Summary
finding that a motion to certify which was pending for nine months did not demonstrate extraordinary circumstances
Summary of this case from Aiyekusibe v. Hertz Corp.Opinion
Case No. 2:09-cv-843-FtM-29SPC.
March 10, 2011
OPINION AND ORDER
This matter comes before the Court on plaintiffs' Motion to Authorize Notice to Potential Class Members (Doc. #26) and Notice of Filing Preliminary Evidence (Doc. #27). Defendant filed a Memorandum in Opposition (Doc. #39), and plaintiffs filed a Reply (Doc. #51). Subsequently, plaintiffs filed a Notice of Supplemental Authorit/Evidence (Doc. #72), and then a Second, Third, and Fourth Notice of Supplemental Authority/Evidence (Docs. ## 81, 124, 125) and defendant filed a Notice of Supplemental Authority in Support (Doc. #86). Also before the Court is Plaintiffs' Motion to Toll Statute of Limitations (Doc. #82), to which defendant filed a Response (Doc. #96).
I.
On December 31, 2009, plaintiff Wayne Fiore (Fiore) filed a Complaint (Doc. #1) against his former employer, defendant Goodyear Tire Rubber Company (Goodyear), on his own behalf and on behalf of other similarly situated individuals for overtime compensation relief under the Fair Labor Standards Act (FLSA). In the Complaint, Fiore alleges that he was employed in the Charlotte County, Florida Goodyear store between June 2007 and August 2009; that Fiore performed non-exempt work in a position entitled "Service Manager;" that Fiore was paid on a salaried basis; that Fiore was mis-classified as exempt from the overtime protections of the FLSA; and that Fiore worked more than forty hours in a given week but was not paid time and one-half for the hours in excess of forty. The Complaint describes the additional persons who may become plaintiffs as other current and former "Service Managers" who worked in excess of 40 hours in a given workweek, on or after January 2007 for Goodyear, in any state across the United States, but did not receive time-and-one-half of their regular rate of pay for all hours in excess of forty hours per week. Fiore now seeks conditional certification of a class as a collective action, an order permitting notice to putative class members of their right to opt-in, and tolling the statute of limitations as of June 24, 2010.
II.
An action to recover unpaid overtime compensation under the Fair Labor Standards Act may be maintained "by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. 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." 29 U.S.C. § 216(b). The purpose of such a collective action is "to avoid multiple lawsuits where numerous employees have allegedly been harmed by a claimed violation or violations of the FLSA by a particular employer." Prickett v. Dekalb County, 349 F.3d 1294, 1297 (11th Cir. 2003).The Eleventh Circuit has sanctioned a two-tiered procedure for certifying such collective actions:
The first determination is made at the so-called "notice stage." At the notice stage, the district court makes a decision — usually based only on the pleadings and any affidavits which have been submitted — whether notice of the action should be given to potential class members.
Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in "conditional certification" of a representative class. If the district court "conditionally certifies" the class, putative class members are given notice and the opportunity to "opt-in." The action proceeds as a representative action throughout discovery.
The second determination is typically precipitated by a motion for "decertification" by the defendant usually filed after discovery is largely complete and the matter is ready for trial. . . .Cameron-Grant v. Maxim Healthcare Servs., Inc., 347 F.3d 1240, 1243 (11th Cir. 2003) (quoting Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1218 (11th Cir. 2001)). At the notice stage, the Court applies the two-prong test set forth in Dybach v. Fla. Dep't of Corr., 942 F.2d 1562, 1567-68 (11th Cir. 1991), satisfying itself that there are other employees who desire to opt in and who are similarly situated with respect to job requirements and pay provisions. The named plaintiff must show a "reasonable basis" for his claim that there are other similarly situated employees. Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1260 (11th Cir. 2008) (citations omitted). To demonstrate other "similarly situated" employees requires plaintiff to "show only that their positions are similar, not identical, to the positions held by the putative class members."Hipp, 252 F.3d at 1217 (quotations and citations omitted). Factors to consider include whether the plaintiffs all held the same job titles, and whether the plaintiffs worked in different geographical locations. Hipp, at 1219. At the first stage, the Court applies a "fairly lenient standard" Anderson v. Cagle's Inc., 488 F.3d 945, 953 (11th Cir. 2007), although there must be more than counsel's unsupported assertions, Morgan, 551 F.3d at 1261.
