Opinion
IP 1:02-CV-01812-SEB-VSS
December 23, 2003
ENTRY ON PLAINTIFFS' MOTION TO JOIN ADDITIONAL PARTIES
Introduction
This matter comes before the Court on Plaintiffs' Motions to Join Additional Parties, to Order Defendant to Produce List of Potential Plaintiffs and To Approve Form of Class Notifice. Plaintiffs George M. Carter ("Carter"), Bobby M. Majors ("Majors") and Steven M. Glasgo ("Glasgo") are former employees of the Indianapolis Power and Light Company ("IPL") who filed this suit on behalf of themselves and other similarly situated individuals alleging that IPL failed to compensate them for overtime hours worked as required by the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. The plaintiffs seek a conditional certification of a plaintiff collective action under § 216(b) and the necessary discovery to allow for written notification of the potential class. The defendant is opposed on two grounds: 1) the plaintiffs fail to show they are similarly situated to the employees in the proposed class and; 2) they fail to show that any similarly situated putative class member desires to opt-in to their lawsuit. For the reasons explained below, the plaintiffs' motions areGRANTED.
Factual and Procedural Background
Carter, Major and Glasgo were employed by IPL as "supervisors." Pls.' Complaint ¶¶ 7-9; Def.'s Answer ¶¶ 7-9. Carter and Glasgo were first level supervisors in the Harding Street Power Plant and Major was a first level supervisor in the Petersburg Power Plant. Def.'s Opp'n Br. at 7; Kunz Aff., ¶¶ 4-6. In the IPL "exempt position description" documents offered by Defendant, Carter is described as a Coal Ash Foreman who reported to the Operations Supervisor and Majors and Glasgo were Mechanical Maintenance Foremen reporting to the Maintenance Supervisor. Id.; Exhibits A-C.
The plaintiffs allege that despite their title of supervisor, they were essentially non-exempt, hourly employees with no management responsibilities. For instance, they were classified as "non-exempt supervisors" on internal payroll records, performed duties more similar to their union brethren in the company than to other salaried management personnel, and were never invited to attend management meetings. Pls.' Complaint ¶¶ 28-34. As such, plaintiffs argue that under the wage and hour provisions of the FLSA, they were entitled to be paid for overtime work at one and one-half times their hourly rate rather than on a straight time basis in contravention of the FLSA. In their Complaint, the plaintiffs described the potential class of similarly situated employees as hourly, non-managerial "supervisors" who were paid for overtime work on a straight time basis. Id. ¶ 1-4. More recently, however, the plaintiffs have sought to expand the class to all patently non-managerial employees who were paid on a straight time basis for overtime hours worked. Pls.' Response Br. at 4.
29 U.S.C. § 207(a)(1): 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.
In support of their motion for joinder of additional parties (also referred to as a motion for approval of class notification), the plaintiffs submit three affidavits and a consent form from a former employee who wishes to opt-in to the litigation. Two former employees attest to the nature of their job responsibilities and overtime compensation while IPL supervisors. Pls.' Response Br. at 2; Aff. of Majors; Pls.' Submission of Add'tl Support; Aff. of Pierson. Former IPL employee, Jim Collins, asserts that the company assigned a special payroll designation (wage hour designation code 6) to those employees who were to receive straight-time compensation for overtime hours. Pls.' Response Br. at 2; Ex. B. Finally, to support the expansion of the proposed plaintiff class to include other employees who were similarly underpaid for overtime hours, but who, unlike the plaintiffs were not "supervisors," the plaintiffs submit a consent form signed by "management trainer" Debbie J. Johnson-Miller who wishes to join the litigation. Id. at 4; Ex. C.
Plaintiffs request that the defendant produce a list of names and addresses of former and current IPL employees, namely those patently non-managerial employees classified as supervisors, foremen, management trainers, etc., who were paid straight-time rather than time-and-a-half for overtime work. They wish the court to approve the form of the proposed notice, which states, in part:
Please be advised that on November 21, 2002 George M. Carter, Bobby M. Majors and Steven M. Glasgo brought a law suit in the United States District Court for the Southern District of Indiana, Indianapolis Division (Cause No. 1:02-CV-1812-SEB-VSS). The suit seeks recovery on behalf of the Plaintiffs from Indianapolis Power Light Company for unpaid overtime pay for certain employees and former employees of IPALCO. Those employees are persons who are designated in the Complaint as "supervisors" and who were paid straight time for their overtime hours, as opposed to time and a half. The supervisors are persons who are not members of the Union IBEW. The Plaintiffs have represented in their suit that the primary duties of the supervisors did not consist of management of IPALCO; that they did not have authority to hire or fire other employees, or to bind the company as to their suggestions and recommendations concerning the hiring and firing of other employees; they did not customarily and regularly exercise discretion and independent judgment consistent with administrative positions; and they could, occasionally, if needed, perform manual work related to their employment.
