Professional Documents
Culture Documents
ROBERT J. WILEY
Texas Bar No. 24013750
Board Certified in Labor & Employment
Law, Texas Board of Legal Specialization
GREGORY PLACZEK
Texas Bar No. 24070424
JUSTIN G. MANCHESTER
Texas Bar No. 24070207
Table of Contents...................................................................................................... i
I. Summary........................................................................................................ 2
B. The Violation....................................................................................... 3
A. The Parties.......................................................................................... 5
C. The Plaintiffs allege that Plano violated the FLSA with respect to
lunchtime hours in a nearly identical way for all Plaintiffs and
putative class members....................................................................... 7
D. The proposed notice will ensure only those similarly situated join.. 24
VII. Conclusion...................................................................................................... 24
CASES
Bankston v. Illinois,
60 F.3d 1249 (7th Cir. 1995)................................................................... 22
Moreau v. Klevenhagen,
956 F.2d 516 (5th Cir. 1992)................................................................... 20
29 U.S.C. § 255(a).................................................................................... 22
29 C.F.R. § 541.602.................................................................................. 2
29 C.F.R. § 521.100.................................................................................. 7
FED.R.CIV.P. 23....................................................................................... 11
216(b) of the Fair Labor Standards Act and to approve notice of the action so that
workers with similar claims have the opportunity to “opt in.” The class consists of
workers that had lunchtime improperly deducted from their compensable hours.
afterhours without pay. The proposed notice describes the action and allows
The Court should grant this motion if the Court finds that (1) Plaintiffs
provide evidence that tends to show the Plaintiffs and the putative class are
“similarly situated” and (2) the proposed notice is fair and informative.
Plaintiffs and the putative class are (1) current and former crewmembers and
supervisors, (2) employed by the Public Works Department of the City of Plano (3)
within the three year statutory period, (4) who were paid by the hour, and (5) were
ten employees have filed consent forms with this Court seeking to join the action.
The Plaintiffs contend that even more similarly situated employees exist who would
The Court should note that Plaintiffs have narrowly defined the class and
have not overreached. The first three factors limit the class to a specific department
with a single municipality. The fourth factor ensures that only individuals entitled
to overtime are included in the action.1 The fifth factor goes to the heart of the
perform work. Importantly, employees who meet all five factors suffered violations
arising under a uniform practice that affects these workers in the same way. By
requiring participants to meet all five factors, the class is narrowly tailored.
1
Employees paid on a salary basis, particularly supervisors, may be exempt from the overtime requirements of the
FLSA. See, e.g. 29 C.F.R. § 541.602. This factor ensures that only hourly workers are allowed to join.
In a nutshell, the FLSA provides that hourly workers must be paid overtime
pay at one and one-half times their regular hourly rate when they work more than
forty hours in a workweek. In this case, Plaintiffs allege that Plano violated the
FLSA by failing to count all hours worked. Such violations occurred in two
principle ways. First, Plano automatically deducted Plaintiffs’ and the putative
class’ work time by thirty minutes a day for lunch. However, lunchtime was rarely,
if ever, uninterrupted. Because workers were not completely relieved of work over
lunchtime, this time should not have been deducted. This claim concerns all class
members. Second, a subclass of Plaintiffs and the putative class were sometimes
assigned to work afterhours, under the misnomer of “on call” time. Rather than
merely being available for work if needed, Plaintiffs and putative class members
were required to actively monitor the radio for relevant transmissions that would
II.
PROCEDURAL HISTORY
3. On November 19, 2010, the Parties filed their Rule 26(f) report.
8. The final pretrial conference and trial scheduling are set for November
7, 2011.
III.
EVIDENCE SUBMITTED
IV.
STATEMENT OF FACTS
A. The Parties
Plaintiffs seek to certify a class that meets all of the following five factors: (1)
current and former crewmembers2 and supervisors, (2) employed by the Public
Works Department of the City of Plano (3) within the three year statutory period,
(4) who were paid by the hour, and (5) were issued a radio and/or a cellular phone
by Plano.