Plaintiff relies on the deposition transcript of Alan Joiner, corporate representative for Goodyear, Goodyear's Retail Service Manager Incentive Plan (Doc. #27-3), Goodyear's Retail Service Manager Compensation Plan (Doc. 27-4), Goodyear's Service Manager Seminar Goal Objectives (Doc. #27-5), Service Manager Training (Doc. #27-6), Declarations of two plaintiffs (Docs. #27-8, #27-9), and the deposition of Emily Baranek, head of human resources for Goodyear's retail stores division (Doc. #81). In opposition, defendant submitted the deposition transcripts for opt-in plaintiff Elkins (Doc. #36) and plaintiff Fiore (Doc. #37), and the Affidavit of Alan Joiner (Doc. #39-1). Defendant argues that plaintiffs are not similarly situated because actual responsibilities and duties vary from store to store. Defendant further argues that Fiore's deposition contradicts his declaration, which lacks credibility and is not based on personal knowledge, and the other declarations are by employees that were terminated for fraud (Elkins) or resigned before they could be terminated for sexual harassment (Boggs). Additionally, defendant argues that Goodyear stores vary by sales volume and store size, and different hours of operation, and the service managers vary in responsibility levels, duties, and working conditions. Both sides accuse the other of selective presentation of the evidence to support their respective positions.
The Court concludes that Fiore has shown a "reasonable basis" for his claim that there are other similarly situated employees who wish to opt-in. Alan Joiner testified that the basic responsibilities and duties for Service Managers are consistent throughout the 663 stores, although retail locations do not all have the same hours of operation. (Doc. #27-1, Joiner Dep., 51:20-21, 24; 53:3-5, May 7, 2010.) Emily M. Baranek testified that the duties of the service manager are essentially the same regardless of the store, with one exception. (Doc. #81-1, Baranek Dep. 52:9-11; 52:25-53:1, Oct. 14, 2010.) The Goodyear written job description for a "Service Manager" includes functions seemingly inconsistent with an argument that the Service Manager is an exempt management employee, e.g., "Follow processes established by management", "clean and maintain equipment and truck." (Doc. #27-7, p. 2.) Wayne Fiore testified he spent the vast majority of his time performing customer service tasks, and was primarily responsible for taking customer orders, preparing quotes for customers, making sales, communicating with customers on the phone, and cashing out customers. There is obviously a cohort of "Service Managers" who wish to opt-in, since while the motion has been pending 24 additional individuals filed Consents to join as opt-in plaintiffs. (Docs. ## 29, 30, 35, 40, 43, 46, 49, 52, 53, 54, 58, 60, 63, 74, 108, 113, 114, 115, 116, 117, 118, 119, 120, 121.) Even if the Court discredits the declarations submitted by plaintiff, the testimony of Joiner and Baranek and the documentation sufficiently establish a reasonable basis to believe that service managers are similarly situated for purposes of issuing notice. Given the varying locations of the opt-in plaintiffs to date, the Court finds that nationwide certification is appropriate for notice purposes. The motion will be granted.
III.
Plaintiff also seeks to toll the statute of limitations. Under Title 29, United States Code, Section 255, any cause of action for unpaid overtime compensation under the FLSA,
(a) . . . may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued. . . .29 U.S.C. § 255. Under Title 29, United States Code, Section 256, an action brought under the FLSA is:
commenced on the date when the complaint is filed; except that in the case of a collective or class action . . . it shall be considered to be commenced in the case of any individual claimant —
(a) on the date when the complaint is filed, if 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 in which the action is brought; or
(b) if such written consent was not so filed or if his name did not so appear — on the subsequent date on which such written consent is filed in the court in which the action was commenced.29 U.S.C. § 256. "Congress expressed the concern that an opt-in plaintiff should not be able to escape the statute of limitations bearing on his cause of action by claiming that the limitations period was tolled by the filing of the original complaint."Grayson v. K-Mart Corp., 79 F.3d 1086, 1106 (11th Cir. 1996) (citing 93 Cong. Rec. 2,182 (1947)). Assuming equitable tolling can be applied, Love v. Phillips Oil, Inc., 3:08-cv-92-MCR-MD, 2008 WL 5157677, *2 (N.D. Fla. Dec. 9, 2008) ("The Eleventh Circuit has yet to address the specific question at issue in this case of whether the FLSA's statute of limitations may be equitably tolled for claims of potential opt-in plaintiffs based on a delay in providing notice."); In re Tyson Foods, Inc., 4:07-MD-1854, 2008 WL 4613654, *3 (M.D. Ga. Oct. 15, 2008) (same), plaintiff has failed to demonstrate that extraordinary circumstances warrant a tolling of the statute of limitations. Therefore, this request will be denied.
