Summary
declining request to conduct additional discovery or "otherwise set aside valid and binding orders of the court, regardless of the efficacy of any new strategy counsel seeks to follow"
Summary of this case from Powell v. KamireddyOpinion
Civil Action No. 3:05CV310.
November 26, 2008
MEMORANDUM OPINION
This matter comes before the Court on several outstanding motions from both parties. The Court has conducted an Omnibus Motions hearing, and the matters are ripe for adjudication.
I. Procedural History
The procedural posture of this case is unusual. Plaintiffs are a group of school bus drivers who allege, inter alia, underpayment for services rendered, in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201- 219 (2006), state law breach of contract, and retaliation. Plaintiffs first filed their Complaint on April 28, 2005, and filed an Amended Complaint less than one week later. (Docket Nos. 1-2.) In August 2005, the parties consented to the jurisdiction of the undersigned Magistrate Judge. (Docket No. 13.) For the next four months, the parties represented to the Court that they needed more time to gather necessary information before a Scheduling Order could be entered. In December 2005, Defendant moved, without objection, to stay the matter until February 15, 2006. On December 13, 2005, the Court granted this stay "to allow the defendants to review records in their possession and attempt to calculate the amount, if any, due to the plaintiffs in this case." Order, December 13, 2005. (Docket No. 16.) Plaintiffs also filed a Second Amended Complaint on this date. (Docket No. 17.)
The date of February 15, 2006, passed with no filings from the parties. Instead, the parties continued to represent to the Court that they needed more time to gather the necessary information before a Scheduling Order could be entered. In September 2006, after significant follow up from the Court, the parties submitted an agreed-upon Scheduling Order to govern the remainder of this case. See Scheduling Order, Sept. 27, 2006, at 1. (Docket No. 24.) The parties continued to represent to the Court that this was a case with "complicated issues," thereby necessitating "a litigation schedule that allows the orderly conduct of discovery and resolution of the issues." ( Id.) This joint plan divided the litigation into two phases. Phase One focused on "systemic issues pertaining to the School Board's accounting of time." ( Id.) Phase Two focused "primarily on issues relating to the individual plaintiffs. . . ." ( Id.) At the end of Phase One, the Court ordered the parties to file motions for summary judgment. ( Id. at 2.) This plan allowed the parties almost three additional months for discovery from the date of the initial Scheduling Order.
On January 10, 2007, at the end of Phase One, Defendant timely filed a Motion for Partial Summary Judgment regarding the issues in Phase One. (Docket No. 25.) Upon receiving a response from Plaintiffs, the Court realized the necessity of a status conference to discuss unaddressed issues. The Court conducted a status conference on March 5, 2007, after which it ordered the parties to file supplemental briefing. (Docket No. 32.)
On May 18, 2007, the School Board filed a Motion for Extension of Time to file its confidential settlement memorandum with United States Magistrate Judge Dennis W. Dohnal. (Docket No. 36.) The parties appeared before Judge Dohnal for a settlement conference on May 25, 2007.
In June 2007, Plaintiffs obtained new counsel in addition to their existing attorney. (Docket No. 37.) In July 2007, Plaintiffs, by new counsel, filed a Motion for Partial Summary Judgment and moved the Court to vacate the agreed-upon Scheduling Order and certify the class of plaintiffs. (Docket Nos. 48, 45, 46.) A number of plaintiffs, by new counsel, moved to withdraw their consent to opt-in to the lawsuit. (Docket Nos. 39-42, 44, 50-51.)
On July 20, 2007, this Court granted, in part, Defendant's Motion for Partial Summary Judgment. (Docket No. 55.) The Court found that, based on the record before it, no violations of the FLSA could be established for the 2004-05 school year and that the retaliation claim could proceed only as to Plaintiffs Adams and Hart. (Mem. Op., July 20, 2007.) (Docket No. 54.)
Three days later, the Court conducted a status conference with the parties to discuss the future of the litigation plan. The parties agreed to new deadlines for filing any additional motions before progressing to Phase Two. See Order, July 27, 2007. (Docket No. 60.) On August 15, 2007, another opt-in plaintiff moved to withdraw her consent. (Docket No. 66.)
Now before the Court are a series of motions and position statements. The Court addresses each in turn.
One motion is plainly moot. Defendant seeks an extension of time in which to file a settlement memorandum for a conference that already has commenced. The Court shall DEEM MOOT Defendant's Motion for Extension of Time. (Docket No. 36.)
II. Analysis
A. Plaintiffs' Motion to Vacate the Scheduling Order
Plaintiffs, via newly retained counsel, seek to vacate the joint Scheduling Order entered on September 27, 2006. Plaintiffs now argue that the September 27, 2006 Scheduling Order "generally has proved confusing and unhelpful to the efficient litigation of this action." (Scheduling Order, Sept. 27, 2006, at ¶ 3.) Therefore, they move the court to vacate the scheduling order as "[t]he most effective and efficient way to proceed with this litigation." ( Id. at ¶ 6.) Plaintiffs suggest an entirely new litigation plan, premised on this case proceeding solely as a class action under the FLSA.
Based on what they termed were the needs for the case at bar in September 2006, the parties submitted the following joint Scheduling Order, which the Court entered.
Phase One, addressing "systemic issues," sought answers to the following legal and factual questions:
1. For 2004-05 school year, did the School Board's time records accurately record the time worked by the drivers? If not, what compensable hours were not unrecorded [sic]?
2. What are the terms of the plaintiffs' employment contracts, and did the School Board's system of recording time result in a failure to compensate the drivers as required by contract?
3. Which plaintiffs admit at this time that they do not have Fair Labor Standards Act ("FLSA") claims against the School Board, and should the Court exercise supplemental jurisdiction over any state law claims such plaintiffs may have?
4. Which plaintiffs does the School Board admit have valid overtime and other FLSA claims?
5. Whether the School Board met its record keeping requirements under the FLSA during the relevant years, and, if not, what liability and/or presumptions stems [sic] from its failure to do so?
. . . [D]iscovery shall be limited to the issues listed above.
( Id. at 1-2.)
After the Court rendered a decision on the issues arising in Phase One, the parties would engage in discovery for Phase Two. The Court ordered that Phase Two discovery focus on resolving seven factual and legal issues:
1. If 2004-05 is not a typical year in terms of the amount of work performed by the individual drivers, how do prior years differ for each?
2. Did the School Board compensate the drivers pursuant to the terms of their contracts?
3. Did the School Board compensate the drivers for overtime under the FLSA?
4. Other issues related to particular drivers, such as waiver and accord and satisfaction.
5. If any of the plaintiffs are entitled to recover damages, in what amount are they entitled to recover?
6. Should this action proceed as a collective or class action under the Fair Labor Standards Act or the Federal Rules of Civil Procedure?
7. Should the court certify the class for claims of violation of contract?
( Id. at 2-3.)
B. Standard for Modifying a Scheduling Order
Federal Rule of Civil Procedure 16(b) provides that "[a] schedule may be modified only for good cause and with the judge's consent." Fed.R.Civ.P. 16(b)(4). "Good cause" exists when the parties cannot reasonably meet deadlines despite their own diligence. Vercon Constr., Inc. v. Highland Mortg. Co., 187 F. App'x 264, 265 (4th Cir. 2006) (No. 05-1926), available at 2006 WL 1747115, at *1 ( citing 6A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure Civ. § 1522.1 (2d ed. 1990)). The moving party bears the burden of demonstrating that good cause exists. Id. Courts consider the moving party's diligence in pursuing the litigation to decide whether good cause exists. See SEC v. SBM Inv. Certificates, Inc., Civil Action No. DKC 2006-0866, 2007 WL 609888, at *20 (D. Md. Feb. 23, 2007) ("The [plaintiff] has been adequately diligent despite ultimately failing to file its initial expert disclosures by the deadline set in the Scheduling Order.").
