Summary
holding that allegations that simply state that they believe other workers were discriminated against in similar ways do not satisfy § 216(b)
Summary of this case from Pacheco v. Boar's Head Provisions Co.Opinion
Civil Action No. 3:05-CV-0077-P.
May 15, 2006
ORDER
Now before the Court is Plaintiffs' Motion for Notice to Potential Plaintiffs and Limited Expedited Discovery, filed March 1, 2006. On April 3, 2006, Defendants filed a (1) Response to Plaintiffs' Motion for Notice to Potential Plaintiffs and Limited Expedited Discovery, a (2) Response to Plaintiffs' Request for Expedited Discovery as to Identity of Potential Plaintiffs, and (3) Objections to Evidence and Proposed Notice Filed in Support of Plaintiffs' Motion for Notice to Potential Plaintiffs and Motion to Strike. Plaintiffs did not file a Reply. After careful consideration of the parties' briefing, the evidence, and the applicable law, Plaintiffs' Motion for Notice to Potential Plaintiffs and Motion to Strike is DENIED.
I. Background
Plaintiffs Aleatha Harris, Marlon Bennett, Patsy Nell Long, Charleton J. Namachar, and Mark Shaw (collectively "Plaintiffs") are former employees of Defendants FFE Transportation Services, Inc. and Frozen Food Express Industries, Inc. (hereinafter "Defendants"). Defendants operate one of the largest publicly owned temperature-controlled trucking companies in North America. (Def.'s Resp. at 2.)
Frozen Food Express Industries, Inc. is a holding company that wholly owns other subsidiaries including FFE Transportation Services, Inc. All Plaintiffs were formerly employed by FFE Transportation Services, Inc. or another wholly owned subsidiary of Frozen Food Express Industries, Inc. For convenience, the Plaintiffs' employers will simply be referred to as "Defendants."
Plaintiffs claim that they are all non-exempt employees who were denied overtime pay in violation of federal law. By way of affidavit, Aleatha Harris ("Harris") and Charleton J. Namachar ("Namachar") both state that they were employed as a "Customer Service Representative." ( See Pl.'s Mot., Ex. A, B.) Their job duties included "data entry, customer service, setting appointments for loads to be delivered to customers, sending messages to the drivers about appointment times, calling customers about late loads and updating the computer system." ( Id.) Both state that they routinely worked in excess of 50 hours per week and were not properly paid overtime wages. ( Id.) Marlon Bennett ("Bennett") states that he was employed as a "Fleet Manager" and his job duties included "scheduling drivers and being the first line of communication with drivers." ( Id. at Ex. C.) Bennett further states that he did not have the authority to hire or fire drivers, and any disciplinary or management issues were directed to his superiors. Mark Shaw ("Shaw") states that he was employed for two years as a "Driver Manager" and "Driver Associate" and is currently employed as a "Driver." ( Id. at Ex. D.) He claims his job duties as a Driver Manager/Associate included "assigning loads to drivers, scheduling drivers and being the first line of communication with drivers" and he likewise lacked the authority to hire or fire drivers. ( Id.) Both Bennett and Shaw state that they regularly worked in excess of 50 hours a week and were not properly paid overtime wages. ( Id. at Ex. C, D.) Patsy Nell Long ("Long") did not file an affidavit, but Plaintiffs' Motion states that she was a billing clerk whose duties consisted of printing invoices, preparing freight audit bill reports, general billing, preparing subcontractor's pay and filing. (Pl.'s Mot. at 3.) All Plaintiffs, with the exception of Long, are classified as exempt employees and are paid a salary. Plaintiffs, however, claim that they should be classified as non-exempt and therefore paid overtime wages.
Both Harris and Namachar state that, at various times in their employment, their official title was "Accounts Manager," but that the job duties were the same regardless of title.