Accordingly, it is now
ORDERED:
1. Plaintiffs' Motion to Authorize Notice to Potential Class Members (Doc. #26) is GRANTED and a collective action is conditionally certified as follows:
All current and former Service Managers who have worked in excess of forty (40) hours during one or more workweeks on or after January 2008 for Goodyear Tire Rubber Company in any State across the United States but did not receive time and one-half their regular rate of pay for all of the hours they worked over forty (40) hours in one or more workweeks.
2. On or before April 8, 2011, defendant shall deliver to plaintiffs' counsel a list in the form of an Excel spreadsheet on CD-ROM (or comparable media) containing the full names, and addresses of the putative class members. Upon delivery of this list, Defendant shall promptly file a notice of compliance with this part of the Court's Opinion and Order.
3. After Plaintiffs' counsel receives such information from Defendant, Plaintiffs' counsel is authorized to give notice to the individuals in the conditionally certified class and shall do so within a reasonable time, but no later than May 6, 2011. The form of "Notice of Right to Join" and the associated form of "Consent to Join" for individuals in the plaintiff class shall be substantially in the forms attached as Exhibit "A" and Exhibit "B", respectively, to this Opinion and Order, shall be mailed via first class U.S. Mail at the sole cost and expense of Plaintiffs to all individuals disclosed by Defendant; shall be dated with the date of mailing; and shall allow each individual up to ninety (90) days (the "Opt-In Period") from the date of mailing in which to return a "Consent to Join" form to Plaintiffs' counsel. Upon mailing the "Notice of Right to Join," Plaintiffs' counsel shall promptly file a notice of compliance with this part of the Court's Opinion and Order. Defendant shall also post a form of the Notice, substantially in the form set forth in Exhibit "A", in a conspicuous place at each retail store where current service managers employees can see and review it for the duration of the Opt-In Period.
4. During the allowed period for response to this initial mailing, should the initial "Notice of Right to Join" mailed to any individual be returned as un-deliverable, the parties shall promptly cooperate and exchange such additional information in their custody or control, or in the custody or control of their agents, as may reasonably be available to identify a better address for each such individual, including but not limited to social security numbers, to assist in the search for better addresses. To the extent that it is feasible, but in no event later than the end of the allowed period for response to the initial mailing, Plaintiffs' counsel shall, at the sole cost and expense of Plaintiffs, re-mail one time the "Notice of Right to Join" to each such individual. For each re-mailed "Notice of Right to Join," it shall be in the form set forth above; shall be re-dated with the date of re-mailing, and shall give the individual up to the same deadline allowed for response to the initial mailing to return a "Consent to Join" and no additional time.
5. Each "Consent to Join" returned to Plaintiffs' counsel shall be deemed timely if post-marked, or delivered to a commercial carrier who provides a receipt, within the allowed period.
6. Individuals who timely opt into this collective action pursuant to this Court supervised notice procedure shall be deemed joined as opt-in plaintiffs for all purposes under the Federal Rules of Civil Procedure and under the orders of this Court through trial and appeal, if any, subject to any motion for decertification or representative discovery, and may be represented at any settlement, mediation or trial by the named Plaintiffs(s) at the time, pending further orders of the Court.
7. Plaintiffs' Motion to Toll Statute of Limitations (Doc. #82) is DENIED.
8. Defendant's Unopposed Motion for Enlargement of Time to Respond to Plaintiffs' Motion to Toll Statute of Limitations (Doc. #88) is DENIED as moot.
9. In light of the deadlines above, the parties shall submit a Second Amended Case Management Report within FOURTEEN (14) DAYS of this Opinion and Order suggesting new deadlines.
DONE AND ORDERED at Fort Myers, Florida, this 10th day of March, 2011.
NOTICE OF RIGHT TO JOIN LAWSUIT FOR UNPAID OVERTIME
TO: ALL CURRENT AND FORMER SERVICE MANAGERS WHO WORKED FOR GOODYEAR AT ANY RETAIL LOCATIONS IN THE UNITED STATES RE: ACTION AGAINST GOODYEAR FOR ALLEGED FAILURE TO PAY OVERTIME COMPENSATION TO SERVICE MANAGERS DATE: dateI. INTRODUCTION
This notice is to inform you about a collective action lawsuit in which you may make a claim for damages, to advise you of how your rights may be affected by this suit, and to inform you how to make a claim, if you so desire.II. DESCRIPTION OF LAWSUIT
A lawsuit has been filed in the United States District Court for the Middle District of Florida by Wayne Fiore ("Plaintiff") against Goodyear Tire Rubber Company ("Goodyear"). The case number of that lawsuit is 2:09-CV-843-FtM-29SPC. Additional opt-in Plaintiffs have joined the case since it was filed making the same allegations.