The Plaintiffs' desire to abandon the Scheduling Order must be balanced with the fairness to Defendant who jointly presented the original Scheduling Order with Plaintiffs' counsel. Nothing in the record suggests that the Order was meant to confuse or delay. The Court cannot find that Plaintiffs have acted diligently such that good cause exists for the Court to vacate its September 27, 2006 Scheduling Order. Plaintiffs waited nine months from the time the Court entered the Scheduling Order to file their motion to vacate the Scheduling Order. Plaintiffs had already waited more than four months before presenting to the Court their proposed Scheduling Order. Plaintiffs now move the Court to allow them more time for discovery, despite the Court having allowed them almost seventeen months for discovery in the first instance. (Pls.' Mot. to Stay Consideration of Def.'s Mot. for Partial Summ. J. on Retaliation Claims ("Pls.' Stay Retaliation Mem.").) (Docket No. 74.).
During a March 5, 2007 status conference, the parties agreed to a new briefing schedule which was then entered on March 6, 2007. While complying by filing substantive responses, Plaintiffs object to that briefing schedule. They claim lack of necessary discovery with which to file fully responsive briefs.
The arrival of new counsel in June of 2007 does not entitle parties to conduct additional discovery or otherwise set aside valid and binding orders of the court, regardless of the efficacy of any new strategy counsel seeks to follow. See Ellis v. Dir., CIA, No. 98-2481, 1999 WL 704692, at *7 n. 8 (4th Cir. Sept. 10, 1999) (affirming the district court's refusal to allow plaintiff's new counsel to conduct additional discovery). The delays and the lack of meaningful discovery during seventeen months of a discovery period demonstrate that Plaintiffs have not acted with sufficient diligence to constitute the "good cause" required by Rule 16(b). The parties repeatedly represented to the Court that the complex nature of voluminous discovery mandated the need for the schedule they sought.
Moreover, contrary to Plaintiffs' current position, the parties represented to the Court that this was not clearly an FLSA case, and they needed time to determine the proper course of action. Question 6 in Phase Two of the joint September 27, 2006 Scheduling Order specifically asked the parties to determine whether any class action should proceed under the FLSA, or under Federal Rule of Civil Procedure 23. (Scheduling Order, Sept. 27, 2006, at 3.) Although Plaintiffs' new counsel states they choose to proceed solely under an FLSA cause of action, this does not permit them to erase their past conduct in this case by essentially starting the action anew. The Court shall DENY Plaintiffs' Motion to Vacate Scheduling Order Entered September 27, 2006. (Docket No. 45.)
This does not end the inquiry, however, because it appears that the Defendant's Motions for Summary Judgment cannot be granted, meaning that the parties should, under the September 26, 2006 Scheduling Order, commence discovery as to issues raised in Phase Two.
C. Motions for Summary Judgment on Counts 1 and 3. and Motions to Stay
Three Motions for Summary Judgment stand before the Court: (1) Plaintiffs' Motion for Partial Summary Judgment to make certain findings of law (Docket No. 48); (2) Defendant's Motion for Partial Summary Judgment on Counts 1 and 3 (Docket No. 63); and (3) Defendant's Motion for Partial Summary Judgment as to Count 2 for Plaintiffs Adams and Hart (Docket No. 70). Plaintiffs also seek a stay and relief from answering Defendant's motions by filing an affidavit in accordance with Federal Rule of Civil Procedure 56(f). (Docket Nos. 72, 74.) The Court begins by addressing the motions to stay.
Rule 56(f) states:
If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may:
(1) deny the motion;
(2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or
(3) issue any other just order.
Fed.R.Civ.P. 56(f).
1. Plaintiffs' Motions to Stay Consideration of Defendant's Motions for Partial Summary Judgment on Counts 1, 2, and 3
Plaintiffs argue that Defendant's Motions for Summary Judgment on Counts 1 and 3, and on Retaliation, should be stayed to permit additional discovery. Specifically, they want to take depositions of School Board officials pursuant to Rule 30(b)(6), individual depositions of Dr. Wade A. Valentino and Mitzi Crosier, and to conduct discovery pertinent to counts 1, 2, and 3 of the Second Amended Complaint. (3d Simonsen Decl. ¶ 7; 2d Simonsen Decl. ¶ 11.)
Rule 30(b)(6) states in relevant part: "In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination." Fed.R.Civ.P. 30(b)(6).
As a general rule, summary judgment is not appropriate until after there has been adequate time for discovery. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) ( quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5). If a party believes that more discovery is necessary for it to demonstrate a genuine issue of material fact, the proper course is to file a Rule 56(f) affidavit stating "that it could not properly oppose a motion for summary judgment without a chance to conduct discovery." Evans v. Techs. Applications Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996). The decision to grant a Rule 56(f) motion is within the discretionary authority of the District Court. Nguyen v. CNA Corp., 44 F.3d 234, 242 (4th Cir. 1995).
A district court must apply Rule 56(f) liberally. Harrods Ltd., 302 F.3d at 245 n. 18. Nevertheless, if a party is "lax in pursuing discovery," id. at 245, the court need not employ the rule to spare litigants from their own lack of diligence. See 10B Charles A. Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure § 2740, at 405 (3d ed. 1998).
The United States Court of Appeals for the Fifth Circuit has opined:
What is "dilatory" depends upon the particular posture of the case presented. The factors deemed relevant in the cases . . . are: 1) the length of the pendency of the case prior to the Rule 56(f) request; 2) whether and when plaintiff could have anticipated its need for the requested discovery; 3) the previous efforts, if any, made by plaintiff to obtain the needed information either through Rule discovery or otherwise; 4) the degree and nature of discovery already undertaken; 5) any limitations placed upon discovery previously by the trial court; 6) any prior solicitations of or provisions for discovery by the trial court; 7) any warning which plaintiff might have had that, absent a speedier request, discovery might be denied and his claim be dismissed; and 8) whether the requested information was inaccessible to plaintiff, e.g. as when within defendant's exclusive control, or whether alternative, accessible sources existed but were foregone.Paul Kadair, Inc. v. Sony Corp. of Am., 694 F.2d 1017, 1031 (5th Cir. 1983).
For the same reasons the Court cannot vacate the Scheduling Order, it cannot grant a stay to conduct these depositions. Plaintiffs concede that, prior to the Rule 56(f) request and despite the lengthy discovery period, they "conducted no discovery on the retaliation issues" (3d Simonsen Decl. ¶ 7), nor obtained a Rule 30(b)(6) deposition from the School Board (2d Simonsen Decl. ¶ 3). Plaintiffs also failed to depose Dr. Wade A. Valentino, the Assistant Superintendent of Support Services for Hanover County Public Schools, and Mitzi Crosier, the School Board's Director of Transportation. ( Id. at ¶ 11.) Nothing in the agreed-upon Scheduling Order precluded Plaintiffs from seeking this discovery. Indeed, the Court permitted delay so the parties could conduct discovery. It appears that the majority of the discovery Plaintiffs seek leave to take would have been directly pertinent to Phase One of this action. For instance, the Scheduling Order instructed Plaintiffs, in Phase One, to admit whether they did not have FLSA claims against the School Board. The Valentino, Crosier, and 30(b)(6) depositions all would have pertained to the existence of individual FLSA claims.
Even accepting as true Plaintiffs' representation that the School Board refused to cooperate in the taking of any deposition due to its pending Motion for Partial Summary Judgment ( Id. at ¶ 3), nothing excuses Plaintiffs' failure to take the depositions by the time the Court ordered, and the parties agreed, to have completed Phase One discovery. Therefore, despite the liberality with which the Court must review a Rule 56(f) request, the Court cannot grant a stay so that the Plaintiffs may engage in more discovery for these pending motions. Any limitations the Plaintiffs may feel as to the scope of discovery results from their own conduct under the Scheduling Order they asked the Court to put in place.
Accordingly, the Court will DENY Plaintiffs' Motions for Stays. (Docket Nos. 72, 74.) 2. Standard of Review for Summary Judgment
Summary judgment under Rule 56 is appropriate only when the Court, viewing the record as a whole and in the light most favorable to the nonmoving party, determines that there exists no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See, e.g., Celotex, 477 U.S. at 322-24; Anderson, 477 U.S. at 248-50. Once a party has properly filed evidence supporting the motion for summary judgment, the nonmoving party may not rest upon mere allegations in the pleadings, but must instead set forth specific facts illustrating genuine issues for trial. Celotex, 477 U.S. at 322-24. These facts must be presented in the form of exhibits and sworn affidavits. Fed.R.Civ.P. 56(c).