Plaintiffs, on behalf of themselves and all others similarly situated, filed suit on January 12, 2005, alleging that Defendants have failed to compensate its employees for overtime work in violation of the Fair Labor Standards Act ("FLSA"). 29 U.S.C.A. § 201 et seq. Plaintiffs file the instant motion seeking to notify a group of potential plaintiffs of the pending action so that they may "opt-in" and join the collective lawsuit pursuant to 29 U.S.C.A. § 216(b). The group of potential plaintiffs sought to be notified is: "All customer service representatives, account managers, billing clerks, driver associates, driver managers or fleet managers working at FFE Transportation Services, Inc. and Frozen Food Express Industries, Inc. from January 12, 2003 to the present." (Pl.'s Mot. at 10.) Additionally, Plaintiff seeks expedited discovery, requesting that the Court order Defendants to provide, in usable electronic form, the name, last known address, telephone number, date of birth, and social security number of each current and former employee employed at each of Defendants' facilities statewide for the last three years.
II. Legal Standard
District courts have the discretion, in appropriate cases, to allow a party asserting FLSA claims on behalf of others to notify potential plaintiffs of their right to opt-in to the suit. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169 (1989); Barnett v. Countrywide Credit Indus., Inc., No. 3:01-CV-1182-M, 2002 WL 1023161, at *1 (N.D. Tex. May 21, 2002) (Lynn, J.). But this notice is by no means mandatory, the relevant inquiry in each particular case is whether it would be appropriate to exercise such discretion. Hall v. Burk, No. 3:01-CV-2487-H, 2002 WL 413901, at *2 (N.D. Tex. Mar. 11, 2002) (Sanders, J.) (citing Camper, et al. v. Home Quality Mgmt., Inc., 200 F.R.D. 516, 519 (D. Md. 2000)).
The Fifth Circuit has declined to adopt a specific test for determining whether to allow notification of potential plaintiffs. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1212 (5th Cir. 1995). However, the prevailing analysis used by federal courts, and the Northern District of Texas in particular, is the two-stage approach first propounded by the court in Lusardi v. Xerox Corp., 118 F.R.D. 351 (D.N.J. 1987). Mooney, 54 F.3d at 1212; Hall, 2002 WL 413901, at *2; Barnett, 2002 WL 1023161, at * 1; Aguilar v. Complete Landsculpture, Inc., No. 3:04-0776-D, 2004 WL 2293842, at *1 (N.D. Tex. Oct. 7, 2004) (Fitzwater, J.). In the first stage of the analysis, the Court inquires as to whether Plaintiff has provided sufficient evidence that similarly situated plaintiffs exist. Mooney, 54 F.3d at 1213-14. At this stage, the Court uses a lenient standard, and if the Court finds certification appropriate, it usually conditionally certifies the class. At the second stage, the Court re-examines the class after notice, time for opting-in, and discovery have taken place. If it finds the class is no longer made up of similarly situated persons, it may decertify the class. This second inquiry is usually conducted in response to a motion by defendant. Id.; Barnett, 2002 WL 1023161, at *1-*2.
