Opinion
Case No. 2:07-cv-0697.
October 5, 2007
ORDER
Plaintiff, Gary McDonald, filed this action against the Madison Township Board of Trustees and other Madison Township officials under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. According to the complaint, plaintiff, who is employed as a Sergeant with the Madison Township Police Department, is required to work between 15 and 20 minutes prior to his regularly-scheduled shift in order to prepare directives for the officers whom he supervises. He contends, however, that the defendants refuse to pay him overtime compensation for this preparatory work.
The complaint contains a claim for relief on behalf not only of Sergeant McDonald but "other similarly-situated employees. . . ." Complaint, prayer for relief, ¶ D. On September 8, 2007, Sergeant McDonald filed a motion for an order directing the defendants to post a notice advising other similarly-situated employees of their right to opt into this action under 29 U.S.C. § 216(b). A number of additional memoranda have been filed, with the last being a correction to the defendants' response to plaintiff's supplemental filing which was submitted on September 26, 2007. After considering the arguments advanced in these various memoranda, and for the following reasons, the Court will deny Sergeant McDonald's motion for notice.
I.
The only facts before the Court relating to Sergeant McDonald's motion are those set forth in two affidavits which he signed. One is attached to his reply memorandum and the other is attached to his supplemental reply. The Court will summarize below the contents of these two affidavits.
In his first affidavit, Sergeant McDonald asserts that he has worked more than 40 hours a week from January 5, 2005 through the present. He claims to have submitted departmental request forms for overtime pay but these have been uniformly denied. Sergeant McDonald has reviewed a log of hours worked by other Madison Township Police Officers and states that the records reflect a significant amount of overtime work performed by him and another sergeant as well as at least seven patrol officers. He claims, in a more conclusory fashion, that the defendants have also engaged in a general pattern of failing properly to record time or to compensate employees for overtime worked in the last three years. He asserts that the defendants intimidate employees in order to prevent them from receiving proper overtime compensation.
In his supplemental affidavit, Sergeant McDonald notes that written policies of the Madison Township Police Department require officers to be able immediately to assume their duties when they report for work. He notes that officers are required to log activities during their shift so that officers on the next shift will be able to understand what occurred during the prior shift and be able to continue any necessary work. He also describes, in paragraph 16 of his Supplemental Affidavit, a number of duties which occur "on a regular, routine basis at the beginning and end of each shift. . . ."
Defendants argued in their first memorandum contra, filed on September 11, 2007, that Sergeant McDonald was informed that he was not to report early for his shift, that the work that he was doing on a pre-shift basis could be commenced after his shift officially began, and that it was a violation of Madison Township regulations and the applicable collective bargaining agreement for him to work overtime without authorization. As part of their reply memorandum, they submitted an internal memorandum directed to Sergeant McDonald which advised him that he has available to him an eight-hour shift to do the type of work for which he has been claiming overtime. Sergeant McDonald's two affidavits do not directly address the question of whether he would be able to complete all of his work-related duties, including the work that he is now performing before his shift begins, within the context of an eight-hour shift and in a sufficiently timely manner to allow him and other officers to be prepared immediately to assume their job duties upon the commencement of their shift. It is with these facts in mind that the instant motion will be decided.
II.
This Court has recently had the opportunity to survey the legal standard to be applied to a request for an order to post notice in an FLSA case. In Landsberg v. Acton Enterprises, 2006 WL 745178 (S.D. Ohio March 22, 2006), aff'd 2006 WL 3742221 (S.D. Ohio Dec. 15, 2006), the Court noted that there is a "two-tiered" certification approach involved in FLSA collective actions. At the first stage, the Court must simply determine whether notice and an opportunity to opt in should be given to potential class members. At the second stage, after discovery has been completed, and assuming that notice was found to be appropriate at the first stage, a motion for decertification may be made. If that occurs, the Court will determine on a full factual record whether the other employees who may have opted in are similarly-situated to the plaintiff. Id., citing Harrison v. McDonald's Corp., 411 F.Supp.2d 862 (S.D. Ohio 2005) (Holschuh, J.). Also relying on Harrison, the Court concluded in Landsberg that it was necessary that the plaintiff present some evidence prior to conditional certification being granted, and that the evidence must establish that there is, at a minimum, a colorable basis for the plaintiff's assertion that there are other similarly-situated plaintiffs. At the same time, however, the burden of proof is relatively slight at this stage of the case because the Court is not making a substantive determination on the basis of all the evidence but simply adopting a procedure which permits notice to be given to other potential class members. See also, Swallows v. City of Brentwood, 2007 WL 2402735 (M.D. Tenn. Aug. 20, 2007); Pritchard v. Dent Wizard Int'l Corp., 210 F.R.D. 591 (S.D. Ohio 2002) (Sargus, J.).