A court views the evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255. Whether an inference is reasonable must be considered in conjunction with competing inferences to the contrary. Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 818 (4th Cir. 1995). Nonetheless, the nonmoving party is entitled to have "`the credibility of his evidence as forecast assumed.'" Miller v. Leathers, 913 F.2d 1085, 1087 (4th Cir. 1990) (en banc) ( quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)). Ultimately, the court must adhere to the affirmative obligation to bar factually unsupportable claims from proceeding to trial. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) ( citing Celotex, 477 U.S. at 323-24).
3. Plaintiffs' Motion for Partial Summary Judgment
Plaintiffs move the Court for Partial Summary Judgment to state as a matter of law that (1) the time driving a bus from its parking space to the school and, (2) the time driving a bus from the last drop off to its parking space are compensable under FLSA. (Docket No. 48.) They argue that these two tasks are part of the bus drivers' "continuous workday" and therefore are compensable under the FLSA. (Pls.' Mem. in Supp. of Pls.' Mot. for Partial Summ. J. 5.) (Docket No. 49.)
Defendant argues that Plaintiffs' motion is barred because they did not file it in a timely manner. (Def.'s Mem. in Opp'n to Pls.' Mot. for Partial Summ. J. 2.) (Docket No. 58.) This is true. Plaintiffs filed their Motion for Partial Summary Judgment on July 10, 2007, six months beyond the January 10, 2007 deadline in the Scheduling Order. Plaintiffs do not attempt to establish good cause under Rule 16(b), instead stating that the motion should be heard because "this dispute cannot end without a resolution of this fundamental issue." (Pls.' Reply Mem. in Supp. of Pls.' Mot. Partial Summ. J. 3.) (Docket No. 59.)
Perhaps recognizing that the issues also must be considered for their own Summary Judgment motions (which the Court does below), Defendant alternatively argues that, even if Plaintiffs had filed the motion properly, material disputes of fact exist about when the bus drivers were to perform the bus inspections, whether the commuting at issue is compensable under the FLSA and the Portal-to-Portal Pay Act, and that the time required to perform the pre-or post-trip inspection is de minimis and therefore not compensable. (Def.'s Mem. in Opp'n to Pls.' Mot. for Partial Summ. J. 4-6, 9.)
The Court will DENY Plaintiffs' Motion for Partial Summary Judgment as untimely filed. (Docket No. 48.) 4. Defendant's Motion for Partial Summary Judgment as to Counts 1 and 3
Defendant's first Motion for Partial Summary Judgment pertains to Count 1, violations of FLSA, and Count 3, breach of contract. Defendant argues its motion largely as to overtime, while Plaintiffs emphasize "compensable" time. The Court must address both because the Amended Complaint seeks relief both for earned, but uncompensated, time and for time and one-half overtime wages. (Am. Compl. passim.)
4(a): Count 1: Violations of FLSA
Defendant seeks to expand this Court's summary judgment finding that this Court cannot find a violation as to overtime FLSA beyond the 2004-05 school year violations to include "any of the school years involved in this case." (Def.'s Mot. for Partial Summ. J. 1.) (Docket No. 63.) The School Board asks this Court to make a finding under summary judgment that 2004-05 was "typical," and, given this Court's previous ruling, summary judgment as to the overtime claim in Count 1 should be awarded as to all years. This purportedly would negate the need for any discovery as to events in other years because in the Scheduling Order, the parties agreed that if 2004-05 were not typical, discovery would commence in Phase Two as to other years. The first question to be addressed in Phase Two was, "1. If 2004-05 is not a typical year in terms of the amount of work performed by the individual drivers, how do prior years differ for each?"
By this, Defendant means previous years. By separate cover, Defendant also has filed a "Statement of Position On Scope of Lawsuit" in which it contends that the scope of the lawsuit is not meant to "embrace any conduct by the defendants after the time suit was filed." (Def.'s Statement of Position on Scope of Lawsuit 1.) (Docket No. 65.) Defendant argues that the Court should exclude future acts because these acts were not ripe for review at the time Plaintiffs filed the original claim in 2005. ( Id. at 2.) In contrast, Plaintiffs contend that the scope of the lawsuit encompasses acts from future school years because the School Board's alleged FLSA violation is continuing. (Pls.' Mem. in Opp'n to Def.'s Statement of Position on Scope of Lawsuit 2.) (Docket No. 69.) See Seets v. Anne Arundel County, 40 F. App'x 744, 750-51 (4th Cir. 2002) (No. 99-1838), available at 2002 WL 1358788, at *5; Higgins v. Food Lion, Inc., No. CIV. A. AW00CV2617, 2001 WL 77696, at *2 (D. Md. Jan. 23, 2001). Plaintiffs allege that the School Board continues to underpay them pursuant to longstanding policy.
Defendant's "Statement" makes no motion on which the Court should rule. The Court notes that Defendant, in part, argues that the language of the Complaint contemplates only past conduct. This is not entirely correct. Paragraph 10 of the complaint alleges an FLSA class of "all persons who were, are or will be hourly non-exempt bus drivers of Hanover. . . ." 2nd Am. Comp. ¶ 10. In contrast, the agreed upon Scheduling Order is silent as to future violations.
Despite the fact that the claims for unpaid wages during later school years appear to be nearly identical to the claim for the 2004-05 school year, the Court recognizes that future years were not the focus of the parties when the case began. Accordingly, the Court will reserve its ruling as to future years pending further proceedings in the case.
The Court cannot, on this record, grant Defendant's motion for summary judgment. Viewing the evidence in the light most favorable to Plaintiffs and for the reasons discussed below, the Court cannot find that 2004-05 was "typical," and material disputes exist as to the compensable nature of the tasks for which Plaintiffs seek compensation. Under the Scheduling Order, this means that the case will progress to Phase Two.
4(a)(I): Whether 2004-05 was Typical
Citing the affidavit of Wade Valentino and others, the School Board contends that the tasks of bus drivers "do not vary from year to year: they drive the same routes, and perform the same extra activities . . ." (Def.'s Br. in Supp. of Mot. For Partial Summ. J. on Counts 1 and 3 at 3.) Noting that he oversees the drivers' work, but does not work with them day-to-day, Valentino states that the bus driver assignments "very [sic] little from year to year . . . [and] typically remain the same each school year, subject only to change if new roads are constructed, or new housing units are built." (Valentino Decl. ¶¶ 2-3.) As noted above, Plaintiffs seek leave to depose the declarant. Plaintiffs also specifically dispute any claim that their routes do not change. (3d Adams Decl. ¶ 2) ("The work assignments for school bus drivers . . . between . . . 2000 and the present time have changed; my work assignments have changed over those years."); (2d Hart Decl. ¶ 2) ("The work assignments for school bus drivers . . . between . . . 2000 and the present time have changed; my work assignments have changed over those years.").
Regarding typicality, the School Board presents only Valentino's conclusion. Valentino does not provide any specific information about routes assigned in different years, even by way of example. Without more than Valentino's general assertion that the routes vary little year to year, when viewing the evidence in the light more favorable to Plaintiffs, the Court cannot find that Defendant is entitled to judgment as a matter of law. Plaintiffs affirm that the routes differ, a logical position given that children change schools with age, and that families relocate. This degree of variance constitutes a material dispute as to the "typical" demand on a driver year to year, meaning that the Court cannot make the finding that the 2004-05 school year was "typical" based on the record before it.
Even if it could make a finding as to typicality, as discussed below, the record before the Court contains disputed facts that would require elucidation before the Court could rule substantively in the manner Defendant seeks.