At the initial stage, a court ordinarily possesses "minimal evidence" and is thus instructed to apply a lenient standard in determining whether to conditionally certify. Mooney, 54 F.3d at 1212. But where the parties have had the opportunity to conduct discovery on the issue of certification, the similarly situated inquiry is more stringent. Basco v. Wal-Mart Stores, Inc., No. 00-3184, 2004 WL 1497709, at *4 (E.D. La. July 2, 2004). Courts generally consider the evidence submitted and the two-step inquiry collapses into one. Id. ("[I]n light of the substantial discovery that has occurred in this matter, the Court will consider the criteria for both the first and second steps in deciding whether it should certify."); see also Pfohl v. Farmers Ins. Group, No. CV-03-3080, 2004 WL 554834, at *3 (C.D. Cal. Mar. 1, 2004) (finding that where discovery relating to the issues of certification had been undertaken, the court could proceed to the second stage of the analysis and weigh the relevant factors to determine whether plaintiffs were similarly situated); White v. Osmose, Inc., 204 F. Supp. 2d 1309, 1313 n. 2 (M.D. Ala. 2002) (finding it appropriate to consider the evidence submitted by the parties when discovery had been conducted); Ray v. Motel 6 Operating Ltd., No. 3-95-828, 1996 WL 938231, at *4 (D. Minn. 1996) (applying a more stringent standard at the initial stage because "the facts before the Court are extensive [and] there is no need for discovery in order to reach a determination"). In the present case, the Court's Scheduling Order gave the parties over seven months to conduct discovery related to the certification issue; the Court finds this sufficient to engage the second step of the analysis. See Brooks v. Bellsouth Telecomm., Inc., 164 F.R.D. 561, 568-69 (N.D Ala. 1995) (finding that a three month period for discovery was extensive enough to prompt the second stage of the analysis).
At this second stage, when more evidence is available, courts typically consider three factors in determining whether potential plaintiffs are similarly situated. Such factors include (1) the disparate factual and employment settings of the individual plaintiffs, (2) the various defenses available to the defendant which appeared to be individual to each plaintiff, and (3) fairness and procedural considerations. Basco, 2004 WL 1497709, at *4; see also Mooney, 54 F.3d at 1213 n. 7 (citing Lusardi, 118 F.R.D. at 359).
III. Analysis
In the instant case, all three second stage factors suggest that plaintiffs are not similarly situated and notification would be improper. First, even a brief recounting of the respective job titles and duties of the named plaintiffs make it abundantly clear that there is considerable variation in the factual and employment settings. Harris and Namachar both state that they were employed as a Customer Service Representatives and that their job duties included "data entry, customer service, setting appointments for loads to be delivered to customers, sending messages to the drivers about appointment times, calling customers about late loads and updating the computer system." ( See Pl.'s Mot., Ex. A, B.) But Namachar states he finished his employment as a National Customer Service Representative, while Harris finished her tenure as an Account Manager. ( See id.) According to affidavits submitted by Defendants, Namachar's job duties were quite different from Harris in that he handled a variety of national and regional accounts and interacted with freight brokers when Defendants were unable to freight the customer's loads. In contrast, Harris did not work with freight brokers and worked solely with one customer in two different areas. Moreover, Defendants became dissatisfied with Harris' production and eventually re-assigned her to a non-exempt position where she was paid by the hour and eligible for overtime wages. The evidence further shows that Harris and Namachar worked extensively with customers of the Defendants, while both Bennett and Shaw state that their job primarily involved being "the first line of communication with drivers." ( See Pl.'s Mot., Ex. C, D.) Bennett states he principally scheduled the drivers; while Shaw states that he assigned loads to the drivers. ( See id.) Lastly, Plaintiffs' Motion states that Long was a billing clerk whose duties consisted of printing invoices, preparing freight audit bill reports, general billing, preparing subcontractor's pay and filing. (Pl.'s Mot. at 3.) According to the evidence submitted by Defendants, Long was a non-exempt employee paid on an hourly basis and was properly compensated for all hours worked over 40 each week. (Def.'s App. at 60-61.) Plaintiffs have not attempted to refute such evidence. In sum, there is little similarity between the plaintiffs other than the fact that they all worked for the same employer and all claim violations of the FLSA.
Such affidavits were in no way refuted by Plaintiffs.
Second, because of the factual variations between each plaintiff, the Defendants would logically pursue different defenses for each plaintiff. Most significant is the fact that some of the class members challenge their classification as exempt, while other plaintiffs are already classified as non-exempt and would appear to allege that their hours were not properly recorded. The different classifications and varying job duties would require Defendants to present a highly individualized defense for each plaintiff's claims.