The six Named Plaintiffs, the ten employees filing consents to join this
action, and the putative class members are current and former employees of the
City of Plano in the public works department. (Horton Decl. ¶ 5, Spurgin Decl. ¶ 5,
Decl. ¶ 5, Coughlin Decl. ¶ 5, Turner Sr. Decl. ¶ 5, Prunty Decl. ¶ 5, Robbins Decl. ¶
5, Miles Decl. ¶ 5, Turner Jr. Decl. ¶ 4.) The six Named Plaintiffs, the ten
employees filing consents to join this action, and the putative class members were
paid by the hour. (Horton Decl. ¶ 7, Spurgin Decl. ¶ 8, Ratcliff Decl. ¶ 7, Bigham
Turner Sr. Decl. ¶ 7, Prunty Decl. ¶ 7, Robbins Decl. ¶ 7, Miles Decl. ¶ 7, Turner Jr.
action, and the putative class members were required to monitor a radio and/or took
calls on a cellular phone during lunch. (Horton Decl. ¶ 9, Spurgin Decl. ¶ 10,
Ratcliff Decl. ¶¶ 9-10, Bigham Decl. ¶¶ 9-10, Pettit Decl. ¶¶ 9-10, Goode Decl. ¶ 9,
Toberman Decl. ¶¶ 9-10, Coughlin Decl. ¶ 9, Turner Sr. Decl. ¶¶ 9-10, Prunty Decl.
¶¶ 9-10, Robbins Decl. ¶¶ 9-10, Miles Decl. ¶ 9, Turner Jr. Decl. ¶¶ 9-10.)
additional factor: (6) was required to monitor a radio after hours. The subclass
consists of five Named Plaintiffs Horton, Bigham, Ratcliff, Prunty, and Spurgin
(Horton Decl. ¶ 12, Spurgin Decl. ¶ 13, Ratcliff Decl. ¶ 13, Bigham Decl. ¶ 13), three
opt-in members Coughlin, Toberman, and Turner, Sr. (Toberman Decl. ¶ 13,
Coughlin Decl. ¶ 12, Turner Sr. Decl. ¶ 13), and putative class members who also
B. The Plaintiffs and the putative class performed similar job duties.
similar work. (Horton Decl. ¶ 6, Spurgin Decl. ¶ 7, Ratcliff Decl. ¶ 6, Bigham Decl.
Turner Sr. Decl. ¶ 6, Prunty Decl. ¶ 6, Robbins Decl. ¶ 6, Miles Decl. ¶ 6, Turner Jr.
Decl. ¶ 6.) All of these employees were involved in maintaining parts of the
Coughlin Decl. ¶ 6, Turner Sr. Decl. ¶ 6, Prunty Decl. ¶ 6, Robbins Decl. ¶ 6, Miles
Decl. ¶ 6, Turner Jr. Decl. ¶ 6.) Regardless of whether they were crewmembers or
Spurgin Decl. ¶ 8, Ratcliff Decl. ¶ 7, Bigham Decl. ¶ 7, Pettit Decl. ¶ 7, Goode Decl.
Robbins Decl. ¶ 7, Miles Decl. ¶ 7, Turner Jr. Decl. ¶ 7.) Plano has a public works
office, located on Plano Parkway. (Upchurch Dep. 17:19-21.) Generally, all public
works supervisors and crewmembers clock in and out at this facility. (Upchurch
Dep. 18:5-9.) Plaintiffs and the putative class worked full forty-hour work weeks,
meaning the additional time claimed in this suit would be overtime hours. (Horton
Decl. ¶ 21, Spurgin Decl. ¶ 18, Ratcliff Decl. ¶ 22, Bigham Decl. ¶ 18, Goode Decl. ¶
15, Toberman Decl. ¶ 18, Coughlin Decl. ¶ 17, Turner Sr. Decl. ¶ 18, Prunty Decl. ¶
22, Robbins Decl. ¶ 16, Miles Decl. ¶ 15, Turner Jr. Decl. ¶ 16.)
C. The Plaintiffs allege that Plano violated the FLSA with respect to lunchtime
hours in a nearly identical way for all Plaintiffs and putative class members.
concerning lunchtime that applied to all Plaintiffs and the putative class. Plano
and crewmembers were not fully relieved of their job duties over lunch. Indeed,
Plano had a practice of simply deducting thirty minutes a day for lunch.
3
Because they were paid on an hourly, rather than a salary basis, supervisors are eligible for overtime pay. 29
C.F.R. § 541.100.
Plaintiffs and putative class members were required to actively monitor their
radio over lunch. (Ratcliff Decl. ¶ 9, Bigham Decl. ¶ 9, Pettit Decl. ¶ 9, Toberman
Decl. ¶ 9, Turner Sr. Decl. ¶ 9, Prunty Decl. ¶ 9, Robbins Decl. ¶ 9, Turner Jr. Decl.