Pls.' Motion to Join Additional Parties.
Discussion
I. Motion to Join Additional Parties A. Class Certification Under the FLSAThe express terms of the statute provide that an action for unpaid overtime compensation may be brought "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." 29 U.S.C. § 216(b) (emphasis supplied). Such a collective action differs markedly from a Rule 23 class action, however, because of a crucial provision in § 216(b) which renders the two types of collective actions fundamentally incompatible: class members must opt in to be bound while in a Rule 23 action they must opt out not to be bound. Woods v. New York Life Ins. Co., 686 F.2d 578, 579 (7th Cir. 1982); 29 U.S.C. § 216(b); Fed. Rules Civ. Proc. Rule 23. So while the plaintiffs' joinder request in the case before us is analogous to a class certification request in a civil class action under Rule 23, the Rule and its standard do not govern a FLSA case.
Title 23 of the United States Code, Section 216(b): 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.
As a threshold matter, it is well-settled that a District Court has the discretion to authorize notice to similarly situated employees so that they may opt-in to a class. See Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989). Yet the method by which the Court determines whether a FLSA class should be certified (and notice given to the prospective class) is a matter which divides courts along two lines. See generally Mooney v. Aramco Services Co., 54 F.3d 1207, 1212-16 (5th Cir. 1995); Bums v. Village of Wauconda, 1999 WL 529574, *1 (N.D.Ill. 1999)
The first method tracks the elements of Rule 23 class certification and examines "numerosity," "commonality," "typicality" and "adequacy of representation" to determine whether a class should be certified. Shushan v. University of Colorado, 132 F.R.D. 263 (D.Colo. 1990); Mooney, 54 F.3d at 1214. The second and more lenient method takes a two-step approach to class certification. See Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). The first step, or the "notice stage," involves an analysis of the pleadings and any affidavits which have been submitted to determine whether notice should be given to potential class members. The second step, which usually occurs after discovery has largely been completed, allows a court the opportunity to determine whether the class should be decertified or restricted because various putative class members are not in fact similarly situated as required by the statute. Mooney, 54 F.3d at 1213-14; Burns, 1999 WL 529574 at *2.
B. Similarly Situated
Courts in our district and throughout the Seventh Circuit have tended to adopt the second approach and so shall we. To prevail on their motion, the plaintiffs are expected to make a threshold showing that they are similarly situated to the employees on whose behalf they are seeking to pursue this claim. See Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn. 1991) ("To obtain court authorization to send the proposed notice, plaintiffs must submit evidence establishing at least a colorable basis for their claim that a class of `similarly situated' plaintiffs exist."); Krieg v. Pell's, Inc., 2001 WL 548394, *1 (S.D. Ind. 2001) (modest showing that "at least some employee-managers exist who are similarly situated to" plaintiff was sufficient to allow notice). Before notice is authorized, the court is not required to come to a "final determination" that the similarly-situated requirement has been met. Champneys v. Ferguson Enterprises, Inc. 2003 WL 1562219, *4 (S.D. Ind. 2003); Severtson, 137 F.R.D. at 267; Bontempo v. Metro Networks Communications Ltd. Partnership, 2002 WL 1925911, *1 (N.D. Ill. 2002).
Champneys v. Ferguson Enterprises, Inc., 2003 WL 1562219 (S.D. Ind. 2003) (granting conditional class certification): Krieg v. Pell's, Inc., 2001 WL 548394 (S.D. Ind. 2001) (granting conditional class certification); Pfaahler v. Consultants for Architects, Inc. 2000 WL 198888 (N.D. Ill. 2000) (denying conditional class certification);Bontempo v. Metro Networks Communications Ltd. Partnership, 2002 WL 1925911, *1 (N.D.Ill. 2002) (granting approval of opt-in notice to potential class members).
Carter, Majors and Glasgo contend they are similarly situated to other potential class members because they perform the duties of "non-exempt" employees despite their job titles (supervisor, management trainer) and should therefore be paid for overtime hours in compliance with the FLSA § 207.