Finally, the Court finds that issues of fairness and manageability further counsel against certification. Defendants would likely be prejudiced in presenting a defense because of the individualized nature of the claims, and the broad scope of the proposed notice would likely exacerbate the fairness concerns. In sum, Plaintiffs' motion for notice fails the second stage analysis.
But even if the Court were to analyze the motion under the more lenient standard of the first stage, court authorized notice would still be denied. Notice is only appropriate when there is "a demonstrated similarity among the individual situations [and] . . . some factual nexus which binds the named plaintiffs and potential class members together as victims of a particular alleged [policy or practice]." Clarke v. Convergys Customer Mgmt. Group, Inc., 370 F. Supp. 2d 601, 605 (S.D. Tex. 2005). As discussed above, the five named plaintiffs represent at least three different positions within the company, all entailing significantly different job duties. The only commonality between the plaintiffs appears to be the fact that they were employed by the Defendants and now bring claims under the FLSA. But courts will not conditionally certify a collective action "simply because [plaintiffs] claim violations of the law by the same employer." Freeman v. Wal-Mart Stores, Inc., 256 F. Supp. 2d 941, 945 (W.D. Ark. 2003). In Freeman, the court refused to conditionally certify a class of employees who alleged they were not being paid overtime wages because they were mis-characterized as exempt. Id. The court rejected the notion that all salaried employees were similarly situated regardless of the nature of their job duties. Id. Simply alleging violations of the law by the same employer was insufficient to justify a collective action. Id.
In addition, Plaintiffs have not clearly alleged a common policy or practice. In affidavits submitted by four of the five named plaintiffs, each states that they observed other employees who were subject to the same allegedly unlawful policies and practices. But allegations that "simply state that they believe other workers were discriminated against in similar ways . . . [do] not satisfy the movant's [Rule] 216(b) burden." H R Block, Ltd. v. Housden, 186 F.R.D. 399, 400 (E.D. Tex. 1999). Plaintiffs have failed to offer anything more than conclusory allegations and have not demonstrated any factual nexus that binds the claims under a single policy.
Furthermore, multiple courts in this circuit and elsewhere have refused to conditionally certify a class at the first stage of the analysis when the determination of whether certain employees were improperly classified as exempt would require a highly individualized inquiry. Aguirre v. SBC Commc'ns, Inc., No. H-05-3198, 2006 WL 964554, at *7 (S.D. Tex. Apr. 11, 2006) (finding conditional certification inappropriate where differences among the potential plaintiffs predominated over their similarities); Holt v. Rite Aid Corp., 333 F. Supp. 2d 1265, 1274-75 (M.D. Ala. 2004) (declining to conditionally certify collective action where individualized nature of the potential plaintiff's claims would diminish "the economy of scale envisioned by the FLSA collective action procedure"); Reich v. Homier Distributing Co., 362 F. Supp. 2d 1009, 1013-14 (N.D. Ind. 2005) (refusing to conditionally certify where defendant's liability to any particular plaintiff would depend on a set of facts specific to that individual); Morisky v. Pub. Serv. Elec. Gas Co., 111 F. Supp. 2d 493, 498 (D.N.J. 2000) ("[M]any specific dissimilarities between the job duties of the name plaintiffs and the opt-in plaintiffs make certification as a collective action inappropriate."). The evidence presently before the Court shows that the differences in the named plaintiffs' job duties are significant; as such, the proper FLSA status of each employee would necessitate a fact-specific analysis of each individual plaintiff's employment terms. Such individualized analysis counsels against a collective action. Regardless of whether Plaintiffs' motion is considered through the first or second stage of the analysis, the Court does not believe that notice to potential plaintiffs is appropriate.
III. Conclusion
For the reasons discussed above, the motion for notice to potential plaintiffs is denied. As Court authorized notice will not be issued to potential plaintiffs, the motion for limited expedited discovery is also denied. Therefore, Plaintiffs' Motion for Notice to Potential Plaintiffs and Limited Expedited Discovery is DENIED in all respects.