¶ 9.) Plaintiffs and the putative class members were also required to keep the cell
phone available and turned on over lunch. (Horton Decl. ¶ 9, Spurgin Decl. ¶ 10,
Ratcliff Decl. ¶ 10, Bigham Decl. ¶ 10, Pettit Decl. ¶ 10, Goode Decl. ¶ 9, Toberman
Decl. ¶ 10, Coughlin Decl. ¶ 9, Turner Sr. Decl. ¶ 10, Prunty Decl. ¶ 10, Robbins
Decl. ¶ 10, Miles Decl. ¶ 9, Turner Jr. Decl. ¶ 10.) Plaintiffs and the putative class
cell phone calls. (Horton Decl. ¶ 9, Spurgin Decl. ¶ 10, Ratcliff Decl. ¶ 10, Bigham
Decl. ¶ 10, Pettit Decl. ¶ 10, Goode Decl. ¶ 9, Toberman Decl. ¶ 10, Coughlin Decl. ¶
9, Turner Sr. Decl. ¶ 10, Prunty Decl. ¶ 10, Robbins Decl. ¶ 10, Miles Decl. ¶ 9,
radio or cell phone, and that most had radios. (Upchurch Dep. 59:12-19.) Plano
agrees that the radios broadcast messages “frequently.” (Upchurch Dep. 62:8-11.)
Plano agrees that monitoring the radio is a job duty. (Upchurch 68:16-18.) This
included listening to hear whether the radio is squawking with routine traffic.
(Upchurch 68:19-22.)
Instead of having supervisors and crewmembers clock out and in for lunch
breaks, Plano simply deducted an automatic thirty minutes from their daily shifts.
(Horton Decl. ¶ 10, Spurgin Decl. ¶ 11, Ratcliff Decl. ¶ 11, Bigham Decl. ¶ 11, Pettit
Decl. ¶ 11, Goode Decl. ¶ 10, Toberman Decl. ¶ 11, Coughlin Decl. ¶ 10, Turner Sr.
Decl. ¶ 11, Prunty Decl. ¶ 11, Robbins Decl. ¶ 11, Miles Decl. ¶ 10, Turner Jr. Decl.
supervisors are to assume that the employee only worked eight hours in a day.
D. A subclass of Plaintiffs and putative class members allege that Plano violated
the FLSA with respect to so called “on call” time.
A number of employees within the description of the class were also required
weeks that an employee would have to work after hours as “on call” time. (Horton
Decl. ¶ 12, Spurgin Decl. ¶ 13, Ratcliff Decl. ¶ 13, Bigham Decl. ¶ 13, Toberman
Decl. ¶ 13, Coughlin Decl. ¶ 12, Turner, Sr. Decl. ¶ 13, Prunty Decl. ¶ 13.) The
employee would then have to monitor the radio after hours. (Horton Decl. ¶ 12,
Spurgin Decl. ¶ 13, Ratcliff Decl. ¶ 13, Bigham Decl. ¶ 13, Toberman Decl. ¶ 13,
Coughlin Decl. ¶ 12, Turner, Sr. Decl. ¶ 13, Prunty Decl. ¶ 13.) This meant that the
radio would have to be on and the employee would have to listen to all traffic to
Decl. ¶¶ 15-16, Coughlin Decl. ¶¶ 14-15, Turner, Sr. Decl. ¶¶ 15-16, Prunty Decl. ¶¶
15-16.) These Plaintiffs and members of the putative class were not paid for this
time spent actively monitoring the radio. (Horton Decl. ¶ 16, Spurgin Decl. ¶ 17,
Ratcliff Decl. ¶ 17, Bigham Decl. ¶ 17, Toberman Decl. ¶ 17, Coughlin Decl. ¶ 16,
E. Potential Plaintiffs are unaware of their rights and would join this action if
given notice of the suit and an opportunity to join.
Plaintiffs and potential opt in Plaintiffs were unaware that they might be
entitled to overtime pay until consulting with an attorney. (Horton Decl. ¶ 22,
Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit Decl. ¶ 12, Goode
Decl. ¶ 16, Toberman Decl. ¶ 23, Coughlin Decl. ¶ 22, Turner Sr. Decl. ¶ 25, Prunty
Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18, Turner Jr. Decl. ¶ 19.) The
Plaintiffs and the potential opt in Plaintiffs state that, based on their observations
and experiences, other employees do not know that their right to overtime pay is
being violated. (Horton Decl. ¶ 22, Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham
Decl. ¶ 23, Pettit Decl. ¶ 12, Goode Decl. ¶ 16, Toberman Decl. ¶ 23, Coughlin Decl.