Plaintiffs allege that Goodyear violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., by failing to pay them time and a half for all overtime hours worked as a service manager (that is, hours worked over 40) in any workweek.
Goodyear denies Plaintiffs' allegations, and Goodyear contends, among other defenses, that Plaintiffs were exempt from the Fair Labor Standards Act.
III. YOUR RIGHT TO JOIN THE LAWSUIT
If you are or have been employed by Goodyear in the position of service manager at any Goodyear retail store in the United States at any time in the past three years, and if you worked in excess of forty (40) hours in any workweek, you may join this lawsuit.
IV. LEGAL EFFECT OF JOINING THIS LAWSUIT
If you decide to join this lawsuit, you will be bound by the judgment of the Court, whether the decision is favorable or unfavorable to you, or any settlement of this action that may later be approved by the Court as fair and reasonable. While the suit is proceeding, you may be required to provide information, appear for a deposition, and/or testify in court.
V. LEGAL EFFECT OF NOT JOINING THIS LAWSUIT
If you decide not to join this lawsuit, you will not be bound by the outcome of the lawsuit and will retain any rights you may have under the Fair Labor Standards Act. You will not be eligible to recover any back overtime wages or other relief from the case if Plaintiff prevails.
VI. LEGAL REPRESENTATION IF YOU JOIN THIS LAWSUIT
The attorney for Plaintiffs and the proposed opt-in class is the Shavitz Law Group 1515 S. Federal Hwy, Suite 404, Boca Raton, Florida 33432, gshavitz@HelpingWorkers.com.
VII. HOW TO JOIN THE LAWSUIT
If you wish to join this lawsuit, you must complete, sign and mail the enclosed "Consent to Join" to the Shavitz Law Group, P.A., address. Your signed consent form must be returned to the Shavitz Law Group, no later than day, date, 2010 to be eligible to participate in this case. An envelope has been provided for your return of this form should you elect to do so.
Even if you timely file a "Consent to Join" form, your right to participate in this lawsuit will depend on whether you and the Plaintiffs are actually "similarly situated" in accordance with federal law, and the statute of limitations established by law.
VIII. NO OPINION EXPRESSED AS TO MERITS OF LAWSUIT
This notice is for the sole purpose of providing service managers with information concerning their right to join this lawsuit. Although this Notice and its contents have been authorized by the Court, the Court takes no position regarding the merits of Plaintiffs' claims or Goodyear's defenses.
IX. NO RETALIATION OR DISCRIMINATION PERMITTED
The Fair Labor Standards Act prohibits employers from discriminating or retaliating against any person who files a lawsuit or complaint for overtime compensation, testifies in a lawsuit under the Fair Labor Standards Act, or otherwise participate in a proceeding to recover overtime compensation under the Fair Labor Standards Act.TO JOIN THIS CASE AND SUBMIT A CLAIM YOU MUST RETURN THE ATTACHED CONSENT FORM, POST-MARKED NO LATER THAN: day, date, 2010 TO:
SHAVITZ LAW GROUP, P.A.
address
Telephone: 561-447-8888
Facsimile: 561-447-8831
Website: www.HelpingWorkers.com
E-mail: gshavitz@HelpingWorkers.com
CONSENT TO JOIN UNPAID OVERTIME LAWSUIT
1. I consent to become a party plaintiff and make a claim for unpaid overtime pay related to my employment as a service manager with GOODYEAR TIRE RUBBER COMPANY ("Goodyear") in the above-styled lawsuit.2. I designate the Shavitz Law Group, P.A. to represent me as my attorney in bringing my claim, and I appoint the lead named Plaintiff (as substituted or amended) to serve as my agent and representative, authorized to make decisions and appear on my behalf concerning the litigation, trial and settlement, and I agree to be bound by such decisions accordingly.
3. I agree to be bound by any adjudication of this action by the court, whether it is favorable or unfavorable.
___________________ ________________________________________________ Name Address (with apartment number, if applicable)* ___________________ ______________________ ______ ____________ Signature City State Zip code ___________________ _______________________ Home Phone* Cell Phone* ________________________________________________ E-mail* * This contact information is for your attorneys. It will be covered over when filed in the court file.