4(a)(ii): Overtime Claim
With good reason, Defendant focuses on Plaintiffs' FLSA overtime claims in their summary judgment motions. The FLSA requires employers to pay employees time-and-a-half wages for hours worked over forty (40) hours per week. The statute reads:
Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.29 U.S.C. § 207(a)(1). A plaintiff bears the burden of proving that his or her employer did not properly compensate the overtime hours worked. Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946). This requires that a plaintiff show that "his [or her] employer had knowledge, either actual or constructive, of his [or her] overtime work." Pforr v. Food Lion, Inc., 851 F.2d 106, 109 (4th Cir. 1988). In the alternative, a plaintiff can meet the burden under the law by "produc[ing] sufficient evidence to show the amount and extent of that work" that the employer did not properly compensate, "as a matter of just and reasonable inference." Mt. Clemens Pottery Co., 328 U.S. at 687. If the employee carries the burden, "[t]he burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence." Id. at 687-88. If the employer cannot "produce such evidence, the court may then award damages to the employee, even though the result be only approximate." Id. at 688.
Here, the Plaintiffs climb an uphill battle because the record clearly establishes that the School Board did not contract with Plaintiff bus drivers to work a full forty hours per week, whereby any additional work necessarily shifts Plaintiffs into overtime. Plaintiffs do not dispute that the School Board contracted with the bus drivers as part-time employees and that, regardless of the hours the bus drivers worked, the School Board paid the bus drivers for four hours of work each day. This amounts to a total of twenty hours per week, half of the FLSA's threshold amount for overtime pay. To cross the FLSA's forty-hour workweek limit, Plaintiffs must show that they worked more than double their contracted hours each week, or they must at least raise a material dispute as to that fact.
Two Plaintiffs swear that they "on occasion" work more than 40 hours per week. (3rd Adams Decl. ¶ 3; 2d Hart Decl. ¶ 3.) While indicating the hours can derive from substitute teaching or field trips, Adams and Hart offer scant-to-no documentation as to how they determined their hours, much less how they exceed 40 per week. Their claim is based, in part, on their assertion that they are not allowed to list on their time sheets time compensable under the FLSA, without any attempt to document any specific forty-plus hour week worked. On the other hand, the School Board asks this Court to make a finding in years outside the 2004-05 school year sans any specific wage or earning statements at all, based, as noted above, on that year's typicality. Neither party presents a record sustaining summary judgment as to overtime pay.
A third affiant, Plaintiff Fearnow, offers calculations that appear to address Plaintiffs' claims regarding compensable time because they fall below the forty-hour threshold. See Fearnow Decl., Ex. B. Fearnow's damage calculations provide an explanation of the average hours worked per week for three school year periods (2002-03, 2003-04, and 2004-05). (Fearnow Decl. ¶¶ 19-20.) According to Fearnow's calculations, he worked an average of thirty hours per week in 2002-03, twenty-four hours and forty-eight minutes in 2003-04, and twenty-five hours and twenty minutes in 2004-05. (Fearnow Decl., Ex. B.)
4(a)(iii): Compensable Time Claim
Plaintiffs defend against summary judgment largely discussing "compensable time," not overtime. Plaintiffs argue that this Court should not grant summary judgment because the School Board fails to pay compensable time which, regardless of any overtime claim, constitutes a violation of the FLSA. The offending time periods mirror those raised in Plaintiffs' summary judgment motion. They are: (1) the time between the time the last student is let off at the last drop off points in the morning (after leaving a child at the school) and afternoon (after dropping off the last student) and when the bus driver leaves the bus at its parking place ("parking times"); and, (2) the time which the School Board requires the bus driver to spend inspecting the bus before beginning a run or exiting the bus (the "inspections"); (collectively, "the disputed tasks"). (3d Adams Decl. ¶¶ 6, 10, 16; 2d Hart Decl. ¶¶ 8, 9, 14.) The issues of overtime and compensable time interrelate, because the Plaintiffs contend that they cannot begin the route until they have conducted the necessary inspection, and they cannot inspect the bus on a street or in a travel lane where the last drop off occurs, so they must drive to a parking space to inspect the bus safely. (3d Adams Decl. ¶ 17; 2d Hart Decl. ¶ 17; Fearnow Decl. ¶¶ 14, 17.) Thus, Plaintiffs suggest, these inspections become part of their "continuous workday," meaning that the drivers' work day is longer than Defendant's time records reflect, and, under Plaintiffs' theory, may exceed the four hours of compensation daily. 29 C.F.R. 790.6.
4(a)(iii)(A): The Parking Times
The parties disagree both as to factual circumstances surrounding the parking times, and as to the legal upshot of compensation for the parking times. County policy is clear that "[d]eadhead miles should not be listed" on any time sheets. (2d Crosier Aff., Ex. C, 1.) Plaintiffs contend this is a violation of FLSA, and that this policy means that all County time records are inaccurate. (4th Adams Decl. ¶ 7.)
Whether this "deadhead" time is compensable raises questions under an amendment to the FLSA, the Portal-to-Portal Act. 29 U.S.C. §§ 251-62. Under this Act, employers need not compensate employees for travel time to and from the actual place of performance of the principal activity or activities an employee is expected to perform. 29 U.S.C. § 254(a). However, an employer may be required to compensate for activities "`preliminary to or postliminary to' the `principal activity or activities' which an employee is engaged to perform, unless the employer is otherwise required to compensate [his or] her employees for such work by custom, contract, or practice." Truslow v. Spotsylvania County Sheriff, 783 F. Supp. 274, 277 (E.D. Va. 1992) (internal citations omitted.). A principal activity can include activities "`integral and indispensable'" to the principal activity. Id. ( quoting Steiner v. Mitchell, 350 U.S. 247 (1957)). This is a mixed question of law and fact because "`the precise nature of the employee's duties is a question of fact, while application of the FLSA to those duties is a question of law.'" United Transp. Union Local 1745 v. City of Albuquerque, 178 F.3d 1109, 1117 (10th Cir. 1999) ( quoting Baker v. Barnard Constr. Co. 146 F.3d 1214, 1216 (10th Cir. 1998)).
First, Defendant contends that, in part to ensure that no child is unintentionally left on the bus, any post-trip inspection must commence immediately upon the discharge of the last student, and not afterward when parking the bus. (Valentino Decl. ¶ 12) ("Bus drivers are expected to perform a post-trip inspection on their busses as soon as they drop off the last child in the afternoon. This check should take, at most, a few minutes."). The Plaintiffs state that the post-trip inspection must commence in some place other than a travel lane where the drop-off occurs, so it cannot commence until the bus rests in its more permanent parking space. (3rd Adams Decl. ¶ 17; 2d Hart Decl. ¶ 15; Fearnow Decl. ¶¶ 14, 17.) The drivers also contend that, because newer buses require that a button be pushed confirming that the bus has been checked before the driver disembarks, the drivers must wait until the bus is completely at rest before they conduct the final inspection. (Fearnow Decl. ¶ 14; Heath Decl. ¶ 4.)
The County appears to suggest that this traveling time should not be counted because the drivers are not required to park the bus in any particular place, meaning that such parking time cannot be considered integral or indispensable to the principal activity of driving the bus route. (Valentino Decl. ¶ 13) ("After the post-trip inspection, the drivers take their busses to their parking spaces. Many of the drivers park at their homes. Many of the drivers make stops to attend to personal errands after dropping off all their students. The parking places are typically close to the last stop in the route, and the trip from the last stop to their parking places should take, at most, twenty minutes.") (emphasis added). In contrast, both Adams and Hart declare that any driver who may have stopped for personal errands has been told not to do so, and that any claim that many do so on their way home "is completely absurd." (3rd Adams Decl. ¶ 18; 2d Hart Decl. ¶ 16.) Adams also states she is required to park in the County garage, and has been denied permission to park her bus at home. (4th Adams Decl. ¶¶ 9-10.)