¶ 22, Turner Sr. Decl. ¶ 25, Prunty Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18,
Turner Jr. Decl. ¶ 19.) The Plaintiffs and the potential opt in Plaintiffs also state
that, based on their observations and experiences, these employees would join the
Decl. ¶ 22, Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit Decl. ¶
25, Prunty Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18, Turner Jr. Decl. ¶ 19.)
V.
THE COURT SHOULD GRANT CONDITIONAL CLASS CERTIFICATION
collective action pursuant to the FLSA, 29 U.S.C. § 216(b), on behalf of all (1)
current and former crewmembers and supervisors, (2) employed by the Public
Works Department of the City of Plano (3) within the three year statutory period,
(4) who were paid by the hour, and (5) were issued a radio and/or a cellular phone
by Plano.4
members to inform them of the action and give them an opportunity to participate
by opting in. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989).
“Collective actions under the FLSA are generally favored because such actions
reduce litigation costs for the individual plaintiffs and create judicial efficiency by
resolving in one proceeding of ‘common issues of law and fact arising from the same
4 Section 216(b) collective actions differ from Rule 23 of the Federal Rules of Civil Procedure class
actions in that, under section 216(b), a person who wishes to join the collective action must
affirmatively “opt-in” by filing written consent with the court. Under Rule 23, however, a person
must affirmatively “opt-out” if he or she wishes to abstain from the lawsuit. 29 U.S.C. § 216(b); see
also Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001); Garner v. G.D. Searle
Pharm., 802 F.Supp. 418, 421 (M.D. Ala. 1991).
collective action under section 216(b): “A collective action allows . . . Plaintiffs the
issues of law and fact arising from the same alleged . . . activity.” Id., at 170.
Ultimately the purpose of judicial notice is to give employees accurate and timely
notice concerning the pendency of the collective action so they can make an
A. This Court should follow the two step approach (the Lusardi approach) to
FLSA certification.
F.3d 1207, 1212 (5th Cir. 1995) (citing Lusardi v. Xerox Corp., 118 F.R.D. 351
(D.N.J. 1987)). As this Court has previously noted, “The Lusardi two-step approach
is the more generally accepted method of analysis among federal courts and is the
one the Court will apply in this case.” Larsen v. Crème de la Crème, Inc., Civ. No.
4:09-cv-613, 2011 WL 335171, *2 (E.D. Tex. Jan. 26, 2011) (Bush, M.J.) (citation
string omitted); see also Ryan, 497 F.Supp.2d at 824 (summarizing cases in the
In Larsen, this Court summarized the Lusardi two stage approach as follows:
In the notice stage, the Court must determine whether the plaintiff has
provided sufficient evidence of similarly-situated plaintiffs to warrant
court-facilitated notice of the proposed class. Valcho v. Dallas Cnty.
Hosp. Dist., 574 F.Supp.2d 618, 621 (N.D.Tex. 2008). If the plaintiff
has, the court “conditionally certifies” the class and facilitates notice to
the potential plaintiffs. Id. This standard is “fairly lenient” and
usually results in conditional certification. Mooney, 54 F.3d at 1213.
The plaintiff bears the burden of presenting preliminary facts to show
that there is a similarly situated group of potential plaintiffs. See
Hickson [v. U.S. Postal Serv.], 2010 WL 3835887 at 6 [(E.D.Tex. July
22, 2010)].
Then, after discovery has taken place and after potential class
members have the opportunity to opt-in, the court reexamines the
class, typically in response to a motion for decertification. Valcho, 574
F.Supp.2d at 621. If the court finds that the class is no longer made up
of similarly-situated persons, the class is decertified. Id.
Larsen, at *2.
The Fifth Circuit has stated unequivocally that the Lusardi “standard is
1213. This Court should keep in mind this statement by the Fifth Circuit and be
satisfy. Indeed, it makes sense to presume that a FLSA class should be certified
because (1) only those employees interested in joining “opt in” (unlike a Rule 23
class action where putative class members “opt out”), (2) questions about the merits
of certification are reserved for a later stage (the second step), and (3) the statute of
favoring quick action. Further, because requesting an overly broad class favors
certainly true in the instant case where the class is limited to specific workers in
B. The facts proffered by Plaintiffs satisfy the lenient Lusardi test for conditional
class certification.