The plaintiffs offer the affidavit of representative plaintiff Majors to describe the class of employees called supervisors but lacking in supervisory duties. Majors alleges that since 1987, he and other "non-managerial" employees, i.e., employees with no ability to hire or fire or make management decisions for the company, routinely received straight-time pay for overtime work contrary to law. Pls.' Response Brief, Ex. B. The affidavit of Robert Pierson, also employed as a supervisor, alleges that he and four (4) other supervisors known to him had no managerial duties despite their titles and as hourly employees were paid straight time rather than one and half times their wage for overtime hours worked. Pls.' Submission of Additional Support, Aff. of Robert Pierson. In addition, former IPL employee Jim Collins attests to personal knowledge of several hundred IPL employees who were not "bona fide" management personnel (supervisors, foremen, management trainers) but were given a wage designation code of 6 in payroll records which resulted in their exemption from the overtime protections in the FLSA. Pls.' Response Brief at 2; Ex. A. One such former employee, Debbie Johnson-Miller, has already granted her consent to be added as a plaintiff in this cause. Id., Ex. C. Ms. Johnson-Miller was employed as a "management trainer" and was paid only straight time rather than time and half for overtime hours. Id. at 4.
The plaintiffs have offered more than the required "modest showing" and seek the defendant's assistance in identifying those employees who were: a) clearly not in management positions and; b) paid straight time for overtime hours. We recognize that when a court feels compelled to conduct a fact-specific inquiry into the job duties of each opt-in class member, then certification is not appropriate. Tumminello v. United States, 14 Cl. Ct. 693, 697 (1998); Pfaahler v. Consultants for Architects, Inc. 2000 U.S. Dist. Lexis 17722, *8 (E.D. Ill. 2000). However, after the requested discovery has been completed, those persons not in bona fide management positions within IPL but employed in various positions such as supervisor, foreman, management trainer who were paid for overtime at a straight time rate should form themselves into a recognizable class of employees similarly situated to the named representatives.
C. Motion to Strike the Affidavits
Defendant has moved to strike Plaintiffs' affidavits for being vague, conclusory and without foundation as to personal knowledge. Def.'s Surreply at 3. We DENY the motion because we find the assertions in the Majors and Pierson affidavits to be sufficiently based on personal knowledge of their own employment experience. For example, it is reasonable for them to reliably attest to the nature of their job responsibilities as supervisors, to their never having fired or hired personnel while employed as supervisors, and to the terms of their overtime compensation over the years spent at IPL.
For the reasons stated above, we GRANT the conditional certification of the class.
II. Motions to Order Defendant to Produce List of Potential Plaintiffs
Upon the conditional certification of collective action under the FLSA, it follows that the representative plaintiffs could seek from the District Court an order approving the proposed form of notice as well as an order directing the defendant, in an appropriate case, to furnish the plaintiff with the names and addresses of potential class members. In Hoffmann-LaRoche, Inc., the Supreme Court found the District Court appropriately permitted discovery of the names and addresses of discharged employees after the Court found that the discovery was relevant to the subject matter of the action and that there were no grounds to limit the discovery under the facts and circumstances of [the] case. 493 U.S. at 170 (1989); see also, Woods, 686 F.2d at 580.
Upon our conditional certification of a proposed class, we find it appropriate to GRANT Plaintiffs' motion for disclosure of names and addresses of potential plaintiffs. See Champney's, 2003 WL 1562219 at *7 (S.D. Ind. 2003); Severtson, 137 F.R.D. at 267 (D.Minn. 19) (remanding for reconsideration under different standard magistrate's approval of notification; noting that if notice is warranted, discovery of names and addresses of potential plaintiffs should be allowed).
III. Notice to Potential Plaintiffs
We cannot, however, approve the plaintiffs' proposed form of notice because it is tailored only to those IPL employees designated as "supervisors" who were paid straight time for their overtime hours rather than time and a half. The plaintiffs have successfully argued that the potential class encompasses all those persons who were not in bona fide management positions within IPL but had various positions such as supervisor, foreman, management trainer and were paid for overtime at a straight time rate; accordingly, the notice should reflect this designation. As a result, Plaintiffs have leave to resubmit their proposed notice.
Conclusion
For the reasons given above, we GRANT Plaintiffs' Motion to Join Additional Parties and to Order Defendant to Produce a List of Potential Plaintiffs. We give the plaintiffs' leave to resubmit the letter directed to the putative class members.
It is so ORDERED.