The Court cannot see how an inspection can commence immediately upon drop off of the last student, given the safety implications of having a bus sitting on a road or blocking a school entrance. The inspection also commences prior to any route beginning. Because the inspections are a duty required for safety, the inspections are pre — and postliminary to driving the bus routes. Thus, the Defendant's argument about parking time pertains more toward whether all of the time should be compensated, not to whether it should be compensated at all. If a driver chooses to park at home rather than at a place closer to the school, Defendant rightly questions whether any additional parking time can be considered compensable, rather than merely commuting time. While defendant offers testimony about what "many" drivers do, their proffer cannot sustain a finding on summary judgment. 4(a)(iii)(B): The Inspections
Another factual chasm lies in how the parties describe the time the inspections themselves take. The School Board acknowledges that it requires the inspections and even presuming they are pre-or post-departure, the School Board asserts that these tasks are de minimis and not compensable under the FLSA. (Def.'s Mem. in Opp'n to Pls.' Mot. for Partial Summ. J. 4, 9-10.) As a matter of law, because the County requires the inspections and considers them necessary for the safe operation of the buses, the required inspections constitute "integral and indispensable" activities to the principal activity of driving the bus routes. Cf. United Transp., 178 F.3d at 1118-19 (holding that time spent traveling from a relief point in a split bus driving shift or going to a relief point at another shift is compensable, but excluding time commuting to and from work, and compensation for the hours between the two shifts).
The record before the Court nonetheless contains a material dispute as to whether the time spent inspecting is de minimis. The School Board, through Valentino, contends the pre-trip inspection should take no more than ten minutes. (Valentino Decl. ¶ 12) ("The pre-trip inspection for a bus driver should take no more than 10 minutes, at most."). In contrast, the drivers state the inspection takes at least 15 minutes, and likely longer. (3d Adams Decl. ¶ 16) ("The pre-trip inspection for a school bus driver that the School Board employs, including me, usually takes more than 15 minutes in the morning. This fact is definitively known to the School Board and has been known to the School Board for years, well before 2000."); (2d Hart Decl. ¶ 14) ("The pre-trip inspection . . . takes no less than 15 minutes in the morning and it usually takes significantly more than that."); (Fearnow Decl. ¶ 16) ("The pre-trip inspection . . . may take more than 15 minutes in the morning. If in fact all of the items on the "School Bus Driver's Daily Pre-Trip Inspection" form were done during every pre-trip, it would take at least 30 minutes to perform all duties listed on the checklist and probably more.").
Crosier appends to her Second Affidavit a record of the time she kept while riding with Adams on a route in 2004. (2d Crosier Aff., Ex. A.) In it, she notes that Adams arrived at 6:58 a.m., that she completed her "pre-trip" in seven minutes at 7:05. ( Id. at 2.) She also notes, without explanation as to the reason for the additional five minutes elapsed, that the bus left the parking lot at 7:10, twelve minutes after Adams's arrival. ( Id.)
Viewing the evidence in the light most favorable to Plaintiffs, the Court cannot award summary judgment for Defendant on this record. While no precise amount of time or rigid rule based on mathematical certainty can be applied by a court to determine what constitutes de minimis work, accepting Plaintiffs' assertion that the sweep takes at least 15 minutes, the length of time falls outside the range in which courts have found tasks to be clearly de minimis. Lindow v. United States, 738 F.2d 1057, 1062-63 (9th Cir. 1984) (task taking 7-8 minutes per day is de minimis); Myers v. Baltimore County, 50 F. App'x. 583, 589 n. 6 (4th Cir. 2002) (No. 01-2356), available at 2002 WL 31236296, at *4 ( citing Lindow and suggesting tasks taking less than ten minutes are de minimis under the FLSA). Lindow sets forth three prongs for deciding whether a task is de minimis: "(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work." Id. at 1063. "Courts have granted relief for claims that might have been minimal on a daily basis but, when aggregated, amounted to a substantial claim." Lindow, 738 F.2d at 1063 (citing cases, including one in which 15 minutes per day aggregated over time deemed not to be de minimis). Thus, even independent of the dispute as to the actual time the inspections take, Plaintiffs might develop a record under which they could present a claim that, when aggregated at several minutes a day, twice a day, might constitute a compensable activity. 4(a)(iii)(C): The Four Hour "Cushion"
Defendant nonetheless seeks summary judgment based on the undisputed record that they compensate for four hours regardless of actual hours worked. Defendant argues that, given that school officials have "never projected that a bus route will require more than one hour to complete," the compensation for four hours includes a "substantial cushion" of paid work such that, as a matter of law, the Court cannot find that the amount of compensation paid violates the FLSA. (Valentino Decl. ¶ 6-7.)
Plaintiffs dispute this contention. (3d Adams Decl. ¶ 4) ("I and other school bus drivers have to spend more than four hours per day performing the duties of the position of school bus driver."); ( Id. at ¶ 5, Ex. A) (appending time sheet representing at least 20.5 hour workweek in May 2005); ( Id. at ¶ 7) (stating "routes . . . have taken more than one hour" and citing a spring 2004 meeting in which "concerned parents" sought to "reduce the route time to less than one hour" and Valentino and Crosier explained why that was "difficult if not impossible" to do); (2d Hart Decl. ¶¶ 4-5) ("I and other school bus drivers have to spend more than four hours a day performing the duties of the position of school bus driver. . . . My bus routes and the routes of other school bus drivers have taken more than one hour to complete."); (Fearnow Decl. ¶ 18) ("I routinely worked more than the four hours per day. . . . There was no `cushion' of time for me that ensured that I would not work more than 4 hours a day."). The Court has documentation as to only one bus run for which time was recorded. When Crosier rode with Adams in November 2004, she recorded a route time of one hour and twenty-eight minutes. (2d Crosier Aff., Ex. A, at 2.)
With respect to 2004-05, the Court had before it an analysis of time records that permitted certain findings, but the current record cannot extend that ruling. As noted above, Defendant's attempt to establish 2004-05 as "typical" does not withstand review. Moreover, especially as to the issue of uncompensated time, Plaintiffs present specific disputes that rise to a level beyond that presented in earlier motions. Plaintiff Adams contends that parents sought shorter bus routes during the 2003-04 school year, thereby directly disputing the finding that routes during that year took no more than one hour. Crosier herself records a route taking an hour and a half, albeit during the 2004-05 school year. Given that both parties agreed that discovery was contemplated as to years other than 2004-05, the Court cannot grant summary judgment for the School Board when factual disputes exist and the Plaintiffs seek leave to conduct discovery.
Therefore, the Court shall DENY Defendant's Motion for Summary Judgment as to Count 1. (Docket No. 63.) Pursuant to the Scheduling Order, the case shall proceed to Phase Two. 4(b): Count 3: Breach of Contract
Defendant School Board also moves for summary judgment on Count 3, breach of contract. When a supplemental state law claim is presented to a federal court in conjunction with a federal question claim, a federal court has supplemental jurisdiction to hear the state law claim if it "form[s] part of the same case or controversy" as the federal claim. See 28 U.S.C. § 1367(a). Here, Plaintiffs' state law claim "form[s] part of the same case or controversy" of the FLSA claims because they arise from the same set of facts. Id. As such, the Court will invoke supplemental jurisdiction and consider Defendant's state law claim for breach of contract. The Court shall apply the Virginia state law. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
Defendant School Board previously moved for summary judgment on Count 3. In a Memorandum Opinion dated July 20, 2007 (Docket No. 54), this Court deferred any finding as to the employment contract, stating:
Independent of any finding as to the contract, the face of the documents before the Court show[s] that an important term of the contract remains at issue: compensation for time driving outside the bus run itself. For instance, according to the weekly time reporting instructions, drivers were not to count a start until "the time the bus pulls out of the parking place in the morning." (Def.'s Mem. Supp. Mot. Partial Summ. J., Crosier Aff., Ex. B.) The time at which "the last student is let off at the last school in the morning" constituted the finish time. ( Id.) Plaintiffs contend this is compensable time under the FLSA, and Defendant argues otherwise. The record before the Court cannot support a finding one way or the other, so the Court will defer any finding as to the employment contract.
Mem. Op., July 20, 2007, at 10-11.
Under Virginia law, a breach of contract claim has three elements: "(1) a legally enforceable obligation of a defendant to a plaintiff; (2) the defendant's violation or breach of that obligation; and (3) injury or damage to the plaintiff caused by the breach of obligation." Laskin Rd. Assocs., L.P. v. Capitol Indus., No. 2:07cv103, 2007 WL 1655336, at *2 (E.D. Va. June 5, 2007) ( quoting Filak v. George, 594 S.E.2d 610, 614 (Va. 2004)). Neither party disputes the contract's validity. Rather, the controversy centers on the terms of the contract and whether the School Board breached any of these terms.