The ultimate test for whether to conditionally certify a class is as follows: are
there “substantial allegations that the putative class members were together the
Sperling v. Hoffmann-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)). If the
Court finds reason to believe that Plaintiffs and the putative class were subjected to
a common practice that shorted their compensable hours, the action should be
certified. “A court may deny a plaintiff's right to proceed collectively only if the
action arises from circumstances purely personal to the plaintiff, and not from any
(E.D.La. May 24, 2004) (quoting Whitworth v. Chiles Offshore Corp., Civ. A. No. 92-
In the instant case, the City of Plano had a policy of not having employees
clock in and out for lunch. Rather, the City of Plano would simply deduct thirty
minutes for lunch each day. The Plaintiffs and potential opt-in Plaintiffs have
provided declarations showing that these purported lunch breaks did not meet the
In Larsen, this Court noted that Lusardi’s lenient standard stops short of
requiring automatic certification. Larsen, at *2. In its Larsen order, this Court
plaintiffs and putative class members are truly similarly situated. Importantly, to
the extent that various district courts have adopted factors or subtests, they are
attempts to get at this cardinal issue: whether there are substantial allegations
that the putative class members were together the victims of a single decision,
policy, or plan. Mooney, 54 F.3d at 1214 n. 8. In the Larsen case, this Court
reviewed other district court cases and identified the following criteria that
widespread policy;
Plaintiffs and the potential opt in Plaintiffs have provided declarations under
oath in support of their claims and this motion. These declarations identify nearly
identical treatment concerning their lunch breaks. (Horton Decl. ¶¶ 8-10, Spurgin
Decl. ¶¶ 9-11, Ratcliff Decl. ¶¶ 8-11, Bigham Decl. ¶¶ 8-11, Pettit Decl. ¶¶ 8-11,
Goode Decl. ¶¶ 8-10, Toberman Decl. ¶¶ 8-11, Coughlin Decl. ¶¶ 8-10, Turner Sr.
Decl. ¶¶ 8-11, Prunty Decl. ¶¶ 8-11, Robbins Decl. ¶¶ 8-11, Miles Decl. ¶¶ 8-10,
Turner Jr. Decl. ¶¶ 8-11.) These declarations establish that Plaintiffs and the
putative class did not check out and check in for lunch times. (Horton Decl. ¶ 10,
Spurgin Decl. ¶ 11, Ratcliff Decl. ¶ 11, Bigham Decl. ¶ 11, Pettit Decl. ¶ 11, Goode
Decl. ¶ 10, Toberman Decl. ¶ 11, Coughlin Decl. ¶ 10, Turner Sr. Decl. ¶ 11, Prunty
Decl. ¶ 11, Robbins Decl. ¶ 11, Miles Decl. ¶ 10, Turner Jr. Decl. ¶ 11.) Rather,
Plano automatically deducted this lunch time. (Horton Decl. ¶ 9, Spurgin Decl. ¶
10, Ratcliff Decl. ¶ 10, Bigham Decl. ¶ 10, Pettit Decl. ¶ 10, Goode Decl. ¶ 9,
Toberman Decl. ¶ 10, Coughlin Decl. ¶ 9, Turner Sr. Decl. ¶ 10, Prunty Decl. ¶ 10,
Robbins Decl. ¶ 10, Miles Decl. ¶ 9, Turner Jr. Decl. ¶ 10.) All of the Plaintiffs
Spurgin Decl. ¶ 10, Ratcliff Decl. ¶¶ 9-10, Bigham Decl. ¶¶ 9-10, Pettit Decl. ¶¶ 9-
10, Goode Decl. ¶ 9, Toberman Decl. ¶ 10, Coughlin Decl. ¶ 9, Turner Sr. Decl. ¶¶ 9-
10, Prunty Decl. ¶¶ 9-10, Robbins Decl. ¶¶ 9-10, Miles Decl. ¶ 9, Turner Jr. Decl. ¶¶
9-10.)
