidence that he and other Manufacturing
Employees at Defendant are, in fact, victims of an unlawful policy or practice.” Pl.’s Brief at 4, ECF
No. 53. The court did not deny Tom’s motion for conditional certification because the court found he
did not prove a violation existed. Rather, the court denied his motion because “Tom’s claims arise out
of his individual actions and do not demonstrate a nexus between his experience and the experience
of members of the proposed class,” ECF No. 51 at 12, making class-wide resolution of whether
Generac’s policy violates the FLSA inappropriate.
Tom also argues that the court’s decision resulted in a manifest injustice because, in deciding
his motion, the court considered affidavits and written policies submitted by Generac, resolved factual
disputes, decided substantive issues on the merits, and made credibility determinations. Tom argues

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that such considerations and actions are outside the realm of what the court may do and consider when
resolving a conditional certification motion, and instead the court must wait until the second stage of
the two-step certification analysis to do so.
The court’s consideration of evidence submitted by Generac was not inappropriate. “While
the court need not resolve the substantive merits of the plaintiffs’ claims at this preliminary stage, the
court is not required to accept the plaintiffs’ allegations as true.” Martinez, 2012 WL 252230, at *1
(citing Nehmelman, 822 F. Supp. at 751). “‘Rather, the court evaluates the record before it, including
the defendant’s oppositional affidavits, to determine whether the plaintiffs are similarly situated to other
putative class members.’” Nehmelman, 822 F. Supp. at 751 (quoting Hundt v. DirectSat USA, LLC,
No. 08 C 7238, 2010 WL 2079585, at *2 (N.D. Ill. May 24, 2010)); see also Krupp v. Impact
Acquisitions LLC, No. 14-C-950-PP, 2016 WL 7190562, at *5 (E.D. Wis. Dec. 12, 2016). The court
did not decide substantive issues on the merits. It looked to Generac’s submissions to provide context
to Tom’s claims and his portrayal of Generac’s policies. The court did not find that the existence of
measures—such as time clock reminders, bells, supervisor reminders, and reporting policies—taken
by Generac to prevent employees from working before or after their scheduled shifts meant that
Tom’s claim was meritless, and thus did not decide the substantive merits of his underlying FLSA
claim. Rather, consideration of these measures in conjunction with Generac’s electronic timekeeping
system provided the court with a more complete understanding of whether Tom is similarly situated
to other manufacturing employees. It was “[a]gainst this backdrop,” ECF No. 51 at 10, that the court
ultimately concluded “[a]ny work that Tom performed outside of his scheduled shifts thus occurred
not as a product of a policy commonly affecting all hourly manufacturing employees at Generac but
as a result of his own decision to work during times when Generac expressly instructed him and all
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other employees not to perform work.” Id. at 10–11. In so doing, the court did not resolve factual
disputes or make credibility determinations, but rather viewed Tom’s actions against this factual
backdrop and determined the root cause of his alleged uncompensated work to be his individual actions
rather than a Generac company policy forced upon him as well as other Generac manufacturing
employees.
Although Tom argues that failure to resolve this issue on a class-wide basis will likely result
in needless additional expense in the form of multiple individual suits against Generac, here, where
there is no factual nexus between him and the proposed class or a common policy that affects all the
collective members because the claim stems from his individual actions, independent adjudication is the
appropriate option. As a result, the court is not convinced that its decision denying Tom’s motion for
conditional certification is the result of an error of law or fact in this case. Accordingly, Tom’s motion
for reconsideration (ECF No. 52) is DENIED.
SO ORDERED this 9th day of November, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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