The contract in question listed fifteen specific conditions that bus drivers must agree to perform. (Crosier Aff., Ex. C.) In return, the School Board committed to pay the bus drivers "for four hours of work regardless of whether the driver's route and other contracted responsibilities actually take four hours to complete." (Crosier Aff. ¶ 14.) Plaintiffs do not contend that the School Board breached any of the express conditions of the contract. Therefore, the Court should grant Defendant's Motion for Partial Summary Judgment unless there exists a dispute of fact regarding the breach of an implied term of the contract. In its Brief in Support of Motion for Partial Summary Judgment on Counts 1 and 3, Defendant argues that it paid the bus drivers for all hours worked, and that even if the bus drivers worked jobs in addition to the contracted time, this was so minimal that the bus drivers still did not work more than four hours each day. (Def.'s Br. in Supp. of Mot. For Partial Summ. J. on Counts 1 and 3 at 10-12.) Plaintiffs disagree, however, that the School Board properly compensated them for the disputed tasks because they contend that they could not complete the tasks, and their routes, within four hours. (Pls.' Stay and Counts 1 and 3 Mem. 7-11.)
"Only an unambiguous writing justifies summary judgment without resort to extrinsic evidence, and no writing is unambiguous if `susceptible of two reasonable interpretations.'" World-Wide Rights Ltd. P'ship v. Combe Inc., 955 F.2d 242, 245 (4th Cir. 1992) ( quoting Am. Fid. Cas. Co. v. London Edinburgh Ins. Co., 354 F.2d 214, 216 (4th Cir. 1965)). Therefore, as a threshold consideration, a court must find as a matter of law that a contract is unambiguous on its face to grant summary judgment. Id. For the writing to be unambiguous there must not be "more than one permissible inference as to intent to be drawn from the language employed"; otherwise, "the question of the parties' actual intention is a triable issue of fact." Bear Brand Hosiery Co. v. Tights, Inc., 605 F.2d 723, 726 (4th Cir. 1979).
In the present case, an ambiguity exists on the face of the contract because it is silent about the disputed tasks. The Court could find that an implied term of the contract was for Plaintiffs to complete the disputed tasks as part of their four contracted hours. See Monahan v. County of Chesterfield, 95 F.3d 1263, 1275 (4th Cir. 1996) ("that the plaintiff was aware of a particular condition of employment, the employee's acceptance of, and continued, employment manifests acceptance of the condition"). However, it could also find that the School Board should have compensated Plaintiffs for these tasks on top of compensation provided under the contract. Once again, the record before the Court cannot support a finding one way or the other. The Court has recited the disputes raised as to whether parking time and inspections should be compensated, and whether four hours actually provides a cushion of compensation.
Accordingly, the Court cannot grant summary judgment at this time. The Court shall DENY Defendant's Motion for Summary Judgment as to Count 3. (Docket No. 63.)
D. Motion For Summary Judgment on Count 2 (Retaliation)
Defendant School Board moves the Court to grant partial summary judgment as to Count 2 of the Second Amended Complaint, finding that the School Board did not violate the anti-retaliation provision of the FLSA, 29 U.S.C. § 215(a)(3), as to Plaintiffs Adams and Hart. The School Board contends that Adams and Hart neither engaged in protected activity under the FLSA nor suffered any adverse employment actions. (Def.'s Mem. Supp. Mot. Partial Summ. J. Count 2 Retaliation ("Def.'s Retaliation Mem.") 1.) (Docket No. 71.)
(a) After the expiration of one hundred and twenty days from June 25, 1938, it shall be unlawful for any person . . .
(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.29 U.S.C. § 215(a)(3).
In response, Plaintiffs move to stay consideration of Defendant's motion because they understood that "their claims of retaliation were Phase Two issues pursuant to the Scheduling Order." (Pls.' Mem. Supp. Mot. to Stay Consideration of Opp'n to Def.'s Mot. Partial Summ. J. on Retaliation Claims ("Pls.' Mem. Supp. Stay Opp'n Retaliation") 1.) (Docket No. 75). Defendant opposes the stay primarily because Plaintiffs did not object during the status conference when Defendant announced it would be filing a motion as to retaliation.
Although the Court has difficulty understanding why Plaintiffs would not confirm their presumption rather than choosing not to conduct discovery altogether, the request for a stay has a stronger foothold in this instance. The Scheduling Order is entirely silent as to retaliation, and it contains conflicting signals as to the retaliation claim. The Order indicates that Phase Two "shall focus primarily on issues relating to the individual plaintiffs in this case," suggesting that retaliation should commence in that phase. (Scheduling Order, Sept. 27, 2006, at 1.) The Scheduling Order also states that nothing precluded the parties from submitting motions for summary judgment as appropriate earlier than the dates set forth in the Order. ( Id. at 2.) Retaliation had been raised in an earlier motion. Plaintiffs essentially sat on their hands with regard to their retaliation claim, but Defendant bears some responsibility for an Order whose ambiguity allowed them to do so.
In any event, the summary judgment motions as to retaliation fail. Adams and Hart contend that informal complaints and the filing of this cause of action constitute protected activity. Regarding adverse actions, Adams contends that she was threatened with termination and denied the opportunity to park her bus at home as other drivers do. Hart contends she was denied the opportunity to continue substitute teaching.
a. Standard of Review
The FLSA makes it unlawful to "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding. . . ." 29 U.S.C. § 215(a)(3). To assert a prima facie case of retaliation under the FLSA, a plaintiff must prove:
(1) that he or she engaged in an activity protected by the FLSA;
(2) that he or she suffered adverse action by the employer subsequent to or contemporaneous with such protected activity; and (3) a causal connection existed between the employee's activity and the employer's adverse action.Whitten v. City of Easley, 62 F. App'x 477, 480 (4th Cir. 2003) (No. 02-1445), available at 2003 WL 1826672, at *3 (per curiam). Once the employee establishes the prima facie claim, the burden shifts to the employer to provide a legitimate reason for the adverse action. Id. The Court now turns to the prima facie elements of retaliation under the FLSA.
a(1). Protected Activity
Plaintiffs filed their Complaint on April 28, 2005. Instituting legal proceedings constitutes protected activity, provided that the alleged retaliation occurred "subsequent to or contemporaneous with" such activity. See id. at 481, 2003 WL 1826672, at *3 (citation omitted). The alleged acts of retaliation occurred after April 28, 2005. (4th Adams Decl. ¶¶ 8-10; 3d Hart Decl. ¶¶ 5-6.) Therefore, Plaintiffs have established the first element of the prima facie case to the extent it stems from actions taken after April 28, 2005. b. Adverse Employment Action
In this case, Adams and Hart initially lodged only internal complaints to various officials prior to instituting this suit. Adams "advised [Crosier] and certain other individuals in the transportation department that she had various questions and concerns with the manner in which the School Board was compensating her." (2d Crosier Aff. ¶ 3.) Hart sent an e-mail to Dennis Minton, the Patrick Henry High School Athletics/Activities Director, the content of which was later brought to Crosier's attention. (2d Crosier Aff. ¶ 15 Exs. E, F.)
Although Plaintiffs seek to establish otherwise, the weight of Fourth Circuit precedent has decided that the anti-retaliation provision of the FLSA does not extend to the making of an intra-company complaint. See Whitten, 62 F. App'x at 480, 2003 WL 1826672 ("[T]his Court has expressly held that the FLSA's ani-retaliation provision does not extend to internal complaints.") ( citing Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 364 (4th Cir. 2000)); Bell-Holcombe v. Ki, LLC, ___ F. Supp.2d ___, 2008 WL 4616858 (E.D. Va. Oct. 20, 2008) (noting internal complaint not covered whether verbal or written).