not limited conditions specific to a particular Plaintiff; rather the violation spans
the workforce of the public works division. Plaintiffs have provided declarations
from both supervisors and crewmembers showing the identical violation. (Horton
Prunty Decl. ¶ 5, Robbins Decl. ¶ 5, Miles Decl. ¶ 5, Turner Jr. Decl. ¶ 4.) Indeed,
Plaintiffs’ declarations also show that this violation occurred across the various
divisions within the public works department; including utility operations. (Horton
Toberman Decl. ¶ 5, Prunty Decl. ¶ 5), streets, (Pettit Decl. ¶ 5, Turner Sr. Decl. ¶
There is a reasonable basis to believe that others had lunch hours improperly
deducted. Indeed, Plano has identified 234 individuals who appear to meet the five
criteria listed. (Spreadsheet.) The attached list shows 234 individuals who are (1)
non-exempt from overtime, (2) have worked in the public works department, (3) and
were charged with monitoring a radio. (Id.) Although these criteria are not
Plaintiffs only seek to include employees who meet all five factors. These
factors ensure that the individuals (1) work in the same department, (2) were paid
the same way, (3) and have similar, if not identical, violations. Thus the putative
5. Plaintiffs have shown that putative class members would want to opt-
in to the lawsuit.
As a threshold matter, this suit was not brought by one employee but six.
[Pls’ Orig. Compl. – Class Act., Docket No. 1]. Ten employees have already filed
consents with this Court. [Notice of Filing of Additional Consents, Document No.
8.] Plaintiffs have provided declarations stating that they did not know of potential
overtime pay violations until consulting with an attorney. (Horton Decl. ¶ 22,
Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit Decl. ¶ 12, Goode
Decl. ¶ 16, Toberman Decl. ¶ 23, Coughlin Decl. ¶ 22, Turner Sr. Decl. ¶ 25, Prunty
Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18, Turner Jr. Decl. ¶ 19.) Plaintiffs
have provided declarations stating that other Plano employee do not know of these
potential overtime pay violations. (Horton Decl. ¶ 22, Spurgin Decl. ¶ 23, Ratcliff
Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit Decl. ¶ 12, Goode Decl. ¶ 16, Toberman Decl. ¶
23, Coughlin Decl. ¶ 22, Turner Sr. Decl. ¶ 25, Prunty Decl. ¶ 23, Robbins Decl. ¶
19, Miles Decl. ¶ 18, Turner Jr. Decl. ¶ 19.) Plaintiffs have provided declarations
(Horton Decl. ¶ 22, Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit
Decl. ¶ 12, Goode Decl. ¶ 16, Toberman Decl. ¶ 23, Coughlin Decl. ¶ 22, Turner Sr.
Decl. ¶ 25, Prunty Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18, Turner Jr. Decl.
¶ 19.)
C. The Court should certify a subclass of members that monitored radios after
hours.
judicial efficiency at trial. See, e.g., Thiebes v. Wal-Mart Stores, Inc., No. 98-802-KI,
1999 WL 1081357, at *3 (D. Or. Dec. 1, 1999) (noting that the court could “divide
the class into subgroups” in a FLSA action); Takacs v. Hahn Auto. Corp., 1999 WL
33127976, at *1-*3 (S.D. Ohio Jan. 25, 1999) (finding that, where plaintiff-
employees in a FLSA case could be divided into several job categories, they could be
91, 96 n. 1 (S.D.N.Y. 2003) (noting that if discovery revealed that the meat cutter
was not similarly situated with other employees within different sections of the
grocery store, the court may “divide the class into subgroups, if appropriate.”); Coan
v. Nightengale Home Healthcare, Inc., 2006 WL 1994772 (S.D.Ind. July 14, 2006) (4
subclasses used among 66 opt-in plaintiffs with differing job responsibilities); Rawls
v. Augustine Home Health Care, Inc., 244 F.R.D. 298 (D. Md. 2007).
In the instant case, Plaintiffs contemplate that the main class would include
all Plaintiffs and class members and concern lunch hours. The subclass would be a
worked after hours monitoring the radio. This is a separate claim in addition to the
Creating a subclass has been used in similar cases where certain members
have an additional claim. In Maynor v. Dow Chemical Co., the plaintiffs claimed
that they were not compensated for all hours worked – the same violation at issue
in this case. 671 F.Supp.2d 902 (S.D.Tex. 2009). The main class, which included all
Id. at 933. The Maynor Court went on to discuss that the Fifth Circuit has
approved various ways of trying such cases, including bifurcation. Id. at 934 (citing
Thus this Court should conditionally certify a subclass of members who also
In the event that this Court does not certify this case to conditionally proceed
on a collective basis, the Court should toll the statute of limitations for the eleven
employees who signed consents but are not named plaintiffs. Such tolling should be
from the date they “opted in” to thirty days after the order denying this motion for
(suggesting, in the event of failed certification, tolling the statute of limitations from
the date of opt-in and providing notice that the parties can proceed individually); see
also Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010)
(reviewing the district court’s earlier action that “dismissed without prejudice all
plaintiffs from the case except the [named plaintiffs], and tolled the statute of
limitations for thirty days to allow the dismissed plaintiffs to refile individually.”).