In making the determination as to whether other employees may be situated similarly to the plaintiff, the Court looks at a variety of factors. They include whether the other employees are surrounded by different factual settings, such as performing different job duties, being under different supervision, or earning a different salary. The Court is also required to consider whether there are defenses unique to each of the allegedly similarly-situated plaintiffs. In addition, the Court is to balance the efficiencies of proceeding either as a collective action or an individual action, taking the purposes of the FLSA into account in making that determination. See Wilks v. Pep Boys, 2006 WL 2821700 (M.D. Tenn. Sept. 26, 2006).
III.
In Sergeant's McDonald's original motion, he appears to request an order authorizing notice to be posted at every business office of the Madison Township Board of Township Trustees, including but not limited to the Madison Township Police Department. As an alternative, he has asked for a list of current and former employees for the last four years of Madison Township. The evidentiary materials submitted by Sergeant McDonald, however, pertain exclusively to the Madison Township Police Department. Consequently, the Court will focus only on that smaller group of employees for purposes of determining whether any of them meet the "similarly-situated" criterion for notice.
Although the complaint and some of the arguments advanced by Sergeant McDonald appear to assert that there is a policy or practice present in Madison Township which requires police officers to work overtime, he has not pointed to any specific regulation, directive, or oral order which would necessarily require either him or any other police officer to work more than an eight-hour shift. He has not asserted that he has ever been reprimanded for failing to complete his pre-shift duties before beginning his shift, and he has not addressed in any of his affidavits either the argument advanced by defendants, or the contents of the internal memorandum they filed, suggesting that his decision to work overtime is not only a voluntary decision on his part but contravenes applicable written regulations and requirements of the parties' collective bargaining agreement. Thus, there is a significant question about whether there is an employer-wide policy or practice which requires not only Sergeant McDonald but other similarly-situated officers to put in uncompensated overtime.
Further, of the other employees specifically identified in his affidavits (and the Court notes that there are only seventeen total employees of the Madison Township Police Department), only one appears to be a supervisor with responsibilities similar to Sergeant McDonald's. All of the other employees he identifies are patrolmen. He has not specifically alleged that patrolmen, as opposed to supervisors, are required to engage in pre-shift preparation in order successfully to enter into duty at the beginning of their shift. Further, given the absence of any specific policy requiring sergeants in the Police Department to put in overtime at the beginning of their shift, the Court is unable to conclude that the other sergeant identified in the affidavits is similarly-situated to Sergeant McDonald. That is especially so because although Sergeant McDonald's affidavits address a large number of duties which must be performed by both sergeants and patrol officers, he never explicitly states that it is impossible for him or the other Sergeant to perform these duties if they simply begin work at the commencement of their regular shift. Finally, there may be unique defenses available to the Township in this case because of its specific directive to Sergeant McDonald not to work overtime hours.
Here, it would not be significantly more efficient for the Court to adjudicate this FLSA action as a collective action if the only other potentially similarly-situated employee, Sergeant Skinner, were to intervene. Further, there would appear to be nothing to prevent Sergeant McDonald from inviting Sergeant Skinner to participate in this litigation, so that notice would not be necessary in order to effectuate the purposes of the FLSA. Under all of these circumstances, the Court concludes that the required showing that there are other similarly-situated employees and that giving notice to them would be efficient and effectuate the purposes of the FLSA has not been made. Consequently, the motion for such notice will be denied.
IV.
Based upon the foregoing, the motion of plaintiff, Gary McDonald, for an order to post notice to employees of defendant, Madison Township Board of Township Trustees (#6) is denied.
Any party may, within ten (10) days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed.R.Civ.P.; Eastern Division Order No. 91-3, pt. I., F., 5. The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due ten days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect, notwithstanding the filing of any objections, unless stayed by the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.4.