Cases reaching this conclusion observe that the retaliation provision of FLSA lacks a broader provision that the retaliation clause in Title VII contains: the so called "opposition clause." This clause allows action in Title VII cases not just for more formal actions or complaints by an employee, but also for actions "against those employees who have simply `opposed' unlawful employment practices." O'Neill v. Allendale Mut. Ins. Co., 956 F. Supp. 661, 664 (E.D. Va. 1997). The FLSA lacks such a provision. See Meredith-Clinevell v. Dep't of Juvenile Justice, 344 F. Supp. 2d 951, 955 (W.D. Va. 2004) (noting that plaintiff's "informal complaints to supervisors do not fall within one of the three categories of protected activities . . . such broad interpretations are not supported by the [FLSA's] statutory language").
An action against an employee that is less severe than a formal discharge may constitute an adverse employment action. See Watkins v. Disabilities Bd. of Charleston County, 444 F. Supp. 2d 510, 517 (D.S.C. 2006) (considering constructive discharge FLSA claim that where the employee alleged "intolerable working conditions"). Courts find a constructive discharge sufficient to sustain an FLSA claim where "`an employer deliberately makes the working conditions intolerable in an effort to induce the employee to quit.'" Id. (quotation omitted). The Watkins court noted that "`dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.'" Id. at 518 (quotation omitted).
Plaintiffs contend that the Court should find retaliation when there is merely "some injury or harm to the employee," as per the lower threshold for finding retaliation under Title VII. (Pls.' Stay Retaliation Mem. 6 ( citing Burlington N. Santa Fe Ry. v. White, 126 S. Ct. 2405, 2414 (2006)).) The law as to what constitutes an adverse action is developing, and the Supreme Court has instructed that the FLSA "must not be interpreted or applied in a narrow, grudging manner." Tenn. Coal, Iron R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944). In one context, Congress has narrowed the scope of employee activity that might provide a basis for retaliation under FLSA. See Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 364 (4th Cir. 2000). Still, the anti-retaliation provision of the FLSA seeks to support enforcement of the statute by "fostering an environment in which employees' `fear of economic retaliation' will not cause them `quietly to accept substandard conditions.'" Id.
Plaintiff Adams's principal claim of retaliation rests with the fact that the School Board required her to park her bus at the County garage and denied her request to park her bus at home. (4th Adams Decl. ¶¶ 9-10.) Defendant agrees that it required Adams and at least one other driver to park their buses first at the VDOT residency parking lot, and later, at VDOT's request, at the VDOT transportation facility. (2nd Crosier Aff. ¶¶ 10, 12-14; Pierce Aff. ¶ 4.) Even if the School Board targeted only Adams in requiring her to park her bus in a certain location, this would not rise to the level of an adverse action under section 215(a)(3). As the Watkins court noted, "[e]very job has its frustrations, challenges and disappointments." 444 F. Supp. 2d at 517. Adams's dissatisfaction with the new parking requirement does not appear to rise to the level of an adverse action.
However, Crosier herself offers two letters in which she suggests that Adams's noncompliance with her directives, including Adams's inclusion of "deadhead" miles in her time reports, could result in "disciplinary action, up to and including termination." (2nd Crosier Aff. Ex. C, letter dated April 25, 2005); see also 2nd Crosier Aff. Ex. D, letter dated Nov. 7, 2005 ("[S]hould you continue to disregard my instructions, I will terminate you for insubordination."). Only the second letter post-dates the protected activity before the Court, so this record does not appear to support any finding that Adams has, indeed, suffered adverse action or that a causal link to protected activity exists. However, the Court will deny summary judgment without prejudice given the ambiguity in the Scheduling Order, and some indication that threat of economic reprisal or termination exists on this record.
The Court shall DENY Defendant's Motion for Partial Summary Judgment on Count 2 as to Plaintiff Adams. (Docket No. 70.)
Plaintiff Hart's claim of retaliation focuses on her not being permitted to substitute teach. (3d Hart Decl. ¶ 5.) Although she states she finished the 2005 school year as a substitute teacher, she also states she had to switch schools in 2005-06, and she could not continue at the second school beyond that year as she had only worked at the second school in 2005-06 "because the School Board did not realize I was doing it." ( Id.)
No party disputes that Hart received additional compensation when substitute teaching opportunities arose. While this does not affect the employment contract and Hart's bus driver duties presently at issue, it does involve an allegation of an overall diminution of income from a single employer. Viewing the facts in the light most favorable to Hart, i.e., that the Board took retaliatory action to reduce additional income as a result of her complaint in this case, the Court cannot find, as a matter of law, that such an action could not be considered adverse. Cf. also Watkins, 444 F. Supp. 2d at 513 (citing reduction in salary as example of adverse action.). Material disputes remain, however as to whether any action was causally connected to Hart's protected activity. Therefore, the Court shall DENY Defendant's Motion for Partial Summary Judgment on Count 2 as to Plaintiff Hart. (Docket No. 70.)
E. Motions to Withdraw Opt-In Written Consent
Without providing any explanation as to why, Opt-In Plaintiffs Angela Hall, Clara Mallory, Carlean T. Moody, Brenda S. Stanley, Carol U. West, Deborah Meredith, Donna J. Roberts, and Sheila B. Fillingame (the "withdrawing Plaintiffs") moved to withdraw opt-in written consent to this action. Defendant has filed a Memorandum Regarding Binding Effect of Court's July 20, 2007 Opinion and Order on Opt-In Plaintiffs ("Def.'s Opt-In Mem."). (Docket No. 61.) Defendant argues that, although it postdates Plaintiffs' motions, the Court's July 20, 2007 Order granting Partial Summary Judgment is binding on the withdrawing Plaintiffs because they filed written consents before the Court entered the Order. (Def.'s Opt-In Mem. 3.) Plaintiffs filed a memorandum stating that these withdrawing Plaintiffs are not parties bound by rulings of the Court until a class has been certified including them. (Pls.' Mem. in Supp. of Principle That Opt-In Pls. are Not Parties Bound By Rulings of This Court Unless and Until This Court Certifies a Class Including Them ("Pls.' Opt-In Mem.").) (Docket No. 68.) Plaintiffs state that unless and until the Court certifies a class, the withdrawing Plaintiffs can and should be dismissed without prejudice and not be bound by the Court's rulings. (Pls.' Opt-In Mem. 3.)
No published case discusses the procedures a court must undertake when a party who has opted-in seeks to withdraw, must less what effect an outstanding request to withdraw has on a later-issued decision in the case. Congress amended the FLSA in 1947 to include the opt-in provision in order to prevent "large group actions . . . brought on behalf of employees who had no real involvement in, or knowledge of, the lawsuit." Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1248 (11th Cir. 2003) (citation omitted). Thus, the opt-in provision ensures that "no person can become a party plaintiff and no person will be bound by or may benefit from judgment unless he [or she] has affirmatively `opted into' the class; that is, given his [or her] written, filed consent." LaChapelle v. Owens-Ill., Inc., 513 F.2d 286, 288 (5th Cir. 1975). The FLSA states: "No employee shall be a party plaintiff to [a class] 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). When a party files written consent to opt-in, as the moving parties have already done, they become parties to the litigation as just described:
An FLSA collective action is deemed commenced for an individual plaintiff "on the date when the complaint is filed, if [she or] he is specifically named as a party plaintiff in the complaint and his written consent to become a party plaintiff is filed on such date in the court." 29 U.S.C.A. § 256(a) (West 1998). For plaintiffs not named in the original complaint, a collective action under the FLSA commences "on the subsequent date on which [the plaintiffs'] written consent is filed in the court." 29 U.S.C.A. § 256(b).Lee v. Vance Exec. Prot., Inc., 7 F. App'x 160, 166-67 (4th Cir. 2001) (No. 00-1330), available at 2001 WL 108760, at *5 (second alteration in original). The Fourth Circuit has noted that "[t]he purpose of the consent forms is `to make . . . uncertain plaintiffs certain, and actual participants, so that defendants could know the parties and the charges with which they were to be faced." Id. at *6 ( quoting Deley v. Atl. Box Lumber Corp., 119 F. Supp. 727, 728 (D.N.J. 1954).