VI.
THIS COURT SHOULD APPROVE PLAINTIFFS’ PROPOSED NOTICE
The United States Supreme Court gave district courts the authority to
motion for collective action certification. See Hoffman-La Roche Inc. v. Sperling,
493 U.S. 165 (1989). The Supreme Court has held that the benefits to the judicial
system of collective actions “depend upon employees receiving accurate and timely
notice concerning the pendency of the collective action, so that they can make
under §216(b), a district court has both the duty and the broad authority to exercise
control over a class action and to enter appropriate orders governing the conduct of
counsel and the parties because of the potential for abuse of the class action
and facilitation of the notice process . . . to alleviate the potential misuse of [notice]
actions is proper in “appropriate cases.” Id., at 169-70. The Court ruled that
determining what is an “appropriate case” lies within the discretion of the district
court. Id. This case is an “appropriate case” for the Court to approve the sending of
Notice.) As required, it is “timely, accurate, and informative.” Id., 493 U.S. at 172.
It makes clear that only those who were denied overtime pay during the three year
statute5 are eligible for the case. As such, the proposed notice achieves the ultimate
5 In FLSA cases, plaintiffs collect damages within a two-year statute of limitations, but may collect
damages incurred within a third year if the jury determines that Defendants’ violation of the
overtime laws were “willful.” 29 U.S.C. § 255(a); Fowler v. Land Mgmt. Groupe, 978 F.2d 158, 163
(4th Cir. 1992); Bankston v. Illinois, 60 F.3d 1249, 1253 (7th Cir. 1995). A violation of the FLSA is
B. This Court should promptly approve the proposed notice so that similarly
situated employees can join before the statute of limitations runs on their
unpaid wages.
Prompt action is needed here because claims of the potential opt-in Plaintiffs
in this case are being extinguished or diminished due to the running of the statute
of limitations on their claims. See Redman v. U.S. West Business Resources, Inc.,
153 F.3d 691, 695 (8th Cir. 1998). Unlike Rule 23 class actions, the statute of
limitations for those who have not filed consent forms is not tolled with the
commencement of this action. See id. As a result, the statute continues to run on
each individual’s claim until they file a consent form with the Court. See id. The
consequence of this difference is self evident: every day that passes is a day of
notice will prevent the continued erosion of these claims. See Schewd v. Gen. Elec.
to pursue their claims in one forum will create the significant judicial economies
recognized in Hoffman-La Roche. Indeed, by including all the individuals who wish
to pursue their claims in one action, the judicial system will benefit by resolution of
“willful” when the “employer either knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
Plaintiffs allege in their Complaint that Defendants’ actions were “willful.”
issues of law and fact exist among all crewmembers and supervisors who were not
compensated properly for their hours worked. See Hoffman-La Roche, 493 U.S. at
170. Such collective adjudication will avoid the proliferation of individual lawsuits
that could result in disparate rulings and wasting of judicial and party resources.
Requiring Plaintiff and the opt-ins to file separate cases in multiple federal district
D. The proposed notice will ensure only those similarly situated join.
The carefully drafted Notice proposed by Plaintiff will be sent to those on the
list provided by Defendants, and specifically explains that only those crewmembers
and supervisors who were denied overtime pay or the federal minimum wage may
join. (Proposed Notice.) This will ensure that only those similarly situated will join.
VII.
CONCLUSION
At this notice stage, the evidence far exceeds the lenient standard in showing
that the proposed putative class members are “similarly situated” for purposes of
collective discovery and judicial notice. As such, Plaintiffs respectfully request that
this Court grant their motion for conditional class certification and judicial notice.
CERTIFICATE OF CONFERENCE
CERTIFICATE OF SERVICE
I certify that on April 12, 2011, I served a copy of the foregoing on opposing
counsel via first class mail and electronically.