Those who have filed opt-out notices contend that, because this Court had not conditionally certified a class under § 216(b), a collective action had not begun, and they should be free to withdraw. The Court had indeed not made a finding that the parties were similarly situated or certified a collective class. The parties — including Defendant — had asked that it not do so, representing to the Court that they were not certain whether the case would proceed as a FLSA class, or a class under Fed.R.Civ.P. 23. Although Plaintiffs now seek to proceed to class certification immediately, Defendant invokes the Scheduling Order to state that should not commence yet, because Phase Two has not begun. Defendant cannot have it both ways.
Plaintiffs claim that the parties are not bound to any court decisions until the Court certifies a collective action. While Defendant claims that Plaintiffs should not be allowed to withdraw at this late stage, both Plaintiffs and Defendant sought a bifurcated inquiry that delayed the certification process. Moreover, courts have permitted plaintiffs to withdraw an FLSA opt-in. Bowens v. Atl. Maint. Corp., 546 F. Supp. 2d 55, (E.D.N.Y. 2008); Reyes v. Tex. Ezpawn, L.P., No. V-03-128, 2007 WL 101808 (S.D. Tex. Jan. 8, 2007).
Although finding it regrettable, the Court sees no bar against these Plaintiffs choosing to withdraw their opt-in status. Given the procedural structure the parties undertook in this case, no collective action has been certified. As such, the Motion for Leave to Withdraw Written Consent will be GRANTED as to Angela Hall, Clara Mallory, Carlean T. Moody, Brenda S. Stanley, Carol U. West, Deborah Meredith, Donna J. Roberts, and Sheila B. Fillingame. (Docket Nos. 39-42, 44, 50-51, 66.)
The greater question is the legal consequence of Plaintiffs' withdrawal. Plaintiffs maintain that the withdrawing Plaintiffs should be dismissed without prejudice, and without being bound by the Court's ruling, because they were not parties to the action when they filed their motions for withdrawal. (Pls.' Opt-In Mem. 3.) Case law makes clear that class certification, including conditional certification, is not automatic. Choimbol v. Fairfield Resorts, 475 F. Supp. 2d 557, 558 n. 1 (E.D. Va. 2006). To form a collective FLSA action, plaintiffs must be similarly situated, and they must opt-in. Harris v. Heathcare Servs. Group, Inc., No. 06-2903, 2007 WL 2221411 (E.D. Pa. July 31, 2007).
The Court must balance the Plaintiffs' right to prosecute their action in the manner they see fit against the prejudice to the Defendant because of the amount of time expended in defending the Plaintiffs' case until Plaintiffs sought to opt-out. The withdrawing Plaintiffs had remained in the case while two amended complaints were filed and when seeking lengthy amounts of time to conduct discovery. The Defendant and Plaintiffs entered into a tolling agreement of any statute of limitations while the action proceeded. Because they filed for leave to withdraw prior to this Court's earlier ruling, the Court cannot weigh heavily its role in their seeking leave to withdraw.
The Supreme Court has found that a district court must have the "requisite procedural authority to manage the process of joining multiple parties in a manner that is orderly, sensible, and not otherwise" in violation of statutes or rules. Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 170 (1989). Because of a potential for abuse, a court has "both the duty and the broad authority to exercise control . . . governing the conduct of counsel and the parties." Id. at 171. Here, the Plaintiffs' extensive, albeit pre-decision, delay in seeking withdrawal must be counterbalanced against Defendant's choice to bifurcate the case, thereby delaying certification in the first instance.
Given these considerations, the Court does not find that it can dismiss the withdrawing Plaintiffs with prejudice. However, upon opting out, the withdrawing Plaintiffs should lose both the detriment and any benefit of participating in this case. If not directly subject to this Court's earlier ruling, they also should not be subject to any tolling agreement governing participants in this case. They cannot rejoin this litigation. Indeed, should the withdrawing Plaintiffs seek similar redress in the future, it seems impossible that they do so absent consideration of their longstanding participation in this case, especially because this case is ongoing.
As such the Court will GRANT the Motions to Withdraw Consent, and DISMISS the withdrawing Plaintiffs WITHOUT PREJUDICE. (Docket Nos. 39-42, 44, 50-51, 66.)
F. Motion for Class Certification
Finally, Plaintiffs separately move for Certification of Class. Plaintiffs move the Court to "consider and rule on the existence of any class or classed or similarly situated employees." (Pls.' Mot. for Certification of Class ¶ 10.) Plaintiffs argue that "[t]o require the hundreds of school bus drivers to litigate the compensable work time issues individually or in small groups would be inefficient and wasteful of the resources of this Court and the school bus drivers." (Pls.' Mot. for Certification of Class ¶ 9.) Defendant correctly notes that, pursuant to the existing Scheduling Order, this motion appears prematurely. It should commence under Phase Two. Defendant also opposes the motion substantively.
Although Defendant questions whether Plaintiffs seek to certify a class under Fed.R.Civ.P. 23, it is clear that Plaintiffs seek certification only under FLSA Section 216(b). By taking the position they do before this Court, Plaintiffs have abandoned pursuit of any class action under Rule 23.
Here, the Court finds granting preliminary class certification would not unduly prejudice Defendant even during Phase One, because the relief they seek appears to align with a motion to decertify the class, which Defendant could bring in Phase Two. Also, the rulings as to summary judgment and other issues above essentially move the parties into Phase Two, which would allow Plaintiffs to move for certification in any event.
As a general rule, FLSA class certification under section 216(b) requires: (1) that the plaintiffs are "similarly situated," and (2) that the plaintiffs included in the class file opt-in consents to the suit with the court. Choimbol, 475 F. Supp. 2d at 562 (citation omitted). To determine whether plaintiffs are "similarly situated," courts apply a two-step analysis. Id. (citations omitted). Any initial conditional certification commences under a "fairly lenient standard" because it is generally made with "minimal evidence." Id. at 562. A finding that the plaintiffs are similarly situated requires "nothing more than substantial allegations that the putative class member[s] were together victims of a single decision, policy, or plan." Id. at 563 (citation omitted). The court proceeds to the second step if the defendant files a motion for decertification, which usually would occur after discovery is complete. Id. The court applies a "heightened fact specific standard to the `similarly situated' analysis" throughout the second stage. Id. (citation omitted).
In many cases, this initial state includes a determination whether the district court should "provide initial notice of the action to potential class members." Choimbol, 475 F. Supp. 2d at 562. Presently, the Court need not consider whether notifying potential opt-in plaintiffs is proper because Plaintiffs have not moved the Court to authorize notice.
In support of their motion to certify a class, Plaintiffs assert that (1) they are bus drivers seeking monetary relief for unpaid compensation, (2) they signed contracts that "are identical in form and substance," (3) their claims involve the same relevant time period such that they were all subject to the same policies, procedures, payroll practices, and record keeping requirements, and (4) the School Board did not pay them for the same compensable time worked. (Pls.' Mot. for Certification of Class ¶¶ 3, 5 n. 4, 6, 7.) In Choimbol, the court certified the class of employees who worked for a joint employer, even though they worked in different capacities and at different times. Id. at 564. The court noted that the distinctions between the employees "do not work to subject Plaintiffs to factually distinct defenses which would work to undermine the benefit associated with collective actions." Id. Similarly, in Harris v. Healthcare Services Group, the court found opt-in plaintiffs similarly situated even though some were no longer employees, they held different jobs, and only one-quarter of the opt-in plaintiffs had claims for unpaid overtime. 2007 WL 2221411, at *3.
Given the similarities before the Court and assessing the applicable case law, the Court finds conditional class certification appropriate. Any minor differences among the bus drivers are insufficient to counteract the benefit of the collective action to the court and to the parties. Therefore, the Court will GRANT Plaintiffs' Motion for Conditional Certification of Class under FLSA. (Docket No. 46.)
As discussed above, the Court only need move to the second tier, in depth analysis of whether parties are similarly situated, if a defendant files a motion for decertification. Choimbol, 475 F. Supp. 2d at 562. A defendant may file such a motion after "discovery is virtually complete." Id. at 563 (citation omitted). Defendant retains the option to file such a motion. If the court chooses to de-certify the class, the Plaintiffs may proceed on their individual claims.
III. Conclusion
For the reasons stated above, the motions before the Court are GRANTED in part and DENIED in part. An appropriate Order shall issue.